Through this Constitutional petition, Mahmood Ahmed Lodhi, Additional Secretary/ Managing Director (BPS-21), National Zakat Foundation Ministry of Social Welfare and Special Education Division, Islamabad has impeached the validity of the appointment of respondent No.5 to the post of Auditor-General of Pakistan, on various grounds.
2. The post of Auditor-General of Pakistan fell vacant on 31-12-1995 and the President of Pakistan Was pleased to appoint Mr. S.K. Mehmood (respondent No.5) as Auditor-General of Pakistan, in exercise of the powers under Article 168 of the Constitution of Islamic Republic of Pakistan.
3. The petitioner has assailed the appointment, inter alia, on the grounds that although no specific qualifications have been laid down by the Constitution, yet the duties assigned to the office essentially require a vast experience in the field of Audit and Accounts, whereas the present incumbent had no such experience. He was a civil servant and had served throughout in D.M.G. He retired from service in 1992 and was appointed as Chairman, Prime Minister's Inspection Commission with the status of Minister of State. Sometime later he was replaced by another person and he took over as O.S.D. In the Establishment Division. Before his appointment to .The post he never served in the Audit and Accounts Department for a single day, whereas the petitioner is the senior most officer of the Audit and Accounts Service and has 35 years good service record to his credit. He is a fellow member of the Institution of Costs and Management Accountants of Pakistan and had been nominated thrice to act as Auditor-General of Pakistan; that the name of the petitioner was included in the panel of persons recommended by the Finance Division for the appointment of Auditor-General. It was further pointed out that the incumbent of the post of Auditor-General is the Controller of the expenditure of the Government of Pakistan and the Provinces and in view of its importance it should be given to a person who has knowledge of and experience for the job. As the office is fairly sensitive and is concerned with the distribution of national assets and other matters of national importance, it is imperative that it should be assigned to a person who has no political leanings to a particular party. The financial system of the whole country will be in a mess if a person without appropriate knowledge of accounting and auditing, with political affiliations is allowed to continue with this job that appointment of respondent No.5 is virtually an attempt to cover up the Executive misdeeds in respect of country's accounts and as such is repugnant to national interest; that even otherwise in its recent judgment in Judges' case reported as Al-Jehad Trust through Raeesul Majahideen Habibul Wahab-ul--- Khairi and 6 others v. Federation of Pakistan and 27 others (PLD 1996 SC 324), the Supreme Court has made it unequivocally clear that ten years' practice for a High Court Judge in terms of Article 193 of the Constitution does not mean mere enrolment but it requires actual and physical practice at the Bar for the stipulated period. As such in this case also, although no such period is laid down in the Constitution, nevertheless, the intention of the framers of the Constitution obviously appears that the office should be occupied by a really deserving man. That was why, till the appointment of the present incumbent, the Executive had been very careful in ensuring the appointment of persons, right from 1947 till todate having sufficient expertize in accounting. A list of the Accountant-Generals right from 1947 till the assumption of office by the present incumbent, would show clearly that no deviation in the policy had ever been made.
4. In the parwise comments the Government of Pakistan has conceded the qualifications of the petitioner and the fact that he has a good and creditable record. It has also been conceded that he had been nominated to act as Auditor---General of Pakistan thrice but it has been equally made clear that this confers no right or entitlement on him to claim the post on this ground. The veracity of the list of the encumbents of the post right from 1947 till today has also been authenticated but it is submitted that the Executive is not bound by such precedents and have the power to appoint any person who is deemed fit in the discretion of the President to handle the job.
It has been further conceded that the petitioner was indeed among the officers recommended by the Finance Division for the post of Accountant-General.
5. As for the present incumbent; it was pointed out that he was a senior civil servant who had been Deputy Commissioner in various districts and had been controlling the district treasury. Later as Secretary to the Government of Pakistan he had been Incharge of various Divisions at Islamabad and as such was well-aware of the financial dealings. It was further pointed out that Mr. S.G. Somia of the Indian Administrative Service who was the Home Secretary Indian Government was the present Controller and editor-General of India.
6. It was however, submitted by the learned D.A.-G. That the petition is incompetent inasmuch as the president has acted under the advice of the Prime Minister in terms of Article 48 of the Constitution and no Court in the country iscompetent to question this authority; that the officer is armed with sufficient expertise and experience as an Executive Officer of the country. As pointed out earlier in the parawise comments he had been serving in various districts as Deputy Commissioner and has been Incharge of the district treasuries. Even otherwise, somehow or the other he had remained connected with the finances as Federal Secretary in various Divisions, it, therefore, cannot be said that he has no expertise in the finances to handle the present assignment.
