Ashfaq Ahmad Kharal etc. vs Province of Punjab through its Secretary, Law & Parliamentary Affairs etc.

On 14.02.2022 these Writ Petitions were disposed of through the following short order:- "For the reasons to be recorded later, with a majority of four to one with Asim Hafeez, J. dissenting, these writ petitions are partially allowed in the following terms:-

1. The removal of the Advocate General Punjab and other law officers vide notifications dated 24.01.2023 is upheld.

2. The notification of even date for the appointment of new law officers to the extent of law officers who retained their offices in the political government immediately preceding the last government and headed by Muhammad Hamza Shahbaz Sharif as Chief Minister, is set-aside."

This is the detailed order of the previous short order.

ORDER

ALI BAQAR NAJAFI, J., This order shall dispose of the instant W.P. No. 5324 of 2023 titled "Ashfaq Ahmad Rharal and 21 others (Ahmed Awais, Advocate-General as petitioner No.22) Versus Province of Punjab etc, as well as W.P. No.5343 of 2023 titled "Muhammad Awais Ahsan Joyia etc. Versus Province of Punjab etc", Writ Petition No. 5055 of 2023 titled "Tipu Salman Makhdoom Versus Province of Punjab etc" and Writ Petition No. 6545 of 2023 titled "Asif Afzal Versus Province of Punjab etc." as in all same questions of law and facts are involved.

2. In all these writ petitions since notifications dated 24.01.2023 have been challenged whereby Advocate General Punjab, 32 Additional Advocate-Generals and 65 Assistant Advocate-Generals (total 97) have been removed and 46 new law officers have been appointed and look after charge was given to an Additional Advocate-General by the caretaker Chief Minister, Punjab. The impugned notification is scanned as under for ready reference:- The notifications appointing the new law officers are also scanned as under:- The notification of removal of the Advocate-General, Punjab and assigning look after charge to an Additional Advocate-General, Punjab is also scanned as under:-

3. Brief facts giving rise of the filing of these Constitutional petitions are that on 12.01.2023 on the advice of the then Chief Minister, Punjab, Mr. Pervez Elahi, to the Governor Punjab, the Punjab Assembly stood automatically dissolved on 14.01.2023 after 48 hours under Article 112 of the Constitution of Islamic Republic of Pakistan, 1973. On 22.01.2023 the Caretaker Chief Minister Syed Mohsin Raza Naqvi, was appointed by the Election Commission of Pakistan. On 24.01.2023, three impugned notifications were issued whereby the petitioners/law officers including the Advocate- General Punjab have been removed and new law officers were appointed. These Constitutional petitions for removals and new appointments have been challenged before the Single Bench of this Court who referred the matter for constitution of a larger Bench upon which Hon'ble Chief Justice on 04.02.2023 has constituted this Bench.

4. Constitutional position of a Chief Minister is that under Article 129 of the Constitution of Islamic Republic of Pakistan, 1973 the executive authority of the Province is to be exercised in the name of the Governor by the Provincial Government through a Cabinet consisting of Chief Minister and under Article 130 thereof, the Provincial Ministers are to act through the Chief Minister as its head, to aid and advise the Governor in the exercise of his executive functions. Under sub-Article 5 thereof, the Governor shall call upon an elected member to assume the office of the Chief Minister who shall take oath in the form set out in the 3rd schedule and that there was no restriction on the number of terms for the office of the Chief Minister. Under Clause 6 of the said Article, the Cabinet as a whole is collectively responsible to the Provincial Assembly and that the total strength of the Cabinet shall not exceed 50 members or 11% of the total membership; i.e. whichever is higher.

5. Factual position in the present case is that the Provincial Assembly of Punjab automatically stood dissolved on the advice by the Chief Minister made on 12.01.2023 after expiry of 48 hours on 14.01.2023 as envisaged under Article 112 of the Constitution. Under Article 224 of the Constitution, a general election of the Provincial Assembly is to be held within a period of 60 days from the date of expiry of the term of the Assembly and that on dissolution of the Assembly on completion of its terms or in case it is dissolved automatically under Article 112 of the Constitution (as in the present case) the Governor was to appoint a caretaker Cabinet but first a caretaker Chief Minister was to be appointed in consultation with the leader of the Opposition. As an agreement could not be reached, therefore, the procedure provided under 2nd proviso the Article 224-A was followed under which three nominees are to be sent each from the Opposition as well as the Government to the Chief Election Commission; out of which one is to be announced as a caretaker Chief Minister. Due to the lack of consensus, the Election Commission of Pakistan appointed Syed Mohsin Raza Naqvi as the caretaker Chief Minister who took the oath on 22.01.2023.

On 24.01.2023 the impugned notification was passed, hence these petitions.

6. Barrister Abid S. Zubairi, learned counsel for the petitioners contends that the caretaker Government so appointed was to perform functions within the scope of Section 230 of the Election Act, 2017 and that it would restrict itself to the activities that are of routine, non-controversial and urgent in nature that too in the public interest and revisable by the future Government elected after general elections in the Province and that it was not to enter into any major contracts or undertakings if it was detrimental to the public interest or was not to make promotions or major appointments or transfers of public officials, unless it is considered expedient and in the public interest after approval of the Election Commission. Learned counsel further argues that under Rule 2(e) of the Punjab Government Rules of Business, 2011, Cabinet means Cabinet of the Ministers and the Chief Minister as its head as mentioned in Article 130 of the Constitution and under Rule 13 of the rules ibid no order shall be issued without the approval of the Governor in cases mentioned in Part- A of 3rd schedule and that no order shall be issued without the approval of the Chief Minister in case involving policy decision or departure from the policy decision as mentioned in Part-A of 7th schedule. He refers to the clause 16 of the 7th schedule to argue that Additional Advocate-Generals and Assistant Advocate-Generals are to be appointed, removed in accordance with the terms and conditions of service under this provision. He refers to Clause 4 of Part-A of 3rd Schedule under which a Chief Minister is to advise the Governor for the appointment, removal and regarding the terms of service of the Advocate-General. Under Clause 1.5 of the Law Department Manual the Advocate-General is governed by the Advocate-General terms and conditions of service Rules, 1962 who is a whole time employee of the Government and shall hold office during the pleasure of the Governor and liable to be removed from the office at any time without notice. He could submit resignation to the Government through the Law and Parliamentary Affairs Department and he was not to indulge into private practice of any kind. Under Clause 1.6 duties have been assigned to Advocate-General to advise the Government for initiation of criminal proceedings by the State or execute action by the Government and is duty bound to advise on other legal matters which may have been referred to him by the Provincial Government or the Governor. He would represent the State or arrange the representation in criminal cases in High Court and Supreme Court and quasai criminal matters and the Government could direct the Advocate-General to represent in a case owing to its special importance. He is supposed to appear or arrange the appearance of law officer/state counsel in High Courts and Supreme Courts. Under clause 1.18 the Government from time to time could appoint number of Additional Advocate-General and Assistant Advocate- General and could appoint them on the basis of their qualification and experience.

7. Learned counsel for the petitioner further contends that the caretaker Chief Minister although takes the same oath as that of the Chief Minister of an elected Government yet his powers have been circumvented under Section 260 of the Election Act, 2017. Contends that removal of the law officers and appointment of new incumbents is tainted with malafide since the old law officers of the second last Government have been re-adjusted. Adds that the appointment and removal was made on the same date and that look after charge was given to an Additional Advocate-General in a strange manner. He refers to the case laws cited as Khawaja MUHAMMAD ASIF versus FEDERATION OF PAKISTAN and others (2013 SCMR 1205) RAB NAWAZ RANDHAWA, ADVOCATE and others versus Rana MUHAMMAD AKRAM, ADVOCATE and others (PLD 2014 Lahore 591) and lastly Raja MUHAMMAD ZUBAIR and others versus GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others (PLD 2022 Peshawar 100) to argue that the caretaker Chief Minister cannot appoint or remove the law officers unless there is a reason to do that. He also refers to FEDERATION OF PAKISTAN through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others versus AFTAB AHMAD KHAN SHERPAO and otehrs (PLD 1992 Supreme Court 723) to argue that office of the Advocate-General is only for the purposes of providing assistance to the Courts and at time he is not supposed to watch the interest of his own client but assist the Court in his capacity as officer of the Court, hence the principle of right to choose a representative by a client will not be applicable stricto senso. He further adds that Advocate-General is duty bound to make a statement before the Court under specific instructions and that the caretaker Chief Minister cannot make statement regarding implementation of a policy decision for the simple reason that he is there for an interim period, therefore, such a policy statement could not be expected from the Advocate-General office. He further adds that day-to-day business of temporary nature can be looked after by the law officers appointed by the Previous Government and that their removal has to be based upon public interest which is lacking in the present case.

Finally, argues that element of neutrality in the decision of the Chief Minister particularly in the appointment of law officers, is not above board.

8. Mr. Mansoor Usman Awan, ASC, learned counsel for the respondents, however, conversely submits that the principles governing the attorney- client relationship are fully attracted to the Advocate-General and the Additional & Assistant Advocate Generals as they are neither public/government servants nor contractual employees; having no master-servants relationship with the employee and the very fact that their law practice license are not suspended, is evident of the fact that their conduct is regulated by the disciplinary bodies called Bar Councils. Adds that they hold their offices only and only during the pleasure of the Governor of the Punjab. Further adds that the powers of the caretaker Chief Minister are derived from Article 224 third proviso of the Constitution of Pakistan and the powers given to him under Article 132 and 127 thereof cannot become redundant keeping in view section 230 of the Election Act, 2017 by any principle of statute interpretation. He further adds that the public interest behind the notification was to give the proof of being a neutral government with the sole purpose to work within the framework of law and the constitution. Finally, adds that the court can always provide guidelines for the appointment of the law officers, if the court is dissatisfied with such appointees.

9. Arguments heard. Files perused.

10. After hearing the learned counsel for the parties and perusing the files, we have straightway observed that in view of the lack of consensus and confrontationist approach adopted by the Government and the Opposition the Constitutional mechanism had to prevail under which not only the Punjab Assembly stood automatically dissolved but also a caretaker Chief Minister, Syed Mohsin Raza Naqvi, was appointed by the Chief Election Commissioner under Article 224 after when the consensus was not reached between the members of the Government and Opposition in its committee, therefore, the said appointment was made by the Election Commission of Pakistan with unanimity of its members. This is the background in which the petitioners have approached this Court to seek indulgence in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against their removal as law officers and the appointment of new law officers.

11. Before we can understand the powers and authority of the Caretaker Government in reality, we need to understand some of the common but basic concepts which would guide us to reach on a just decision of the present cases. We enumerate these in the following paragraphs:- A Caretaker & Caretaker Government.

12. A caretaker is a person who takes care of certain things and fulfills his responsibility so entrusted to him. Such a person holds the fort to protect and discharge his assigned duties. For further understanding, it will be expedient to refer different definitions of a caretaker. A caretaker is the one who looks after in the owner's absence^[1]. A caretaker is a person who is in charge of maintenance of building, estate, etc. superintendent and one who or that which temporarily performs the duties of an office^[2]. The word caretaker Government is a government temporarily in power until the election is held^[3]. It is a temporary Government commissioned by the Governor- General or State Governor, usually for a short period until the stable Government can be formed.

Caretaker governments are established during the time of uncertainty when it is not clear whether any party or coalition of parties is capable of forming a stable government. Caretaker governments carry on the routine business of government, but they are expected to refrain from making important policy decisions.

The purpose of caretaker Chief Minister under the Constitution of Islamic Republic of Pakistan, 1973.

13. A caretaker Chief Minister takes oath as set out in the Third Schedule of the Constitution from the Governor which is the same assigned to a regularly elected Chief Minister in order to exercises his powers as Chief Executive of the Province, therefore, under Article 224 the caretaker Chief Minister then forms his Cabinet by the order of the Governor on the advice of the Chief Minister under 3rd Proviso of Article 224. Undoubtedly, he is the Chief Executive of the Province and discharges his duties under the Constitution and the Election Act, 2017. He is supposed to be a strong Chief Executive of the Province as he is assigned an onerous duty to thoroughly implement the policy of Election Commission in the Provinces to hold fair, free and transparent elections having approval by the public-at-large.

Article 224 of the Constitution and Section 230 of the Election Act, 2017 are reproduced for ready reference: Time of Election and bye-election.

224. (1) A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.] (1A) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care-taker Cabinet: Provided that the care-taker Prime Minister shall be [appointed] by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: [Provided further that if the Prime Minister or a Chief Minister and their respective Leader of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care-taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed:] Provided [also] that the Members of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be.

(1B) Members of the care-taker Cabinets including the caretaker Prime Minister and the care-taker Chief Minister and their immediate family members shall not be eligible to contest the immediately following elections to such Assemblies.

Explanation.-- In this clause, "immediate family members" means spouse and children.]

(2) When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of ninety days after the dissolution, and the results of the election shall be declared not later than fourteen days after the conclusion of the polls.

(3) An election to fill the seats in the Senate which are to become vacant on the expiration of the term of the members of the Senate shall be held not earlier than thirty days immediately preceding the day on which the vacancies are due to occur.

(4) When, except by dissolution of the National Assembly or a Provincial Assembly, a general seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy.

(5) When a seat in the Senate has become vacant, an election to fill the seat shall be held within thirty days from the occurrence of the vacancy.

[(6) When a seat reserved for women or non-Muslims in the National Assembly or a Provincial Assembly falls vacant, on account of death, resignation or disqualification of a member, it shall be filled by the next person in order of precedence from the party list of the candidates to be submitted to the Election Commission by the political party whose member has vacated such seat.] [Provided that if at any time the party list is exhausted, the concerned political party may submit a name for any vacancy which may occur thereafter.]

230. Functions of caretaker Government.--(1) A caretaker Government shall

(a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government;

(b) assist the Commission to hold elections in accordance with law;

(c) restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and

(d) be impartial to every person and political party.

(2) The caretaker Government shall not--

(a) take major policy decisions except on urgent matters;

(b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government;

(c) enter into major contract or undertaking if it is detrimental to public interest;

(d) enter into major international negotiation with any foreign country or international agency or sign or ratify any international binding instrument except in an exceptional case;

(e) make promotions or major appointments of public officials but may make acting or short term appointments in public interest;

(f) transfer public officials unless it is considered expedient and after approval of the Commission; and

(g) attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections.

(3) The Prime Minister, Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form B and the Commission shall publish the statement of assets and liabilities in the official Gazette.

(4) In this section, caretaker Government' means the caretaker Federal Government or a caretaker Provincial Government.

14. For the purposes of our discussion the main emphasis is laid upon Section 230(2)(e) by the learned counsel for the petitioner whereby the caretaker Government is not entitled to make promotions or major appointments of public officials but may make acting or short term appointments in public interest and that the caretaker Government has to restrict itself to the activities that are of routine, non-controversial and urgent in nature that too in the public interest, revisable by the future Government elected Government. But in order to interpret Section 230, we will have to refer to the preamble of Election Act, 2017 according to which it was expedient to amend, consolidate and unify laws relating to the conduct of elections and matter connected therewith or ancillary thereto. It deals with de-limitation of Constituencies, Elected rolls, Conduct of Elections in the Assemblies, Senate, Falling of Election Expenses, Resolution of Election Disputes, Formation of Political Parties, Allocation of Symbols, Conduct of Elections of the Local Government and Chapter XIV deals with the related other matters. Importantly, this Act does not define the caretaker Chief Minister or caretaker Government but under Section 4 thereof, he has power to issue directions or orders for the performance of its functions and duties and under Section 5(2) it is the responsibility of all executive authorities of the Federation and Province to perform such duty assigned to the Commission in discharge of his functions. Under Section 8 it is within the power of Commission to ensure fair elections during the conduct of the elections. Sections 4, 5 and 8 are reproduced as under:-

4. Power to issue directions.--(1) The Commission shall have the power to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it and an order for the purpose of securing the attendance of any person or the discovery or production of any document.

(2) Any such direction or order shall be enforceable throughout Pakistan and shall be executed as if it had been issued by the High Court.

(3) Anything required to be done for carrying out the purposes of this Act, for which no provision or no sufficient provision exists, shall be done by such authority and in such manner as the Commission may direct.

