SUPREME COURT OF AZAD JAMMU AND KASHMIR
[Appellate Jurisdiction]
PRESENT:
Mohammad Azam Khan, C.J.
Ch. Muhammad Ibrahim Zia, J.
Raja Saeed Akram Khan, J.
Masood A. Sheikh, J.
Civil Appeal No. 274 of 2015
(PLA filed on 30.07.2015)
1.
Azad Jammu & Kashmir Government through its
Chief Secretary, Muzaffarabad.
2.
Secretary Law, Justice, Parliamentary Affairs and
Human Rights Department of AJ&K, Muzaffarabad.
3.
Secretary
Finance,
Azad
Jammu
&
Kashmir,
Muzaffarabad.
…
APPELLANTS
VERSUS
Syed Khalid Hussain Gillani, Chairman, Azad Jammu &
Kashmir Service Tribunal, Muzaffarabad.
……. RESPONDENT
(On appeal from the judgment of the High Court dated
02.07.2015 in Writ Petition No. 1390/2011)
-----------------------
2
FOR THE APPELLANTS:
M/s M. Noorullah Qureshi
and Asghar Ali Malik,
Advocates.
FOR THE RESPONDENTS:
Raja
Muhammad
Khan, Advocate.
Hanif
Date of hearing: 10.12.2015.
JUDGMENT:
Ch.
Muhammad
Ibrahim
Zia,
J.—
The
captioned appeal by leave of the Court has arisen out of a
consolidated judgment of the High Court, whereby both
the writ petitions filed by the contesting respondent have
been accepted.
2.
The brief facts of the case necessary for
disposal of this appeal as stated are that the respondent
invoked the writ jurisdiction of the High Court alleging
therein that initially, he was appointed as Civil Judge on
the recommendations of Public Service Commission on
10.2.1987.
He was promoted as Senior Civil Judge on
22.5.1999 and thereafter, he was further promoted as
Additional District & Sessions Judge on 15.1.2002 and
District & Sessions Judge on 10.4.2004. The respondent
claimed that he, being qualified to be appointed as Judge
3
High Court, was eligible for appointment against the post
of Chairman Service Tribunal, hence was appointed as
such by the Government vide notification dated 6.4.2011.
He assumed the charge of the post of Chairman Service
Tribunal on 6.4.2011. He further alleged that in his
appointment notification, it was mentioned that the terms
and conditions shall be determined later on. After a
period of two months, vide notification dated 13.6.2011,
the terms and conditions of petitioner‟s service were
determined as equal to the Judge High Court only during
service and he has to retire from service as a civil
servant. The respondent challenged the condition of
notification
regarding
retirement
through a writ petition
as
a
civil
servant
before the High Court on
14.9.2011. The writ petition was admitted for regular
hearing on 17.2.2012. During pendency of writ petition,
the respondent was retired from service vide notification
dated 19.5.2015. The respondent challenged the vires of
the notification dated 19.5.2015 through an amended
writ petition on 19.6.2015. The writ petitions were
resisted by the other side. The High Court, after
necessary proceedings while accepting both the writ
petitions,
declared
the
condition
of
retirement
of
4
respondent as a civil servant ascribed through notification
dated 13.6.2011 as illegal, consequently the notification
dated 19.5.2015 has been quashed. The High Court,
while accepting the writ petition No. 257/2014 has also
ordered that the respondent shall not be transferred
from the post of Chairman of Azad Jammu and Kashmir
Service Tribunal till attaining the age of
62 years. The
appellants feeling aggrieved have approached this Court
challenging
the legality of the impugned
judgment
through the instant appeal by leave of the Court.
3.
Ali
M/s. Muhammad Noorullah Qureshi and Asghar
Malik,
Advocates,
the
learned
counsel
for
the
appellants after narration of necessary facts seriously
objected to the impugned judgment on the ground that
the same is not consistent with the statutory provisions
of law dealing with the subject. They further submitted
that in the law called the Azad Jammu and Kashmir
Service Tribunals Act,1975 (hereinafter to be referred as
Service Tribunal Act), with the passage of time, the
material
changes
through
amendments
have
been
introduced. Previously, the terms and conditions of
service of Chairman Service Tribunal were determined by
the
President
of
Azad
Jammu
and
Kashmir.
The
5
respondent
6.4.2011
was
as
appointed
Chairman
vide
Service
notification
Tribunal.
dated
In
his
appointment notification, it has been categorically and
expressly mentioned that his terms and conditions will be
determined later on. He has not raised any objection and
while accepting this order, assumed the charge of the
office. In furtherance of the appointment notification
dated
6.4.2011,
vide
another
notification
dated
13.6.2011, the terms and conditions of Chairman Service
Tribunal have been determined competently by the
President of Azad Jammu and Kashmir. Thus, the
respondent is estopped by his own conduct to raise
objection regarding the notification dated 13.6.2011
which has been issued validly under the statutory
provisions dealing with the subject matter. It is further
argued that the High Court has not applied its judicial
mind and failed to properly appreciate the constitutional
as well as statutory provisions. The High Court also fell in
error of law while misinterpreting the Fundamental Right
No.17, guaranteed by the AJ&K Interim Constitution Act,
1974 which provides that there shall be no discrimination
in the services on the basis of race, religion, caste or sex.
