PESHAWAR: The induction of Khushdil Khan Malik, a federal government employee, in the caretaker cabinet of Khyber Pakhtunkhwa a few hours after applying for leave preparatory to retirement (LPR) has generated a legal debate as well as exposed the non-availability of eligibility criteria for a caretaker minister in the Constitution and other laws.

The social and mainstream media reported that a government servant (Khushdil Khan) was inducted into the caretaker cabinet of the province. Different questions were raised about his induction into the caretaker canine. It was asked whether a government servant could be appointed as a member of the caretaker cabinet or not.

Khushdil Khan told Dawn that all his documents and credentials were scrutinised by the authorities at the helm of affairs a couple of days before the announcement of his appointment as minister.

“When the governor of Khyber Pakhtunkhwa nominated me for the caretaker set-up, I took LPR a couple of hours before taking the oath,” he told this scribe. He said when he was informed about the governor’s decision, he immediately sent his request to his parent department for leave preparatory to retirement, commonly known as LPR.

Khushdil Khan gets LPR hours before he was sworn in as caretaker minister

“Leaving government service through LPR at the age of 59, one year before retirement, is a legal option which I used,” said Mr Khan, who retired as principal of Federal Government Public School Mangla Cantt and also served as director general of National Counter-Terrorism Authority on deputation.

Appointed in BPS-18 as headmaster in 1996 in the federal government educational institutions (Cantt/Garrisons), which fall under the administrative control of the ministry of defence, he was subsequently made deputy secretary in the federal government on deputation in 2004. He served in different posts on deputation.

Islamabad High Court also fined him Rs50,000 in 2021 and order his repatriation.

A senior official in the Election Commission of Pakistan told Dawn that the Election Act, 2017, was silent regarding the appointment of a government servant as caretaker minister. “It’s not the responsibility of ECP to intervene in the instant case,” he said.

An official in the provincial secretariat said that a government servant gone on LPR could not be considered as retired because his leave could be cancelled anytime and he could be directed to resume duty. He said that federal government also issued a notification in that regard.

Ali Gohar Durrani, a lawyer, said that Constitution as well as Elections Act, 2017, were silent on any qualification required for a caretaker chief minister or cabinet member. He added that the Elections Act only provided functions of a caretaker government.

However, he said that the qualifications and disqualifications provided in Article 62 and 63 of Constitution for a person to become a member of parliament or a provincial assembly should also be applied to a caretaker chief minister or minister.

He said that Article 63 (1) (K) of Constitution provided that a person should be disqualified from being elected or chosen as a lawmaker if he had been in the service of Pakistan or of any statutory body or any other body, which was owned or controlled by the government or in which the government had a controlling share or interest, unless a period of two years elapsed since he ceased to be in such service.

Mr Durrani questioned as to why the constitutional provision should not be applicable to a caretaker minister. He added that if the preposition that there was no eligibility criterion for a caretaker was accepted then any person could be appointed as a caretaker minsiter.

Another lawyer dealing with services matters said that under Section 14 of Civil servants Act, 1973, a retired civil servant should not be reemployed under the federal government, unless such re-employment was necessary in the public interest and was made with the prior approval of the authority next above the appointing authority.

He said that a civil servant might, during LPR or after retirement from government service, seek any private employment. A civil servant should obtain the prior approval of the prescribed authority when he sought employment while on LPR or within two years of the date of his retirement.

However, he said that it was not explained in which category functioning as a caretaker minister fell, whether it should be considered a private employment or government employment or not even an employment.

In present circumstances, the lawyer said, apparently there was no bar in any law to disqualify a government servant from becoming a caretaker minister.

Published in Dawn, January 30th, 2023