5. Assistance to the Commission.--(1) The Commissioner or the Commission may require any person or authority to perform such functions or render such assistance for the purposes of this Act as he or it may direct.

(2) It shall be the duty of all executive authorities in the Federation and in the Provinces to render such assistance to the Commissioner and the Commission in the discharge of his or its functions as may be required by the Commissioner or the Commission.

(3) The Federal Government and each Provincial Government shall make available to the Commission such staff as it may require for the performance of its functions under this Act:

8. Power of Commission to ensure fair election.--Save as otherwise provided, the Commission may--

(a) stop the polls at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election;

(b) review an order passed by an officer under this Act or the Rules, including rejection of a ballot paper; and

(c) issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules.

But under the exclusively allocated Chapter XIV of the Act the functions of caretaker Government have been given in Section 230 of the Election Act, 2017.

JUDICIAL PRECEDENT.

15. In a recent judgment rendered by Hon'ble Supreme Court in Reference No1 of 2020^[4], the five member Bench of Supreme Court had observed that Election Commissioner or the Election Commission had all powers vested in them to ensure that the elections were organized and conducted honestly, justly, fairly and in accordance with law and corrupt practices were guarded against and under Article 213, 218 and 222 of the Constitution the Commission was required to take all available measures including utilizing technologies to fulfil the solemn constitutional duty of conducting elections honestly, justly, fairly and in accordance with law. A milestone judgment on this subject is obviously is the one handed down by the Supreme Court in Khawja Muhammad Asif's case^[5] before the promulgation of the Election Act, 2017 in paragraph No.13 of which it has been held categorically that according to settled and accepted norms/practice the caretaker Provincial Government which means Care-Taker Chief Minister and the Cabinet is required to perform the functions to attend to the day-to-day matters necessary to run the affairs of the Province and also to watch the national interest in case of any eventuality but it is not authorized to make decisions having effect on the working/policies of the future Government. Besides, it is responsible to provide assistance to the Election Commission in organizing free, fair, honest and just elections but shall not take decisions which is bound to pre-empt the scope and sphere of the activity powers and jurisdiction of elected Government, hence it possesses limited powers for the simple reason that there is no Provincial Assembly hence the accountability is absent. Giving more powers to the caretaker Government will also go against the doctrine of separation of powers ever mandatory or lifeline of any vibrant democracy. Since the caretaker Government lacks the mandate of the majority of the people, therefore, it is not allowed to exercise complete powers available to an elected Government otherwise it would make an attempt to continue to remain in office for a longer period of time. It was also observed in paragraph No.15 that a caretaker Government remains in office for a very limited period whose first and the last concern is to ensure that fair, free, honest and just elections are held in the Province. But where proposed act is within the powers, it can exercise it fearlessly.

16. In Kh. Muhammad Sharif's case^[6], it was held that the caretaker Cabinet should confine it to take care of day-to-day administration of State and they can take decisions requiring attention or action like in respect of war, earthquake or flood having fire reading affects but they cannot take undue advantage either for themselves or for their political parties and, therefore, had to remain impartial for everyone including their rivals or opponents in the political fields and they cannot take advantage of their official position at the expenses of the other political forces. Neutrality and impartiality, detachment and devotion of duty to carry on day-to-day affairs of the State without keeping in view their own interest are sine qua non of a caretaker Cabinet. This view was further followed in Zaffar Hussain's case^[7] and also in Kh. Muhammad Asif's case supra, and it is settled by now that a caretaker Government exercises the powers for a limited period relating to the elections and is not supposed to make fresh appointments of the civil servants or head of Autonomous or semi-Autonomous Bodies, Corporations, Regulatory Authorities, etc, appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the scope of their efficacy to share higher responsibilities to run the affairs of the Government. This has been re-inforced and reiterated in Abdul Rauf's case^[8] where the Hon'ble Supreme Court had dismissed the recommendations of a recruitment committee constituted by a caretaker Government as legally un-sound, therefore, not to be implemented.

17. Such concept is vogue in a number of countries either written in the Constitution or followed as practice. It will be expedient to give example of caretaker convention in Australia where day-to- day administration of departments and agencies in the wider state sector continue during the caretaker period but the departmental officials and board members and employees of other state sector agencies should always take into account the fact that they are operating in a caretaker environment, and exercise special care when making decisions during this time. In all such countries the scope and activity of the caretaker Government is to run affairs of the State during the interim period; i.e. till returning to power of the elected Government having the full powers.

These Governments do not appoint civil servants.

NATURE AND NECESSITY OF THE PROVINCIAL LAW OFFICERS.

18. The office of Advocate General is a constitutionally defined office under Article 140 of the Constitution of Islamic Republic of Pakistan, 1973 which is responsible to get advices on the matter referred to it by the Government. An Advocate-General is appointed by the Governor on the advice of the Chief Minister under the powers given in Clause 4 of Part-A of Third Schedule under Rule 13 of the Punjab Government Rules of Business, 2011 read with Clause 16 of the Seventh Schedule Part-A made under Rule 14(1) of the Punjab Government Rules of Business, 2011. The provisions are reproduced as under:-

13. Reference to the Governor.- (1) No order shall be issued without the approval of the Governor in cases mentioned in Part-A of Third Schedule.

(2) With respect to a case mentioned in sub-rule (1), the Department concerned shall incorporate a paragraph to this effect in the summary titled as 'Summary for the Chief Minister', and the Chief Minister shall submit the case to the Governor with appropriate advice.

(3) The Summary containing the orders of the Governor shall be returned to the Chief Minister.

(4) The cases enumerated in Part-B of Third Schedule shall be submitted through the Chief Minister to the Governor for information.

14. Reference to the Chief Minister.- (1) No order shall be issued without the approval of the Chief Minister in a case involving policy decision or departure from a policy decision or in a case mentioned in Part-A of Seventh Schedule.

Explanation.- The `departure from a policy decision' includes departure from a previous decision of the Cabinet or the Chief Minister.

(2) A case submitted to the Chief Minister for his orders shall include a self contained, concise and objective summary stating the relevant facts and the points for discussion and the specific recommendations of the Minister-in-Charge. It shall also carry a draft communication, wherever appropriate.

(3) The cases mentioned in Part-B of Seventh Schedule shall be submitted to the Chief Minister for information.

(4) The Chief Minister may, by general or special order, require any other case to be submitted to him or he may call for any case or information from any Department, Attached Department, Regional Office, or a District Government.

19. Historically speaking under section 55 of the Government of India Act, 1935, The Governor of each Province was bound to appoint a person, being a person qualified to be appointed a Judge of the High Court, as the Advocate General for the Province during the pleasure of the Governor and for the purpose of his appointment/dismissal and remuneration, the Governor was required to make an individual judgment. Under the Constitution of the Islamic Republic of Pakistan, 1956 the same wording was used in Article 72 and under the Constitution of the Islamic Republic of Pakistan of 1973, article 85 Governor of the Province had the same powers to appoint Advocate-General for the Province.

Under the present Constitution of 1973, Article 140 has empowered the Governor regarding the appointment of Advocate-General, which is reproduced as under:- "140. (1) The Governor of each Province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General for the Province.

(2) It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government.

(3) The Advocate-General shall hold office during the pleasure of the Governor 5[and shall not engage in private practice so long as he holds the office of the Advocate-General].

(4) The Advocate-General may, by writing under his hand addressed to the Governor, resign his office."

20. The Advocate-General has been defined in Clause 1.5 of the Law Department Manual to be a person with whole time employment of the Government who shall hold office during the pleasure of the Governor and shall be liable to be removed from office at any time without notice. His nature of employment and duties have been enumerated as follows:- "1.5 Advocate General. The Advocate General is governed by the Advocate General for the Punjab (Terms and conditions of Services) Rules 1962. He is a whole time employee of Government and shall hold office during the pleasure of Governor and shall be liable to be removed from office at any time, submit his resignation to the Government through the Law & Parliamentary Affairs Department. He shall not be allowed private practice of any kind. ^[1] However cases of local Bodies, statutory bodies, autonomous or semi autonomous bodies shall not be included or covered by the expression, "Private practice".

1.6. Duties of Advocate General. - His duties are as follows:-

(a) The Advocate General will advise on any case relating to the initiation of criminal proceedings by the State or executive action by the Punjab Government under the law and on any other legal matter that may be referred to him by the Punjab Government or the Law Secretary. It will also be his duty to advise upon any matter on which his advice is required by the Governor, acting in his discretion. (For further details see Chapter 2 following).

(b) He will represent the State or will arrange for the representation of the State, at all stages in all criminal cases in the High Court, as well as Supreme Court and in quasi criminal matters. The Punjab Government may direct that owing to the special importance of the case, the Advocate General shall himself represent the state.

(c)He will appear or arrange for the appearance of Law Officer/State Counsel, in the following civil cases:

(i) Cases in the Hi9gh Court and Supreme Court to which the Punjab Government is a party or cases relating to the affairs of the Punjab Government to which the Federal Government is a party.

(ii) Cases in the High Court and Supreme Court to which officers serving under the Punjab Government are parties and which the Punjab Government has decided to conduct on behalf of such officers.

(iii) Cases in the High Court and Supreme Court in which either the Punjab Government or such officers are directly interested but in which government considers itself to be sufficiently interested to render it advisable to conduct the case on behalf of some third person.

(iv) Appeals from the cases referred to above.

(d) He will personally appear when so required, before the Hi9gh Court in references from subordinate courts to which the Punjab Government is a party or which can otherwise be heard.

(e)He will appear himself or arrange for the conduct of civil cases of the nature described above in the other civil courts of Lahore.

(f) He will also be expected to appear in any civil or criminal cases outside Lahore when specially desired to do so by the Punjab Government or by the Law Secretary.

(g) He will attend the legislative assembly when required to do so by Government.

Under clause 2.11 and 2.12 he forms an opinion in dissenting with the Law Secretary.

21. Under Rule 12 of the Punjab Government Rules of Business, 1974, the Governor was bound to follow the advice of Chief Minister tendered under Part-A of Schedule-III which states about the appointment of Advocate General, Additional Advocate General and Assistant Advocate General.

Rule 12 is reproduced as under:-

12. Reference to the Governor "(1)) Notwithstanding the provisions made in these rules, where in terms of any provision of the Constitution, any function is to be performed or any orders have to be issued by the Governor or his specific approval is required, the department concerned shall incorporate a paragraph to this effect in the summary titled as 'Summary for the Chief Minister'. The Chief Minister shall tender his advice and submit the case to the Governor. After the Governor has seen and approved the case, it shall be returned to the Chief Minister. The cases to which this sub-rule applies are enumerated in Part A of Schedule-III.

(2) The cases enumerated in Part B of Schedule-III shall be submitted to the Governor for his information through the Chief Minister.

(3) Notwithstanding the provisions made in these rules, where in terms of any provision of the Constitution, any function is to be performed or any order have to be issued by the Governor in his discretion, the department concerned shall submit the case to the Governor through the Chief Minister in the form of a self-contained, concise and objective Summary titled as Summary for the Governor stating the relevant facts and points for decision prepared on the same lines as those prescribed in these rules for a summary for the Cabinet except that only one copy will be required which may not be printed. This procedure will not, however, be applicable where the case is initiated by the Governor himself and decided in consultation with the Chief Minister. The cases to which this sub-rule applies are enumerated in Part C of Schedule-III.

(4) The Chief Minister shall keep the Governor informed of all important, political and administrative matters and major developments in the fields of planning, economic development and industrialization, etc."

22. The said provisions of the Punjab Law Department Manual, 1938 have been interpreted by this court in Malik Muhammad Bashir Lakhesar's case^[9] it was held that the doctrine of pleasure was based on public policy, public interest and for the public good and that whenever a public interest is in conflict with private interest, the former must yield to the latter. In Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab's case^[10] it was held that by no stretch of imagination under Rule 1.18 of the Law Department Manual (as amended by the Notification dated 19.10.1993), a consultation of the Governor with the High Court in the matter of appointment of Additional Advocate-General or Assistant Advocate General be made applicable to the appointment of Advocate General of the Province which was a constitutional office and dealt with under Article 140 of the Constitution of Islamic Republic of Pakistan, 1973.

JUDICIAL PRECEDENTS FROM OTHER JURISDICTIONS.

23. In B.P.Singhal's case^[11], it was held that the pleasure appointment is an employment that can be taken away at any time with no requirement of notice of hearing. It was held that withdrawal of pleasure in the case of Attorney General will be relevant criterial to determine the loss of confidence and that it will not be a ground for a judicial review for removal of the said officer. On the same analogy the office of Advocate General removal can also not be challenged. In State of U.P's case^[12], it was held that a client is not obliged to give reason for withdrawing of his brief from his lawyer. The relevant extract is reproduced as under:- "Legal profession is essentially a service-oriented profession. The ancestor of today's lawyer was no more than a spokesman who rendered his services to the needy members of the society by articulating their case before the authorities that be. The services were rendered without regard to the remuneration received or to be received. With the growth of litigation, lawyering became a full-time occupation and most of the lawyers came to depend upon it as the sole source of livelihood. The nature of the service rendered by the lawyers was private till the government and the public bodies started engaging them to conduct cases on their behalf. The government, and the public bodies engaged the services of the lawyers purely on a contractual basis either for a specified case or for a specified or an unspecified period. Although the contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work.

This is so even today, though the lawyers on the full-time rolls of the government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of a full-time employment.

The relationship between the lawyer and his client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also, for the same reasons.

He is under no obligation to give reasons for withdrawing his brief from his lawyer."

24. In Joginder Singh Wasu's case^[13] it was held that the relationship between the Advocate General and the State Government is essentially that of an Advocate and a client in relation to his appearance in court and arguing the case before the court on behalf of the State. Likewise in V.C.

Rangadurai's case^[14] it was held that relationship between a lawyer and his client is highly fiduciary in its nature and of a very delicate exacting and confidential character, requiring a high degree of fidelity and good faith. Relevant extract from para 31 is reproduced as under:- "31. Nothing should be done by any member of the legal fraternity which might tend to lesson in any degree the confidence of the public in the fidelity, honesty and integrity of the profession. Lord Brougham, then aged eighty-six, said in a speech, 1864, that the first great quality of an advocate was to reckon everything subordinate to the interests of his client. What he said in 1864 about 'the paramountcy of the client's interest', is equally true today. The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence which cannot be delegated without consent. A lawyer when entrusted with a brief, is expected to follow the norms of professional ethics and try to protect the interests of his clients, in relation to whom he occupies a position of trust to whom he occupies a position of trust. The appellant completely betrayed the trust reposed in him by the complainants."

25. In P.K.Kunjukrishnan Nair's case^[15] it was held that the office of Law Officers is essentially one of utmost trust and confidence and no member of the profession would cling on to a file or to a client, the moment the client is seen to show the slightest dissatisfaction about his conduct.

Relevant extract from para 7 is reproduced as under:- "The petitioner fills in an office as a member of the learned profession. That office is essentially one of utmost trust and confidence. And no member of the profession would cling on to a file or to a client, the moment the client is seen to show the slightest dissatisfaction about counsel's conduct. In that sense, the case is different from an ordinary probationary civil servant or persons of that stature."

Para 11 is also relevant showing the relationship of the Law Officers and the State which is reproduced as under:- "11. In the very nature of things relationship between State and law officers cannot be equated to that of master and servant; it is on a higher plane, in a different context and at a different level. No doubt the office of the Government Pleader is an office under the State. But the office is one which necessitates an extraordinarily high degree of confidence on the part of the State Government and it appears to me that to compel the State Government to continue to deal with a law officer irrespective of other circumstances would be an arbitrary imposition of a service of a law officer on the Government; that may also be contrary to public policy."

26. On the application of the General Clauses Act, the Lalit Mohan Taran's case^[16] is relevant and is therefore, reproduced as under:- "The other contention that the State Government could not appoint an Additional Advocate- General is also meritless. The Governor of a State has, under the Constitution, to appoint an Advocate General. That power includes the power to appoint an Additional Advocate-General as well, Art, 367 of the Constitution provides that unless the context otherwise requires, the General Clauses Act, 1897, shall apply for the interpretation of the Constitution. There is nothing repugnant in the subject or context which would exclude the applicability of the General Clauses Act. The provisions of General Clauses Act shall therefore be pressed into service while interpreting Art. 165.