It has nothing to do with the terms and conditions of
6
service of a person who is appointed or is rendering
services in relation to any post in the service of Azad
Jammu and Kashmir for which specific laws are holding
the field. Same like, the High Court has also fell in error
of law while misconstruing the Right No.15 which deals
with the equality of the State Subjects before law. It does
not deal with the service matters or the terms and
conditions of service of a person. If such like broad
interpretation is accepted, the whole set of laws dealing
with the terms and conditions of service will become
redundant. It is further argued that even otherwise, no
discrimination has been made as while holding the office
of Chairman Service Tribunal, the respondent has been
given the same privileges which were given to the
predecessors in the office. So far as the question of
retirement or the matter of pension is concerned, it will
have to be dealt with according to law dealing with the
subject and not on the basis of broad application of the
principle of law while enlarging the scope of Right No.15
or 17 of the constitutionally guaranteed Fundamental
Rights. He further argued that so far as the principle of
law enunciated in previous cases is concerned, according
to the nature of the terms and conditions determined by
7
the competent authority those cases have no nexus with
the facts of the case in hand. They also referred to the
notification dated 25.6.2002 which is holding the field
since its date of issuance and submitted that the question
of extending equal terms to the person holding the post
other than the constitutional post, cannot be considered.
Therefore, the claim of respondent that he be treated at
par with the Judge High Court on same terms and
conditions, is not maintainable according to enforced law.
They further submitted that the respondent neither
challenged the vires of law nor the notification dealing
with the subject matter. Even, the respondent failed to
challenge
the
notifications
issued
by
the
Finance
Department especially, dated 3.6.2011 and 8.5.2011,
thus, in view of this state of affairs, his writ petition was
also
not
maintainable.
The
Courts
have
always
interpreted the statutory provisions applicable to the
specific order and person in the light of the peculiar facts
of the cases. As in the case of Raja Bashir Ahmed Khan
vs. Azad Govt. and others (civil appeal decided on
17.4.1998), and Raja Shahnawaz Khan, Chairman Azad
Jammu and Kashmir Zakat Council vs. Azad Govt. of the
State of Jammu and Kashmir and 3 others [PLJ 2013 SC
8
(AJ&K) 186],
the terms and conditions of service were
clearly determined as that of Judge High Court, thus, the
judgment of the High Court was handed down correctly in
the light of the peculiar facts of those cases. Same like,
the matter of pension of Chairman Service Tribunal came
under consideration before this Court in the case reported
as Bostan Chaudhary vs. Audit and Accounts Department
and 6 others [2011 SCR 279] and the Court once again
determined the controversy on the basis of contents and
text of the appointment/determination of terms and
conditions of service notification, whereas the case of the
respondent is distinguishable, therefore, while accepting
this appeal, the impugned judgment of High Court may
be recalled. Consequently, the writ petition filed by the
respondent be dismissed with cost. They placed reliance
upon the cases reported as Secretary Services & 2 others
vs. Bashir Mir [2015 SCR 851], Azad Government and 4
others vs.
M/s Spintex Limited [1998 SCR 167]
Syed
Imdad Ali Shah and 59 others vs. Azad Government and
8 others [2003 SCR 95] Sardar Asif Mehmood Raza vs.
Abdul Khamid and 7 others [2004 SCR 298]
4.
Advocate,
Conversely,
the
Raja
learned
Muhammad
counsel
Hanif
representing
Khan,
the
9
respondent, forcefully defended the impugned judgment
and submitted that the same is well reasoned, based
upon the principle of law enunciated by the superior
Courts of subcontinent. There is no illegality or infirmity.
He argued that according to the statutory provisions of
the Rules of Business, 1985, for determination of the
terms and conditions
of Chairman Service Tribunal,
reference to the Finance Department‟s notification is not
required, therefore, there was no need to challenge any
order of Finance Department in this regard. He submitted
that the respondent‟s case is mainly based on the
principle of equality before law and even prohibition of
discrimination as according to the consistent practice, all
the predecessors in the office of Chairman Service
Tribunal have been given the terms and conditions equal
to Judge High Court. All of them had been retired after
attaining the age of superannuation as of Judge High
Court. Once a person is appointed as Chairman Service
Tribunal, he cannot be treated as civil servant or
Government servant, therefore, the High Court has
rightly declared the notification dated 13.6.2011 as
violative of law and the statute. He submitted that his
case is mainly based on the principle of law enunciated in
10
the cases of Raja Bashir Ahmed Khan vs. Azad Govt. and
others (civil appeal decided on 17.4.1998),
and Raja
Shahnawaz Khan, Chairman Azad Jammu and Kashmir
Zakat Council vs. Azad Govt. of the State of Jammu and
Kashmir and 3 others [PLJ 2013 SC (AJ&K) 186] and
Sh.Riaz-ul-Haq, ASC and another vs. Federation of
Pakistan through Ministry of Law and others [PLJ 2013 SC
707]. It is further submitted that in view of the clear
statutory provisions and the principle of law enunciated
by the superior Courts, there was no need to challenge
the vires of the statutory provision of law. This appeal
has no substance, hence, is not maintainable, therefore,
while upholding the judgment of the High Court, the
appeal may be dismissed.
5.
We have heard the learned counsel for the
parties and also carefully examined the record. According
to the legal and factual proposition raised in this case,
the pivotal question to be determined as emerged is, that
according to the enforced law what are and what is the
method for determination of terms and conditions of
service of the Chairman Service Tribunal. For resolution
of this point, the statutory provisions of Service Tribunals
Act, are of vital legal importance. Although in the
11
impugned judgment of High Court, section 3 of the
Service Tribunals Act has been reproduced but it appears
that sections 4-A and 4-B referred to by the High Court
are
not
holding
the
field.
