The decree states that public appointments should not be made based on subjective preferences, but through a process based on merit and accountability.
ISLAMABAD:
The Federal Constitutional Court (FCC) ruled on Thursday that appointments to important public offices must clearly comply with 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 vain formalities. The legitimacy of public administration does not depend only on the existence of power, but on the disciplined and transparent exercise of that power in accordance with law,” said the 12-page judgment written by Justice Rozi Khan Barrech while upholding the judgment of the Peshwar High Court in which the appointment of the present petitioner to the post as chairman of the Bannu Board of Intermediate and Secondary Education (BISE, Bannu) has been sidelined.
Commenting on the FCC ruling, lawyer Abdul Moiz Jaferii says he fully agrees that appointments to important public offices, such as those of superior court judges, must clearly conform to constitutional standards of fairness, transparency and institutional integrity, and be based on merit. And that such appointments cannot be made on undisclosed considerations, nor can structured procedures such as the Judicial Commission be reduced to empty formalities.
Jaferii also praised the FCC’s ruling, saying that when the tide turns, it will be a fitting precedent for the outcome of the 26th and 27th Amendment courts.
A three-judge FCC panel, led by Judge Hasan Azhar Rizvi, heard the case.
The order noted that the record shows that after the announcement of the post of BISE Chairman Bannu, the government constituted a search and review committee on February 8, 2021 to evaluate the candidates and recommend three names in accordance with the terms of reference. The committee reviewed the shortlisted candidates and forwarded three names for consideration by the chief minister.
Read: Imran’s plea: The Supreme Court will follow the policy of fixing cases
The original summary, which was duly processed by the administrative hierarchy, was subsequently modified without further deliberation by the commission, without any reason recorded and without any legal justification emerging from the file. The petitioner, who was not among the candidates recommended by the Commission, was subsequently included in the summary dated 28.01.2025 and finally appointed by the competent authority vide notification dated 13.05.2025, the order said.
The Court held that the pleasure doctrine, in its constitutional and administrative sense, does not confer on the executive an absolute right to act in defiance of its self-imposed procedural discipline.
“Although the executive may, subject to law, appoint and dismiss public officials, the exercise of this power remains subject to the rule of law and constitutional rules.
obligation to act fairly and rationally. The doctrine of pleasure cannot be used as a shield against arbitrariness, nor can it override an institutional process already adopted by the competent authority to guarantee the integrity of the selection. »
The court said that where the executive itself has structured the appointment process through a notified procedure and a search and examination committee, the discretion provided by law cannot be exercised in defiance of the prescribed mechanism or in a manner that undermines institutional integrity.
Public appointments should not be made on the basis of subjective preferences or undisclosed considerations, but through a process that reflects merit, responsibility and application of mind.
“The principles of the ‘seven instruments’ of administrative justice, legality, fairness, transparency, reasoned decision-making, proportionality, non-arbitrariness and accountability shall therefore govern the exercise of the powers of the Control Authority under the 1990 Act,” the order said.
The Court stated that it is now well established that when public power is exercised through administrative discretion, that discretion must be exercised within recognizable 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 that confer legitimacy to state action.
“In the area of public appointments, these principles assume heightened importance because the process is not about private preference but public trust. The present case is a classic illustration of why structured procedures must be followed, particularly where the State has itself chosen to institutionalize the selection process through a formal committee mechanism,” the order said.
