Raheel Kamran J:- In this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ('the Constitution') the Petitioner, Nabila Hakim Ali Khan, has assailed the notification dated 04.08.2023 issued by Caretaker Government of the Punjab whereby her services as Ombudsperson Protection against Harassment of Women at Workplace were de-notified.
2. Learned counsel for the petitioner contends that the impugned notification is without lawful authority inasmuch as the same violates Section 230 of the Elections Act, 2017 ('Elections Act').
According to him, the Caretaker Government does not have the mandate to de-notify the petitioner, as it is only required to perform the functions which are necessary to run day-to-day affairs of the State and provide assistance to the Election Commission of Pakistan ('ECP') to organize free, fair and just elections. He maintains that appointments made in autonomous/semi- autonomous bodies, corporations, regulatory authorities, etc. before the appointment of Caretaker Government are also subject to review by the elected Government by adopting the prescribed procedure. Reliance in this regard has been placed on the case of Khawaja Muhammad Asif v.
Federation of Pakistan and others (2013 SCMR 1205). He further contends that initially, the petitioner was appointed as Ombudsperson on 17.06.2021 for a period of two years, however, after insertion of sub-sections (5) & (6) in Section 7 through the Protection against Harassment of Women at the Workplace (Amendment) Act, 2021 ('Amendment Act'), tenure of the said office was extended to four years, which was duly notified on 01.04.2022. He emphasizes that amended sub- section (6) of Section 7 of the Protection against Harassment of Women at the Workplace Act, 2010 ('the Act') provides only one situation for vacation of office of the Ombudsperson, i.e. the resignation and there is no other legal provision under the Act for removal of the Ombudsperson. It is further emphasized that in the presence of specific provision of Section 7(6) of the Act, Section 16 of the General Clauses Act, 1897, mentioned in the impugned notification, has no applicability.
According to him, the Act grants security of tenure to the office of the Ombudsperson and it cannot be undone by the Government, as such power has not been conferred upon it. Reliance in this regard has been placed on the case of Badshah Gul Wazir v. Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43). He adds that nature and functions of the Ombudsperson are quasi-judicial and in terms of Article 175(3) of the Constitution executive has been separated from the judiciary, therefore, same concept is applicable for the office of Ombudsperson and if it is made subservient to the executive authority, its independence would be jeopardized.
3. Conversely, learned Additional Advocate General, Punjab contends that appointment of the petitioner was on political basis and the Full Bench of this Court in its order dated 22.02.2023 passed in Writ Petition No.6125 of 2023 has endorsed the contents of report of the ECP to the effect that the Commission after detailed deliberation authorized the Caretaker Government to remove all political employees having associated to political parties for the conduct of free, fair and transparent elections. He maintains that profile of the petitioner visualizes her political influence having contested various elections from the platform of one political party, therefore, the Caretaker Provincial Government sent her case to the ECP which concurred the Caretaker Cabinet's approval for her removal being a political appointee. He adds that at the time of initial appointment petitioner was given a tenure of two years and though later on through the Amendment Act the tenure of the office of Ombudsperson was extended to four years, however, its benefit could not have been extended to the petitioner by giving any retrospective effect. Learned Legal Advisor for the Election Commission of Pakistan supported the arguments advanced by the learned Additional Advocate General, Punjab.
4. Ms. Aaminah Qadir Advocate, learned Amicus Curiae states that the Amendment Act prescribes a clear tenure for the Ombudsperson of four years. According to her, Section 7(5) of the Act was added before the expiry of petitioner's tenure, which came into force at once, therefore, she was entitled to obtain benefit of the law from the day it was enacted. She adds that the petitioner is over 45 years of age and has been an Advocate of High Court for a period exceeding ten years, thus she was qualified to be a Judge of the High Court under Article 193(2)(a) of the Constitution.
According to her, no further stipulation has been attached to the criteria for appointment under the said Article such as certain number of reported judgments. She finally contends that both the ECP and the Caretaker Government lack authority to remove the petitioner, therefore, her removal was unlawful.
