Awais Khan Vs Govt of KPK and others.

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Writ Petition No. 570-P/2025

Awais Khan .Vs. Government of Khyber Pakhtunkhwa & others.

PRESENT:

For petitioner(s) M/S Lajbar Khan Khalil and Jehanzeb Mehsood, Advocates.

For respondent (s) Mr. Qaisar Abbas Bangash, advocate for private respondent and Mr. Waqar Orakzai, AAG, for the provincial Government.

Date of hearing 16.12.2025.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J.- The Chief Secretary, Government of Khyber Pakhtunkhwa, Peshawar (respondent No.2), vide notification dated 16.01.2025 (hereinafter referred to as the “impugned notification”), appointed Mr. Asghar Ali (Retired PCS, BS-21) (respondent No.4) as Member, Khyber Pakhtunkhwa Public Service Commission, Peshawar (KPPSC), against a vacant post for a period of three years or till attaining the age of sixty-five years, whichever is earlier, from the date of his entering upon office. The petitioner, Awais Khan, a practicing advocate, has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, challenging the impugned notification on the ground that it has been issued in blatant violation of the governing law. The petitioner has prayed that the impugned notification be declared illegal, unlawful, and without lawful authority; that the office of Member, KPPSC be declared vacant; that respondent No.7 be directed to fill the said vacancy strictly in accordance with law; and that respondent No.4 be restrained from assuming or holding the office of Member, KPPSC.

2.Learned counsel for the petitioner contended that the office of Member, KPPSC is a vital public office involving public functions with direct implications on public affairs, including (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

recruitment to public service. He argued that the appointment of respondent No.4 through the impugned notification is without lawful authority, as respondents Nos.1, 2, and 3 are not competent authorities to make such an appointment. According to learned counsel, under the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978, the appointing authority for the Chairman and Members of the Commission is the Governor of Khyber Pakhtunkhwa (respondent No.7), and the Provincial Government or the Chief Secretary lacks the power to make such appointments. It was further contended that the impugned notification is a nullity in the eye of law, having been issued by an authority not vested with statutory competence. Learned counsel argued that the issuance of the impugned notification is violative of due process, fairness, and the principle of transparency; therefore, a writ of quo warranto is maintainable to restrain respondent No.4 from holding a public office to which he has not been appointed by a lawful authority.

3.Conversely, learned Additional Advocate General, assisted by learned counsel for respondent No.4, raised a preliminary objection regarding the locus standi of the petitioner, contending that the petitioner is not an aggrieved person. It was argued that respondent No.4 possesses the requisite qualifications and that his appointment was made after completion of the prescribed process. Learned counsel further contended that under Article 105 of the Constitution, the Governor is required to act in accordance with the advice of the Cabinet or the Chief Minister, and that the question as to what advice was tendered to the Governor cannot be inquired into by any court and on these grounds, the impugned notification was defended.

4.Arguments have been heard and the record has been carefully perused.

5.The exercise of constitutional jurisdiction by a High Court under Article 199 of the Constitution is neither routine nor mechanical. It is an exercise of a solemn trust reposed by the (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

Constitution to ensure that every organ of the State functions within the limits prescribed by law and that the foundational values of constitutionalism, rule of law, legality, transparency, and institutional independence, are preserved. Where an executive action is alleged to be without lawful authority or in derogation of a mandatory constitutional or statutory command, judicial review becomes not only permissible but obligatory. The present petition raises a question of considerable constitutional significance, namely whether an appointment to a constitutionally recognized public institution has been made in accordance with the governing constitutional and statutory framework, or whether such appointment is the result of executive overreach, thereby undermining the independence of the institution concerned. As a general rule, the extraordinary jurisdiction of this Court is invoked by an aggrieved person whose legal or fundamental rights stand infringed. However, constitutional jurisprudence in Pakistan has long recognized that matters involving public offices, public trust, and constitutional institutions stand on a distinct footing. In such cases, the doctrine of locus standi is applied with flexibility, particularly where the remedy sought is in the nature of quo warranto. The purpose of a writ of quo warranto is not to vindicate an individual grievance but to protect the public from the usurpation of public office by a person not legally entitled to hold it. The Hon’ble Supreme Court has repeatedly held that in quo warranto proceedings, any member of the public may invite judicial scrutiny of the legality of an appointment to a public office. In such cases, any person can approach the High Court, even if he has not suffered a personal legal injury. Ref: M.U.A. Khan v. Rana Muhammad Sultan and another (PLD 1974 SC 228), where it has been held by the worthy supreme court that a petition for issuance of a writ of quo warranto can be moved by a person who may not even be an aggrieved party. The said principle has been consistently reiterated in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Malik Asad Ali v.

(DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

Federation of Pakistan (PLD 1998 SC 161), and Captain (Retd.) Muhammad Naseem Ejazi v. Province of Punjab (2000 SCMR 1720). Similarly, in Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52), the apex court held that: - “A writ of the quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty. Its object is to determine the legality of the holder of a statutory or constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office. Where a person prays for a writ of quo warranto the Court would be under an obligation to enquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office. For issuance of a writ of quo warranto the person invoking the jurisdiction of the High Court under Article 199 of the Constitution is not required to fulfill the stringent conditions required for brining himself within the meaning of an aggrieved person. Any person can move the High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke the constitutional jurisdiction under Article 199 of the Constitution in a manner as generally required by the said Article.”

