The order says that public appointments will not be made by subjective preference but through a process of merit and responsibility.
ISLAMABAD:
The Federal Constitutional Court (FCC) ruled on Thursday that appointments to important public positions must demonstrably conform to constitutional standards of fairness, transparency, institutional integrity and merit-based governance.
“Public authority cannot be exercised on the basis of undisclosed considerations, nor can structured procedures be reduced to empty formalities. The legitimacy of public administration depends not only on the existence of power, but on the disciplined and transparent exercise of that power in accordance with law,” reads the 12-page judgment written by Justice Rozi Khan Barrech, while confirming the judgment of the Peshwar High Court in which the present petitioner was appointed as the chairman of the Board of Intermediate and Secondary Education of Bannu. (BISE, Bannu) was left out.
Commenting on the FCC ruling, attorney Abdul Moiz Jaferii says he strongly agrees that appointments to important public positions, such as those of superior court judges, must demonstrably conform to constitutional standards of fairness, transparency and institutional integrity, and be based on merit. And that such appointments cannot be made on the basis of undisclosed considerations, nor can structured procedures such as the judicial commission be reduced to empty formalities.
Jaferii also welcomed the FCC ruling and said that when the tide turns, it will be a suitable precedent for the courts to overturn the 26th and 27th amendments.
A three-judge panel of the FCC, headed by Judge Hasan Azhar Rizvi, heard the matter.
The order noted that the record shows that after the advertisement of the post of BISE Chairman 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 ToR. The committee vetted the shortlisted candidates and sent three names for consideration by the prime minister.
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The original summary, which was duly processed through the administrative hierarchy, was subsequently altered without new deliberation by the committee, without proof of reasons and without any legal justification that emerges from the file. The petitioner, who was not among the candidates recommended by the Committee, was subsequently inserted in the docket dated 28.01.2025 and finally appointed by the competent authority vide notification dated 13.05.2025, the order said.
The court said that the pleasure doctrine, in its constitutional and administrative sense, does not confer an unlimited license on the executive to act without regard to self-imposed procedural discipline.
“While the executive may, subject to law, appoint and dismiss public officials, the exercise of that power remains subject to the rule of law and constitutional norms.
obligation to act fairly and rationally. “The doctrine of pleasure cannot be used as a shield against arbitrariness, nor can it nullify an institutional process already adopted by the competent authority to guarantee integrity in the 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 without regard to the prescribed mechanism or in a manner that undermines institutional integrity.
Public appointments should not be made based on subjective preferences or undisclosed considerations, but through a process that reflects merit, responsibility and due application of mind.
“The ‘seven instruments’ principle of administrative justice, legality, fairness, transparency, reasoned decision-making, proportionality, non-arbitrariness and accountability should, therefore, govern the exercise of the powers of the Supervisory Authority under the 1990 Act,” the order said.
The court said it is already well established that when public power is exercised through administrative discretion, that discretion must operate within recognizable legal limits.
The “seven instruments of power” in administrative governance, namely legality, equity, transparency, reasoned decision-making, proportionality, non-arbitrariness and accountability, are not mere aspirational ideals but enforceable norms that confer legitimacy on state action.
“In the area of public appointments, these principles take on greater importance because the process does not refer to private preference but to public trust. The present matter is a classic example of why structured procedures must be respected, particularly when the State itself has decided to institutionalize the selection process through a formal committee mechanism,” the order says.