5. Mr. Zeeshan Zafar Hashmi Advocate, learned Amicus Curiae, while concurring with Ms. Aaminah Qadir Advocate, maintains that in addition to Section 230(2)(e) of the Elections Act, which restricts the Caretaker Government to make promotions or major appointments of public officials, Rule 170(1) of the Election Rules, 2017 states that the Caretaker Government merely has the power to transfer or shuffle public officials, therefore, it does not have the authority to appoint the Ombudsperson. According to him, if an Ombudsperson is removed and a new one is appointed by a Caretaker Government, the latter would have a secured tenure of four years under Section 7(5) of the Act, hence, removal of the petitioner through the impugned notification clearly amounts to an irreversible act by the Caretaker Government in violation of Section 230(1)(c) of the Elections Act, 2017.
6. Having heard the learned counsel for the petitioner, the learned Additional Advocate General for the Government of the Punjab, the learned counsel for the Election Commission of Pakistan and the learned Amici Curiae, and gone through the record, this Court is of the considered opinion that the de-notification of the petitioner by way of impugned notification dated 04.08.2023 is legally untenable for the following reasons: - i. The petitioner's appointment as Ombudsperson, initially for two years and after the Amendment Act for four years, is a tenure post, which cannot be de-notified save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within the Act. ii. The Caretaker Government lacked authority to de-notify the petitioner. iii. The Election Commission also lacked authority to issue direction requiring the Caretaker Government immediate termination of services of the petitioner.
7. Following is the elaboration of the above reasons.
The appointment of Ombudsperson is provided in Section 7 of the Act, which reads as follows: - "7. Ombudsperson.- The Government shall appoint the Ombudsperson on such terms and conditions as may be prescribed.
(2) A person shall be qualified to be appointed as the Ombudsperson who is not less than forty five years of age and-
(a) has been or is qualified to be a Judge of a High Court; or
(b) has been in the service of Pakistan in BS-20 or above; or
(c) is an eminent educationist with not less than four years administrative experience.
(3) The Ombudsperson shall not-
(a) hold any other office of profit in the service of Pakistan; or
(b) occupy any other position carrying the right to remuneration for the rendering of services.
(4) The Ombudsperson may appoint such staff as may be required to achieve the purposes of this Act.
(5) The Ombudsperson shall hold office for a period of four years and shall not be eligible for extension of tenure or re-appointment.
(6) The Ombudsperson may resign from office by writing under her hand addressed to the Governor."
The petitioner was appointed as Ombudsperson Protection against Harassment of Women at the Workplace, Punjab vide notification dated 17.06.2021 for a term of two years. Subsequently, subsections (5) and (6) in Section 7 were added by way of the Amendment Act which was published in the Punjab Gazette (Extraordinary) on 12.01.2022, whereby term of office of the Ombudsperson has been stipulated for four years. It is noteworthy that such amendment has not only fixed tenure of the Ombudsperson to be four years but also curtailed her eligibility for extension of tenure or re-appointment. The commencement clause of the Amendment Act clearly stipulates that it "shall come into force at once." This legislative phrasing indicates an immediate application of the amended provisions upon their enactment. Since the Amendment Act, including the revised tenure stipulated in the amended Section 7, came into force while the petitioner was still serving as the Ombudsperson, the extended tenure of four years became applicable to her office. By now it is well settled that when an Act of Parliament or a Provincial Assembly provides that it will come into force at once then every provision of it becomes enforceable from the day the Act receives assent of the President or, as the case may be, the Governor, unless any provision of the Act suggests otherwise. Reliance in this regard is placed on judgment of the Supreme Court of Pakistan in the case of Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Ilyas and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others (PLD 2020 SC 641). Therefore, in the absence of any legislative expression within the Amendment Act explicitly suggesting that the new tenure provision would only apply to future appointments, it squarely applied to the petitioner and the notification dated 01.04.2022 was lawfully issued by the Government of the Punjab to give immediate effect to the Amendment Act whereby tenure of the petitioner as Ombudsperson was extended to four years with effect from her initial taking of charge on 18.06.2021.