7. I have heard the arguments from both the sides with care and attention and have also gone through the available record.
8. It is noteworthy that the Auditor-General of a country stands at a centre of the system of Parliamentary control over the appropriation of the national moneys. He is a high official ought to be independent of the Cabinet, and is not allowed to join politics. He is the guardian of the purse of the State and is required to see that a paisa is not spent without sanction of law. In order to discharge his functions it is highly essential that the officer should be independent of any extraneous control. He is to check all improper expenditure or waste of public moneys and it is his duty to call the attention of the Parliament to such expenditures. In nutshell the main object of his audit is to ensure and ascertain:
(i) Whether the money spent has been applied to the purposes for which the grants made by Parliament were intended to provide?
(ii) Whether there is legal authority for the expenditure?
(iii) Whether due forms, e.g. The requirement of treasury sanction have been complied with?
(iv) Whether the payments are supported by vouchers or proofs of payment?
He has the power to investigate into the affairs of every Department in so far as it affects finance.
He is to ensure that the moneys collected by federal officers are deposited in the treasury under correct accounts; to see that payments made out of the treasury are made under legal authority and to prevent any illegal expenditure and to supervise the accounting systems of the various services. Virtually he is to audit and report in respect of all transactions of the Government of Pakistan and all the Provinces relating to the public accounts and contingency funds.
9. Independence and credibility are recognized worldwide to be very essential traits of the senior most accounting officer of a country. There are instances, in the United States of America, where the Comptroller-General had repeated clashes with Executives and there had been attempts on the part of the Executive to weaken him but on account of the independence of the office no executive presence could yield him to their undue desires. As such, appointment to this high office requires more attention and carefulness.
10. If a man who has never held any assignment in the office of the Auditor-General or has no expertise in the filed and is virtually a political appointee, is allowed to run this office he would perhaps not be able to run the system and particularly in these days when Pakistan is being branded as one of the most corrupt countries of the world, extra care and attention should have been employed in filling this rather sensitive post. The appointment of respondent No.5 in the given background and circumstances, prima facie, runs counter to the principle of independence of the audit authority from the executive.
11. A bare reading of the Constitution of Pakistan and in particular Articles 2, 2A and 227 would make it amply clear that the President, the Prime Minister or anyone else who is to deal with such matters is a trustee for that matter and in discharge of the trust he/she is bound to be fair and honest in accordance with the following Qur'anic commandment: "Verily, Allah Commands you to give over the trusts to those entitled to them, and that, when you judge between men, you judge with justice. And surely excellent is that with which Allah admonishes you. Allah is All-Hearing. All-Seeing."
This would show that the appointment to this office was in fact a trust with the President or the Prime Minister and they were required to discharge their duties faithfully and honestly and were bound to render the trust to one who was worthy of it. In this case, the plea that the petitioner is the senior most Audit and Accounts Officer in the country and had been nominated thrice to act the Auditor-General and has unblemished record of service and is capable of holding the charge in every respect and it was the political affiliation of the present incumbent which appears to have impelled the Executive to ignore his appointment, indeed, seem to have sufficient weight. In the case of appointments of Judges of the High Court, the Supreme Court has held (in PLD 1996 SC 324) that it is not merely ten years enrolment as an Advocate but what is envisaged by Article 193 of the Constitution is, his active practice at the Bar which could establish appearance and conduct of cases by the Advocate for a period of 10 years. Although no specific period of training in accounting as laid down for the appointment of Auditor-General of Pakistan who forms the Apex Financial Authority of the country yet this analogy, on the face of it, appears to be applicable to this case as well, because no one can consider, for a moment, that a man, who has no experience or expertise in the field can occupy this supreme assignment/post of important nature.
12. As for the appointment of Mr. S.G. Somia in India as Comptroller General, the learned Dy.A.-G.
Has not been able to show that he had no experience in the field of audit and accounts.
Professional competence for a particular job like the one earlier discussed indeed is a sine qua non. On the face of it, this appears to be a case of improper exercise of the discretion. Now the question is that whether in these circumstances this Court is competent to adjudicate upon the matter. Once again let us advert to Holy Qur'an which ordains: "If ye differ in anything Among yourselves, refer it To God and His Apostle.
If ye do believe in God And the Last Day: That is best, and most suitable For final determination." (4: 59), This clearly shows that the matter is justiciable. Even otherwise, reference to PLD 1988 Lah. 725 and PLD 1989 SC 166 would manifest that superior Courts have power to undertake the judicial review of the Presidential Orders.
13. The points raised by the learned counsel for the petitioner indeed appear to be sufficiently weighty and merit consideration. I, therefore, admit this petition to regular hearing. Let notice be issued to the respondents for a date to be fixed by the office.