h1

P L D 2000 KARACHI 333

AHMAD YOUSUF ALI RIZVI AND OTHERS

V/S

MUNAWAR ALI BUTT AND OTHERS


Per S. A. Rabbani, J.(a) Constitution of Pakistan (1973), Article 199

We Arif Bilal Sherwani, however, contended that even in case it is held that the exercise of powers by the Adviser to the Chief Minister, was illegal, this petition cannot be allowed because the petitioners were not a party to the litigation challenged through this petition. We are unable to agree with Mr. sherwani with regards to this proposition because being a party to a previous litigation is not pre-condition for approaching the High Court for exercise of jurisdiction under Article 199 of the Constitution. Any aggrieved person is entitled to move for exercise of such jurisdiction. [p. 335] A

(b) Constitution of Pakistan (1973), Article 93

Insertion of an express provision for appointment of Advisers at the Federal level means that such an express provision was necessary to authorise such appointment. As an essential corollary, therefore, omission of such a provision in the case of provinces would mean a prohibition and inability in respect of appointment of an Adviser. An adviser like that provided for in Article 93, cannot, therefore, be appointed in t he Provinces.[p.337]B

(c) Constitution of Pakistan (1973), Article 93 & 260

Insertion of an express provision for appointment of Advisers at the Federal level means that such an express provision was necessary to authorise such appointment. As an essential corollary, therefore, omission of such a provision in the case of provinces would mean a prohibition and inability in respect of appointment of an Adviser. An adviser like that provided for in Article 93, cannot, therefore, be appointed in t he Provinces.[p. 337] B

(d) Constitution of Pakistan (1973), Article 93

It may, however, be noted that the Adviser provided for in Article 93 is not the same as Adviser to Prime Minister or Adviser to Chief Minister mentioned in Article 260. They are two different categories. When they were excluded from the definition of Service of Pakistan. Under the scheme of the Constitution, the functions of the Adviser appointed under Article 93, are limited to the Houses of Parliament. They are not included in the Federal Government as it was defined by the Constitution Committee to be consisting of the Prime Minister and the Federal Ministers. Moreover, to give powers of Ministers to an unelected Adviser, would be against the concept of elected Government envisaged by the Constitution.[p. 337]C

(e) Constitution of Pakistan (1973), Article 139

Under Article 139(3) of the Constitution, the Governor has been empowered to make rules for the allocation and transaction of the business of the Provincial Government. These rules cannot include power of any appointment because it is merely “allocation and transaction of the business of the Provincial Government”.[p. 337]D

Insertion of rule 6 was, obviously, on the basis of ill-advice and misconceived recommendation. Rules 6 of the Government of Sindh Rules of Business, 1986, being beyond the powers of the Governor conferred by Article 139(3) of the Constitution, is ultra vires, void ab initio and of no legal effect.[p. 337]E

(f) Constitution of Pakistan (1973), Article 199

Accordingly, the appointment of the respondent No.1 was invalid and without lawful authority. Consequently, the impugned orders passed by this respondent are without lawful authority and of no legal effect. Petition is, accordingly, allowed to the extent and the matter is remanded to the respondent No. 2 for proceedings and decision according to law.[p. 337]F

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