8. A plain reading of Section 7 of the Act reveals that while certain qualifications for the appointment of the Ombudsperson are explicitly delineated, the provision is conspicuously silent on the procedure of appointment. This legislative omission suggests that the prerogative for devising and executing the appointment process rests with the Government, granting it a seemingly broad discretion in this crucial aspect. Furthermore, a perusal of the entire Act indicates a lacuna regarding the removal of the Ombudsperson from office. Section 7(6) exclusively addresses the scenario of resignation by the Ombudsperson, offering this as the sole explicitly stated mechanism for the termination of her tenure. Apart from this voluntary relinquishment of the position by the Ombudsperson herself, the Act does not prescribe any ground or procedure for the Government or any other authority to initiate the removal of the Ombudsperson.
9. In the absence of a statutorily prescribed procedure for the removal of the Ombudsperson, particularly when the appointment is for a fixed term, the incumbent cannot be removed from office prior to the expiration of that term, save for the universally recognized grounds of proven misconduct or incapacity, which would necessitate a due process even if not explicitly detailed within the Act. It is trite law that the fair trial and due process rights guaranteed by Article 10A of the Constitution are to be read as an integral part of every sub-constitutional legislative instrument that dealt with determination of civil rights and obligations of any person. Reliance in this regard is placed on the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600). The appointment of the petitioner as the Ombudsperson for a defined period of two years, later extended by the Provincial Assembly to four years, creates a legitimate expectation that this tenure will be respected. To permit removal prior to the expiry of the stipulated term, without a clear legal framework outlining the grounds and procedure for such an action, would undermine the very purpose of a fixed tenure, rendering it precarious and subject to the potentially arbitrary will of the appointing authority. Secondly, the conspicuous silence of the Act regarding the removal process is a significant factor. While the Act meticulously lays down the qualifications for appointment and addresses the matter of resignation, the omission of any removal mechanism cannot be lightly disregarded. It suggests a legislative intent to provide a degree of security of tenure to the Ombudsperson, allowing her to discharge her duties without the constant fear of unwarranted ouster. Had the legislature intended for the Ombudsperson to be removable at the pleasure of the Government, it would have been a simple matter to include such a provision, as is common in statutes creating public offices. The absence of such a clause, especially when juxtaposed with the detailed qualifications and the provision for resignation, implies a conscious legislative choice. In this backdrop, the reliance on Section 16 of the General Clauses Act, 1897 (which pertains to the power to appoint includes the power to suspend or dismiss), in the impugned notification is misplaced. Thirdly, allowing removal without a defined process could compromise the independence and impartiality expected of the Ombudsperson. If the incumbent knows she can be removed at any time without stated cause or due process, her ability to act fearlessly and independently, especially when dealing with potentially sensitive matters involving the Government or influential individuals, could be curtailed. Security of tenure, within reasonable limits, is often considered essential for the effective functioning of such roles. Therefore, in the absence of a specific removal procedure within the Act and given the fixed term of the appointment, the removal of the Ombudsperson prior to the expiration of that term would be legally untenable unless predicated on demonstrable and grave grounds warranting such action, and even then, it would need to be conducted in a manner consistent with the principles of natural justice. Guidance has been sought from the ratio decidendi from the case of Badsha Gul Wazir v.
Government of Khyber Pakhtunkhwa through Chief Secretary and others (2015 SCMR 43).
10. In so far as the authority of Caretaker Government to de-notify the Ombudsperson is concerned, the Caretaker Cabinet is appointed under Article 224(1A) of the Constitution upon dissolution of the Assembly or completion of its term. The said Article is reproduced hereunder for ready reference:- "224. (1) A general election to be 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."
The above provisions of the Constitution clearly reflect that the Caretaker Government/Cabinet is appointed for a limited purpose, that is, to run necessary affairs of the State and provide aid to the Election Commission in organizing fair and just elections. It is the elected Government that has to run the affairs of the State, lay down policies and ensure good governance and betterment of the general public through legislative and executive actions. The Elections Act, 2017 has been enacted in relation to the conduct of elections and the matters connected therewith. Section 230 of the Elections Act provides functions of Caretaker Government, which reads as under: - "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.
Provided that sub-Sections (1) and (2) shall not apply where the Caretaker Government has to take actions or decisions regarding existing bilateral or multilateral agreements or the projects already initiated under the Public Private Partnership Authority Act, 2017 (VIII of 2017), the Inter- Governmental Commercial Transactions Act, 2022 (XXX of 2022) and the Privatization Commission Ordinance, 2000 (LII of 2000).
(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."
Rule 170(1) of the Election Rules, 2017, further clarifies the power to transfer public officials, stating that the Caretaker Government "may transfer or shuffle public officials, if considered expedient, after the approval of the Commission." This underscores the limitation on the Caretaker Government's authority over public officials.
11. Plain reading of Section 230 reinforces the view that a Caretaker Government has limited powers, primarily aimed at administrative continuity and facilitating elections, without the mandate to take major policy decisions or actions with long-term implications. There are instances where the removal of public officials by a Caretaker Government was deemed unlawful, highlighting that the power of removal/dismissal/termination/reduction in rank is not vested in a Caretaker Government. The spirit of the Constitution, particularly concerning the holding of free and fair elections (as a fundamental prerequisite for democracy) underpins the need for and the limitations on the powers of interim setups. The provisions of the Elections Act, enacted under the constitutional mandate to organize elections, thus become the primary legal framework governing the actions of a Caretaker Government. Apart from above, certain guidelines with regard to running of affairs of Caretaker Government have already been given by the Supreme Court of Pakistan in the case of Khawaja Muhammad Asif vs. Federation of Pakistan and others (2013 SCMR 1205) which are as under: - "(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 posting of the Government servants should be left to be made by the incoming government in view of the provisions of the 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."
On the touchstone of the above guidelines it is quite clear that the Caretaker Governments are fundamentally tasked with overseeing the electoral process, ensuring its fairness and impartiality, and attending to essential, day-to-day governance. Their mandate is generally understood to be narrow, specifically to avoid taking substantive policy decisions or actions that could prejudice the incoming elected government or extend beyond the immediate requirements of facilitating the election. The act of de-notifying an Ombudsperson, particularly one appointed for a fixed term under the Protection Against Harassment of Women at the Workplace Act, 2010, transcends the routine administrative functions usually permitted to a caretaker setup. Such a removal carries significant implications for the functioning of a statutory body established to address a critical social issue. Unless Section 230 of the Act explicitly grants a Caretaker Government the power to remove statutory appointees in this manner, or unless the de-notification was demonstrably and urgently necessary for the conduct of a free and fair election (which seems unlikely in this scenario), the action would likely be ultra vires its limited authority.
12. Indeed, allowing a Caretaker Government to unilaterally revoke the appointment of an Ombudsperson, especially when the relevant Act is silent on removal procedures, could be seen as an overreach. It would potentially constitute a policy decision impacting the stability and independence of a statutory office. The focus of a caretaker administration, as likely defined by Section 230 of the Act, should primarily be on the electoral process itself, rather than on altering the composition of established statutory bodies without compelling and election-related justification.
The integrity of the electoral process, the core responsibility of a Caretaker Government, does not inherently necessitate the removal of an Ombudsperson appointed under a separate statute for a defined period. Furthermore, the nature of the Ombudsperson's role, as argued by the learned counsel for the petitioner, is quasi-judicial. The Ombudsperson receives complaints, conducts inquiries, and passes orders, functions that bear resemblance to judicial proceedings. Making such an office subservient to the executive, particularly a caretaker executive with a limited mandate, could indeed jeopardize its independence.
13. In the instant case, the petitioner has been de-notified by the Caretaker Government on the pretext of compliance of notification dated 22.01.2023 issued by the ECP requiring the Caretaker Government inter alia to ensure immediate termination of services of all heads of the institutions appointed on political basis. However, in the parawise comments, the Province of Punjab has raised multiple objections regarding qualification of the petitioner to be appointed as Ombudsperson and effect of the amendment Act qua extension of tenure of the petitioner as Ombudsperson. Even if an elected government intended to take any action based on such objections, it would be required to act while following the principles of natural justice, ensuring fairness and due process for the petitioner. This would necessitate providing the petitioner with an opportunity to be heard and to respond to the stated objections before any adverse action is taken. The respondents have presented no material before this Court to demonstrate that the Caretaker Government deliberated on these objections or afforded the petitioner an opportunity to respond.
