IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: 
MR. JUSTICE NASIR-UL-MULK, HCJ 
MR. JUSTICE AMIR HANI MUSLIM 
MR. JUSTICE IJAZ AHMED CHAUDHRY 
 
CIVIL PETITION NO. 2124 OF 2013 & 
C.M.A. NOs. 1079 & 4821 OF 2014 
(On appeal against the order dated 10.10.2013 
passed by Islamabad High Court, Islamabad in ICA 
No. 1005/2013) 
 
Ghulam Rasool  
… Petitioner 
VERSUS 
 
Government of Pakistan through Secretary Establishment Division, 
Islamabad and others 
… Respondents 
 
For the Petitioner:  
Mr. Abdul Rahim Bhatti, ASC 
 
For the Respondent (3): Mr. Khurram Mumtaz Hashmi, ASC 
 
For Federation: 
 
Mr. Salman Aslam Butt, Attorney General 
Mr. Muhammad Waqar Rana, Addl. Attorney 
General 
 
Date of Hearing:  
30.10.2014 
 
JUDGMENT 
 
CIVIL PETITION NO. 2124 OF 2013 
 
 
IJAZ AHMED CHAUDHRY, J.- Petitioner and others, 
who are serving employees of Inter Services Intelligence (ISI) and 
belong to surveillance cadre, being aggrieved of their promotion 
policy to next scale had filed a Constitution Petition before the 
learned Islamabad High Court. At the time of hearing of the petition, 
the respondent No. 3 raised a preliminary objection with regard to 
the maintainability of the writ petition, upon which the learned 
Single Judge in Chamber after hearing the parties dismissed the 
Writ Petition by observing that the petitioners are civil servants and 
the High Court has no jurisdiction to entertain the said petition and 
that the proper forum for the matters in relation to terms and 
Civil Petition No. 2124/2013 etc 
2
conditions of the civil servants is Federal Service Tribunal. The Intra 
Court Appeal filed by the petitioners also met the same fate. Hence 
this petition.  
2. 
 
We have heard learned counsel for the parties and have 
perused the impugned judgments.  
3. 
 
Admittedly the petitioner is enjoying the status of civil 
servant in terms of Section 2(b) of the Civil Servants Act, 1973. His 
appointment letter has also been issued under the said Act and the 
proper forum for redressal of his grievance was Federal Service 
Tribunal. The Tribunal is functional and the petitioner, if so 
advised, can approach the said forum for redressal of his grievance. 
In 
these 
circumstances, 
the 
impugned 
judgments 
are 
unexceptionable. The petition is dismissed and leave refused.  
ISSUE OF FILLING UP CERTAIN CONSTITUTIONAL POSTS 
(C.M.A. NOs. 1079 & 4821 OF 2014) 
 
4. 
 
During the hearing of Civil Petition No. 2124/2013 this 
Court had taken note of the fact that specific posts under the 
Constitution and under various statutes are pending and still have 
not been filled up. A concise statement in this behalf bearing CMA 
No. 1079/2014 has been filed by the Federal Government wherein 
steps have been outlined for the appointment of various 
constitutional posts and the problems the Government is facing in 
such appointments. Learned Attorney General for Pakistan has 
submitted that as there was no specific prayer made in the said 
concise statement, another CMA bearing No. 4821/2014 has been 
filed. He submitted that the Federal Government is facing difficulties 
in appointments to such offices in view of the direction given by this 
Court in paras 26 & 27 of the judgment reported as Khawaja 
Muhammad Asif Vs. Federation of Pakistan (2013 SCMR 1205); that 
Civil Petition No. 2124/2013 etc 
3
in the said judgment a procedure has been prescribed for 
appointments to certain offices in statutory bodies, autonomous 
bodies, semi-autonomous bodies, regulatory bodies etc to be 
processed through a Commission; that some of these offices are 
created by statutes providing their own procedure for appointment 
and, 
therefore, 
some 
anomalies 
would 
arise 
in 
case 
the 
appointments are made in accordance with the directions given in 
Khawaja Asif supra judgment and the business of the Federal 
Government is suffering. He further added that since assumption of 
office by the Prime Minister and the Federal Cabinet, the Federal 
Government has sincerely tried to fully comply with the above said 
judgment regarding the proposed Commission and initially certain 
Public Sector Organizations were included in the schedule of posts 
under the purview of the Commission but despite the sincere 
endeavours there are administrative issues that are creating 
hurdles. In this regard a list has also been filed whereby it has been 
brought to the notice of this Court that so far only for the following 
Public Sector Organizations, appointments can be made:- 
 
i) 
Pakistan Telecommunication Authority 
 
 
a) 
Member Technical 
 
 
b) 
Member Finance 
 
 
ii) 
Pakistan Television Corporation 
 
 
iii) 
Pakistan Steel Mills Limited 
  
 
 
According to the list, there are 22 statutory bodies and 
33 
Public 
Sector 
Companies 
established 
under 
Companies 
Ordinance, 1984, whose heads are yet to be appointed by the 
Commission.  
5. 
 