Now on the language of S.13, General Clauses Act, the provision in the singular for appointment of Advocate-General must include the plural. The Governor has, therefore, the power to appoint an Additional Advocate General also. In the view we have taken we find support from a decision of the Kerala High Court in M.K. Padmanabhan V. State of Kerala, 1978 Lab IC 1336."

27. In the present context, the relevant judgment rendered by this court in Imtiaz Ahmad Kaifi's case^[17] is duly attracted in which it was held that no discrimination should be taken place while dispensing with the service of the law officers and they should not be stigmatized. In para 6 it was further held that there is no vested right of such law officers who served during the pleasure of the Government. It was further held that the Law Officers hold lawyer and client relationship with the Government of Punjab and confidence is a subjective matter and the removal does not amount to a casting aspersion. Reliance was placed upon Muhammad Yasin's case^[18] Para 10 is relevant, therefore, is reproduced as under:- "10. A caretaker government has no politics. Under Article 218(3) of the Constitution, it shares the duty of the ECP to conduct the general election honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. Given that charter as reiterated in Kh. Ahmad Tariq Rahim's case, the caretaker government has discretion to make changes that strengthen its ability to discharge its constitutional obligation. One significant aspect of the said constitutional obligation of caretaker provincial government is to demonstrate and maintain strict neutrality in the discharge of its functions, inter alia, by appointing non-government may be justified on the said account. However, if the appointment of the petitioners by a political government is the presumable cause of their fall from confidence, then the retention of government, has no justification. On that ground an allegation of discrimination by the petitioners is well founded."

28. The dispensing with the service of the law officers are not to be necessary based upon the displeasure of the Governor as the sole purpose of the caretaker government is to conduct fair and free elections. If it is of the view that such law officers will not be helpful in creating an impression of impartiality in the mind of public, their services can be dispensed with since it is the objective decision of the caretaker Chief Executive.

29. Learned counsel for the respondents has prayed before the Bench to provide guidelines for the appointment of Law Officers but we observe that it is the exclusive domain of Caretaker Chief Minister and disqualification prescribed under the law.

30. This court cannot keep into the mind of the Chief Executive of the Province to ascertain and substitute its opinion and question whether in his view the free and fair elections are possible in the presence of certain incumbents in the Advocate-General Office but can definitely draw a line between the appointees of the previous political government or previous government who came in power as a result of no confidence resolution.

31. For the foregoing reasons, with a majority of four to one with Asim Hafeez, J. dissenting, these writ petitions are partially allowed in the following terms:-

3. The removal of the Advocate General Punjab and other law officers vide notifications dated 24.01.2023 is upheld.

4. The notification of even date for the appointment of new law officers to the extent of law officers who retained their offices in the political government immediately preceding the last government and headed by Muhammad Hamza Shahbaz Sharif as Chief Minister, is set-aside.

For the reasons recorded in our judgment of even date passed connected Writ Petition No. 5324 of 2023 titled "Ashfaq Ahmad Kharal and 21 others Versus Province of Punjab etc, this writ petition is disposed of on the same terms.

ABID AZIZ SHEIKH, J. I have seen in draft the reasons for short order dated 14.02.2023/judgment rendered by my learned brother Ali Baqar Najafi, J., which shall be the judgment of the Court and I agree with the reasoning recorded and conclusion drawn therein. However, in view of the significance and importance of the issues raised, I have chosen to write a separate note of my own.

ADDITIONAL NOTE ABID AZIZ SHEIKH, J. The detailed facts and submissions of respective parties have already been elaborated in the main Judgment, authored by my learned brother (Ali Baqar Najafi, J.) and need not be reiterated. However, in order to comprehend the discussion on legal issues, it is necessary to narrate brief facts and contentions of the parties.

2. In these Constitutional Petitions, the petitioners have challenged three separate Notifications dated 24th January, 2023 (impugned Notifications) issued by respondent No.2 (Secretary, Law and Parliamentary Affairs Department, Government of Punjab) on the direction of caretaker Chief Minister (CM), Punjab. Through 1st Notification, the services of Additional Advocate-Generals and Assistant Advocate-Generals (Additional & Assistant AGs), Punjab were dispensed with, by 2nd Notification fresh appointments of Additional & Assistant AGs, Punjab were made with immediate effect against the existing vacancies subject to terms and conditions prescribed in the Notification, and by virtue of 3rd Notification, the former Advocate-General, Punjab was removed from the post of Advocate-General, Punjab.

3. The main contention of the petitioners is that Caretaker CM, Punjab has no lawful authority and jurisdiction to remove the Advocate-General Punjab or dispense with the services of Additional & Assistant AGs, Punjab and appoint new Additional & Assistant AGs against the existing vacancies, as the powers and functions of caretaker Government are prescribed under Section 230 of the Elections Act, 2017 (Elections Act) and the impugned Notifications are not only beyond the scope of the said provision but also against the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) and law settled by the Hon'ble Supreme Court in "Khawaja MUHAMMAD ASIF Versus FEDERATION OF PAKISTAN and others" (2013 SCMR 1205). The respondents, on the other hand, defended the impugned Notifications.

4. In order to better appreciate the baseline question, it is expedient to examine the process and relevant laws for appointments and removal of Advocate-General, Additional & Assistant AGs. The Advocate-General is appointed under Article 140 of the Constitution by the Governor and under Article 140(3) of the Constitution holds office during pleasure of the Governor. Under Rule 13(1) read with Serial No.4 of Part-A of Third Schedule of the Punjab Government Rules of Business, 2011 (Rules of Business), the Governor orders are upon the advice of Chief Minister for appointment, removal, resignation and terms and conditions of service of Advocate-General. So far as the Additional & Assistant AGs are concerned, they are appointed under Rule 14(1) read with Serial No.16 of Part-A of Seventh Schedule of Rules of Business, under which approval of the Chief Minister requires for their appointment, removal, resignation and terms and conditions of service. Even under the erstwhile Punjab Government Rules of Business, 1974 under Rule 12(1) read with Serial No.4 of Part-A of Third Schedule, the Governor's order required advice of the Chief Minister for appointment, removal, resignation and terms and conditions of service of Advocate-General, Additional & Assistant AGs.

No doubt, under the Law Department Manual, 1938 (Manual) Clause 1.18, Sub-Clause 4, it is mentioned that Additional & Assistant AGs shall hold office during pleasure of the "Government", however, the Manual was made under the Government of India Act, 1935 and remained existing law in terms of Article 224(1) of the Constitution 1956, Article 225(1) of the Constitution 1962, Article 280 of the Interim Constitution, 1972 and said existing law was also protected under Article 268(1) of the Constitution, however, subject to the Constitution and until altered, repealed or amended by appropriate legislation. On the other hand, Rule 14(1) read with Serial No.16 of Part-A of the Seventh Schedule of the Rules of Business are made under Article 139 of the Constitution and being subsequent legislation on same subject will prevail over Manual in case of any inconsistency between two. It is settled law that where two statutes operate in the same field independently, though they may contain different provisions in this behalf, if by giving effect to the provisions, one of the provision of the other enactment are rendered or are likely to be rendered nugatory, the two statutes clashes and are inconsistent, then the provisions of later statute to the extent of grounds covered or intended to be covered will supersede and displace the other statute. It is also well settled that when there is conflict between two special laws containing overriding clauses, generally statute later in time would prevail over the statute prior in time. This principle is based on maxim leges posteriores priores contrarias abrogant. It means that the latest expression of the will of the legislature must prevail. In this regard, reliance is placed on "SYED MUSHAHID SHAH and others Vs. FEDERAL INVESTMENT AGENCY and others" (2017 SCMR 1218), "AHMAD SAEED KIRMANI Vs. FAZAL ELAHI, SPEAKER and others" (PLD 1956 Lahore 807), "Messrs USMANI ASSOCIATES SUB PROPRIETARY FIRM Vs. CENTRAL BOARD OF REVENUE and another" (2001 PTD 2982), "SUI NORTHERN GAS PIPELINE LIMITED, (SNGPL) through General Manager Vs. DIRECTOR (LEGAL), PRESIDENT SECRETARIAT (PUBLIC), AIWAN-E-SADAR ISLAMABAD and 2 others" (PLD 2018 Islamabad 51) and "MESSRS FEDERAL BANK FOR COOPERATIVES, ISLAMABAD Vs. COMMISSIONER OF INCOME TAX, COMPANIES ZONE, ISLAMABAD" (2021 PTD 1203). The discussion brought forth above would lead to the ineluctable conclusion that Chief Minister is the Competent Authority for the appointment and removal of Advocate-General, Additional & Assistant AGs under the Constitution, Rules of Business and Manual.

5. It is manifest from Article 140(3) of the Constitution, Rule 13(1) read with Serial No.4 of Part-A of Third Schedule, Rule 14(1) read with Serial No.16 of Part-A of Seventh Schedule of Rules of Business and Para 1.5 & 1.18(4) of the Manual that Advocate-General as well as Additional & Assistant AGs shall hold office during pleasure of the Governor on the advice of Chief Minister and they have no fixed tenure. This is due to nature of services rendered by Advocate-General, Additional & Assistant AGs, which is essentially a relationship between lawyer and his client and is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him also for same reasons. The client is under no obligations to give reasons for withdrawing his brief from his lawyer. Similarly the lawyer is not an agent of his client but is a spokesman and advisor to his client.

The Law Officers cannot be treated at par with government employees or Public Servant compelling the Government to retain a particular counsel irrespective of lack of faith and confidence on said Law Officers by the Government. The Supreme Court of India in "BP Singbal Vs. Union of India" (2010 5(SCC) 331) held that loss of confidence is very relevant criteria for withdrawal of pleasure. However, the pleasure is not based upon any special prerogative but must be based on public policy and in public interest and for public good.

6. Now the baseline and moot question is that whether this power could be exercised by caretaker CM under the Constitution, Elections Act, Manual and Rules of Business. In this context, before promulgation of Elections Act, the Hon'ble Supreme Court in 'Khawaja Muhammad Asif case' supra laid down the scope of caretaker Government/Cabinet and held that caretaker Government is empowered only to carry out day-to-day affairs of the State with help of available machinery, resources, manpower and it cannot take policy decision and permanent measures, including recruitments, appointments, transfers & postings and it must leave such matters to the Elected Government which will take charge as a result of elections. However, in the concluding Para 30 of the said judgment, the Hon'ble Supreme Court allowed the Federal Government to continue with the appointments, removal and transfers made by caretaker Cabinet/ Government in the public interest subject to following requisite provisions of law. Relevant part of the Hon'ble Supreme Court's judgment is reproduced hereunder:- "(i) However, the Federal Government, in exercise of its powers would be authorized to allow to continue any of such appointments, transfers made by the Caretaker Cabinet/Government in the public interest, subject to following requisite provision of law......................

(i) The Federal Government would be empowered to continue the removal or transfers, etc., of Chief Executive Officers/heads of the departments, statutory bodies, autonomous/semi- autonomous bodies, corporations, regulatory authorities, etc. in the public interest, subject to following requisite provision of law."

The principles laid down in 'Khawaja Muhammad Asif case' were also followed in "GOVERNMENT OF BALOCHISTAN through Secretary Services and General Administration Department and others Vs. ABDUL RAUF and others" (PLD 2021 Supreme Court 313) and "NEMAT ULLAH and others Vs. CHAIRMAN GOVERNMENT BODY, WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT and others" (2016 SCMR 1299).

7. Beside the guidelines by August Supreme Court, prior promulgation of the Elections Act, there was no specific provision in law prescribing the functions of caretaker Government. For the first time in Elections Act said powers are envisaged by Section 230, which is reproduced hereunder for convenience:- "230. Functions of caretaker Government.--(1) A caretaker Government shall--

(a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government;

(b) assist the Commission to hold elections in accordance with law;

(c) restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and

(d) be impartial to every person and political party.

(2) The caretaker Government shall not--

(a) take major policy decisions except on urgent matters;

(b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government;

(c) enter into major contract or undertaking if it is detrimental to public interest;

(d) enter into major international negotiation with any foreign country or international agency or sign or ratify any international binding instrument except in an exceptional case;

(e) make promotions or major appointments of public officials but may make acting or short term appointments in public interest;

(f) transfer public officials unless it is considered expedient and after approval of the Commission; and

(g) attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections.

(3) The Prime Minister, Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form B and the Commission shall publish the statement of assets and liabilities in the official Gazette.

(4) In this section, 'caretaker Government' means the caretaker Federal Government or a caretaker Provincial Government."

(emphasis supplied)

8. Plain reading of Sections 230(1)(c) & 230(2)(e) of the Elections Act shows that a caretaker Government shall restrict itself to activities that are of routine, non-controversial and urgent, in public interest and reversible by the future Government elected after the elections. Similarly, the caretaker Government shall not make major appointments of public officials but may make acting or short term appointments in the public interest. Though, there is no specific provision in Section 230 of the Elections Act which debars the caretaker Government from exercising its powers prescribed under the Constitution, however, the caretaker Government must restrict itself to routine, non-controversial and urgent matter, in the public interest and can also make acting and short term appointments in public interest. The word "public interest" has not only been used in Section 230(1)(c) and 230(2)(e) of the Elections Act but same was also applied by the Hon'ble Supreme Court in 'Khawaja Muhammad Asif' case supra, where appointments, transfers & postings made in the public interest by the caretaker Government were allowed to be continued by the Federal Government. This means that if the impugned Notifications are in the "public interest" then these are not only permissible under Section 230 of the Elections Act but same are also protected by the judgment in 'Khawaja Muhammad Asif' case, however, if these Notifications are not in the public interest or contrary to the prescribed law, then same are not sustainable.

9. Now before we examine the impugned Notifications on this touch stone, it is necessary to understand what 'Public Interest" means. Although, the expression "public interest" has not been defined in any law, however, this expression is to be understood and interpreted in the light of entire scheme, purpose and object of the enactment in which it is employed. The Hon'ble Supreme Court from time to time applied "Public Interest" in different statutes considering peculiar situations as under:-

(I) In "MINISTRY OF INFORMATION TECHNOLOGY AND TELECOMMUNICATIONS, ISLAMABAD and another Vs. C.M. PAK (PVT.) LTD., ISLAMABAD and another" (PLD 2020 Supreme Court 551), it was held as under: "These protective measures are taken on the request of law enforcement authorities in view of past experience of terrorist activities at similar events. If such events caused the issuance of the impugned directions then the same would be in the public interest, reasonable, fair, consistent with the object of the law and therefore valid. Accordingly, the exercise of power by PTA under the policy directive dated 26.12.2009 ought to be evaluated in the light of the threat that is anticipated."

(II) In "RASHEED AHMAD Vs. FEDERATION OF PAKISTAN through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan, Islamabad and others" (PLD 2017 Supreme Court 121), the August Supreme Court applied the public interest in following context: "The Constitution, the Rules of Business, the Attorney-General for Pakistan (Terms and Conditions)

Rules, 2011, the Central Law Officers Ordinance, 1970 and the Additional Attorney-General, Deputy Attorney-General and Standing Counsel Rules, 2011 do not specifically permit the Federal Government to engage private counsel. There may however be cases which involve complicated questions of the Constitution or some extremely technical law which the Attorney General, in the case of the Federation, and the Advocate-General, in the case of the law officers do not have the requisite ability to attend to. In such a case the concerned constitutional office holder should certify that he and the law officers do not have the requisite expertise in the field and that the engagement of a private counsel who is competent and experienced is required. Needless to state, the engagement of private counsel can only be sanctioned for compelling reasons and in the public interest and not to protect or save a particular individuals (as was done in WP 1548) or for any other ulterior reason."

(III) In "LAHORE DEVELOPMENT AUTHORITY through D.G.

SCMR 1739), the word "public interest" has been used in following terms: "75. Likewise the Provincial Government, in the exercise of its legislative and executive authority can aid and support the Local Government. The Provincial Government is also not prevented from taking the initiative for the growth and development of the people and the Province in the exercise of its legislative and executive authority. The exercise of such authority must, however, be in the public interest. It should encourage institutional growth and harmony. It must be in consultation and with the participation of the Local Government. To complement is not to take over.