The same proposition has also been reiterated in the cases reported as Ghulam Shabir vs. Muhammad Munir Abbasi and others (PLD 2011 SC 516) and Jawad Ahmad Mir vs. Prof: Dr. Imtiaz Ali Khan (2023 SCMR 162). Since in view of the above settled rules, a writ of quo warranto is a legal remedy used to challenge the unlawful holding of a public office and its purpose is to enable the Court to inquire into the authority and legality of a person’s appointment, including whether the appointment was made by a competent authority and whether the incumbent is legally qualified to hold the office and, thus, any person may file such a petition, even if he is not an aggrieved person, as strict rules of locus standi do not apply in quo warranto proceedings. Accordingly, the preliminary objection as to maintainability stands repelled.

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6.Adverting to the merits of the petition, Public Service Commissions are not mere statutory bodies; they are constitutional institutions envisaged under Article 242 of the Constitution. They constitute an essential pillar of the constitutional framework governing public employment and are entrusted with the responsibility of ensuring recruitment on the basis of merit, fairness, and transparency. The independence of such Commissions is integral to public confidence in the civil service system and forms part of the broader constitutional commitment to good governance. Article 242 of the Constitution provides the constitutional foundation for the establishment of Federal and Provincial Public Service Commissions. The provisions of Article 242 of the Constitution of the Islamic Republic of Pakistan, 1973, are reproduced below: - "242. (1) Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to affairs of a Province, may, by law, provide for the establishment and constitution of a Public Service Commission.

(1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President on the advice of the Prime Minister.

(1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister.

(2)A Public Service Commission shall perform such functions as may be prescribed by law."

Thus, the Khyber Pakhtunkhwa Public Service Commission (KPPSC) was established pursuant to Article 242(1) of the Constitution and is, therefore, a constitutional institution responsible for recruitment to public service in a merit-based, transparent, and independent manner. Through the “Revival of the Constitution of 1973 Order, 1985,” a new clause (1A) was inserted after clause (1) of Article 242, which reads as follows: - (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

"(1 A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President in his discretion."

Subsequently, Article 242 was further amended by the Constitution (Eighteenth Amendment) Act, whereby clause (1B) was inserted, which provides as under: - "(1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister."

Thus, in terms of Article 242(1B) of the Constitution of the Islamic Republic of Pakistan, 1973, the Chairman of a Provincial Public Service Commission shall be appointed by the Governor on the advice of the Chief Minister. However, the Constitution does not prescribe any advisory role for the Chief Minister or the Provincial Government with regard to the appointment of Members of the Commission, thereby leaving the said matter to be regulated by the relevant statutory framework.

7.Prior to the promulgation of the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978, the field was governed by the Khyber Pakhtunkhwa Public Service Commission Act, 1973. Following the political and constitutional developments after July 1977, it was considered expedient to repeal and re-enact the said Act with certain modifications. Accordingly, the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978 was promulgated by the Governor in exercise of his powers, with the object of restructuring the Commission while preserving its independence, autonomy, and constitutional character. Section 3 of the Ordinance, 1978 provides for the constitution of the Khyber Pakhtunkhwa Public Service Commission as a permanent statutory body for the province. Under section 3(1), there shall be a Commission for the Province to be known as the Khyber Pakhtunkhwa Public Service Commission. Section 3(2) empowers the Governor, by regulations, to determine: (a) the number of Members of the Commission and their terms and conditions of service; and (b) (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

the number of officers and servants of the Commission along with their terms and conditions of service. Section 3(3) categorically provides that the Chairman and other Members of the Commission shall be appointed by the Governor. Section 3(3) of the Ordinance, 1978, vests the power of appointment exclusively in the Governor and does not confer any such authority upon the Provincial Government, the Chief Minister, the Chief Secretary, or any subordinate executive authority. Furthermore, section 8 of the Ordinance obligates the Governor to inform the Commission in cases where its advice is not accepted, thereby reinforcing transparency and accountability. Section 9 requires the Commission to submit an annual report to the Governor, which is mandatorily to be laid before the Provincial Assembly; ensuring legislative oversight of the Commission’s functioning.

8.In addition, Rule 34 of the Khyber Pakhtunkhwa Government Rules of Business, 1985, read with Schedule-IV thereto, mandates that all matters relating to the Public Service Commission, including appointment of the Chairman and Members, shall be submitted to the Governor for approval prior to the issuance of any order, thereby further affirming the exclusive constitutional and statutory role of the Governor in such appointments. For proper appreciation of the issue, Rule 34 of the Khyber Pakhtunkhwa Government Rules of Business, 1985, is reproduced below: -

“SUBMISSION OF CASES TO THE GOVERNOR

FALLING WITHIN HIS DISCRETIONARY

POWERS UNDER THE CONSTITUTION”.