Learned Attorney General further added that while 
making the directions, the provisions of Article 90 of the 
Civil Petition No. 2124/2013 etc 
4
Constitution where the power of appointment has been vested in the 
Federal Government has not been taken into consideration by this 
Court; that the contents of para 26 & 27 of the Khawaja Asif supra 
judgment were in the form of certain recommendations and 
suggestions which could not have assumed the status of law. In this 
regard he relied on Shahid Orakzai and another Vs. Pakistan (PLD 
2011 SC 365). He further added that various Acts / Ordinances lay 
down the criteria for high-level appointments and empower the 
Federal Government to make such appointments, which the Federal 
Government is bound to follow; that such provisions also inherently 
envisage the ability of the Federal Government to adopt any suitable 
manner, method and policy of vetting, assessing and selecting 
suitable candidates for such appointments according to the peculiar 
needs and complexities of specific appointments; that when the law 
provides for a thing to be done in a particular way, it should have 
been done in that way and in no other way; that none of the Acts / 
Ordinances envisage any forum  or body like the Commission; that 
an essential function of the Government has been given to the 
Commission which is against the law; that the Members of the 
Commission are not accountable to anybody and that since the 
Commission has no legal status, its Members are not subject to 
judicial review by the Court, therefore, there is no procedure 
available to check the possible abuse of power by the Commission. 
On the other hand, he added that the Federal Government or the 
Prime Minister, as the case may be, are accountable to the 
Parliament under the Constitution and also to the People of 
Pakistan and their actions are subject to judicial review. He lastly 
prayed that the directions contained in Khawaja Asif supra 
judgment at paras 26 to 30 may be revisited or clarified.  
Civil Petition No. 2124/2013 etc 
5
6. 
 
We have heard learned Attorney General for Pakistan at 
some length.  
7. 
 
During the last care-taker Government, a large number 
of appointments were made without following any merit or 
procedure that were against the Constitutional mandate of a care-
taker Government. Khawaja Muhammad Asif, a Parliamentarian, 
had filed a petition before this Court under Article 184(3) of the 
Constitution against the said appointments and this Court had inter 
alia made following directions:-  
“26.       Be that as it may, in order to ensure the enforcement 
of the fundamental right enshrined in Article 9 of the 
Constitution and considering it to be a question of public 
importance, a Commission headed by and comprising two 
other 
competent 
and 
independent 
members 
having 
impeccable integrity, may be the Federal Ombudsman or 
Chairman NAB or a Member of Civil Society having 
exceptional ability and integrity, is required to be constituted 
by the Federal Government through open merit based process 
having fixed tenure of four years to ensure appointments in 
statutory bodies, autonomous bodies, semi-autonomous 
bodies, regulatory authorities to ensure appointment of all the 
government controlled corporations, autonomous and semi-
autonomous 
bodies, 
etc. 
The 
Commission 
should be 
mandated to ensure that all public appointments are made 
solely on merits. The Commission should discharge mainly 
the following functions:-- 
  
(i) 
Regulate public appointments processes within his 
remit; 
  
(ii) 
implement a Code of Practice that sets out the 
principles 
and 
core 
processes 
for 
fair 
and 
transparent merit-based selections; 
  
(iii) 
chair the selection panels for appointing heads of 
public/statutory bodies and chairs and members of 
their boards, where necessary; 
  
(iv) 
appoint Public Appointments Assessors to chair the 
selection 
panels 
for 
appointing 
heads 
of 
public/statutory bodies and chairs and members of 
their boards, where appropriate; 
 
(v) 
report publicly on a public/statutory body's 
compliance with the Code of Practice, including 
examples of poor and good performance, and best 
practice; 
  
(vi) 
investigate complaints about unfair appointment 
process; 
  
Civil Petition No. 2124/2013 etc 
6
(vii) 
Monitor compliance with the Code of Practice; 
  
(viii) 
Ensure regular audit of appointments processes 
within his remit; 
  
(ix) 
Issue an annual report giving detailed information 
about 
appointments 
processes, 
complaints 
handled, and highlights of the main issues which 
have arisen during the previous year. The annual 
report for the previous calendar year should be laid 
before the Parliament by 31st March; 
  
(x) 
Take any other measures deemed necessary for 
ensuring 
that 
processes 
for 
public 
sector 
appointments that fall in his remit are conducted 
honestly, justly, fairly and in accordance with law, 
and that corrupt practices are fully guarded 
against. 
  