76. We are conscious that at times a Local Government too may decline consent for extraneous reasons. Where such consent is unreasonably withheld or denied for considerations other than in the public interest the Provincial Government would be at liberty to act in the public interest while constantly drawing guidance from the provisions of the PLGA 2013 as for the time being in force.

Indeed the Courts too can step in and interfere with such a failure to grant consent. "

Learned High Courts also discussed the words "public interest" in following judgments:-

(IV) In "BAYINDIR INSAAT Vs. PAKISTAN through Ministry of Communication and 3 others" (PLD 2001 Lahore 426), it was held as under: "The expression "public interest" as defined in Black's Law Dictionary is as under:-- "Public Interest.--Something in which the public, the community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government."

(V) In "ABU DHABI MEDICAL DEVICES CO. L.L.C. Vs. FEDERATION OF PAKISTAN through the Ministry of Health and another" (2010 CLC 1253), the expression "public interest" was elaborated as under: "Public Interest is very wide expression and embraces public security, public order and public morality. Expression Public Interest in common parlance means an act beneficial to general public and action taken in public interest necessarily means an action taken for public purpose. It further leads general social welfare or regard for social good and predicating interest of the general public in matters where regard was social good is of the first moment. The dispute involved in the present case is directly related to the larger public interest and such type of matter should be decided expeditiously."

The same view was also expressed in "Miss NAHEED KHAN Vs. 513) and "ASHIQ ALI BHUTTO Vs. PRESIDENT, SUMMARY MILITARY COURT NO.2, KARACHI and 2 others" (PLD 1979 Karachi 814).

10. From the above case law, it can be deduced that expression "public interest" is not capable of precise definition and has no strict meaning but it takes colour from the statute in which it occurs.

When the above rule of interpretation is applied to the words "public interest" used in Elections Act, this indeed means that public interest in this case is to ensure honest, just, free and fair elections in accordance with law, which is also the mandate of Articles 218 to 224 & 224-A of the Constitution.

When the impugned Notifications are examined in the above context, it is not difficult to ascertain that in order to achieve the ultimate goal of free and fair elections in the Province, Advocate- General was removed and the services of Law Officers were dispensed with, being appointed by the previous Government and to ensure that caretaker Government is represented by the Law Officers who are independent and not appointed by the previous Government. This policy/decision of the caretaker Government is neither of permanent nature nor irreversible by the Elected Government, hence, cannot be held to be mala-fide or not in the public interest or contrary to Section 230 of the Elections Act. Rather such decision, unless tainted with mala-fide or in violation of prescribed law, is permissible under Clause 1(d) & 2(e) of Section 230 of the Elections Act as well as law settled by the Hon'ble Supreme Court in 'Khawaja Muhammad Asif case'.

11. It is also relevant to note that the impugned Notifications of removal from service of Advocate- General and dispensation of the services of Additional & Assistant AGs are not only in accordance with procedure prescribed in Constitution, Rules of Business and Manual but same are also in line with the law laid down by this Court in "Imtiaz Ahmad Kaifi Vs. Government of Punjab etc." (PLD 2013 Lahore 598), where this Court set-aside the removal of Law Officers from service on the ground of discrimination and casting aspersion on their service or conduct, however, allowed the caretaker Government to dispense with the services of Law Officers without discrimination and without casting aspersion on their service or conduct. In the present case, as the services of Additional & Assistant AGs appointed by the previous Government have been dispensed with without discrimination and the word "removal from service" has also not been used against them, therefore, the respondents have complied with the principles laid down by this Court in aforesaid judgment.

12. So far as the judgment of learned Peshawar High Court passed in "Raja Muhammad Zubair and others Vs. Government of Khyber Pakhtunkhwa through Chief Secretary and others" (2022 PLC (C.S.) 778) is concerned, no doubt the said petition was allowed against the removal of Law Officers but it was held in said judgment that the Notifications were mala-fide and contrary to the mandate of the statute. No such mala-fide or violation of procedure prescribed in law has been highlighted in this case for removal of the Advocate-General or dispensation of the services of other Law Officers. Though, the leave was not granted by the August Supreme Court against the aforesaid judgment of learned Peshawar High Court while relying upon 'Khawaja Muhammad Asif' case, however, as already discussed above, the impugned Notifications for removal of Advocate- General and dispensation of services of Additional & Assistant AGs are not contrary to the law settled in 'Khawaja Muhammad Asif' case supra but being in the public interest are protected even by the ratio decidendi settled in the aforesaid judgment of August Supreme Court.

13. However, we agree with the learned counsel for the petitioners that the appointment of Law Officers, who were also Law Officers in the Government preceding previous Government, cannot be justified on the touch stone of public interest as discussed above, and if they are allowed to be continued as Law Officers, this will defeat the entire purpose of transparency urged and appointment of those independent Law Officers who have not been appointed by any political Government earlier to ensure free and fair elections in the public interest. Therefore, to their extent the impugned Notification is ultra vires of law, including Section 230 of the Elections Act and not sustainable.

For the reasons recorded in our judgment of even date passed in connected Writ Petition No. 5324 of 2023 titled "Ashfaq Ahmad Kharal and 21 others Versus Province of Punjab etc, this writ petition is disposed of on the same terms.

For the reasons recorded in our judgment of even date passed in connected Writ Petition No. 5324 of 2023 titled "Ashfaq Ahmad Kharal and 21 others Versus Province of Punjab etc, this writ petition is disposed of on the same terms.

For the reasons recorded in our judgment of even date passed in connected Writ Petition No. 5324 of 2023 titled "Ashfaq Ahmad Kharal and 21 others Versus Province of Punjab etc, this writ petition is disposed of on the same terms.

DISSENTING NOTE.

ASIM HAFEEZ, J. I have the privilege of reading the majority decision authored by my learned brother Ali Baqar Najafi, J. and additional note by my learned brother Abid Aziz Sheikh, J. and respectfully disagree with the reasoning extended, conclusions reached, and decision rendered, including reasoning in the additional note.

2. Context of subject matter challenge are the orders of removal of Advocate General, Punjab and Additional and Assistant Advocates General(s) - Law Officers - by the care-taker Chief Minister Punjab, posing itself as the Competent Authority - whereafter look-after charge was assigned to the Additional Advocate General. And fresh appointments of the Law Officers at the Office of the Advocate General are also collaterally impugned.

Statements of facts and arguments

3. Essential facts, for the purposes of this dissenting decision, are that need for care-taker set-up arose in the wake of dissolution of the Punjab Assembly, precipitated on the advice dated 12.01.2023 of outgoing Chief Minister. The Assembly stood dissolved by operation of law, in terms of clause (1) of Article 112 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), on 14.01.2023. Incumbent care-taker Chief Minister was appointed by the Election Commission of Pakistan ('Commission') on 22.01.2023, in terms of proviso to clause (3) of Article 224A of the Constitution. Care-taker Chief Minister took oath on 22.01.2023 and, notably, the care-taker Provincial Cabinet was sworn in on 26.01.2023, thereby completing the composition of care-taker Provincial Government. Evidently, even before the lawful formation of the caretaker Provincial Government, care-taker Chief Minister had ordered the removal of the Advocate General Punjab, issued in the name of the Governor. Care-taker Chief Minister additionally directed to dispense with the services of ninety-seven ^[97] Law Officers, and simultaneously proceeded to appoint batch of fifty-five ^[55] Law Officers. This composite action was taken on 24.01.2023, though conveyed through separate orders. This case was initially fixed before learned Single Bench and during pendency whereof another petition was fixed before another learned Single Bench, latter was referred to the Hon'ble Chief Justice with request for formation of a Full Bench. And in the light of said order instant petition was also referred, whereafter larger Bench was constituted which heard and decided the matter.

Submissions on behalf of the petitioners

4. Learned counsel questioned removal orders on the grounds of legality and propriety thereof; objecting to the authority of the care-taker Chief Minister to effect removals and absence of justiciability-cum-reasoning qua the orders. Learned counsel submits that clause (1) of Article 105 of the Constitution must be read and construed 'subject to the Constitution' and the Governor, in performance of its functions, was required to act on the advice of elected Chief Minister only and care-taker Chief Minister is not empowered to render any advice, let alone advice for the removal of Advocate General. Reference is made to clauses (5) and (6) of Article 130 of the Constitution to distinguish the office of an elected Chief Minister from the care-taker Chief Minister. Learned counsel submits that functions of the care-taker Chief Minister are not provided in the Constitution, however, the expression "care-taker Chief Minister" used therein was in the context of the mechanism provided for appointment of care-taker Chief Minister and care-taker Cabinet under Articles 224 and 224A of the Constitution - which Articles fall in Part VIII [Elections], Chapter 2 [Electoral Laws and Conduct of Elections]. Submits that section 230 of the Elections Act 2017 ("Elections Act") provides for the scope and extent of the functions to be performed by the care- taker provincial government, which cannot perform functions otherwise available to elected provincial government under the Constitution or in terms of Punjab Government Rules of Business 2011 ('Rules of Business'), framed under Article 139 of the Constitution. Learned counsel read relevant rules with corresponding schedules of Rules of Business to emphasize disability of the care-taker Chief Minister to order removal of the Advocate General and the Law Officers, and adds that no such power was otherwise available to the caretaker Chief Minister under the Rules of Business. Adds that removal of the Advocate General cannot otherwise be ordered upon invoking clause (g) of the Notification dated 22.01.2023, issued by the Election Commission of Pakistan, being inapplicable to the Office of the Advocate General, which office is classified as 'Special Institution' under the Rules of Business. On merits, learned counsel argued that it is wholly unwarranted and unjustified to politicize the office of the Advocate General, merely because appointments were made by elected provincial government. Learned counsel highlighted the scope of duties to be performed by the Advocate General and read various portions from the decision in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others V. Aftab Ahmad Khan Sherpao and others (PLD 1992 Supreme Court 723), and referred the case of Rab Nawaz Dhadwana, Advocate and others V. Rana Muhammad Akram, Advocate and others (PLD 2014 Lahore 591) to highlight the significance of the office of Advocate General. Learned counsel also elucidated the role / duties of Advocate General and the Law Officers under the Punjab Law Manual 1938. Adds that out of fifty-five ^[55] fresh appointments, 19 Law Officers had been appointed by the political government, which preceded the government of outgoing Chief Minister. In brief, counsel objects to the removal of Advocate General and Law Officers on political considerations. Adds that in terms of clause (a) of sub-section (1) of section 230 of the Elections Act, care-taker provincial government is only entitled to attend to day-to-day matters, necessary to run the affairs of the Government and same is not eligible to remove / terminate the public office holder and / or to make appointments. Submits that the limitations prescribed in terms of sub-section (2) of Section 230 of Elections Act must be adhered to before taking actions specified therein. Learned counsel submits that sum-total functions of the caretaker provincial government are provided under Section 230 of the Elections Act and care-taker Chief Minister had in fact transgressed its authority and disregarded the mandate of clause (e) of sub-section (2) of Section 230 of Elections Act, which particular function is exercisable only in case of an underlying necessity of public interest, which condition was not fulfilled in the case at hand. Learned counsel read various paragraphs from the decision in the case of Khawaja Muhammad Asif V. Federation of Pakistan and others (2013 SCMR 1205), and referred the case of Khawaja Ahmad Tariq Rahim V. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 Supreme Court 646) - latter in the context of explaining the scope of the Government. Learned counsel referred to the decision in the case of Faisalabad Development Authority V. Raja Jahangir Nasir and others (2004 SCM R 1247) in the context of written authorization required to Law Officers before giving any concessionary statement in Court. Learned counsel read few paragraphs from the decision in the case of Supreme Court Bar Association of Pakistan through President and another V. Federation of Pakistan through Ministry of Interior Islamabad and others (PLD 2023 Supreme Court 42). Learned counsel emphasized on the ratio settled in the case of Raja MUHAMMAD ZUBAIR and others v. GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others (PLD 2022 Peshawar 100) and read paragraphs 10 and 11 thereof and refers to the order of Hon'ble Supreme Court of Pakistan in C.P. No.3145 of 2018. Learned counsel during submissions referred to decisions reported as AURANGZEB. VS. MANAGING DIRECTOR, SUI NORTHERN GAS PIPELINES LIMITED and 3 others. (2017 PLC 12), IJAZ MUHAMMAD & others. Vs. RAJA MUHAMMAD ZUBAIR & OTHERS. (Civil Petition No. 3145 of 2018), NEMAT ULLAH and others. Vs. CHAIRMAN GOVERNING BODY WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT and others. (2016 SCMR 1299), SIND EMPLOYEES' SOCIAL SECURITY INSTITUTE. VS. PAKISTAN NATIONIAL PRODUCE CO. LTD. (1989 PLC 81), SARDAR HUSSAIN BABAK and another. Vs. GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 3 others. (PLD 2015 Peshawar 206), HAJI AMEERZADA and 6 others. Vs. SECRETARY TO GOVERNMENT OF KHYBER PAKHTUNKHWA, REVENUE DEPARTMENT and others. (PLD 2016 Peshawar 278), M/S MUSTAFA IMPEX, KARACHI and others. Vs. THE GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others. (PLD 2016 SC 808), SYED MAHMOOD AKHTAR NAQVI and others. Vs. FEDERATION OF PAKISTAN and others. (PLD 2013 SC 195), RASHEED AHMAD. VS. FEDERATION OF PAKISTAN through Secretary, Ministry of Information, Broadcasting and National Heritage, Government of Pakistan, Islamabad and others. (PLD 2017 SC 121) and FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources. Vs. DEWAN PETROLEUM (PVT)

LTD. Through M.D/Chief Executive and another (PLD 2012 SC 189).

Submissions on behalf of respondents No.1 and 2

5. Conversely, learned counsel appearing for respondents No.1 and 2, submits that no reasons need to be assigned or conveyed for removal of the Advocate General and Law Officers, firstly, in wake of nature of client-attorney relationship, based on trust and confidence, and secondly, such appointments are pleasure posts, and no cogent reasoning is required for withdrawal of pleasure, otherwise. Adds that orders of removal of public officers from pleasure posts are not amenable to judicial review jurisdiction. Submits that care-taker Chief Minister, in exercise of powers under Article 105, read with Rule 13(1), Part-A of Third Schedule to Rules of Business is entitled and empowered to advice the Governor to withdraw the pleasure qua the Advocate General. And by virtue of Rule 14(1), Part-A of Seventh Schedule to Rules of Business, the care-taker Chief Minister is competent to directly order removal of the Law Officers. Submits that functions to be performed by the care-taker Chief Minister are not restricted to the confines of Section 230 of the Elections Act, which inter alia extends to certain essential functions, though performed by the regular Chief Minister. For instance, in case of removal of one of the members of the care-taker Cabinet resort can be made to clause (3) of Article 132 of the Constitution. Learned counsel read few clauses of Law Manuel 1938 and submits that unless anything contrary thereto is found in the Rules of Business, the Law Manual, being an existing law in terms of Article 270AA of the Constitution, will apply and orders passed are covered thereunder. Submits that removal was made in the public interest, objective was to ensure removal of vestiges of outgoing political government and make certain that free and fair elections are carried out, and action under reference is essential to dispel the impression of partiality and partisanship, since appointments under reference were made during the tenure of outgoing political government. Submits that continuity of Advocate General in office, in the absence of trust and confidence, would likely to create disagreements, complications and conflict of opinions, since Advocate General had previously represented the outgoing political government. Adds that guidance is solicited from the case of IMTIAZ AHMAD KAIFI. VS. GOVERNMENT OF PUNJAB and others. (PLD 2013 Lahore 598), while making en masse removals of Law Officers, without cherry-picking discretion. Learned counsel attempted to distinguish the decision in the case of Raja MUHAMMAD ZUBAIR and others' and adds that said order was assailed before the Hon'ble Supreme Court of Pakistan, wherein leave was refused, hence, said decision of the Apex Court is not a binding precedent. Learned counsel referred to decisions from our and Indian jurisdiction in support of submissions - listed in the written submissions provided - which are reported as, MUHAMMAD YASIN. VS. FEDERATION OF PAKISTAN through Secretary, Establishment division, Islamabad & others. (PLD 2012 SC 132), MALIK MUHAMMAD BASHIR LAKHESAR, ASSISTANT ADVOCATE GENERAL, PUNJAB. VS. GOVERNMENT OF PUNJAB and others (2019 PLC (C.S.) 266), SYED AZIZ-UD-UDIN KAKAKHEL.VS. GOVERNOR KHYBER PAKHTUNKHWA through Principal Secretary and 8 others. (PLD 2019 Peshawar 145), SHAFAQAT MAHMOOD LODHI.