These
provisions
were
previously part of the Ordinance which by operation of
law has been deemed repealed. Presently, the statutory
provision holding the field is subsection 4 of section 3 of
the Service Tribunals Act.
6.
For proper perception, in our opinion, the
consideration of the legislative developments is also of
vital importance. Before enforcement of Act V of 1993,
the matter of determination of terms and conditions of
service was dependant on the discretion of the President
of Azad Jammu and Kashmir. But it appears
that after
enforcement of Act V of 1993, under the provisions of
subsection (4) of section 3 of Service Tribunals Act, the
legislature has taken out the discretionary powers vested
in President and laid down that the same shall be
prescribed under rules. The provision of subsection (4) of
Section 3 of Service Tribunals Act, reads as follows:“The Chairman and member of a Tribunal
shall be appointed by the President on
such terms and conditions
determined by rules.”
as may be
12
It appears that
due to some legislative vacuum, the
legislature further felt advised to enforce the amendment
Act XXVIII of 1995. For the purpose of this case,
subsection 2 of Section 1 of this Act, reads as follows:“1………………………………………………
(1)…………………………………………….
(2). It shall come into force at
once and shall be deemed to
have taken effect on and from
12th March, 1993.”
Through this amending Act, further proviso to subsection
(4) has been added as follows:“Provided that until the Rules
are framed under the Act, the terms
and conditions for the appointment
of
Chairman
and
member
determined by the President before
the commencement of this Act shall
be
deemed
to
have
been
determined under this Act.”
In our opinion, due to this legislative development, the
matter of determination of terms and conditions
service of Chairman Service Tribunal
of
is no more
13
dependent on the discretion of the President rather it has
been clearly settled by law.
7.
In this case, in our opinion from both sides, the
arguments have been advanced on misconception of law
while ignoring the exact statutory provision dealing with
the subject. Thus, in this perspective, even the case law
referred to by the parties has no strict application to the
case in hand.
8.
According to the statutory provision enforced
dealing with the subject matter, the legislature has
clearly expressed its intention that the terms and
conditions of service of the Chairman Service Tribunal
shall be determined by the rules and until the rules are
made,
the
same
shall
be
deemed
to
have
been
determined under the proviso of subsection 4 of section 3
of the Service Tribunals Act.
9.
According
to
the
admitted
position,
in
compliance of subsection 4 of section 3 of the Service
Tribunals Act, up-till-now the terms and conditions of
service of the Chairman Service Tribunal have not been
determined by making rules. Thus, in absence of rules
the question of determination of terms and conditions of
14
service of Chairman Service Tribunal has to be resolved
by application of proviso added by amending Act, 1995.
10.
Now we have to revert back to the statutory
provision of amending Act XXVIII of 1995. The proviso to
subsection 4 of section 3 clearly speaks that till the time
the rules are framed, the terms and conditions for
appointment of Chairman/member determined by the
President before commencement of amending Act, 1995
shall be deemed to have been determined under this Act.
This proviso clearly speaks that it is not the sweet
discretion of the President after enforcement of Act,
XXVIII of 1995 to determine the terms and conditions of
the office of Chairman Service Tribunal rather the terms
and conditions of Chairman Service Tribunal determined
before the commencement of amending Act, XXVIII of
1995 have to be determined under the Service Tribunals
Act. The discretionary powers of the President have been
taken back by the legislature. Neither he can add nor
alter or omit any of the terms and conditions of the
Chairman Service Tribunal which under the proviso to
subsection (4) of section 3 of the Service Tribunals Act
shall be deemed to have been determined under this Act.
15
11.
According to the provisions of subsection 2 of
section 1 of Act. XXVIII of 1995, the same commenced
and taken effect from
12th March, 1993. Thus, for the
purpose of main proposition involved in this case, the
material date is 12th March, 1993, as at that time the
terms and conditions of Chairman Service Tribunal
determined by the President shall be deemed determined
under the Service Tribunals Act, 1975. The record
produced by the parties reveals that at the relevant time,
one Sardar Sajawal Khan (late) was holding the office of
Chairman Service Tribunal whose terms and conditions of
service
were
determined
vide
notification
dated
8.4.1990 which reads as follows:‫"عشوعض ایٌڈ جضل ایڈهٌغٹشیشي ڈیپبسٹوٌٹ‬
‫آصاد حکوهت سیبعت جووں و کشویش‬
"‫"هظفشآثبد‬
‫ ع‬0991 ‫ اپشیل‬8
:‫ًوٹیفیکیشي‬
‫۔ ثتغلغل‬91 /)42(/ ‫ ایظ ٹی‬/ ‫ شعجہ دوم‬/ ‫ًوجش اًتظبهیہ‬