14. Adverting now to analyze the validity of the ECP's notification and its consequential impact on the impugned de-notification, while the ECP, mandated to ensure fair and transparent elections, possesses the authority to issue directives to the Caretaker Government in exercise of the powers conferred to it under the Constitution (Articles 218, 219 and 220) and the Elections Act (Section 4, 5 and 8), a critical question arises: whether the authority of the ECP extend to issue direction requiring the Caretaker Government to remove an officer/official. It would not be out of context to mention here that a larger Bench of this Court heard and disposed of 30 writ petitions filed by individuals de-notified/terminated by the Caretaker Government, vide order dated 22.02.2023 that was passed in Writ Petition No.6125 of 2023. It is noteworthy that despite the prior issuance of the ECP's notification dated 22.01.2023 and the respondents having access to the grounds later presented in their parawise comments, the petitioner was not among the de-notified/terminated individuals who challenged their de-notification/terminations through the writ petitions decided vide order dated 22.02.2023. Petitioner was de-notified more than six months after the passing of the said order. The crucial aspect of the matter is that the ECP placed its report before the Larger Bench, which has been reproduced in the order dated 22.02.2023 as under: - "The Commission under Article 218(3) of the Constitution, Section 230(f) of the Election Act, 2017 read with the judgment delivered by the august Supreme Court in Workers Party case reported as PLD 2012 Supreme Court 681 is duly empowered to take pre-emptive measures to ensure that the spirit of democracy and "fairness, Justness and honesty' of elections explained and elaborated in the said judgment are fully observed.
2. The Commission after detailed deliberation authorized the Government to remove all political appointees being associated to a Political Party for the conduct of the free, fair and transparent elections.
3. Political appointees are those persons who have not been appointed through due process, defined in the Estacode and relevant applicable rules/regulations i.e. advertisement of post in print media receiving of applicable rules/regulations i.e. advertisement of post in print media receiving of applications from across country, examining relevant education and experience, written examination, interview and criteria of physical fitness is followed under any government policy. Moreover, they have been appointed against position which does not belong to any regular service group.
4. In future instructions will be issued to the provincial government to send all such cases to the Election Commission so that they can be disposed of after due deliberations by the Election Commission. Meanwhile, Provincial government/caretaker provincial government shall be directed to send cases of all political appointees who have already been terminated for the confirmation of the Commission. Hence, it is respectfully submitted that the Commission unanimously believes that if any such case does not fall under the category of the political appointee shall be reinstated.
5. An alternative proposal is that the Hon'ble Court may refer the instant cases back to Election Commission for consideration and decision on merit."
(Emphasis supplied by this Court).
In view of the above statement, the writ petitions were disposed of. The operative part of the order dated 22.02.2023 is as under: - "In view of above statements and without touching the merits, we are of the view that clause (g) of the Notification dated 22.01.2023 "to ensure immediate termination of services of all heads of the institutions appointed on political basis and to send their lists to the Commission forthwith" has been amended/varied by decision of Election Commission of Pakistan (ECP) referred in the above report and the consequence would be that Notifications impugned before us de-notifying the petitioners are no more in the field. However, the caretaker Provincial Government may consider the cases of officials (including petitioners) which according to its view fall in the category which are to be de-notified and will send it to Election Commission of Pakistan for its approval. The Election Commission of Pakistan shall consider the cases so referred in the light of its report and by keeping in view the additional element whether the official whose case is referred may influence the outcome of the general election in any manner, compelling his or her de-notification, whereafter the de-notification order may be passed by the Provincial Government."
(Emphasis supplied by this Court).
The perusal of the above indicates that the Caretaker Government after considering a case that in its view fell within the category of persons to be de-notified, had to refer such case to the Election Commission and the Election Commission after considering the case in view of its report reproduced above, and keeping in view the additional element whether the official whose case is referred may influence the outcome of the general election in any manner. The essence of the above order, in my humble view, would be the determination by the Election Commission whether the official whose case is referred to it by the Caretaker Government, may influence the outcome of general election in any manner. In the case in hand, however, no material whatsoever has been produced by the respondents to show any consideration whatsoever by the ECP to determine that the petitioner if remains in her office, may influence the outcome of the general election in any manner. Even no such stance has been taken by the Election Commission in its parawise comments. This reflects that the direction issued in Writ Petition No.6125 of 2023 vide order dated 22.02.2023 above referred has not been complied with in its letter and spirit in the matter of the petitioner's de-notification.