(1)All cases enumerated in Schedule-IV shall be submitted to the Governor for his approval before issue of orders.

(2)The cases enumerated in Schedule-IV shall be submitted to the Governor in such manner as the Governor may generally or specially, direct.

(3)On a question whether any matter is or is not a matter in respect of which the Governor is by the Constitution of the Islamic Republic of Pakistan empowered to act in his discretion, the decision of the Governor in his discretion shall be final.”

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9.Thus, a combined reading of the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978, Article 242 of the Constitution, and the Khyber Pakhtunkhwa Government Rules of Business, 1985, clearly delineates the spheres of authority in matters relating to the Public Service Commission. Under this scheme, the Governor is the appointing authority for the Chairman of the Commission, acting on the advice of the Chief Minister, whereas the appointment of Members vests exclusively in the Governor, without any constitutionally or statutorily prescribed advisory role of the Chief Minister or the Provincial Government. The executive government, therefore, possesses no independent power to make such appointments unless expressly conferred by law. Any deviation from the prescribed constitutional and statutory mechanism strikes at the independence of the Commission and renders such action amenable to judicial scrutiny.

10.On the touchstone of the aforesaid legal position, the record of the present case reveals that a meeting of the Search Committee was convened on 11.12.2024, wherein the name of respondent No.4 was recommended for appointment as Member, Khyber Pakhtunkhwa Public Service Commission. A summary was thereafter submitted by the Government for approval to the Governor, Khyber Pakhtunkhwa. The Governor, while approving the appointment of Mr. Captain (Retd) Munir Azam, as Chairman, KPPSC, expressly declined to approve the recommendations relating to appointment of Members, observing that the constitution of the Search Committee and the tendering of advice by the Chief Minister in respect of Members were beyond the authority conferred by law. The Governor categorically recorded that the Members of the Commission were required to be appointed strictly in accordance with the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978, read with Rule 34 of the Khyber Pakhtunkhwa Government Rules of Business, 1985. Despite the aforesaid clear refusal and legal (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

position, the Chief Secretary, Government of Khyber Pakhtunkhwa, proceeded to issue the impugned notification dated 16.01.2025 appointing respondent No.4 as Member, KPPSC, purportedly in exercise of powers under section 3(3) of the Ordinance, 1978. Learned counsel appearing for respondent No.4 was unable to point out any provision of law authorizing either the Chief Secretary or the Provincial Government to make such an appointment. It is a settled and salutary principle of constitutional law that where a statute prescribes a particular manner for the performance of an act, that manner must be strictly followed. Any action taken in disregard of such mandatory requirements is void ab initio. The Hon’ble Supreme Court has articulated this principle in unambiguous terms in a long line of cases, including in the case reported as Attaullah Khan vs. Ali Azam Afridi and others ( 2021 SCMR 1979) and Secretary Ministry of Finance Vs Muhammad Anwar (2025 SCMR 153) 11. In addition, an act performed by an authority lacking jurisdiction does not acquire legitimacy merely because the appointee otherwise fulfills the eligibility criteria, nor can such illegality be cured by reference to past practice. Constitutional supremacy demands strict adherence to the legal framework governing public appointments, particularly where constitutional institutions are involved. While courts ordinarily exercise restraint in matters of executive policy, such restraint has no application where the action under challenge is ultra vires, without lawful authority, or in derogation of mandatory constitutional or statutory provisions. Judicial review in such cases is concerned not with the wisdom of the decision but with its legality. The Hon’ble Supreme Court has repeatedly held that courts are duty-bound to strike down executive actions that violate the Constitution or the law, irrespective of the consequences. Ref: Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), PLD 2014 SC 389 (Suo Motu Case No. 11 of 2011). When examined on the touchstone of the constitutional and legal principles (DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel

discussed above, it becomes manifest that the impugned appointment was made by an authority not vested with statutory competence. Such action constitutes an impermissible encroachment upon a constitutionally protected domain and strikes at the independence of a constitutional institution. The appointment, therefore, is without lawful authority and cannot be sustained.

12.For the foregoing reasons, it is held that the impugned notification dated 16.01.2025 has been issued by an authority not competent under the Khyber Pakhtunkhwa Public Service Commission Ordinance, 1978. The appointment of respondent No.4 as Member, KPPSC is illegal, without lawful authority, and of no legal effect. Respondent No.4 has no lawful right to hold or continue to hold the office of Member, Khyber Pakhtunkhwa Public Service Commission. Accordingly, the impugned notification dated 16.01.2025 is hereby declared, illegal, without lawful authority and void and, thus, set aside. Respondent No.4 is restrained from assuming or continuing to hold the office of Member, KPPSC. The office of Member, KPPSC is declared vacant and, thus, respondent No.7 is directed to fill the said vacancy strictly in accordance with law and the governing constitutional and statutory provisions. This writ petition is allowed.

Announced on 16.12.2025 Released on 18.12.2025.

*M Zafral CS*

JUDGE

JUDGE

(DB: Hon’ble Mr. Justice Muhammad Naeem Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel