Petitioner calls in question the order of Chairman, Punjab Bar Council/Advocate-General, Punjab by which order the said AdvocateGeneral/respondent No,1 has declined to hold that respondent No,2 ceases to be Member of the Punjab Bar Council.
2. The present Bar Council was constituted in pursuance to the Notification dated 24-12-1999 issued by respondent No,1, on the basis of elections held on 30th November, 1999. Petitioner and respondent No,2 were the contestants amongst others to the 23 seats reserved for District Lahore.
According to the number of votes obtained, respondent No,2 was placed at No,3 while petitioner stood at No,26. Respondent No,2 was declared elected. Section 16(b) of the Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as the Act) provides that the vacancy in the membership of the Bar Council shall be filled by a person receiving next highest number of votes in the same elections and from the, same district.
3. Vide Notification No,SO(P)2-3/99/2802s, dated 26th July, 2000 issued in the name of the Governor of the Punjab, respondent No,2 was appointed as "Head of the Prosecution and Monitoring Cell" in the Law Department, Government of the Punjab for the Special Courts, The wording of the Notification is relevant and needs to be reproduced in full. It reads:- "Notification No,SO(P)2-3/99, Government of the Punjab is pleased to appoint Mr. Asghar Ali Gill, Advocate Lahore as Head of the Prosecution and Monitoring Cell in the Law Department, Government of the Punjab for the "Special Courts established under Anti-Terrorism Act, 1997 on contract basis for a period of one year at a monthly remuneration of Rs,65,000 (all inclusive).
(2) The contract may be terminated by either side without assigning any reason without notice.
(3) He is directed to assume the charge on 1-8-2000 under intimation to this Department. Sh. Abdul Rashid, Secretary Law." Respondent No,2 assumed charge on 1-8-2000.
4. On or about 13-9-2000, one Aazar Latif Khan, an Advocate and Member, Punjab. Bar Council addressed communication to the Secretary, Punjab Bar Council, pointing out that respondent No,2 while accepted the above appointment has ceased to be Member under section 5-C(a) of the Act.
He further asked that the person obtaining next highest vote be notified as having been elected to the Punjab Bar Council. This communication is Annexure-B. It seems on or about 22-9-2000 the Secretary, Punjab Bar Council respondent No,3 submitted a summary to respondent No,1 intimating that if it be decided that respondent No,2 ceases to be the Member, the petitioner having obtained next highest votes be declared as Member of the Bar Council. Copy of the summary is attached at page 19 of the file. The matter was pending with respondent No,1 when, on or about 12-12-2000 petitioner also addressed a letter to respondent No,1 stating that respondent No,2 ceased to be a Member and that in his place the petitioner be declared to have been duly elected. It is also stated therein that reference to that effect is pending with him and that respondent No,1 should proceed to decide it expeditiously. Copy of this letter is Annexure-C at page 13. Respondent No,1 thereafter decided the reference by way of an order, copy of which is attached as Annexure-D. Respondent No,1 concluded that as the appointment of respondent No,2 was contractual which contract also prescribes terms and conditions, respondent No,2 was not holding any office of profit in the Service of Pakistan and, therefore, he does not cease to be a Member of Punjab Bar Council. It is this order, which is subjected to challenge in this Constitutional petition.
5. It has been argued that the view taken by respondent No,1 is illegal and is contrary to law laid down by the Supreme Court in cases Syeda Abida Hussain v. Tribunal for N.A. 69, hang-IV and 2 others PLD 1994 SC 60 and Shahid Nabi Malik and another v. Chief Election Commissioner, Islamabad and 7 others PLD 1997 SC 32. It is elaborated that respondent No,2 has ceased to be a Member w,e,f, 1-8-2000, the date when this respondent assumed the charge of the post.
6. Respondent No,2 has contested this petition by filing a written statement. Apart from raising legal pleas like availability of alternative remedy and non-joinder of the interested persons like Aazar Latif Khan, on merits, it is contended that respondent No,2 is not holding any office of profit in the Service of Pakistan. It is claimed that "it's an assignment" in the nature of legal retainership and as the respondent is permitted to do private practice, it cannot be said that he is holding any office of profit and is, therefore, not entitled to remain as Member.