15. The Election Commission of Pakistan is constituted by Article 218 of the Constitution, and its purpose is delineated in Article 218(3), which stipulates that it is the duty of the Election Commission to organize and conduct elections honestly, justly, fairly, and in accordance with the law, and to guard against corrupt practices. Article 219 outlines the specific duties of the Commission, which primarily revolve around the preparation of electoral rolls, organizing and conducting elections, and appointing Election Tribunals. Article 220 requires all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions. For the facility of ready reference, Articles 218, 219 and 220 are reproduced below: - 218.(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.
(2) The Election Commission shall consist of,-
(a) the Commissioner who shall be the Chairman of the Commission; and
(b) four members, one from each Province, each of whom shall be a person who has been a Judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.
Explanation. "senior civil servant" and "technocrat" shall have the same meaning as given in clause
(2) of Article 213..
(3) It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
219. The Commission shall be charged with the duty of-
(a) preparing electoral rolls for election to the National Assembly, Provincial Assemblies and local governments, and revising such rolls periodically to keep them up-to-date;
(b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly;
(c) appointing Election Tribunals;
(d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament): Provided that till such time as the members of the Commission are first appointed in accordance with the provisions of paragraph (b) of clause (2) of Article 218 pursuant to the Constitution (Eighteenth Amendment) Act, 2010, and enter upon their office, the Commissioner shall remain charged with the duties enumerated in paragraphs (a), (b) and (c) of this Article.
220. It shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.
Powers of the Election Commission are also articulated in sections 4, 5 and 8 of the Elections Act, 2017, which are reproduced hereunder for ready reference: -
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: Provided that where the Commission decides to utilize the services of serving judicial officers, it may do so in consultation with the Chief Justice of the High Court concerned.
(4) After the Election Programme has been issued and till the publication of the names of the returned candidates in the official Gazette, any Government or authority shall not post or transfer any official appointed or deputed in connection with an election without prior approval in writing of the Commission, including posting or transfer the decision in respect whereof has not been implemented, and the Commission may itself issue necessary directions to any such Government or authority for the posting or transfer of any official.
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.
Section 4 of the Elections Act, 2017, grants the Commission the power to issue directions or orders necessary for the performance of its functions and duties, including ensuring complete justice and securing attendance or production of documents. Section 5 mandates assistance to the Commission from any person or authority, including all executive authorities. Section 8(c) empowers the Commission to issue instructions, exercise powers, and make consequential orders necessary for ensuring that an election is conducted honestly, justly, fairly, and in accordance with the Act and Rules. However, it cannot be said that the ECP possesses the power to order the permanent removal of any officer or official, as this does not inherently fall within the purposes and powers granted to the ECP. The authority to appoint and remove individuals in service generally rests with the Government. In the present case, the appointment of the Ombudsperson is made under the mandate of Section 7 of the Protection against Harassment of Women at the Workplace Act, 2010, which explicitly empowers the Government to make this appointment. As discussed in the preceding paragraphs of this judgment, the Act does not provide for the removal of the Ombudsperson, except in the case of resignation. Even if removal becomes necessary on grounds of proven misconduct or incapacitation, the power to take such action would logically lie with the appointing authority, i.e., the Government, following due process. The ECP is nowhere authorized in this regard under the Protection against Harassment of Women at the Workplace Act, 2010. The primary purposes of the ECP, as delineated in the Constitution and the Elections Act, revolves around the conduct of free and fair elections. It is an illogical stretch to assume that achieving these purposes inherently empowers the ECP to direct the permanent removal of any office bearer.