27.       The Code of Practice should provide foundations for 
transparent merit-based public appointments. All public 
appointments must be governed by the overriding principle of 
selection based on merit, out of individuals who through 
abilities, experience and qualities have a proven record that 
they best match the need of the public body in question. No 
public appointment must take place without first being 
recommended 
by 
the 
Commission. 
The 
appointments 
procedures 
should 
be 
subjected 
to 
the 
principle 
of 
proportionality, that is, what is appropriate for the nature of 
the post and the size and weight of its responsibilities. Those, 
selected must be committed to the principles and values of 
public service and perform their duties with highest level of 
integrity. The information provided about the potential 
appointees must be made public. The Commission may from 
time to time conduct an inquiry into the policies and 
procedures followed by an appointing authority in relation to 
any appointment. He may also issue a statement or publish a 
report commenting publicly on any breach or anticipated 
breach of the Code. The appointment of the successful 
candidate must be publicized. 
. 
. 
. 
. 
. 
30(e) The appointments in autonomous/semi-autonomous 
bodies, corporations, regulatory authorities, etc., made before 
the appointment of Caretaker Government shall also be 
subjected to review by the elected Government by adopting 
the prescribed procedure to ensure that right persons are 
appointed on the right job, in view of the observations made 
in above paras (Paras.Nos.25 and 26)”  
 
8. 
 
We have noted that while making such directions, the 
provisions of Article 90 of the Constitution were overlooked by this 
Court. Article 90 reads as under:- 
Civil Petition No. 2124/2013 etc 
7
“90. 
(1) Subject to the Constitution, the executive authority 
of the Federation shall be exercised in the name of the 
President by the Federal Government, consisting of the Prime 
Minister and the Federal Ministers, which shall act through 
the Prime Minister, who shall be the Chief Executive of the 
Federation. 
 
(2) 
In the performance of his functions under the 
Constitution, the Prime Minister may act either directly or 
through the Federal Ministers.” 
 
9. 
 