7. Before dealing with the controversy on merits, I proceed to deal with the preliminary submissions of Mr. Hamad Khan, Advocate, appearing for respondent No,2. Mr. Khan's first objection is that as the impugned order of respondent No,1 is appealable before Pakistan Bar Council under section 13(2) of the Act, this petition is not maintainable unless the alternative remedy is exhausted. In reply, it is contended by Raja Muhammad Anwar, Advocate appearing for petitioner that availability of alternative remedy does not oust the jurisdiction of the Court as this is only rule of procedure. He has relied on The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279, GATRON (Industries) Limited v.
Government of Pakistan and others 1999 SCMR 1072 and United Business Lines, S.I.E. Gujranwala and another v. Government of Punjab through Secretary, Local Government, Lahore and 5 others PLD 1997 Lahore 456. Mr. Anwar has further contended that in view of the controversy and law points involved, the case will ultimately come to this Court and the law points will have to be decided. He, therefore, argued that petitioner may not be driven to avail alternative remedy.
8. Under section 13(2) of the Act, appeal to Pakistan Bar Council lies from an order or decision of the Provincial Bar Council. In this case, the order has been passed by Advocate-General who by virtue of the office is the Chairman of the Punjab Bar Council and is also the Returning Officer. It has been suggested that respondent No,1 in such a case acts as a statutory functionary i,e, Returning Officer and not as delegatee of the Punjab Bar Council. In other words, the suggestion is that the impugned order has not been passed by the Punjab Bar Council and is, therefore, not appealable before Pakistan Bar Council. This precise point need not be decided. Suffice it to hold that availability of alternative remedy is not free from doubt. In such a case, it will not be proper and just to force the petitioner to avail the suggested alternative remedy. Additionally, as has been laid down in the judgments relied upon by Mr. Anwar it is only a rule of procedure not effecting the jurisdiction of this Court. It is equally correct that the point of law involved is such that will have to be ultimately resolved by this Court. For these reasons I overrule this preliminary objection.
9. Mr. Hamad Khan has also made a grievance that as Mr. Aazar Latif, the mover, has not been impleaded as a party, the petition has to be dismissed. I see no force in this submission as Mr. Aazar Latif has only acted as an informer so as to put the law in motion. His non-impleading in this Court is not fatal to the maintainability of this petition. It may also be noticed that the petitioner himself also addressed letter to the Advocate-General requesting him to declare the seat of respondent No,2 vacant and to decide the reference expeditiously. All the necessary parties are before this Court. This objection is also rejected. Mr. Hamad Khan has also challenged the Locus standi of the petitioner to maintain this petition on the premises that it was not the petitioner but Mr. Aazar Latif who moved the Bar Council. This objection again has to be overruled inasmuch as it is not denied that it is the petitioner who has polled the next highest votes and in the event of success he will have to be declared as Member, Punjab Bar Council. Petitioner, therefore, is an aggrieved person and has the locus standi to maintain this petition.
10. The crucial question is the nature of appointment of respondent No,2. The Notification of appointment has been reproduced above. Learned Assistant Advocate-General Punjab, after obtaining instructions from the Law Department, stated that there is no embargo or restriction upon the private practice of the respondent as Advocate. He also placed on record photo copy of the summary by which proposal of the Finance Department to pay a fixed sum of Rs,20,000 to respondent No,2 for meeting expenses, of stenographers, payment to Munshi and other incidental expenditure. It is in the light of these established facts that the core question has to be answered.
11. It is advantageous to also reproduce section 5-C of the Act:-- "Cessation of Membership of Provincial Bar Council.--A Member of a Provincial Bar Council shall cease to be such Member if he--
(a) is appointed to an office of profit in the service of Pakistan; or
(b) is suspended or removed from practice under the provisions of Chapter VII; or
(c) incurs any of the disqualifications specified in section 5-B.