The nature of the removal contemplated in clause (g) of the ECP's notification - the "immediate termination of services" - implies a permanent cessation of employment, which does not directly relate to the ECP's core function of ensuring fair elections. At most, the ECP's powers in relation to public officials during the election period, as indicated by Rule 170(1) of the Election Rules, 2017, and Section 230(2)(f) of the Elections Act, 2017 (regarding the Caretaker Government's limitations), extend to the transfer or shuffling of public officials with the Commission's approval. This suggests a focus on preventing the misuse of official positions to influence elections, rather than the permanent removal of appointees, particularly those with a statutorily defined tenure. The order passed by this Court on 22.02.2023 in Writ Petition No. 6125 of 2023 underscores this point. The essence of that order was the requirement for the ECP to determine whether the official whose case was referred by the Caretaker Government might influence the outcome of the general election in any manner. This implies that any action recommended by the ECP should be directly linked to safeguarding the integrity of the electoral process. A blanket directive for permanent removal based solely on the premise of a "politically motivated appointment," without a specific evaluation of the individual's potential to influence the election, exceeds the ECP's legitimate scope of authority.
16. As regards the contention raised by the learned Additional Advocate General, Punjab that in view of the petitioner's prior engagement in contesting elections for the provincial assembly on a political party's ticket, her appointment was on political basis and as such her de-notification was justified on this ground, this Court finds such an argument to be untenable. It is imperative to note that Section 7 of the Act articulates no such disqualification. Had the Legislature intended to bar individuals with a political background from holding the office of Ombudsperson, it would have explicitly included such a provision. This, however, does not allow any Ombudsperson so appointed to allow her political preferences or other extraneous consideration to affect her impartiality and performance for that constitutes misconduct. Therefore, to de-notify the petitioner solely on the pretext of her past political association would be unjustified and without legal basis. It is fundamental to the nature of the office that once appointed, the Ombudsperson assumes a solemn duty to act with unwavering impartiality, free from any political or extraneous considerations. Her conduct in office, not her prior affiliations, is the paramount consideration.
17. For the foregoing reasons, the de-notification of the petitioner by the Caretaker Government of Punjab by way of impugned notification dated 04.08.2023 was not within its lawful authority.
Accordingly, this Writ Petition is accepted. The notification dated 04.08.2023 issued by the Government of the Punjab de-notifying the services of the petitioner, Nabila Hakim Ali Khan, as Ombudsperson Protection against Harassment of Women at Workplace is hereby declared to be null and void, as such is set aside. The petitioner is deemed to be in office as if the said notification had not been issued.
18. Needless to mention that this Court has noted the conspicuous absence of a statutorily defined procedure for the appointment of the Ombudsperson in the Protection against Harassment of Women at the Workplace Act, 2010. This legislative lacuna not only leaves the appointment process vulnerable to the subjective preferences of the appointing authority, potentially leading to selections based on considerations other than demonstrable merit, but also evades equal opportunity for appointment in the service for citizens who otherwise meet the criteria of qualification. Given the quasi-judicial nature of the Ombudsperson's functions, ensuring that appointments are made through a transparent and demonstrably merit-based process is paramount to safeguarding the independence, impartiality and effectiveness of this role in addressing the critical issue of workplace harassment. Therefore, while following the dicta laid down in the case of Mushtaq Ahmad Moral and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043), to ensure that future appointments to the position of Ombudsperson are beyond reproach, it is apt to direct that the relevant authorities should, with due expediency, formulate and implement a comprehensive, transparent and merit-based appointment procedure. This must include public advertisement through newspapers having wide circulation, electronic as well as social media to ensure outreach to all eligible and qualified individuals. An evaluation process, preferably involving the Public Service Commission would serve to objectively assess the candidates' suitability. Such a structured and transparent approach is necessary to reinforce the institutional integrity and public trust in the office of the Ombudsperson and ensuring its capacity to effectively deliver justice.
The Additional Registrar (Judicial) of this Court is directed to ensure that a certified copy of this judgment is transmitted forthwith to the Chief Secretary Punjab for his perusal and prompt compliance.
The valuable assistance rendered by Ms. Aaminah Qadir and Mr. Zeeshan Zafar Hashmi, Advocates, the learned Amici Curiae is acknowledged with gratitude.