VS. THE ACCOUNTABLE-GENERAL WEST PAKISTAN LAHORE (PLD 1968 Lahore 786), STATE OF UTTAR PARDESH AND OTHERS. VS. RAKESH KUMAR KESHARI AND ANOTHER. ((2011) 5 Supreme Court Cases 341), B.P. SINGHAL. VS. UNIONI OF INDIA & ANOTHER. ((2010) 6 Supreme Court Cases 331), STATE OF U.Pand others. Vs. U.P. STATE LAW OFFICERS ASSOCIATION and others (AIR 1994 SC 1654), JOGINDER SINGH WASU. VS. STATE OF PUNJAB (1994) 1 Supreme Court Cases 184), V.C.

Rangaduraii. Vs. D. GOPALAN and others (AIR 1979 SC 281), P.K. Kunjukrishnan NAIR. VS. STATE OF KERALA and others (AIR 1989 KERALA 253), BHADRESWAR TANTI. VS. S.N. Choudhary and another.

(AIR 1985 GAUHATTI 32), JUSTICE QAZI FAEZ ISA and others. Vs. THE PRESIDENT OF PAKISTAN and others (PLD 2021 SC 1), M/S MUSTAFA IMPEX, KARACHI and others. Vs. THE GOVERNMENT OF PAKISTAN through Secretary Finance, Islamabad and others (PLD 2016 SC 808), VICE-CHAIRMAN PUNJAB BAR COUNCIL and others. Vs. GOVERNMENT OF THE PUNJAB and others (PLD 2021 Lahore 544) MEHRAN SECURITY SERVICE (PVT.) LTD. And 2 others. Vs. PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan Islamabad and 3 others. (2000 YLR 2655), MALIK MUHAMMAD BASHIR LAKHESAR, ASSISTANT ADVOCATE-GENERAL, PUNJAB. VS. GOVERNMENT OF PUNJAB AND OTHERS (2019 PLC (C.S.) 266), SECRETARY, MINISTRY OF LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, GOVERNMENT OF PUNJAB and others. Vs. MUHAMMAD ASHRAF KHAN and others. (PLD 2011 SC 7), MUHAMMAD USMAN. VS. ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 3 others. (2022 YLR 1131), RABNAWAZ DHADWANA, ADVOCATE and others. Vs. RANA MUHAMMAD AKRAM, ADVOCATE and others. (PLD 2014 Lahore 591), KHAWAJA MUHAMMAD ASIF. VS. FEDERATION OF PAKISTAN and others. (2013 SCMR 1205), GOVERNMENT OF BALOCHISTAN through SECRETARY SERVICES AND GENERAL ADMINISTRATION DEPARTMENT and others. (PLD 2021 SC 313), RAJA MUHAMMAD ZUBAIR and others. Vs. GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and others. (PLD 2022 Peshawar 100), NEMAT ULLAH and others. Vs. CHAIRMAN GOVERNING BODY WORKER WELFARE BOARD/SECRETARY TO GOVERNMENT OF KPK, LABOUR DEPARTMENT and others. (2016 SCMR 1299), IMTIAZ AHMAD KAIFI. VS. GOVERNMENT OF PUNJAB and others. (PLD 2013 Lahore 598), KHAWAJA MUHAMMAD SHARIF. VS. FEDERATION OF PAKISTAN through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others. (PLD 1988 Lahore 725), KHAWAJA AHMAD TARIQ RAHIM. VS. THE FEDERATION OF PAKISTAN through Secretary Ministry of Law & Parliamentary Affairs, Islamabad and another. (PLD 1992 SC 646), MUHAMMAD USMAN. VS. ADDITIONAL SESSIONS JUDGE, RAWALPINDI and 3 others. (2022 YLR 1131), HADAYAT ULLAH and others. Vs. FEDERATION OF PAKISTAN and others. (2022 SCMR 1691) and M. ASHRAF KHAN, ADVOCATE SUPREME COURT OF PAKISTAN. VS. SECRETARY LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, GOVERNMENT OF THE PUNJAB, LAHORE and 19 others (PLD 2008 Lahore 312).

Determination.

6. The grit of the nation is always gauged by its ability to navigate through testing times, how difficult those might be. Some nations may emerge stronger, and others just become mere historical fact. Conventional wisdom established that attitudes-cum-resilience of the citizenry is no doubt an indispensable factor for recording a success story, but nonetheless forbearance of the Institutions is the foundational principle. What could be worse than the position of the Londoners, when the German war-machine [Luftwaffe - German Air-force] played havoc and caused unparalleled devastation, but the nation not only survived but thrived. War strategies and support from across the Atlantic were critical factors but the rallying point was the argument by the then British Prime Minister, Sir Winston Churchill, which was, "Are the Courts functioning"? And was told that judges are dispensing justice as normal and Churchill replied, "Thank God. If the Courts are working, nothing can go wrong"

[Emphasis supplied]

7. Working of the Courts does not imply a mere nine to five jobs but discharging of their fundamental function. i.e., dispensation of justice. Dispensation of justice is not a term of art but implies an unhampered and uncompromised enforcement, preservation, adherence to and ensuring continuity of the constitutional conventions, articulated in the Constitution of 1973.

Perpetuation of the constitutional mandate would ensure the existence, supremacy and continuity of constitutional democracy, and essentially confirming the authority of the people of Pakistan, having absolute and uncompromising power and authority to elect / choose their representatives for running the affairs of the State. And constitutional democracy is sustained by free, fair and transparent elections under the supervision and control of an impartial and nonpartisan body, constitutionally speaking, the Election Commission of Pakistan.

8. In the context of peculiar circumstances qua dissolution of the Punjab Assembly, care-taker provincial government of the Punjab was placed to assist the Election Commission of Pakistan in organizing and conduct of honest, fair, just and transparent elections. Care-taker provincial government is in place for limited period, i.e., pre-election phase - such phase commonly referred as Purdah in United Kingdom - and entrusted with limited functions.

Controversy at hand, earlier scripted in the statement of removal of the Advocate General, Punjab and Law Officers by the care-taker Chief Minister - simplicitor having client-attorney relationship and otherwise occupying pleasure posts - but devil lives in the details. And sharper focus expounds seriously triable questions of law, hereunder summarized, for ease of comprehension,

(i) What is the nature, scope and extent of the functions, powers and authority conferred upon and exercisable by the care-taker provincial government during pre-election phase?

(ii) Whether the act of removal of Advocate General and Law Officers is lawful and covered in terms of the functions prescribed in law? And whether Section 230 of Elections Act, 2017 prescribes sum-total functions of caretaker provincial government(s) or its otherwise?

(iii) Whether care-taker Chief Minister, even before the formation of the care-taker provincial government, is a competent authority to order en masse removal of the Advocate General and Law Officers? AND Whether section 230 of the Elections Act recognizes individuality of the care- taker Chief Minister, independent of caretaker provincial government?

(iv) Whether political affiliation / association is attributable to the Office of Advocate General merely because appointments were made by elected political government?

(v) Analysis of the decisions referred, and effect of ratio settled therein, including dicta settled in the case of 'Imtiaz Ahmad Kaifi' and Raja MUHAMMAD ZUBAIR and others'

9. These proceedings are initiated against the orders of the the Chief Minister, elected in terms of clause (5) of Article 130 of the Constitution. Learned counsels on both sides of the aisle extensively argued in the context of the nature and scope of pleasure post(s), element of loss of trust-cum- confidence in context of a simple client-attorney relationship and necessity of providing reasons for removal or otherwise. This is not the actual controversy. Judgments referred from the neighbouring jurisdiction and case of 'Rab Nawaz Dhadwana, Advocate and others' (supra) are not relevant for the purposes of controversy at hand - latter decision highlighted the scope and significance of the constitutional office and indispensability of appointment of a full-time Advocate General [except the judgments discussed while dealing with question (v)]. Here, the context calls for determination of legality of alleged actions by the care-taker Chief Minister. Now, I take up the first question.

(i) What is the nature, scope and extent of the functions, powers and authority conferred upon and exercisable by the care-taker provincial government during pre-election phase?

10. In the context of controversy, brief review of constitutional powers of elected Chief Minister is necessary. Part IV of the Constitution deals with the Provinces. Article 105 of the Constitution envisages that, subject to the constitution, the Governor, in performance of its functions, shall act on and in accordance with the advice of the Cabinet or the Chief Minister. Clause (1) of Article 129 of the Constitution provides that, subject to the constitution, executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of Chief Minister and the Provincial Ministers, which shall act through the Chief Minister. Clause (2) of Article 129 of the Constitution indicates that, in performance of his functions under the Constitution, Chief Minister may act either directly or through the Provincial Ministers. And clause (1) of Article 130 of the Constitution states that there shall be a Cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in exercise of his functions. Chief Minister, in terms of Article 131 of the Constitution was required to keep the Governor informed about matters touching the Provincial administration, legislative proposals to be brought before the Provincial Assembly. And in terms of clause (1) of Article 132 of the Constitution, Provincial Ministers are appointed on the advice of the Chief Minister. And, relevant to the context, Article 140 of the Constitution provides for the office of the Advocate General, nature of duties and requisite and continuing pleasure of the Governor for holding the Office. Repeated references were made to Rule 13(1), read with Third Schedule and Rule 14(1), read with Part-A of Seventh Schedule of the Rules of Business to claim the powers of elected Chief Minister and to bring alleged orders within the ambit thereof. The moot question is whether under the current constitutional framework functions of the care-taker Chief Minister are provided and if not whether such situation warrants that expression the "Chief Minister" be interchangeably read as "care-taker Chief Minister". The care-taker Chief Minister is appointed, in the context of existing circumstances, in terms of proviso to the clause (3) of Article 224A of the Constitution. After hearing the learned counsels no reference or indication is found to legally treat care-taker Chief Minister as alter ego of an elected Chief Minister. Simply, alleged commonness of functions, between the care-taker Chief Minister and elected Chief Minister, cannot be presumed because of use of expression care-taker Chief Minister in the Constitution or because care-taker Chief Minister took oath in terms of Third Schedule of the Constitution. No clear stipulation is found qua the functions to be performed by the care-taker Chief Minister in the Constitution. For all intent and purposes, the Chief Minister and care-taker Chief Minister are mutually exclusive entities. In the case at hand, care-taker Chief Minister is appointed in terms of proviso to clause (3) of Article 224A of the Constitution - which article is found in Chapter 2 - ELECTION LAWS AND CONDUCT OF ELECTIONS - Chapter VIII of the Constitution. Simplicitor mechanism for appointment of care-taker Chief Minister was provided in the Constitution without reference to the functions to be performed under the Constitution. Learned Counsel for the respondents No.1 and 2 erroneously referred to clauses (1) and (3) of Article 132 of the Constitution to show that constitutional function prescribed therein can be performed by care-taker Chief Minister, in the context of advising the Governor for appointing care-taker Cabinet and to advice, if any need for removal arises. Argument falls in the realm of pure imagination. Learned counsel overlooked the existence and significance of third proviso to clause (1A) of Article 224, clearly catering for the situation pointed - appointment of provincial care-taker Cabinet on the advice of the care-taker Chief Minister, independent of Article 132 of the Constitution. This fact is indicative of seperate / independent status of the care-taker Chief Minister. It is expedient to reproduce clause (IA) of Article 224 of the Constitution, which reads as:-

(IA) On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a care- taker Cabinet: Provided that the care-taker Prime Minister shall be appointed by the President in consultation with the Prime Minister and the Leader of the Opposition in the outgoing National Assembly, and a care-taker Chief Minister shall be appointed by the Governor in consultation with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly: Provided further that if the Prime Minister or a Chief Minister and their respective Leader of the Opposition do not agree on any person to be appointed as a care-taker Prime Minister or the care-taker Chief Minister, as the case may be, the provisions of Article 224A shall be followed: Provided also that the Member of the Federal and Provincial care-taker Cabinets shall be appointed on the advice of the care-taker Prime Minister or the care-taker Chief Minister, as the case may be".

[Emphasis supplied]

11. Care-taker Government is 'sui generis' - one of its kind - and Constitution per se draws distinction between an elected Chief Minister and care-taker Chief Minister, as far as obligations, responsibilities, powers and functions are concerned. Elected provincial government is accountable and answerable to the Assembly and care-taker provincial government works in the absence of Assembly. Residual argument of relying upon Rules 13 and 14 of the Rules of Business is also misconceived. Rules of Business draw existence from Article 139 of the Constitution, and clause

(3) thereof mandated for the framing of rules for the allocation and transaction of its business.

Rules of Business per se does not confer any power unto the Chief Minister, outside the scope of functions and powers provided under Constitutional framework, merely regulates the powers conferred. Rules of Business, though provides for the allocation and transaction of executive business, may claim preference amongst the family of subordinate / delegated legislation but cannot be treated as higher than the Act of the Parliament. Can Rules of Business be treated as superior to the Elections Act, and Section 230 thereof as far as the functions of care-taker provincial government is concerned. Reference is made to paragraph 16 of the case of Mehran Security Service (Pvt.) Ltd. and 2 others V. Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 3 others (2000 YLR 2655).

"16. Since this matter has not been taken very seriously on behalf of the respondents, it has not been specifically contended that the said decision was made on the authority of Rules of Business, 1973 of the Federal Government but it seems that the decision was made on the assumption that said Rules of business empower the Ministry to take this decision. These Rules have been framed under Article 99 of the Constitution, and Article itself clearly states that they shall be "for the allocation and transaction of the business of the Federal Government" of course, these Rules have a higher status than they have been made on the authority of the Constitution itself, but they cannot substitute an Act of Parliament or Law to determine or affect the rights and duties of the citizens. Where a law assigns a function or confers a power on the Federal Government, the Rules of Business merely prescribe as to which of the Ministries or Divisions shall perform those functions and exercise those powers, and in what manner. These Rules cannot, therefore, be used to lay down the limitations, requirements and mode, as done in this case, which can only be done by enactment....".

[Emphasis supplied]

12. The scope of Rules of Business is also discussed in paragraph 63 of decision in the case of Mustafa Impex (supra), reproduced hereunder for ease of reference, 'It needs to be stressed with clarity and precision, that the allocation of business, i.e. by whom and how a matter is to be dealt with, is not equivalent to the grant of power. Allocation of business is merely a matter of inter-departmental procedure to indicate which division of the Government is going to deal with a certain subject. The mere fact that a certain Division is going to deal with a specified matter does not confer any extra or additional, constitutional or statutory powers on the said Division'.

[Emphasis supplied]

13. Proposition that some functions could be performed by the care-cater Chief Minister under the Constitution, and others are only reserved for elected provincial government leads to ludicrous situation. How and who will determine that which of the functions are available to the care-taker Chief Minister, and which function is categorized as forbidden fruit. Section 230 of the Elections Act provided solution, in terms whereof the functions of the care-taker provincial government are codified. Elections Act was framed by the Parliament in exercise of legislative powers under Article 142(a) of the Constitution - and relevant item is 41 of the Federal Legislative List. Before the promulgation of section 230, ibid, scope of functions of care-taker governments / Cabinet(s) were largely regulated by reference to constitutional conventions prevalent and shaped by the ratio settled in following cases from our jurisdiction, which are reported as Khawaja Muhammad Sharif V. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad (PLD 1988 Lahore 725), Federation of Pakistan and other V. Haji Muhammad Saifullah Khan and others (PLD 1989 Supreme Court 166), Khawaja Ahmad Tariq Rahim V. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another (PLD 1992 Supreme Court 646), The Regional Commissioner of Income-Tax Central Region, Lahore and others V. Zafar Hussain and others (PLD 1992 Supreme Court 869), Taveer A.

Qureshi V. President of Pakistan, President House, Islamabad and 3 others (PLD 1997 Lahore 263), case of Khawaja Muhammad Asif (supra) and Nemat Ullah and others V. Chairman Governing Body, Worker Welfare Board/Secretary to Government of KPC, Labour Department and others (2016 SCMR 1299).

