The order states that public appointments should not be made on subjective preference but through a process of merit, accountability
ISLAMABAD:
The Federal Constitutional Court (FCC) ruled Thursday that appointments to key public offices must demonstrably conform to constitutional standards of fairness, transparency, institutional integrity and merit-based governance.
“Public authority cannot be exercised based on secret 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,” the 12-page judgment authored by Justice Rozi Khan Barrech said while upholding the present order of the Supreme Court. as chairman of the board for intermediate and secondary education, Bannu (BISE, Bannu) was set aside.
Commenting on the FCC ruling, lawyer Abdul Moiz Jaferii says he wholeheartedly agrees that appointments to key public offices, such as superior court judges, must be demonstrably consistent with constitutional standards of fairness, transparency and institutional integrity and be merit-based. And that such appointments cannot be made based on secret considerations, just as structured procedures such as the judicial commission cannot be reduced to empty formalities.
Jaferii also welcomed the FCC ruling, saying that when the tide turns, it will set an appropriate precedent for the winding down of the 26th and 27th Amendment courts.
A three-judge panel of the FCC, headed by Justice Hasan Azhar Rizvi, heard the case.
The order noted that the minutes show that after announcing the post of chairman, BISE, Bannu, the government set up a search and vetting committee on February 8, 2021, to evaluate the candidates and recommend three names in accordance with the conditions. The committee examined the shortlisted candidates and sent three names for the consideration of the Chief Minister.
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The original summary, which was duly processed through the administrative hierarchy, was subsequently amended without any further discussion in committee, without any reasons on record and without any legal 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 vide notification dated 13.05.2025, the order said.
The court said that the doctrine of pleasure in its constitutional and administrative sense does not give the executive an unfettered license to act in disregard of self-imposed procedural discipline.
“Although the executive may, subject to law, appoint and remove public officers, the exercise of such powers 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 of 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 should not be made based on subjective preferences or secret considerations, but through a process that reflects merit, accountability and the proper application of mind.
“The principle of ‘seven instruments’ of administrative justice, legality, fairness, transparency, reasoned decision-making, proportionality, non-arbitrariness and accountability shall therefore govern the exercise of the controlling authority’s powers under the Act of 1990,” the order said.
The court said it is now well settled that where public power is exercised through administrative discretion, such discretion must operate 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 just aspirational ideals but enforceable standards that lend legitimacy to state action.
“In the area of public employment, these principles take on increased importance because the process does not concern private preference, but public trust. The present case is a classic illustration of why structured procedures must be respected, especially where the state itself has chosen to institutionalize the selection process through a formal committee mechanism,” the order states.