12. Expression "service of Pakistan" for the purposes of Constitution has been interpreted in Article 260 of the Constitution to mean... "any service, post, or office in connection with the affairs of the Federation or of a Province and includes All Pakistan Service, Service in the Armed Forces and any other service declared to be a service of Pakistan by or under the Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include..." Even though, the above definition is for the purposes of Constitution but guidance can still be had in order to understand true meaning of this expression, as the same is used in section 5-C(a) of the Act. It has been strenuously urged by Mr. Hamad Khan that there is no such regular post or office or Cadre known as "Head of the Prosecution and Monitoring Cell" in the Law Department. According to him, this post or office has been created for the first time. In other words what has been stressed by Mr. Hamad Khan is that it is not like any other post or office which carries with it different benefits of service like prospects of promotion and retirement benefits and also subjects a person to the Efficiency and Disciplinary Rules applicable to other normal Government servants. He has emphasized that keeping in view the language of the Notification, the absence of ban against private practice of respondent No,2 and payment of fixed sum for meeting of expenses of stenographer and Munshi, would conclusively establish that respondent No,2 has been given an assignment which is in the nature of a legal advisorship. He, therefore, argued that this "assignment" is not within the mischief of section 5-C(a) of the Act. Mr.Anwar, on the other hand, has heavily relied on the two Supreme Court judgments to argue that the reasons given by respondent No,1 viz. Contractual nature of the employment is fallacious as the Supreme Court has clearly laid down that even a contractual employment can fall within the expression "holding post or office in the service of Pakistan". He has repeatedly drawn my attention to the case of Syeda Abida Hussain ibid.
13. In the case of Syeda Abida Hussain, two points have been decided by the Supreme Court. One, that post of Ambassador whether filled by contract or otherwise is a post in connection with the affairs of the Federation, and two, mere fact that a person was not a civil servant within the meaning of Civil Servants Act, 1973 would not put him beyond the pale of the definition of 'TService of Pakistan" as contained in Article 260(1). To the extent, therefore, the impugned order is holding that because the post held by respondent No, 2 is contractual he falls outside the pale of Article 260(1) and, therefore, of section 5-C(a), is illegal being contrary to the law laid down in Syeda Abida Hussain's case. But this finding is not enough to conclude the controversy, as on the basis of proven or established facts, the true nature of the employment of respondent No,2 will have to be determined to decide whether the same falls within the mischief of section 5-C(a) of the Act.
14. Mr. Hamid Khan is correct in submitting that the provision contained in section 5-C(a) is penal in nature and will have to be construed strictly and the doubts resolved in favour of the citizen or person likely to be adversely affected. The provision takes away the right of an elected Member to represent the constituency. This right of representation is a sacred right and an elected person cannot be denied the same, lightly. It is in the light of this principle that the true nature of employment of respondent No,2 has to be examined.
15. These few facts stand fairly established:
(i) The post of respondent No,2 under the Notification is not a statutory or a regular cadre post, part of any service, which entails the benefit of promotion, seniority and retirement benefits.
(ii) It is a contractual employment terminable by a notice on either side.
(iii) The expression used in the Notification is "remuneration" as distinguished from the expression "pay" or "salary" normally used for persons in regular service of the Federal or Provincial Government or bodies controlled by them. (Although, I may add that remuneration is generic expression and may include pay and salary).
(iv) The employment is for a period of one year.
(v) There is no restriction on the private practice of respondent No,2 as an Advocate.
(vi) Respondent No,2 is paid fixed amount to meet ancillary expenses on stenographer, Munshi and other incidental expenses,
(vii) These are the terms normally offered to a private practitioner of law in this part of the country.
(viii) It has not been suggested that respondent No,2 sits in any office or premises maintained by the Government to discharge his responsibilities. It has to be inferred, therefore, that he uses his own office as Advocate for this purpose.
16. All the above facts negate the argument that respondent No,2 is holding any post or office in connection with the affairs of the Province. I am inclined to agree with Mr. Hamid Khan that the true nature of the respondent's employment is that it is an "assignment", which partakes the C characteristics of legal advisorship. I am further inclined to hold that such employment does not fall within the mischief of section 5-C(a) of the Act.
17. Before parting, notice must be taken of another argument of Mr. Hamid Khan with reference to certain examples. He has tried to show that whenever a Member of the Bar Council is appointed a Deputy Attorney-General, Additional Advocate-General or Assistant Advocate-General, his seat is not declared vacant. From this, he wants to strengthen his case that if such person is not deseated, the petitioner could not be discriminated against. According to him, non-seating of Law Officers amounts to a departmental practice creating reasonable impression with the Advocates that in such or similar circumstances the elected seat in the Bar Council is not lost. I need not examine this argument as the true nature and terms and conditions of the employment of Law Officers are not before me for in depth examination nor such cases are under challenge. It would not be appropriate to say anything more on the subject.
18. For the reasons recorded above, I find no merit in this petition which is hereby dismissed with no order as to costs.