Order says public appointments not to be made on subjective preference but through a process of merit, accountability
ISLAMABAD:
The Federal Constitutional Court (FCC) ruled on Thursday that the appointments to important public offices must demonstrably conform to constitutional standards of fairness, transparency, institutional integrity, and merit-based governance.
“Public authority cannot be exercised on undisclosed considerations, nor can structured procedures be reduced to empty formalities. The legitimacy of public administration depends not merely on the existence of power, but on the disciplined and transparent exercise of that power in accordance with law”, says the 12-page judgement authored by Justice Rozi Khan Barrech while upholding the Peshwar High Court judgement wherein the appointment of the present petitioner as Chairman, Board of Intermediate and Secondary Education, Bannu (BISE, Bannu) was set aside.
Commenting on the FCC judgment, advocate Abdul Moiz Jaferii says he wholeheartedly agrees that appointments to important public offices, such as those of superior court judges, must demonstrably conform to constitutional standards of fairness, transparency, and institutional integrity, and be merit-based. And that such appointments cannot be exercised on undisclosed considerations, nor can structured procedures such as the judicial commission be reduced to empty formalities.
Jaferii also welcomed the FCC judgment by saying that when the tide turns, it will be a fit precedent for the unwinding of the 26th and 27th amendment courts.
A three-judge panel of the FCC, led by Justice Hasan Azhar Rizvi, heard the matter.
The order noted that the record shows that after advertisement of the post of Chairman, BISE, Bannu, the government constituted a Search and Scrutiny Committee on February 8, 2021, to evaluate the candidates and recommend three names in accordance with the ToRs. The committee examined the shortlisted candidates and forwarded three names for consideration by the chief minister.
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The original summary, which was duly processed through the administrative hierarchy, was subsequently altered without any fresh deliberation by the committee, without any recorded reasons, and without any lawful justification apparent from the record. The Petitioner, who was not among the candidates recommended by the Committee, was later inserted in the summary dated 28.01.2025 and ultimately appointed by the competent authority through notification dated 13.05.2025, says the order.
The court said that the doctrine of pleasure, in its constitutional and administrative sense, does not confer an unfettered licence upon the executive to act in disregard of self-imposed procedural discipline.
“While the executive may, subject to law, appoint and remove public functionaries, the exercise of such power remains subject to the rule of law and the constitutional
obligation to act fairly and rationally. The doctrine of pleasure cannot be used as a shield for arbitrariness, nor can it override an institutional process already adopted by the competent authority to ensure integrity in selection.”
The court said that where the executive itself has structured the appointment process through a notified procedure and a search and scrutiny committee, the discretionary power under the Act cannot be exercised in disregard of the prescribed mechanism or in a manner that undermines institutional integrity.
Public appointments are not to be made on subjective preference or undisclosed considerations, but through a process that reflects merit, accountability, and due application of mind.
“The principle of ‘seven instruments’ of administrative justice, legality, fairness, transparency, reasoned decision-making, proportionality, nonarbitrariness, and accountability must therefore govern the exercise of the Controlling Authority’s powers under the Act of 1990”, says the order.
The court said that it is by now well settled that where public power is exercised through administrative discretion, such discretion must operate within recognisable legal limits.
The “seven instruments of power” in administrative governance, namely legality, fairness, transparency, reasoned decision-making, proportionality, non-arbitrariness, and accountability, are not mere aspirational ideals but enforceable standards which lend legitimacy to state action.
“In the field of public appointments, these principles assume heightened significance because the process concerns not private preference but public trust. The present matter is a classic illustration of why structured procedures must be respected, particularly where the State has itself chosen to institutionalise the selection process through a formal committee mechanism”, says the order.