Decision in the case of Khawaja Muhammad Asif (supra) steered the process of codifying functions of the care-taker governments which resulted in drafting of section 230 of the Elections Act. Selective reference to some rules of the Rules of Business is insignificant. If rules 13 and 14 of Rules of Business could be invoked by the care-taker Chief Minister what discourages him from claiming all the powers of the Chief Minister, classified under Rule (5) of the Rules of Business. The care-taker provincial government before claiming or exercising executive function is required to seek support of law without which alleged action would not be sustainable in law - must confirm to the requirement of section 230 of the Elections Act. Legality of every act, order, decision of care- taker provincial government would be adjudged in the context of section 230 of the Elections Act and not in terms of Rules of Business. In view of the above, the scope of the functions and extent thereof, permissible to be exercised by the care-taker provincial government are contained in section 230 of Elections Act. Now, I take up next question.

(ii) Whether the act of removal of Advocate General and Law Officers is lawful and covered in terms of the functions prescribed in law, and whether Section 230 of Elections Act, 2017 prescribes sum-total functions of caretaker provincial government(s) or its otherwise?

14. The question is not regarding the proprietary of the orders - circumstances or alleged causes of removal - but legality of the orders of removal passed by the care-taker Chief Minister - who had a solo-flight and hurriedly removed public officers from public office before the formation of care- taker provincial government. Whether act of removal is legal or illegal. Upon coming into force of section 230 of the Elections Act, no further confusion exists. The sum-total functions to be performed by care-taker provincial government are statutorily defined. Anything done, action taken or decision made beyond the scope of section 230 of the Elections Act will be construed as act in excess of the jurisdiction and patent misuse of authority. Plea of availability of some alleged functions under the Constitution is misconceived, and any acknowledgment thereof would jeopardize very existence and legality of section 230 of Elections Act. What and how would the limitations prescribed in terms of sub-section (2) of section 230 of the Elections Act be justified or implemented if care-taker Chief Minister be authorized to perform functions otherwise assigned to an elected Chief Minister under the Constitution. Hence, the care-taker provincial government operates and functions according to the charter of functions provided in section 230 of the Elections Act. It is expedient to reproduce section 230 of the Elections Act for convenience of reference, which reads as, "230. Functions of caretaker Government. (1) A caretaker Government shall

(a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government.

(b) assist the Commission to hold elections in accordance with law.

(c) Restrict itself to activities that are of routine, non-controversial and urgent, in the public interest and reversible by the future Government elected after the elections; and

(d) Be impartial to every person and political party.

(2) The caretaker Government shall not--

(a) take major policy decisions except on urgent matters;

(b) take any decision or make a policy that may have effect or pre-empt the exercise of authority by the future elected Government;

(c) enter into major contract or undertaking if it is detrimental to public interest;

(d) enter into major international negotiation with any foreign country or international agency or sign or ratify any international binding instrument except in an exceptional case.

(e) make promotions or major appointments or public officials but may make acting or short term appointments in public interest;

(f) transfer public officials unless it is considered expedient and after approval of the Commission; and

(g) attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections.

(3) The Prime Minister, Chief Minister or a Minister or any other members of a Caretaker Governments shall, within three days from the date of assumption of office, submit to the Commission a statement of assets and liabilities including assets and liabilities of his spouse and dependent children as on the preceding 30th day of June on Form B and the Commission shall publish the statement of assets and liabilities in the official Gazette.

(4) In this section, 'caretaker Government' means the caretaker Federal Government or a caretaker Provincial Government".

[Emphasis supplied]

15. Textually sub-section (1) of section 230 of Elections Act provides the functions to be performed by the care-taker provincial government with clear guidelines and sub-section (2) of the Elections Act provides restraints/ limitations to be adhered to, but with certain exceptions / conditionalities.

Now the question is whether the orders of removal could legally seek shelter under section 230 of the Elections Act. In the context of clause (e) of sub-section (2) of section 230 of the Elections Act, underlying necessity of requisite public interest must be satisfied. Clause (e) of sub-section (2) of section 230 operates on the principle of causation. Option of appointment arises in case of occurrence of vacancy, which is the cause and effect thereof is permissibility to make acting or short-term appointments in public interest. In the case under reference cause was allegedly created to justify consequent action of making fresh appointment of Law Officers. This amounts to fraud on the law. Primary reason for the removal of Advocate General and Law Officers is a mere subjective opinion of the care-taker Chief Minister that Advocate General had political affiliation / association, since same was appointed by the outgoing provincial government. The question is not of formation of opinion but indication of the circumstances, based on which inferences were drawn, need full disclosure. Care-taker Chief Minister believes that further retention of Advocate General, and Law Officers would result in disagreements and an obvious conflict between the person of the Advocate General and care-taker provincial government, on policy matters, assuming that former will oppose the working and operations of the care-taker provincial government. Learned counsel for the care-taker Chief Minister adds that removal was otherwise imperative for the conduct of honest, fair, free and transparent elections of the Provincial Assembly.

Incidiently, nothing has been brought in shape of any official summary - containing reasons and grounds for removal and that free and fair elections are not achievable in presence of the Advocate General - nor any affidavit of any official was submitted, except that some details of print / electronic media were appended with the written submissions - at the fag-end of Volume-II - to highlight alleged political propensity of the Advocate General, but those documents were not referred during submissions before the larger Bench. No plea of alleged political affiliation and association was pleaded in the report/ para-wise comments submitted. Learned counsel for the respondents No.1 and 2 hammered his client's position that no reasoning was required to be disclosed for the appointment or removal of the pleasure post(s), and whether any detail is provided or not, such matters are otherwise unreviewable under the judicial review jurisdiction. This argument is inherently defective in the context of existing circumstances - scope of functions exercisable by the care-taker Chief Minister and extent thereof as excess committed or breach reported, the matter is reviewable under constitutional jurisdiction.

16. Learned counsel for the respondents No.1 and 2 emphasized that act of removal of Advocate General and Law Officers is a reversable act, by future Government elected after the elections. This argument needs to be analysed in the context of the effect caused by a particular Act. Articles 100 and 140 of the Constitution relate to the appointment and removal of Attorney General and Advocate General. The argument raised may be inconsequential for present purposes or having an academic value but if this scenario is examined in the context of Attorney General - assuming that Attorney General and not the Advocate General is removed by the president on the advice of care- taker Federal Government. Notably, Attorney General is the member of the Judicial Commission of Pakistan and is required to attend the meeting, who attends and votes qua the appointment or confirmation of the Hon'ble Judge. Is an act of Attorney General, appointed by care-taker Federal Government, reversable. Agreed that Advocate General is not the member of Judicial Commission, but would it imply that Articles 100 and 140 of the Constitution be read and interpreted differently and grounds pleaded in instant petitions for the removal of the Advocate General are not available for the removal of the Attorney General, in the context of argument of reversible decision. No further discussion is required in the context of conjectural situation. Learned Counsel for the respondents fails to appreciate that element of reversibility is not the only condition prescribed in clause (c) of sub-section (1) of section 230 of the Elections Act. Was a removal of person holding constitutional position a routine act. The appointment of Advocate General is a substantial appointment and otherwise fall in the realm of major policy decision. Simplicitor removal of Advocate General on the allegation of having political affiliation / association - solely because being appointed by the elected provincial government - and without any plausible justification and reasoning and without seeking the indulgence of the Election Commission, per se violates the mandate of clause (d) of sub-section (1) of section 230 of the Elections Act - and action cannot otherwise be construed as an impartial act to a political party.

No material was provided to show / establish requisite public interest - this argument is otherwise unsustainable because the care-taker Chief Minister proceeded to remove public officers before the Cabinet had sworn in. The care-taker Chief Minister or the care-taker provincial government cannot be allowed to claim privilege of not disclosing reasons for the removal of Advocate General, and Law Officers on the premise that it was obligatory for the care-taker set-up to give explanations / reasons qua decision taken and actions initiated for the purposes of meeting the requirements of section 230 of the Elections Act, failing which section 230 ibid loses its effectiveness, purpose and applicability. Care-taker provincial government is not answerable to the Assembly or to the people of Pakistan but same cannot be allowed to claim immunity or relaxation qua the requirements of section 230 of the Elections Act, more particularly sub-section

(2) thereof. It is nowhere provided in the text of the orders that how alleged removal or consequent appointments met the condition of underlying public interest. Since no document or material is supplied therefore, I would not assume the existence or fulfilment of the condition of public interest.

Learned counsel for the respondents No.1 and 2, at the rostrum, attempted to justify the orders, ex- post facto / retroactively. I am afraid that such retroactive explanations qua removal of persons, holding public office, are not acceptable while exercising constitutional jurisdiction, when no material was brought to ascertain the question of fulfillment of condition of requisite public interest. In the exercise of constitutional jurisdiction any deficiency / shortcoming cannot be supplied to assume existence of element of public interest when order per se is otherwise devoid of material details. Reference is made to the observations in the case of "Commissioner of Police, Bombay. Vs. Gordhandas Bhanji." (1952 AIR (SC) 16), Para-9 thereof reads as under, "9. An attempt was made by referring to the Commissioner's affidavit to show that this was really an order of cancellation made by him and that the order was his order and not that of Government. We are clear that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

[Emphasis supplied]

17. Orders are inherently defective and of no legal effect - made even before care-taker provincial government was formed. This jurisdictional defect is uncurable. Section 230 of the Elections Act does not envisage or admit of any solo-flight by the care-taker Chief Minister, independent of caretaker Provincial Government, which provision of law envisions principle of joint responsibility of care-taker Cabinet. Evidently, purported exercise of authority tantamount to transgression and gross overreach. If such an action is approved or ratified, it will defy the purpose of bringing a care- taker provincial government and instead create a 'Frankenstein's monster' 'a despot', which is not the intent of section 230 of the Elections Act. I am afraid no endorsement qua purported actions of the care-taker Chief Minister could be extended. The purpose of the care-taker provincial government is to assist the Commission to hold elections in accordance with the law [Clause (b) of sub-section (1) of section 230 of Elections Act].

I find the involvement and participation of Election Commission, in the context of the decisions of removal of Advocate General and Law Officers conspicuous by its absence, which remained on the sidelines and did not object to an apparent overreach of authority by the care-taker Chief Minister - even did not object that how care-taker Chief Minister could operate before the formation of the caretaker Provincial Government. Is Election Commission performing its constitutional duties. Res ipsa loquitur - the thing speaks for itself. No prejudice intended! Full-stop. Now I take the next question.

(iii) Whether care-taker Chief Minister, even before the formation of the care-taker provincial government, is a competent authority to order en masse removal of the Advocate General and Law Officers? AND whether section 230 of the Elections Act recognizes individuality of the care- taker Chief Minister, independent of care-taker provincial government?

18. The question is, by and large, answered in preceding paragraphs. Individuality claimed and exhibited in terms of the orders impugned is not recognized under section 230 of Elections Act.

Likewise, the appointment of fresh Law Officers is of no legal effect, authority purportedly being exercised in an individual capacity and outside the scope of clause (e) of sub-section (2) of section 230 of the Elections Act. Above all element of pressing public interest is conspicuously absent. This court while exercising constitutional jurisdiction would hold an inquiry to look for element of public interest, otherwise shrouded in mystery, neither substantiated by any material / document nor manifested in the orders assailed. Public interest can be a ground for initiating action and not raising ex-post defence allegedly to defend the order, which is otherwise, on its face, ambiguous and unsubstantiated. This takes me to the next question.

(iv) Whether political affiliation / association is attributable to the Office of Advocate General merely because appointments were made by elected political government?

19. Advocate General is a top / senior legal officer of the provincial government, whose duties are to give advice to the provincial government upon such legal matters, and to perform such other duties of legal character, as may be referred or assigned to him by the provincial government - Clause (2) of Article 140 of the Constitution. Advocate general cannot be classified as a political appointee, merely because appointment is made by the elected provincial government. The office of Advocate General is not a political office but a constitutional office. It is wrong to construe that Advocate General appointed shall pursue or toe the philosophy of the political government or party politics, unless such serious and prejudicial allegations are specifically alleged, confronted to and substantiated. Some instructive discussion in this context is found in Constitutional law of India, by H.M Seervai - Fourth Edition / Silver Jubilee Edition, Volume 2, relevant portions from pages 2108 to 2114, which is reproduced hereunder, "18.143 The debates in the Constituent Assembly show the anxiety of the framers of our Constitution to ensure that the administration of justice was not perverted by executive or political pressure, and they took steps to enact provisions which would secure that object. Article 32 gave the Sup. Ct. power to issue writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto for violation of fundamental rights, and Art. 226 gave the same power to the High Courts, and also gave the power to issue those writs for any other purpose. These two Articles secured judicial control of administrative action. Article 51 directs the State to take steps to separate the executive from the judiciary, a directive which has been carried out by a large number of States.

The power to grant pardon conferred by Arts. 72 and 161 on the President and the Governor of a State is designed to temper justice with mercy. In rejecting all attempts to make the office of the Att.-Gen. and the Advs.-Gen. political offices, and in deliberately making those offices non- political, the framers made independent legal advice at the highest level available to the Union and the States. Besides, the Constitution imposed an obligation on the Att.-Gen. and the Adv.-Gen. to discharge statutory duties for the protection of the public interest - duties which they could discharge independently, without being suspected of political partisanship: Arts. 76 and 165. The non-political nature of the Att-Gen.'s office not only secured independent advice for the Union, but was a further protection to the States in their dealings with the Union, for the duty of the Att.-Gen. is not only to advise the Union on matters which concern only the Union, but also on matters which concern the relation of the States and the Union, and the advice given by a political partisan might be unfair to the States and might lead to needless litigation and disharmony between the Union and the States. The framers were aware that in the United Kingdom the offices of the Att.-Gen. and the Sol-Gen. were political offices. But the framers were also aware of the breach in the doctrine of ministerial responsibility caused by the convention that in the discharge of their judicial functions the law officers must act independently of the ministry.

Besides, a convention can be ignored; therefore, the Constitution expressly imposed a duty on the Att. Gen. and the Advs. Gen. to exercise independent statutory powers conferred upon them by any law. As the Chapters on the Judiciary will show (Chapters XXV and XXVI in Vol. III of this edition) care was taken to secure the appointment of judges who should be free from political pressure. Motions designed to require ratification of the appointment of judges inter alia by "some members of the legislature were rejected as making the appointments subject to political pressures". Further, Arts. 233 to 235 placed the subordinate judiciary under the control and supervision of the High Courts to free them from executive control.

18.144 The administration of justice is not the function only of the courts or of the law officers. The executive government is charged an with the administration of criminal law and is also in charge of civil litigation affecting rights and powers of government which must necessarily affect the public interest. What provision did the framers of our Constitution make to see that the executive administration of justice was not perverted by political or party considerations? The services of the Union and the States have been provided for in a distinct part of the Constitution and will be fully considered in Chapter XXVII of Vol. III of this edition. But the organization of the civil service is of vital importance to the fair administration of justice. Broadly speaking, there are two widely contrasted systems of civil service, one of which existed in the United States for over 100 years, and the other of which has existed in U.K. The American system is described as "the spoils system" which is defined as the "practice of giving public offices to adherents of successful party". The other system is best described as the system of a permanent civil service selected by open competitive examinations or by recruitment through an independent agency like a Public Service Commission. The spoils system in the United States appears to have been a concomitant of the Presidential form of government, for Art. 2(2) of the U.S. Constitution provides that the President shall, by and with the advice and consent of the Senate, appoint, inter alia, all officers of the United States whose appointments are not provided for in the Constitution and which shall be established by law. A full discussion of the spoils system in the United States is outside the scope of this book. But an extremely illuminating discussion of that system will be found in the undernoted book. The evil effects of that system are summed up by Prof. Finer thus: "Effects of the system. An enormous number of offices - most, in fact - fell into the hands of the politicians. Every four years a large clearance was effected. and during each Presidential term other violent changes occurred Sheer inefficiency was the first result; an increase in public costs the second: the creation of a class of office seekers the third, political corruption the fourth: a standing battle between the President and the Senate for the control of appointments and removals a fifth; and a terrific waste of time and labour on the part of the President and heads of departments, coupled with the real pain of refusal of applications for office, the sixth. Never had a state been so debauched Officials were chosen through the loosely jointed machinery of Congressmen and the local party 'bosses'. Moreover, the parties prayed upon the officeholders' salaries, by 'assessing' them at so much per cent for contributions to campaign funds, and this again caused a counterpressure for higher salaries, so that indirectly the parties were paid by the State Finally, the political appointees were obliged to be politicians all the time to secure their future reinstatement. Worse still, politics and administration fell into public contempt.