‫ هوسخہ‬89 / )42( ‫ ایظ ٹی‬/ ‫ شعجہ دوم‬/ ‫ًوٹیفکیشي ًوجش اًتظبهیہ‬
‫ جٌبة صذس آصاد جووں و کشویش ًے اى اختیبسات کی سو‬،‫ ع‬0989‫۔‬8‫۔‬0
‫ ع کی‬0991 ‫عے جو اًہیں آصاد جووں و کشویش عشوط ٹشثیوًلض ایکٹ‬
‫ اط اهش کی هٌظوس صبدس‬، ‫) کے تحت حبصل ہیں‬2( ‫ کی ریلی دفعہ‬3 ‫دفعہ‬
‫فشهبئی ہے کہ جٌبة عشداس هحوذ عجبول خبى کب ثحیثیت چیئشهیي عشوط‬
‫( چبس عبل ہوگب اوس هوصوف کی‬Tenure) ‫ٹشثیوًل عشصہ هالصهت‬
‫ االؤًغض اوس هشاعبت جج عذالت العبلیہ کے ثشاثش ہوًگی۔‬،ٍ‫ تٌخوا‬،‫حیثیت‬
‫ع عے هؤثش ہوگب۔‬0989 ‫ًوٹیفکیشي ہزا یکن اگغت‬
‫۔‬4
)‫(خواجہ هقجول احوذ‬
‫عیکشي آفیغش عشوعض‬
")‫(دوم‬
16
Sardar Sajawal Khan, retired w.e.f 31.7.1993. It will be
useful to reproduce here the notification dated 29.7.1993
which reads as under:‫"عشوعض ایٌڈ جضل ایڈهٌغٹشیشي ڈیپبسٹوٌٹ‬
‫آصاد حکوهت سیبعت جووں و کشویش‬
"‫"هظفشآثبد‬
‫ ع‬0993‫۔‬9‫۔‬49 ‫هوسخہ‬
:‫ًوٹیفیکیشي‬
‫ ع۔ جٌبة صذس‬93 / ‫) شعجہ عوئن‬42( - ‫ ایظ ٹی‬/ ‫ًوجش اًتظبهیہ‬
‫آصاد جووں و کشویش ًے عشداس عجبول خبى ڈعٹشکٹ ایٌڈ عیشي جج کو‬
‫عوش پیشاًہ عبلی و ثحیثیت چیئشهیي عشوط ٹشثیوًل عشصہ هالصهت‬
( ‫ ع‬0993 ‫۔‬9 ‫۔‬30 ‫( چبس عبل هکول کشًے کی ثٌبء پش هوسخہ‬Tenure)
‫ثعذ دوپہش) پٌشي پش سیٹبئش کے عالوٍ اًکے حك هیں حغت اعتحقبق‬
‫سخصت اًکیشوٌٹ ادا کیے جبًے کی ثھی هٌظوس ی صبدس فشهبئی ہے۔‬
)‫(چوہذسی ًثبس احوذ ًثبس‬
‫عیکشي آفیغش عشوعض‬
”)‫(عوئن‬
Thus, it appears that at the time of commencement
of
amending Act, XXVIII of 1995, according to enforced
terms and conditions determined by the President, the
Chairman Service Tribunal being the Chairman was
entitled to receive the pay, allowances and privileges,
equal to the Judge High Court.
12.
According to both the notifications determining
the terms and conditions of service and retirement, the
tenure for the post of Chairman Service Tribunal is fixed
as 4 years according to law. Thus, according to spirit of
the presently enforced statutory provision of section 3 of
the Service Tribunals Act, the terms and conditions of
service of Chairman Service Tribunal applicable to Sardar
Sajawal Khan (late) Chairman Service Tribunal shall be
17
deemed to have been determined under the Service
Tribunals Act. In this state of affairs, there remains no
ambiguity that according to law, the Chairman Service
Tribunal while holding the office is entitled to the pay,
allowances and privileges equal to Judge High Court and
the term of his office shall be 4 years. Thus, according
to the spirit of the enforced law, the Chairman Service
Tribunal has to hold the office as Chairman for a term of
4 years unless the law is amended or the vires of the
same are specifically challenged. There can be no
variation in the terms and conditions of service of
Chairman Service Tribunal as were applicable on 12th
March, 1993. Therefore, we have no hesitation in holding
that the respondent according to law may hold the post
of Chairman Service Tribunal for a term of 4 years and
after completion of the tenure, he cannot claim to remain
further in the office.
13.
In
view
of
the
legal
position
recorded
hereinabove, the question of validity of notification issued
on 13.6.2011 becomes irrelevant. As according to law the
office of Chairman Service Tribunal is a tenure post for 4
years and after serving 4 years‟ period, the person
holding the office has to revert back to his post according
18
to the other laws applicable to him, but after completion
of this tenure, neither he can claim any benefits of
pension nor any privileges of a Judge High Court
according to law.
14.
As it has been submitted on both sides that the
vires of the statutory provisions dealing with the subject
especially the hereinabove discussed, have not been
challenged by the respondent, therefore, the enforced
law will have to be given effect. Until and unless the
same is challenged by
status
is
determined
any aggrieved person and its
by
the
Court
of
competent
jurisdiction, it will remain operative and effective.
15.
So far as the reference to fundamental Rights
No.15 and 17 discussed hereinabove in the impugned
judgment is concerned, we have no cavil
with the
argument of counsel for the appellants that the same has
to be considered in the light of peculiar facts and subject
to
application
proposition.
of
laws
dealing
with
the
specific
It has been rightly pointed out that
fundamental Right No.17 specifically deals with the
discrimination on the basis of race, caste, religion and
sex etc., which has no nexus with the case in hand.
19
16.
So far as the application of Right No.15 is
concerned, according to the celebrated principle of law, it
is not uniformly applicable to every State Subject, rather
its
application
is
always
subject
to
a
reasonable
classification based on intelligible distinguishable criteria.
Therefore, the same has no nexus with the case in hand.
While
holding
the
office
of
Chairman
neither
the
respondent nor anyone previously, has been treated
discriminately in the matter of terms and conditions.
However, so far as the question of retirement / pension is
concerned it has always been dealt on the basis of
reasonable classification.