The appointment of a Commission and the power to 
make recommendations for such appointments is not in accordance 
with Article 90 of the Constitution where the power of appointment 
has been vested in the Federal Government. It appears that in the 
light of the observations made in paras 26 & 27 of the Khawaja Asif 
supra judgment the legal authority has been vested in a 
Commission and its recommendations are being made binding upon 
the Prime Minister. It is by now a well settled law that the 
responsibility of deciding suitability of an appointment, posting or 
transfer fell primarily on the executive branch of the State. It is also 
a settled law that the Courts should ordinarily refrain from 
interfering in policy making domain of the Executive. In Executive 
District Officer (Revenue), District Khushab Vs. Ijaz Hussain (2012 
PLC(CS) 917) this Court has held that framing of recruitment policy 
and rules thereunder fell in the executive domain; that the 
Constitution of Pakistan is based on the principle of trichotomy of 
powers where legislature is vested with the functions of law making, 
the executive with its enforcement and judiciary of interpreting the 
law and that Courts could neither assume the role of policy maker 
nor that of a law maker. The contents of the said paras were in the 
form of certain recommendations, which could not have assumed 
the status of law. In Shahid Orakzai and another Vs. Pakistan (PLD 
2011 SC 365) the importance of consulting the Hon’ble Chief 
Civil Petition No. 2124/2013 etc 
8
Justice of Pakistan has been stated in the matter of appointment of 
Chairman of the National Accountability Bureau and it was 
expected that such recommendation had to be given effect for all 
future appointments. Subsequently in Ch. Nisar Ali Khan Vs. 
Federation of Pakistan etc (PLD 2013 SC 568) this Court had 
clarified that in the absence of the Hon’ble Chief Justice of Pakistan 
from the appointment process of Chairman NAB, the observations in 
Shahid Orakzai supra case were not to be treated as binding and 
that “a suggestion or recommendation made by the Court in a 
judgment though entitled to due respect, deference and consideration, 
does not travel beyond a suggestion or a recommendation and it does 
not by itself assume the status of law. By its nature and form a 
suggestion or a recommendation is simply what it is, nothing more 
and nothing less.” In Syed Mahmood Akhtar Naqvi and others Vs. 
Federation of Pakistan etc (PLD 2013 SC 195), this Court has held 
that “whenever there are statutory provisions or rules or regulations 
which govern the matter of appointments, the same must be 
followed”. Keeping in view the above discussion, it can be said that 
the matter of appointment of heads of statutory bodies, autonomous 
/ semi-autonomous bodies, corporations, regulatory authorities 
etcetera are governed under specific statutory provisions which 
cannot be overlooked or substituted by some other mechanism. We 
have noted that various Acts / Ordinances lay down a specific 
criteria / qualifications for high-level appointments and empower 
the Federal Government to make such appointments. Some of them 
are (i) Federal Public Service Commission of Pakistan Ordinance, 
1977, (ii) Competition Act, 2010, (iii) Pakistan Electronic Media 
Regulatory Authority Ordinance, 2002, (iv) Oil and Gas Regulatory 
Authority Ordinance, 2002, (v) NEPRA Act, 1997, (vi) Securities & 
Civil Petition No. 2124/2013 etc 
9
Exchange Commission Act, 1997, (vii) Pakistan Telecommunication 
(Re-organization) Act, 1996, and (viii) Companies Ordinance, 1984. 
The above referred Acts / Ordinances provide a complete procedure 
of appointments, which the Federal Government is bound to comply 
with as mandated under Article 5 of the Constitution. The Federal 
Government has been expressly empowered by the Legislature to 
make high-level appointments in accordance with the criteria 
specified in the concerned Acts / Ordinances. In case of companies 
incorporated in the public sector under the Companies Ordinance, 
1984, the appointment and removal of Directors is comprehensively 
dealt with under the said Ordinance and the memorandums, rules / 
regulations framed there under. However, it is also made clear that 
the Court’s deference to the Executive Authority lasts for only as 
long as the Executive makes a manifest and demonstrable effort to 
comply with and remain within the legal limits which circumscribe 
its power. Even where appointments are to be made in exercise of 
discretionary powers, such powers are to be employed in a 
reasonable manner. Even otherwise, the policy adopted by the 
Federal Government in making appointments is open to judicial 
review on the touchstone of the Constitution and the laws made 
there under i.e. in case of any illegality in the ordinary process of 
appointment, this Court as well as the High Courts have sufficient 
powers under Articles 184 & 199 of the Constitution to exercise 
judicial review. There are similar Commissions in other countries 
including the United Kingdom, Canada and India. However, all 
those commissions were made pursuant to specific laws / statutes 
enacted for that purpose. In Australia, the Australian Public Service 
Commission was established pursuant to the Public Service Act, 
1999. Similarly in Canada, the Federal Accountability Act, 2006, 
Civil Petition No. 2124/2013 etc 
10
was enacted by the Parliament for inter alia putting in place measures 
respecting administrative transparency, oversight and accountability. 
However, no public appointments commission has yet been created. No 
statutory Commission has been crated in Pakistan for examining 
suitability of persons for appointment to high public offices. The 
Government may consider the establishment of such a Commission 
through legislation in order to ensure transparency which would also 
enable the executive authority to make an informed decision while 
making appointments.  
10. 
 
In view of the afore-referred circumstances, we clarify that 
it is the exclusive preserve of the Federal Government to appoint heads 
of statutory bodies, autonomous bodies, semi-autonomous bodies, 
regulatory bodies etc as also to make appointments on merits under 
the Acts / Ordinances wherein certain criteria has been laid down for 
such purpose. CMA Nos. 1079 & 4821 of 2014 are allowed in terms 
noted above. 
11. 
 
Now that there are no impediments in the process of 
appointments to the offices in the statutory bodies and to public sector 
companies referred to in paragraph 4 above, they shall be filled up 
without loss of time by the end of December, 2014. A preliminary 
report of the progress made towards the appointment shall be 
submitted by the learned Attorney General for Pakistan for our perusal 
in chambers by the 10th of December, 2014. 
 
CHIEF JUSTICE 
 
JUDGE 
 
JUDGE 
Islamabad, the  
 Announced on 14.11.2014. 
Approved For Reporting 
Khurram