From this evil the Federal Government of the United States freed itself largely due to the efforts of reformers who were struck by the civil service in the United Kingdom which they tried to introduce, and largely succeeded in introducing, in the United States.

18.145 The underlying basis of the spoils system is that a government is best served by those who share its "philosophy" or more accurately. its party politics; and that an inefficient public servant belonging to the political party in power is a better public servant than a more efficient person who does not belong to that party. On the other hand. the civil service in U.K. is a concomitant of the cabinet form of government, that is, a cabinet responsible to Parliament and removable by it, in which the minister accepts responsibility for the acts of his department The function of the permanent civil service is to carry on the administration no matter which Govt is in power - Conservative, Liberal, Labour, or a combination of one or more of them. The duty of the civil service is to put its knowledge and experience at the disposal of the ministers before policy decisions are taken, and then to implement the decisions whatever the personal views of the civil servant may be. The framers of our Constitution having adopted the cabinet or the ministerial form of government, adopted the British system of a permanent civil service which in fact existed in India. The framers also enacted provisions in the Constitution which would secure a permanent civil service recruited by open competitive examination and / or by the Public Service Commission. Article 16 secures to all citizens equality of opportunity in matters of public employment, which opportunity includes promotion, transfer, pensions and the like. These provisions would make the spoils system impossible in the selection of candidates for public offices. The Public Service Commission was made as independent of the Govt. as law could make it: see Arts. 315 to 323. Further, after appointment in government service, Art. 311 protected the Govt. servant from being dismissed or removed from service or reduced in rank without complying with the requirements of that Article, thus ensuring the security of service, no matter what political party was in power from time to time. The kind of civil service provided for in the Constitution was a reasonable safeguard against perverting the course of justice. The framers of the Constitution were aware that the legal business of Govt. was conducted by the Legal Department both on the criminal and on the civil side, and that it was the duty of the legal department to advise all other departments. The legal department consisted of highly trained lawyers with a Remembrancer for Legal Affairs (R.L.A.) and Secretary of the Law Department who was not only the administrative head of the department but was the highest law officer in the Secretariat. The Rules made for the Law Officers, which include the Law Secretary, as also the Rules of Business show - what would even otherwise be obvious - that it is the function of the Legal Department to give correct legal advice on the problems which arise in the administration of civil and criminal justice. That the Legal Department may take a different view of a legal problem from that taken by the Minister in charge of Law and Justice is also made clear from the Rules of Business. On this point, Kedar Prasad v. State is an instructive case. Rule 20, Sch. 3 of the Rules of Business of the State of Bihar provided that any proposal for the institution or withdrawal of a prosecution against the advice tendered by the judicial department (the Legal Remembrancer's Branch) must be referred to the Council of Ministers for discussion and final orders of government. In respect of two persons, the Dist. Magistrate and the Secretary of the Legal Department advised against the withdrawal of the prosecution, pointing out that there was a prima facie case and "justice demanded that it should be thrashed out in court." Disregarding the advice, the Minister of Law directed the prosecutor to withdraw the prosecution which, however, could not be withdrawn because the Magistrate refused permission to withdraw it. During the pendency of the criminal revision applications against this order, the State of Bihar published a resolution in the Gazette Extraordinary appointing a Commission of Inquiry to inquire, inter alia, into the following charge: "Sri Hazibur Rehman thus by misuse of his official position and power unnecessarily interfered with the administration of justice in a serious case of rioting with murder." This case shows that it is expected that the Legal Department will give independent advice, and that if in important matters the Law Minister overrules that advice, the matter should be considered by the whole Council of Ministers and failure to conform to this salutary rule may expose the Minister to a charge of abuse of power and interference in the administration of justice. Independent advice given by the Legal Department thus not only protects the public interest, but protects the Minister from the imputation of interfering with the course of justice, by making the whole Ministry responsible for the final decision.

18.146 The reasons why the legal department and the law officer must give independent legal advice to Govt. are elementary and well known to every lawyer. Those reasons were well known to the framers of the Constitution, who, therefore, took no steps to ensure that the advice given by the legal department to Govt. should be independent legal advice. The proper functioning of the legal department was so well known, that in the first edition of this book, I considered it unnecessary to deal with the Executive and the Administration of Justice which is the subject of the present Section III. However, a different view of the role of law officers (including law officers in the legal department) and Govt. advocates has been propounded recently which has made it necessary to discuss the subject and to examine the validity of the new doctrine. Addressing a Law Officers' Conference, a Law in Bombay is reported to have said: "I do expect the government lawyers to be committed to the philosophy of the Government those who do not have faith in government's philosophy and are on its panel have to make self-analysis regarding the same." And further "If government engages lawyers holding views directly in conflict with its philosophy, then that government is not worth its name. The Government must see that it has committed lawyers to take up their briefs and lawyers on their part must advise government properly if they believe in the philosophy of the Government."

18.147 A little "self-analysis" would show that the new doctrine is not only opposed to the provisions of our Constitution set out earlier, but is untenable for reasons which are elementary and well-known:

(a) When a lawyer is asked to give a legal opinion, he must use his knowledge and skill, first, in ascertaining the relevant facts and then in ascertaining the relevant law applicable to those facts.

His opinion will state briefly the relevant facts and will indicate what he considers to be the correct position in law. Neither the facts nor the law, as he finds them, can change according to the "philosophy" of the person who seeks his opinion. litigation involves not merely questions relating to money or property but it involves questions of legislative and executive power. The framers of our Constitution rightly assumed that a popularly elected Minister in charge of a public department would wish to protect the interests of the State, and that he would not wish to incur the odium of being responsible for the actions of a department whose advice was frequently found incorrect when tested by courts and tribunals.

(c) By far the largest part of civil litigation is concerned with statutory law which has nothing to do with any particular philosophy. Suits relating to contracts, sale of goods, transfer of property, or litigation arising from tax laws, or the ascertainment of compensation according to principles laid down by law involve no question of the "philosophy" of government. And it is difficult to see what part the "philosophy" of government can play when the public prosecutor prosecutes a person for an offence under the Penal Code or under special laws.

(d) Private litigants in their litigation with government are not inhibited from securing the ablest lawyers and advocates for their cause by the "philosophy" of those advocates, and a glance at the Law Reports shows that when it comes to protecting Govt.'s interests as a litigant Govts. try to secure the services of the ablest advocates regardless of their "philosophy".

18.148 The following passage from Prof. Abraham's book on The Judicial Process (3rd ed. pp. 193-4) is apposite for showing the high traditions of law officers: The Solicitor General is in charge of all of the government's litigation in the Supreme Court, which comprises in excess of 50 per cent of the Court's total work load. He and his staff argue all of the government's cases before it. His office supervises all government briefs filed in the Court, and he must personally approve, or disapprove, any case before the government takes it to the Court.

Moreover, the Solicitor General - whose post pays $ 48,500 (1974) - has supervisory authority over the government appeals. Only if he gives his approval may the government appeal from an adverse decision in a trial court. [It must of course be remembered that both the federal and state governments are checked by the formidable Fifth (and Fourteenth) Amendment safeguards against double jeopardy.] Sometimes, much to the chagrin of certain members of both the executive and legislative branches, the Solicitor General's office exercises its commendable tradition of alertness toward any unfairness in government cases. When he detects such unfairness, the Solicitor General will usually file a 'Confession of Error in the Supreme Court, in which he asks that it set aside a victory won by the government in the lower court. Although this practice is of the very essence of justice - which, after all, should be the aim of all litigation - it may be doubted that a large number of private counsel would be similarly willing to forego a victory. All too frequently litigation is viewed as a courtroom battle between two opposing teams of high powered trial lawyers bent upon victory rather than upon the triumph of justice."

18.149 A distinguished Att-Gen. of the United States, Griffin B. Bell, has put the duty of all public servants, which would include ministers and law officers, in the following admirable words: ':.. those who wield the power of central authority must always remember that they are there to serve the people and to follow the will of the majority, restrained and tempered by the constitutional provisions which are meant to keep the majority itself from becoming a despot.

"Public servants must keep clearly in mind that they are the government. It is they to whom the people look, and it is they who are accountable to the people. The only limits to reforming our system lie in us. I'm reminded of an experience Justice Harry. A Blackmun had several years ago.

Visiting in Aspen, Colorado, he got into conversation with a five-year-old boy named Matthew.

That night, when Matthew's mother put him to bed, Matthew said to her 'I met the nicest man tonight'

"'Who was it?" she asked.

"'I don't know,' Mathew said, 'but I think he was the government.'

"The government is us - every public official."

18.150 The new doctrine considered above would make the office of the Att.-Gen. and the Advs.- Gen. political offices, so that these law officers must change with the change in the government, thus introducing in Arts. 65 and 165 an amendment by executive action which the Constituent Assembly rejected when moved as a formal amendment to draft Art. 63 relating to the Att Gen. and deleted by an amendment from the draft Art. 145 relating to the Advs. Gen. Secondly, the new doctrine has been taken to justify the appointment of lawyers sharing the "philosophy" of the Government as honorary legal advisers to give legal advice to Government, notwithstanding that the Adv. Gen. (and the same would apply to the Att-Gen.) is there to advise State governments, and notwithstanding that the law before and after the Constitution has given them pre-eminence at their respective Bars. The legal validity of these honorary offices is a matter of grave doubt, but there can be no doubt that such offices derogate from the position which the Adv.-Gen. is designed to fill by the Constitution and the law. However, a detailed discussion of the problems raised by the appointment of honorary legal advisers to Government would involve an elaborate inquiry and discussion more appropriate to a book on the Law Officers of India than to this book."

[Emphasis Supplied] Significance of clause (2) of Article 140 of the Constitution cannot be undermined, which defines the scope of duties of the Advocate General. It is expedient to reproduce clause (2) of Article 140 of the Constitution to understand the nature of duties performed by the Advocate General, clause (2) reads as, "It shall be the duty of the Advocate-General to give advice to the Provincial Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Provincial Government".

[Emphasis supplied] Expressions upon such legal matters and such other duties of legal character are critically important in the context of allegations of alleged political affiliation / association. Constitution defined the scope and duties, comprising of legal matters and legal character, to be performed, and nature of duties are further elucidated in terms of clause 1.6 of the Punjab Law Department Manual, 1938, latter appliable being an existing law. Constitution expressly imposed a duty on the Advocate General, who is required to follow the constitutional mandate and maintain independence in the context of the duties prescribed. It is not the mandate of the Advocate General to push or promote political philosophy of a political party, which allegations if substantiated, attracts charge of misconduct. A reference to Article 165 of Indian Constitution is apt, which is slightly different. Clause (2) of Article 165 of Indian Constitution is reproduced hereunder, "It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force".

[Emphasis supplied] Evidently there is not much difference in the substance.

Advocate General is required to discharge duties as assigned under the Constitution, further explained in terms of Punjab Law Department Manual, 1938. In these circumstances, the office of the Advocate General and appointee thereat cannot be labelled as political appointee - who is to advice on legal matters and perform duties of legal character - this sufficiently divorces the office of the Advocate General from the political thicket. In these circumstances, simplicitor attributing motives or intention of political affiliation / association is not enough for the removal of the Advocate General but taking cue from the principle of strict liability, breach of an absolute duty need to be established. The office of the Advocate General or Attorney General, in essence, are Constitutional Offices notwithstanding appointments being made by elected political government(s). Attributing political motives, political biasness, partiality or partisanship tantamount to demean the stature of the office of Advocate General and discourage professional lawyers from eying / aspiring for said office - allegations on individual basis is another matter provided same are substantiated. According to the constitutional requirement, Advocate General must be a person qualified to be appointed as a judge of the High Court, who is required to discharge constitutional / statutory duties, as prescribed in the Constitution. Labelling of constitutional office of Advocate General as political office and appointee therein as political appointee manifest immaturity and distrust in inherent goodness of the system. In terms of our constitutional structure, the Governor is appointed by the President, on the advice of the Prime Minister. Whether the office of the Governor can be labeled as a political office. Upon assumption of charge the Governor holds a constitutional office and is required to act and perform functions / duties assigned in the constitutional. Unfortunately, in the recent past we have witnessed such events where the Governor(s) merely acted as an instrumentality of the political party, still irrespective of the happening of such incidents, the character of the office of the Governor would not change. But then law cannot be made subservient to mere attitudes or practices. We must procced with the presumption that office of the Advocate General is apolitical - in the context of individual cases allegations / motives attributed are required to be substantiated. If determination of once neutrality and impartiality is merely dependent upon the source of the appointment or for that matter nomination - source being the political party -, is it fair to attribute political inclinations to incumbent care-taker Chief Minister only because he was the nominee of a political party, which proposed him for the appointment of care-taker Chief Minister. Not at all, no such attitude is attributable or presumed, unless alleged political partiality, bias or partisanship, towards any person or any political party is sufficiently substantiated. Likewise, appointment of the Advocate General and the Law Officers, merely by an outgoing Chief Minister, who headed coalition government, would not per se make the appointment political. One need to draw distinction between the Law Officers of the Advocate General Office and mere legal advisor of the department. The orders assailed, if not set-aside, had the tendency of politicizing the office of Advocate General - potential of having domino effect.

In the context of instant petitions, there is another aspect. acts. It is expedient to reproduce observations in the case of S.R. Bommani and others etc. V.

Union of India and others, etc. (AIR 1994 Supreme Court 1918), and relevant portion from paragraph 147 reads as, "While interpreting the Constitution neither motives nor bad faith nor abuse of power be presumed unless in an individual case it is assailed and arises for consideration on that premise. Section 114

(e) of Evidence Act raises statutory presumption that official acts have been regularly performed".

[Emphasis supplied] [Equivalent thereto is Article 129(e) of Qanun-e-Shahadat Order, 1984].

It is argued that reasoning for removal was avoided to avoid stigmatizing the person, which is a fair concern, but whether the allegations of political affiliation / association are per se not an act of denouncing or stigmatizing one's professionalism/vocation. Notably, allegations attributed are neither figured in the orders impugned nor confronted to the Advocate General, who was not even asked to resign voluntarily, after care-taker provincial government is constituted, if at all any perceived threat qua holding and conduct of fair and independent elections was identified or found. In these circumstances, no judicial notice of the facts alleged can be taken under Article 111 of the Qanun-e-Shahadat Order, 1984 in absence of any available material. Haste shown in ordering removals ipso facto denuded the actions of any credibility and neutrality - bedrock feature of the care-taker government. In this case since the Advocate General and Law Officers have not tendered resignations voluntarily, it is imperative to establish alleged political bias / partiality and consequential threat to the conduct of free, fair and transparent elections, as condition for meeting the statutory dictates of the law, both provisions of Elections Act and Article 218 of the Constitution.

Why the case of the Advocate General and Law Officers, if any opinion was formed qua their political affiliation / association or probable threat to the conduct of fair, just and transparent elections is perceived, not referred to the Election Commission, an autonomous body tasked with the duty of ensuring fair, just and transparent elections? Admittedly the mandate of section 230 of the Elections Act, is not followed by the care-taker Chief Minister. In these circumstances, attribution of allegation of political affiliation / association is mere figment of self's imagination, otherwise being unsubstantiated.

20. It is important to reiterate the objection and purpose of bringing a care-taker setup, which is to provide continuity of administrative machinery, i.e., to attend to day-to-day matters, being necessary to run the affairs of the Government and assist Commission to hold elections in accordance with the law. The care-taker provincial government is obligated to maintain neutrality, to remain impartial to every person and political party [clause (d) of sub-section (1) of section 230 of the Elections Act, and such attitude must be manifested and demonstrated in every action taken or decision made. A caretaker Provincial Government and the care-taker Chief Minister must be above of all suspicion, alike Caesar's wife. This benchmark of neutrality and impartiality prescribed in law and followed in practice shall ensure the credibility of the care-taker set-up and augur well for fair, free and transparent elections, leading to much required political stability and strengthening of constitutional democracy. Any breach of the mandate of section 230 of the Elections Act or any excess committed in terms thereof are reviewable under the judicial review jurisdiction, provided such breaches and excesses remained unattended, left unremedied / uncured by the Election Commission of Pakistan. This brings me to next question.

(V) Analysis of the decisions referred, and effect of ratio settled therein, including dicta settled in the case of 'Imtiaz Ahmad Kaifi' and Raja MUHAMMAD ZUBAIR and others'

21. Subject cases are referred from both sides of the aisle, in the context of the orders of removal of Advocate General and Law Officers. Before discussing aforesaid cases, it is apt to refer to the case of Khawaja Muhammad Asif (supra), repeatedly referred and extensively read - which deals with orders of transfers and postings of civil servants and public office holder(s), ordered by the then care-taker Prime Minister / Care-taker Federal Government before conduct of general elections of 2013. Learned counsel for the respondents No.1 and 2 attempted to distinguish the case of Khawaja Muhammad Asif (supra) on the premise that question of removal of Law Officers was not the subject matter of controversy therein, who conversely referred the case of Imtiaz Ahmad Kaifi (supra). Learned counsel for the petitioner(s) emphasized qua the dicta laid in the case of Raja MUHAMMAD ZUBAIR and others (supra). Of all the cases referred only the cases of Imtiaz Ahmad Kaifi (supra) and Raja MUHAMMAD ZUBAIR and others (supra) deal with the issue of removal of law officers - though removal of the Advocate General was not subject matter thereof.

The principles enunciated in the case of Khawaja Muhammad Asif (supra) cannot be overlooked, in the context of present controversy.

22. It is expedient to discuss the reasoning in the case of Khawaja Muhammad Asif (supra) to comprehend the scope and significance of section 230 of the Elections Act.

Paragraphs 13 and 15 of the judgment outline the scope of functions and extent of powers-cum- authority available to the caretaker government, which, for ease of reference, are reproduced hereunder as, "Essentially, according to the settled and accepted norms/ practice, the Caretaker Government (Prime Minister and Cabinet) is required to perform its functions to attend to the day-to-day matters, which are necessary to run the affairs of the State and also to watch the national interests, etc., in any eventuality in absence of an elected Government, and such Government is not authorized to make decisions/appointments having effect on the working/policies of the future Government, which is likely to take over after the elections. Apart from providing assistance to the Election Commission in organizing free, fair, honest and just elections in the country, it is not vested with the authority to take decisions concerning the affairs of the Government, which are bound to pre-empt the scope and sphere of activity, powers and jurisdiction of an elected Government. A Caretaker Government possesses limited powers and authority particularly in view of the fact that when it is appointed, there is no National Assembly in place and thus the all important aspect of accountability is absent. Further, the exercise of complete powers by the Caretaker Government goes against the doctrine of separation of powers which is the lifeline of any vibrant democracy. As noted earlier, the absence of legislature results in lack of checks and balances. The Caretaker Government also lacks the mandate of the majority of people, which is to be acquired by elected government through the general elections. Therefore, if a Caretaker Government is allowed to exercise complete powers available to an elected Government, it may make an attempt to continue to remain in office for a longer period of time or may take such decisions which may cause problems for the future elected government".

"The object and purpose of making reference to these provisions is to highlight that the functions of the elected Government have remained under serious threats. At the same time, it is also significant to point out that despite appointment of the Caretaker Prime Minister/Cabinet, no guidelines were ever provided laying down the parameters to be observed by the Caretaker Governments in the exercise of their powers. As far as Constitution is concerned, Article 2A envisages that State shall exercise its powers and authority through the chosen representatives of the people and a comprehensive procedure, including qualifications and the disqualifications for the persons to be elected as Members of Majlis-e-Shoora (Parliament) has been prescribed. Thus, it is the chosen representatives of the people who have to run the affairs of the State for a fixed term of five years. Such representatives of the people are required to ensure good governance, lay down policies, and ensure betterment of the general public through legislative and executive actions. On the contrary, a Caretaker Government as compared to an elected Government remains in office for a very limited period whose first and last concern is to ensure that fair, free, honest and just elections are held in the country. The concept of caretaker or interim Government, in absence of an elected government is in vogue in a number of countries since the ancient times. Inasmuch as, in the Constitution of some of the countries, the concept of caretaker government does not specifically find a place, yet the practice of appointing caretaker government is in vogue in those countries".

[Emphasis supplied]

23. While deciding the case, Hon'ble Supreme Court of Pakistan referred to the Constitutional system of Australia, in the context of question of scope and powers of caretaker government and in particular, the sphere of "SIGNIFICANT APPOINTMENTS", which reads as, ""3. SIGNIFICANT APPOINTMENTS 3.1 Governments defer making significant appointments during the caretaker period. When considering the advice it would give on whether an appointment qualifies as 'significant', the agency should consider not only the importance of the position, but also whether the proposed appointment would be likely to be controversial.

3.2 If deferring the appointment is impracticable, usually for reasons associated with the proper functioning of an agency, there are several options: the Minister could make an acting appointment where permissible; the Minister could make a short term appointment until shortly after the end of the caretaker period; or if those options are not practicable, the Minister could consult the relevant Opposition spokesperson regarding a full term appointment."

24. In paragraph 18 of the decision, constitutional structures and conventions prevalent in various countries along relevant case-laws was analyzed, and summarized in following terms, "The crux of the above case-law and conventions/guidelines is that the Caretaker Government/Cabinet has to confine itself to the running of the day-to-day administration of the State. Indeed, it may take decisions required for ordinary orderly running of the state, but decisions having far-reaching effects should only be taken in extraordinary circumstances, like in war, earthquake, floods, etc. Although there may not be any express restriction on the powers of the caretaker government by the Constitution itself, but a major policy-decision which can await the formation of regularly elected Government without causing any disruption or danger to the functioning of the State or orderly running of the country should be left to be determined by the elected government. Thus, there can be no two opinions that the caretaker government has to exercise the powers for a limited purpose as it has been highlighted hereinabove, namely, relating to the elections and not to make fresh appointments of the civil servants or make appointments of the heads of the Autonomous, Semi-Autonomous Bodies, Corporations, Regulatory Authorities, etc., appointments on contract basis or allowing deputation or promotion to the civil servants without realizing the scope of their efficacy to share higher responsibilities to run the affairs of the Government".

[Emphasis supplied]

25. The observations regarding absence of express restrictions on the powers of the caretaker in the Constitution are significant. First, it cannot be inferred that in absence of specific restrictions the care-taker government or for that matter care-taker Chief Minister will, by default, claim all functions and powers otherwise constitutionally extended to an elected-cum-regular provincial government. And secondly, at that point in time when judgment was handed down, there was no law defining the functions, scope of functions and extent thereof - [other than the judicial precedents and regulation of affairs of care-taker governments in terms of powers of the Election Commission under sections 103(c) and 104 of the erstwhile Representation of People Act, 1976]. Now situation is different; section 230 of the Elections Act is available which defines the scope, extent and manner for the performance of functions by care-taker provincial government. Legislature was conscious of the observations of the Apex Court in paragraph 19 of the judgment and subsequently legislated in this behalf. It is expedient to reproduce relevant portion from paragraph 19 of the judgment, which reads as, "In addition to it, although in our country in respect of the powers of the caretaker government no conventions have beendeveloped and for such reasons the instant Caretaker Government indulged in taking vital policy decisions and making postings and appointments of heads of statutory bodies, postings and appointments in civil service, statutory bodies, autonomous, semi- autonomous bodies, corporations and regulatory authorities, including appointments on contract or accepting the services of various persons on deputation by allowing them to occupy one step higher positions than the one, which they were holding previously".

26. Paragraph 28 of the judgment defined the charter of the functions to be performed by the care-taker governments, which is reproduced hereunder:- "In light of discussion made hereinabove, we hold that:--

(a) The Caretaker Cabinet/Prime Minister appointed under Article 224(1)(2) or 224A, as the case may be, is empowered to carry out only day-to-day affairs of the State with the help of the available machinery/resources/ manpower and also to watch national interest against war or national calamity or disaster faced by the nation, including terrorism, etc.

(b) The civil servants who have already been appointed in accordance with the rules/regulations on the subject ought not to be posted/transferred, etc., except in extraordinary circumstances, that too, temporarily.

(c) Major policy decisions including making of appointments, transfers and postings of the Government servants should be left to be made by the incoming government in view of the provisions of Constitution that the affairs of the State are to be run by the chosen representatives of the people.

(d) As newly elected Government is mandated to perform its functions of achieving the object and purpose of welfare of the people for which it has been duly appointed, therefore, caretaker Cabinet/government/Prime Minister, having no mandate of public support, is only caretaker set up and due to this connotation should detach itself from making permanent policies having impact on future of the country".

27. It is evident that judgment in the case of Khawaja Muhammad Asif (supra) proceeded to decide questions relating to the affairs and scope of powers of care-taker government considering judicial pronouncements, the then prevalent law, i.e Representation of People Act, 1976 - wherein no peri materia to section 230 of Elections Act is found - and constitutional conventions. And now, undoubtedly, all questions relating to the scope of functions of care-taker provincial government and extent thereof, including the manner of performance of functions, are controlled and regulated in terms of section 230 of the Elections Act 2017.

28. The reasoning extended in the case of 'Khawaja Muhammad Asif (supra) was embodied in section 230, ibid., which provision of law need to be examined and interpreted in the context of principle of 'Prior-Construction Canon, - [referred / discussed in Reading Law - The Interpretation of Texts by Antonin Scalia and Bryana. Garner] and elucidated in the case of Shapiro v. United States' (335 U.S.1,16 (1948), by Vinson C.J, in following terms, reproduced hereunder as, "In adopting the language used in the earlier act, Congress 'must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment.'"

29. In this background, case of Imtiaz Ahmad Kaifi (supra) is examined, wherein the question of scope and extent of powers of the care-taker provincial government was not subject matter of reasoning provided, though nature of the relationship of the Government and office of the Advocate General was discussed, and in said case the orders of removal were set-aside on the premise of discriminatory treatment, in the context of the facts involved therein. There is another distinguishing feature. When judgment in the case of Imtiaz Ahmad Kaifi (supra) was handed down, no law provided or prescribed the functions, to be performed by the care-taker Government - section 103 (c) and 104 of erstwhile Representation of People Act 1976 extends powers to the Election Commission, in the context of the role assigned under the Constitution. Section 230 of the Elections Act brought a sea change in the context of the subject of the functions of the care-taker government.

30. The question of legality of the orders of removal of the Law officers, by the care-taker government of Province of Khyber Pakhtunkhwa during pre-election 2018 elections, were discussed and decided in the case of Raja MUHAMMAD ZUBAIR and others (supra), in the context of post- section 230 of the Elections Act, wherein dictum laid in the case of Khawaja Muhammad Asif (supra) was followed. I tend to differ with the argument that ratio settled in the case of Raja MUHAMMAD ZUBAIR and others, which was based on the ratio of decision in the case of Khawaja Muhammad Asif (supra), is not attracted. The case of Raja MUHAMMAD ZUBAIR and others (supra) elaborates and enunciates scope of section 230 of the Elections Act, which decision was latter challenged before the Hon'ble Supreme Court of Pakistan through Civil Petition No.3145 of 2018, whereby vide order dated 27.04.2020 leave was refused but the ratio settled in the case of Khawaja Muhammad Asif (supra) was reiterated, which order is reproduced hereunder, "2. After hearing the learned ASC and going through the case record, we find that perhaps the matter may have become infructuous and in that the question before the learned High Court was that the Interim Government neither could have terminated the services of the petitioners nor it could have made appointments. In this regard, the learned High Court while relying upon a judgment of this Court reported as Muhammad Asif v. Federation of Pakistan (2013 SCMR 1205) has rendered the impugned judgment. In our view, the learned High Court has rightly followed the principles laid down by this Court in the judgment, referred to above, and thus we find no illegality in the impugned judgment. This petition is therefore dismissed. Leave refused".

[Emphasis supplied]

31. Order of the Apex Court has peculiar features, whereby the order of the Hon'ble Peshawar High Court was upheld while reiterating the principles enunciated in the case of Khawaja Muhammad Asif (supra), which tantamount to reaffirmation of the dictum / enunciation of the law, which peculiar features makes its effect binding and enforceable in terms of Article 189 of the Constitution - law enunciated in the case of Khawaja Muhammad Asif (supra) is forerunner to the statutory principles embodied in section 230 of the Elections Act.

32. Respectfully stated, the majority decision and additional note, disqualifying 19 newly appointed Law Officers for the reasons stated is not endorsed on the premise that reasoning advocated tantamount to politicize the office of the Advocate General, would compromise independence of the office and convert a constitutional office into a political camp /unit. Exclusion of 19 Law Officers and determining their eligibility for the office, barely on the touchstone of criterion that they are not eligible to be retained merely because same were appointed by the political government, which had preceded the outgoing elected government, is unreasonable and unjustified. This apparent segregation, having no basis in law, has in fact stigmatized the excluded Law Officer, risking their chances of seeking appointment in the office, by dint of their competency and merits. This apparently is discrimination and does not meet the test of reasonable classification. Respectfully stated, the reasoning extended to exclude 19 officers essentially contravenes the constitutional mandate and renders the effect of clause (2) of Article 140 of the Constitution ineffectual, which prescribed the scope of duties for the Advocate General. Scope and ambit of clause (2) of Article 140 of the Constitution was discussed earlier while determining question (iv).

33. I conclude the decision by reproducing observation from paragraph 164 in the case of S.R.

Bommani (Supra), wherein reference was made to the closing speech by Dr. Ambedkar to the Indian Constituent Assembly, which reads as:- "The conventions and political morality would help successful working of the Constitution.

Constitution cannot provide detailed rules for every eventuality. Conventions are found in all established constitutions. The conventions are meant to bring about Constitutional development without formal change in the law".

[Emphasis supplied]

34. In view of the above, this and connected petitions are allowed and orders dated 24.01.2023, assailed therein, are set-aside, including the appointment of fresh Law Officers. Care-taker provincial government shall operate and function within the ambit of section 230 of the Elections Act.

1. Caretaker Government Role and Functions under Elections Act, 2017 Briefing Paper, Democracy in Pakistan by Taabeer

2. Caretaker Government Role and Functions under Elections Act, 2017 Briefing Paper, Democracy in Pakistan by Taabeer

3. Dictionary of Politics and Government Third Edition

4. PLD 2021 Supreme Court 825 Reference No.1 of 2020

5. Khawaja MUHAMMAD ASIF versus FEDERATION OF PAKISTAN and others reported as (2013 SCMR 1205)

6. Khawaja MUHAMMAD SHARIF versus FEDERATION OF PAKISTAN through Secretary Cabinet Division, Government of Pakistan, Islamabad (PLD 1988 Lahore 725)

7. THE REGIONAL COMMISSIONIER OF INCOME-TAX CENTRAL REGION, LAHORE and others versus ZAFFAR HUSSAIN and others (PLD 1992 Supreme Court 869).

8. GOVERNMENT OF BALOCHISTAN through Secretary Services and General Administration Department and others versus ABDUL RAUF and others (PLD 2021 Supreme Court 313)

9. Malik Muhammad Bashir Lakhesar, Assistant Advocate-General, Punjab Vs. Government of Punjab and others" (2019 PLC (C.S.) 206)

10. Secretary, Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others (PLD 2011 SC 7)

11. B.P.Singhal Vs. Union of India and another"(2010) 6 Supreme Court-Cases 331

12. State of U.P. Vs. U.P. State Law Officers Association and others (AIR 1994 SC 1654)

13. Joginder Singh Wasu Vs. State of Punjabs (1994) 1 Supreme Court Cases 184

14. V.C. Rangadurai Vs. D.Gopalan and others (AIR 1979 SC 281)

15. P.K.Kunjukrishnan Nair Vs. State of Kerala and others (AIR 1989 Kerala 253)

16. Lalit Mohan Taran Vs. Lal Mohan and others (AIR 1985 GAUHATI 35)

17. Imtiaz Ahmad Kaifi Vs. Government of Punjab and others (PLD 2013 Lahore 598)

18. Muhammad Yasin Vs. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132)