17.
We
may
further
observe
here
that
the
judgments in the cases titled Raja Bashir Ahmed Khan vs.
Azad
Govt.
and
others
(civil
appeal
decided
on
17.4.1998) and Raja Shahnawaz Khan, Chairman Azad
Jammu and Kashmir Zakat Council vs. Azad Govt. of the
State of Jammu and Kashmir and 3 others [PLJ 2013 SC
(AJ&K) 186], the terms and conditions were also based
upon distinguishable legal and factual proposition, thus,
has no application to the case in hand.
18.
conditions
Although in this case, the matter of terms and
of service of Chairman Service Tribunal
is
20
confined
with
respondent
reference
but
to
broadly
the
retirement
speaking
the
of
terms
the
and
conditions of the office of Chairman Service Tribunal have
deep
nexus
with
the
concept
of
independence
of
judiciary. So far as the enforced statutory provisions to
the extent that the discretionary power for determination
of terms and condition of service Chairman Service
Tribunal have been taken out from the hands of
President, in our opinion is a legislative step to advance
the cause
of independence of judiciary because such
matter if left upon the discretion of executive or
President,
it
may
adversely
affect
the
concept
of
independence of judiciary. But we have concerns with
this matter from another angle i.e., the mode of
appointment of Chairman Service Tribunal. In this regard
no further deliberation is required. The apex Court of
Pakistan while dealing with the identical proposition, after
going through number of judgments on the subject has
expressed its wisdom in Sh. Riaz-ul-Haq’s case [PLD
2013 SC 501]. After survey of the case law on the
subject by the apex Court of Pakistan as well as this
Court, the
thorough deliberation has been made in the
case reported as Bashir Ahmed Mughal vs. Azad Govt.
21
and others
[2014 SCR 1258], wherein, it has been
observed as under:“32.
It is no more a dispute
that for
attaining and maintaining the independent
status of the judicial organs, the mode of
appointment
is
of
much
importance
and
without following the mode which is required
according to the constitution for independent
judiciary, no Court can be established. In this
regard, this Court has already while following
the golden principles of law laid down in the
authoritative judgment of the Aljehad Trust
case
has observed in the case reported as
Muhammad
Younas
Tahir
&
another
vs.
Shaukat Aziz, Advocate, Muzaffarabad and
others [PLD 2012 SC (AJ&K) 42] as under:“22. The Supreme Court of Pakistan in a
case titled Al-Jehad Trust through Raeesul-Mujahidin Habib Al-Wahabul Khairi,
Advocate Supreme Court and another v.
Federation of Pakistan and others [PLD
1997 SC 84], again reiterated the earlier
view at page 134. It was observed in
paragraph 66 as under:
„66. The
third
point
is
whether
appointment of Judges is executive
power/action.
already
This
rendered
judgment
appointment
in
of
the
Court
has
authoritative
case
Judges
in
of
the
22
superior Courts [PLD 1996 SC 324]
in which all the Articles relating to
judicature in the Constitution of
1973
have
been
interpreted
to
determine the scope of the word
“consultation”
in
respect
of
appointments and such other allied
matters. It is held as under:„(i)
The words „after consultation‟
employed inter alia in Articles
177
and
193
of
the
Constitution connote that the
consultation
should
effective,
be
meaningful,
purposive, consensus-oriented,
leaving no room for complaint
or arbitrariness or unfair play.
The opinion of the Chief Justice
of Pakistan and Chief Justice of
a High Court as to the fitness
and suitability of a candidate
for Judgeship is entitled to be
accepted in the absence of
very
sound
recorded
by
reasons
the
to
be
President/
Executive.
(ii)
If President/Executive appoints
a candidate found to be unfit
and unsuitable for Judgeship
by the Chief Justice of Pakistan
and Chief Justice of the High
23
Court concerned, it will not be
a proper exercise of power
under relevant Article of the
Constitution.
(iii) That the permanent vacancies
occurring the office of the Chief
Justice and Judges normally
should be filled in immediately
by not later than 30 days but a
vacancy occurring before the
due date on account of death
or for any other reason, should
be filled in within 90 days on
permanent basis.
23. The
word
„consultation‟
used
in
section 42(4) and section 43(2-A) of the
Act, 1974 is used in similar sense as used
in Articles 177 and 193 the Constitution
of 1973. The Supreme Court of Pakistan
has held that the consultation should be
effective,
meaningful,
purposive,
consensus oriented, leaving no room for
complaint or arbitrariness or unfair play.
The
opinion
of
the
Chief
Justice
of
Pakistan and the Chief Justice of a High
Court as to the fitness and suitability of a
candidate for Judgeship is to be accepted
in absence
recorded
by
of sound reasons to be
the
President/Executive.
While applying the above criteria, we will
decide the matter in hand.”
24
Whereas the apex Court of Pakistan
has also expressed its latest view in Sh. Riazul-Haq’s case [PLD 2013 SC 501], as under:“47. In this context, it is to be noted that
in
the
case
of
Al-Jehad
Trust
v.
Federation of Pakistan (PLD 1996 SC
324),
it
has
Constitution
been
held
provided
that
that
the
the
appointment of Judges of the superior
Courts is to be made by the President
after consultation with the consultees
mentioned therein. Such „consultation‟
cannot be treated lightly as a mere
formality,
effective,
rather
supposed
meaningful,
to
be
purposive,
consensus oriented, leaving no room for
complaint of arbitrariness or unfair play.
The Chief Justice of the High Court and
the Chief Justice of Pakistan normally
know advocates who appear in their
Courts regularly and would nominate or
recommend names of such advocates
who are capable and fit to be Judges of
the High Court and their opinion, which is
expert opinion in a way, cannot and
should not be ignored, but, must be
given due weight. Their opinion, as to the
fitness and suitability of a candidate for
judgeship, is entitled to be accepted in
the absence of very sound reasons to be
25
recorded
in
writing
by
the
President/Executive.
48. In the case of Imran v. Presiding
Officer, Punjab Special Court (PLD 1996
Lahore
542),
Courts
under
constitution
the
of
Special
Suppression
of
Terrorists Activities (Special Courts) Act,
1975 and the Offences in Respect of
Banks (Special Courts) Ordinance, 1984
were challenged, on ground that the said
courts were established and managed at
the will of Executive as the Presiding
Officers
are
appointed
by
the
Government and work at its pleasure
without having security of office. The
Court held that it stands recognized that
even if the power of appointment or of
establishment of a Court vests in the
Government/Executive, the appointments
cannot be made arbitrarily, and the said
power of appointment is to be exercised
through meaningful consultation of the
judiciary or its head (Chief Justice), and
judicial power cannot be invested by the
Executive by appointing persons on its
own,
providing
any
procedures
or
imposing any sentence or conviction so
as to control free and fair exercise of
judicial power. It was further held as
under:-
26
„20. The principles deductible from
the
survey
of the
Constitutional
provisions and the case-law are that
in order to comply with the mandate
of independence and separation of
Judiciary,
the
designated
Courts
howsoever
as „Special
Court‟
or
„Tribunal‟ are to be established and
constituted by making appointment
with meaningful consultation of the
Chief justice of the High Court and
by providing security of tenure for a
period which will not act as a
disincentive, such a tenure should
then
be
secured
by
making
necessary provision in the Statue
itself. The concept of consultation
with the Chief Justice/ the High
Court
is
not
a
new
concept
introduced by the Supreme court in
its
recent
judgment.
The
consultation with the High Court is
provided
by
Ordinance,
the
1962,
appointment
under
of
section
Civil
Courts
for
making
District
5,
for
Judges
Additional
District Judges under section 6 and
for Civil Judges under section 8 of
the
Ordinance
….
Even
the
Executive Magistrates who desire to
be absorbed in the Judiciary on
27
option are to be accepted by the
High Court provided they fulfill the
requisite qualifications prescribed by
the
relevant
Service
Rules.
The
appointments made to the judicial
posts / tribunals as such by any
contrary method is thus violative of
the
theory
of
judiciary.
In
features,
the
independence
addition
to
power
to
of
these
transfer
cases from one Tribunal to the other
is not to be left to the discretion of
the
Executive
and
financial
independence is also to be secured.
The
judges
matter
of
the
of
appointment
special
Courts
of
was
examined by this Court in the case of
Mehram Ali and others v. Federation of
Pakistan (PLD 1998 SC 1445) wherein it
was held as under:„35. The appointment of the Judges
of the Special Courts are required,
by subsection (2) of section 14 of
the
Act,
to
be
made
by
the
Government after consultation with
the Chief Justice of the High Court.
The Executive does not have a free
hand
in
the
making
of
such
appointments. As to the meaning of
consultation we can do no better
than
to
rely
on
the
recent
28
judgments of the Supreme Court in
the cases of Al-Jehad Trust through
Raeesul
Mujahideen
Wahabul
Khairi,
Habib
and
others
Alv.
Federation of Pakistan PLD 1996 SC
324 and Al-Jehad Trust through
Raees-ul-Mujahidin
Habib-Al-
Wahabul Khairi, Advocate Supreme
Court and another (PLD 1997 SC
84). The Federal Government is
bound
to
accept
the
recommendations of the honorable
Chief Justice
of the High Court
except for valid reasons justifying a
departure. We were informed by the
learned
Attorney
General
for
Pakistan and the learned AdvocateGeneral, Punjab, that no Presiding
Officer of the Special Court shall be
removable
except
with
the
honorable Chief Justice of the High
Court. Even otherwise, the power of
removal is basically an adjunct to
the
power
of
appointment.
We,
however, notice that the security of
tenure for a certain period is also
required to be provided by making
necessary provisions in the statute
itself as held by a Full Bench of this
Court
in
Presiding
the
case
Officer,
of
Imran v.
Punjab
Special
29
Court No Vi, Multan and 2 others
(PLD 1996 Lahore 542). In the
precedent
case,
provisions
of
Suppression of Terrorist Activities
(Special Courts) Act, 1975 and the
Offences
in
Respect
of
Banks
(Special Courts) Ordinance, 1980,
were
examined
threadbare.
We
allow two months time of making
necessary amendments in the law.‟
49. In the case of Hazrat Baz v. Political
Agent / District Magistrate Khyber (PLD
2010) Peshawar 7) it has been held that
if it is required to establish Special Courts
and then to appoint a Sessions Judge or
an Additional Sessions Judge as a Judge
Special Court, same should be done after
consultation with the Chief Justice of the
High Court. In the case of Messrs Ranyal
Textiles v. Sindh Labour Court (PLD 2010
Karachi 27) it has been held that in the
appointment
of
Chairman
of
Labour
Appellate Tribunal, the consultation with
the Chief Justice of the High Court is an
essential prerequisite and a condition
precedent. It was further held that all
judicial
appointments
must
be
subordinate to the High Court and it is
only High Court which can and should
exercise
exclusive
supervisory
control
administrative
over
and
subordinate
30
judiciary.
Such
supervisory
and
administrative control cannot exist if a
credible and pivotal role is denied to the
High
Court
in
appointment
of
such
persons. It will the axiomatic to say that
a Court is subordinate to High Court but
its Presiding Officers is to be appointed
by the Provincial Government without
consulting High Court. Reliance can also
be placed on S.P. Sampath Kumar v.
Union of India (AIR 1987 Supreme Court
386).
50. From
the
above
case-law,
it
is
manifest that whenever the appointment
of
a
„judicial
officer‟
Chairman/Member
of
a
or
the
Tribunal
performing „judicial functions‟ is made,
the consultation with the concerned Chief
Justice
is
prerequisite.
Thus,
the
appointments of the Chairman / Member
of
the
Service
Tribunal,
Federal
or
Provincial, must be made in consultation
with the Chief Justice of Pakistan or the
Chief Justice of concerned High Court, as
the case may be and all appointments
made
without
such
consultation
are
void.”
It
independence
appointments
is
concluded
of
in
that
judiciary,
the
Courts
for
the
in
consultation with the Chief Justice of High
31
Court and the Chief Justice of Azad
Jammu and Kashmir is the mandatory
constitutional requirement.
clear
that
the
Thus, it is
appointments
in
the
judiciary without consultation with the
Chief Justices are against the spirit of the
Constitution Act. For establishment of
independence of the judiciary to protect
the
constitutionally
guaranteed
fundamental rights, in our considered
view, in the light of the above discussed
law,
if
any
Court
is
established
in
violation of the spirit of the constitution
without consultation of the Chief Justices,
it amounts to abridge and take away the
fundamental rights.
33.
Now, the question arises as to
what is the importance of the mode of
appointment for achieving the purpose of
independence of judiciary or safeguard of
the
constitutionally
guaranteed
fundamental rights. For this purpose we
have made
constitutional
survey of some of the
provisions
of
the
constitutional states of the world relating
to appointment, removal of the Judges
and the concept of independence of
judiciary. For this purpose, first of all let
us to have a survey of the constitution of
India.
The
relevant
portion
of
the
constitutional provisions of Articles
233
32
and 234 of the Constitution of India read
as under:„233. Appointment
Judges:--
(1)
of
District
Appointments
of
persons to be, and the posting and
promotion of District Judges in any
State
shall
Governor
be
of
made
the
by
the
State
in
consultation with the High Court
exercising jurisdiction in relation to
such State.
(2)
A person not already in the
service of the Union or of the
State shall only be eligible to
be appointed a District Judge if
he has been for not less than
seven years an advocate or a
pleader and is recommended
by
the
High
Court
for
appointment.
234. Recruitment of persons other
than District Judges to the judicial
service ---- Appointment of persons
other than District Judge to the
judicial service of a State shall
beamed by the Governor of the
State in accordance with rules made
by
him
in
that
behalf
after
consultation with the State Public
Service Commission and with the
33
High Court exercising jurisdiction in
relation to such State.”
A bare reading of these articles
clearly speaks that all the appointments
in the judiciary even at the district level
are to be made with consultation. There
is no concept of appointment of judges in
an arbitrary manner by the executive.
34.
In
the
constitution
of
the
Kingdom of Saudi Arabia under Article 52
for appointment in the judiciary there is a
higher council of justice with whose
consultation and recommendations the
appointments
and
determination
of
termination of the judges in the judiciary
is made. According to the provision of
Article 6 of this constitution, judiciary is
an independent authority. There is no
control
over
the
judges
in
the
dispensation of justice except in the
matters of the Islamic Shariah.
Under
the
Constitutional
Provisions of the Islamic Republic of Iran,
the Supreme Leader shall appoint a just
Mujtahid well versed in judiciary affairs
and
possessing
prudence
and
administrative abilities as the head of the
judiciary power for a period of five years
who
shall
be
the
highest
judicial
authority. The chief of the Supreme Court
34
and the Prosecutor-General must both be
just mujtahids well versed in judicial
matters. They will be nominated by the
head of the judiciary branch for a period
of five years, in consultation with the
judges
of
the
Supreme
Court. The
appointments in the judiciary including
the Prosecutor General are made on the
proposal of Just Mujtahid.
According to the provision of
Article 138 of the Constitution of Republic
of
Turkey,
the
Judges
shall
be
independent in the discharge of their
duties.
No organ, authority, office or
individual may give orders or instructions
to
courts
or
judges
relating
to
the
exercise of judicial power, send them
circulars, or make recommendations or
suggestions. Judges shall discharge their
duties in accordance with the principles
of the independence of the courts and
the security of tenure of judges. The
qualifications, appointment, rights and
duties, salaries and allowances of judges
and public prosecutors, their promotion,
temporary or permanent change in their
duties
or
disciplinary
and
the
disciplinary
posts,
the
proceedings
subsequent
penalties,
initiation
against
them
imposition
the
of
conduct
of
of
investigation concerning them and the
35
subsequent decision to prosecute them
on account of offences committed in
connection with, or in the course of, their
duties, the conviction for offences or
instances of incompetence requiring their
dismissal from the profession, their inservice
training
and
other
matters
relating to their personnel status shall be
regulated by law in accordance with the
principles of the independence of the
courts and the security of tenure of
judges.
All the appointments are made
in consultation with the concerned bodies
consisting of the Supreme Council of
Judges and the Public Prosecutors.
Under
the
Constitutional
Provisions of the Constitution of Egypt,
interference in the affairs of the Courts
under law shall constitute crime. Every
judicial body administers its own affairs
and
has
its
appointments
own
in
the
budget.
The
judiciary
are
regulated by law who are selected by the
Supreme Judicial Council of the Judiciary.
According to the Constitutional
provisions of the Republic of Indonesia,
the judicial power is independent and
possesses the power to organise the
judicature in order to enforce law and
justice. All the appointments are made
on
the
proposal
of
the
Judicial
36
Commission
keeping
in
view
the
integrity, and a personality that is not
dishonourable,
and
professional,
must
and
experience.
be
possess
Article
24-B
fair,
legal
of
this
Constitution speaks that there must be
an
independent
Judicial
Commission
which shall possess the authority to
propose candidates for appointment as
justices
of
the
Supreme
Court
and
possesses further authority to maintain
and
ensure
the
honour,
dignity
and
behaviour of judges.
According to the Constitution of
the
Malaysia,
the appointments in the
judiciary are made by the President on
the advice of the Prime Minister after
consulting the conference of rulers. The
appointments
are
also
made
in
consultation with the Chief Justice.
In the United Kingdom,
the
appointments in the superior judiciary
are also made on the recommendations
of the Selection Commission consisting of
the Senior Judges.
In Ireland,
of
Judges
are
recommendations
the appointments
made
of
the
on
the
Judicial
Appointment Advisory Board.
Even
according
to
the
provisions of the Constitution of United
37
Arab Emirates, the appointments in the
judiciary are made by a decree issued by
the President of the Union after approval
by the Supreme Council.
Thus, according to the survey of the
constitutional provisions of the different
states,
whether
democratic
or
non-
democratic, the common feature is the
independence
of
judiciary
and
appointments are made in consultation
with or on the recommendations of the
concerned bodies consisting of the Chief
Justices,
Judges
and
Jurists
of
the
country. Thus, it can be safely held that
according to the universally applicable
principles,
there
is
no
concept
of
subservient judiciary in the world rather
there is a universal consensus on the
independent status of the judiciary. For
upholding the independence and dignity
of the judiciary with minor modification
according to the constitutional structure
and scheme of the different statutes, the
power of appointments in the judiciary is
not arbitrarily or solely vests in the ruler
rather all the appointments are made in
consultation with the Chief Justices or the
prescribed bodies or persons commonly
consisting
or
the
of the Chief Justices, Jurists
persons
or
office
holders
38
concerned with the field of administration
of justice.‟
Thus, it is almost settled according to the principle of law
enunciated by the apex Court of Pakistan and this Court
that the institution of Service Tribunal is a judicial one
which requires the manner of appointment ensuring the
independence of judiciary.
19.
As in Bashir Ahmed Mughal’s case and Sh. Riaz
Ul Haq’s cases (supra), it has been held that for
maintaining
the
transparency
and
independence
of
judiciary the appointment in the office of Chairman
Service Tribunal has to be made through consultation
process.
The
legislature
has
to
introduce
suitable
amendments providing the mode that the appointment of
Chairman
Service
Tribunal
has
to
be
made
after
consultation. Therefore, in this state of affairs, the
concerned are advised to provide in the statute the mode
and manner for appointment to the office of Chairman
Service Tribunal providing consultation with the Chief
Justice of Azad Jammu and Kashmir and the Chief Justice
of the High Court. Till the time the new amendment is
introduced, the present statutory provision dealing with
the appointment can only be operated with condition of
consultation, hence, it is directed that the appointment of
39
the Chairman Service Tribunal and Members must be
made in consultation with the Chief Justice of Azad
Jammu and Kashmir and the Chief Justice of the High
Court.
20.
So far as the other proposition raised in this
case regarding the notification of the Finance Department
dated 25.6.2002 is concerned, in view of the above
recorded reasons, remains no more relevant, therefore,
this question is left open to be resolved in some other
appropriate case.
21
In furtherance of the above recorded findings,
as the tenure of the office of Chairman Service Tribunal is
4 years, thus, the respondent under law validly can held
his office for 4 years. After completion of the tenure the
holding of office by him is against law. However, keeping
in view the principle of law laid down in Bashir Ahmed
Mughal’s
case
(supra),
all
the
acts
done
by
the
respondent being Chairman Service Tribunal including the
drawing of the financial benefits are declared valid under
the doctrine of defecto.
22.
In view of the hereinabove discussed detailed
reasons and the conclusion drawn in paragraph 13, we
are constrained to recall the impugned judgment of the
40
High Court and hold that according to the terms and
conditions as settled under the provision of sub-section
(4) of section 3 of the Service Tribunals Act,
the
respondent‟s appointment against the post of Chairman
Service Tribunal shall be deemed for a period of 4 years.
However, till the announcement of the judgment, the acts
performed by him including the receipt of monitory
benefits shall be deemed valid under the principle of
defecto doctrine as mentioned hereinabove.
The appeal stands disposed of in the terms
indicated hereinabove.
JUDGE
Muzaffarabad,
___.01.2016.
CHIEF JUSTICE
JUDGE
JUDGE
Azad Govt. & others
VS
Syed Khalid Hussain Gillani
ORDER:
The judgment has been signed. The same shall
be announced by the Registrar, after notifying the
learned counsel for the parties.
CHIEF JUSTICE
Muzaffarabad,
____.01.2016.
JUDGE
J U D GE
JUDGE