Updated: Wednesday August 07, 2013/AlArbia'a
Shawwal 01, 1434/Budhavara
Sravana 16, 1935, at 03:38:59 AM
THE SUPREME COURT OF
(ORIGINAL JURISDICTION)
PRESENT:
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ
Mr. Justice Gulzar Ahmed
Mr. Justice Sh. Azmat Saeed
Constitution Petition No.53 of 2007 &
Constitution Petition No.83 of 2012
Sh. Riaz-ul-Haq, Advocate Supreme Court (in Const.P.53/07)
M. Shabbir Ahmed Nasir, Advocate High Court (in
Const.P.83/12)
VERSUS
Federation of
The President of Pakistan thr. his Principal Secretary,
President’s Secretariat & others (in Const.P.83/07)
For petitioners: Mr. M. Shoaib Shaheen, ASC
(in Const.P.53/2007)
Nemo (in Const.P.83/12)
On Court’s Notice: Attorney General for
For Govt. of Balochistan: Mr. Muhammad Azam Khattak, Addl.
A.G
For Govt. of KPK: Syed Arshad Hussain Shah, Addl. A.G.
For Govt. of
For Govt. of Sindh: Mr. Muhammad Qasim Mirjat, Addl. A.G.
For Law Commission: Raja Faisal Iftikhar, Deputy Secretary
Date of hearing: 09.01.2013
JUDGMENT
Iftikhar Muhammad Chaudhry, CJ.— Founder of
Quad-e-Azam Muhammad Ali Jinnah while addressing the civil
officers
in
“The services are the backbone of the state. Governments
are formed. Governments are defeated. Prime Ministers come and go, ministers
come and go, but you stay on. Therefore, there is a very great responsibility
placed on your shoulders. You should have no hand in supporting this political
party or that political party, this political leader or that political leader.
This is not your business.
Whichever government is formed according to the
constitution, and who ever happens to be the prime minister or minister, coming
into power in the ordinary course, your duty is only to serve that government
loyally and morally but, at the same time, fearlessly, maintaining your high
reputation, your prestige, your honour and the integrity of your service. If
you start with that determination, you will make a great contribution to the
building up of
While impressing this upon you, I wish also to take the
opportunity of impressing upon our leaders and politicians in the same way, that
if they ever try to interfere with you and bring political pressure to bear
upon you, which leads to nothing but corruption, bribery and nepotism-which is
a horrible disease and for which not only your province but others too are
suffering-if they try to interfere with you in this way, I say they are doing
nothing but disservice to Pakistan. … …”
2. In recognition of the status of civil servants, and so
that they may work fearlessly, maintaining their high reputation, prestige,
honesty and the integrity of their service, as was the dream of our founding
father, the Constitution of Islamic Republic of Pakistan, 1973 under Article
212(1)(a) provides for the establishment of Tribunals to exercise exclusive
jurisdiction in respect of matters relating to the terms and conditions of
persons who are or have been in the service of Pakistan, including disciplinary
matters by means of appropriate legislation. Said Article is reproduced
hereinbelow:-
212. Administrative Courts and Tribunals.-(1)
Notwithstanding anything hereinbefore contained, the appropriate Legislature
may by Act provide for the establishment of one or more Administrative Courts
or Tribunals to exercise exclusive jurisdiction in respect of –
(a) matters relating to the terms and conditions of persons
who are or have been in the service of
(b) ………
(c) ………
As a consequence of above constitutional provision,
following Federal and Provincial Service Tribunals Acts were promulgated to
establish Service Tribunals respectively:-
(1) The Service Tribunals Act, 1973 (STA, 1973) whereunder
the Federal Service Tribunal (FST), was established;
(2) The Sindh Service Tribunals Act, 1973 (SSTA, 1973)
whereunder the Sindh Service Tribunal (SST) was established;
(3) The Punjab Service Tribunals Act, 1974 (PSTA, 1974)
whereunder the Punjab Service Tribunal (PST), was established;
(4) The NWFP (KPK) Service Tribunals Act, 1974 (NSTA,
1974) whereunder the NWFP (KPK) Service Tribunal (NST) was established;
(5) The Balochistan Service Tribunals Act, 1974 (BSTA,
1973) whereunder the Balochistan Service Tribunal (BST) was established.
For the sake of convenience, sections 3 of STA, 1973
(Federal), is reproduced hereinbelow:-
3. Tribunals. (1) The President may, by notification in
the official Gazette, establish one or more Service Tribunals and, where there
are established more than one Tribunal, the President shall specify in the
notification the class or classes of civil servants In respect of whom, or the
territorial limits within which, or the class or classes of cases in respect of
which, each such Tribunal shall exercise jurisdiction under this Act.
(2) A Tribunal shall have exclusive jurisdiction in
respect of matters relating to the terms and conditions of service of civil
servants, including disciplinary matters.
(3) A Tribunal shall consist of—
(a) a Chairman, being a person who is, or has been, or is
qualified to be Judge of a High Court ; and
(b) such number of members not exceeding three, each of
whom is a person who possesses such qualifications as may be prescribed by
rules, as the President may from time to time appoint.
(4) The Chairman and members of a Tribunal shall be
appointed by the President on such terms and conditions as he may determine.
(5) The Chairman or a member of a Tribunal may resign his
office by writing under his hand addressed to the President.
(6) The Chairman or a member of a Tribunal shall not hold
any other office of profit in the service of
(7) Notwithstanding anything contained in sub-section (3),
sub-section (4), sub-section (5) or sub-section (6), a Tribunal established to
exercise jurisdiction in respect of a specified class or classes of cases may
consist of one or more persons in the service of
Aforesaid section of STA, 1973 is pari materia with
the provisions of the respective Provincial Service Tribunals Acts. Subsection
(3)(b) of section 3 ibid specifies that the qualifications of a member
of the Tribunal shall be prescribed by rules, as such, the Federal Government
has framed rules namely the Service Tribunals (Qualification of Members) Rules,
1974, providing qualification for the appointment of Member of the Tribunal,
which read as under:-
“2. A member of the Tribunal shall be a person who has for
a period of or for periods aggregating not less than 20 years held an
appointment or post in the Service of Pakistan, or in a Corporation or other
body set up by Government or who, for the said period, has been an advocate or
legal practitioner.
Explanation: In computing the period during
which a person has held an appointment or post or has been an advocate or legal
practitioner there shall be included any period during which he has held
an appointment or post after he became
an advocate or legal practitioner or, as the case may be, the period during
which he has been an advocate or legal practitioner after having held the
appointment or post.”
In exercise of powers conferred by section 3(4) of STA,
1973, the terms & conditions of the Chairman and the Members of the
Tribunals were prescribed by the President in the Federal Service Tribunal
Chairman and Members Service Rules, 1983. Rules 1 (ibid) provides the
tenure of the Chairman and the Members of the Tribunal in the following terms:-
“1. The Chairman and members shall hold office at the
pleasure of the President, for such tenure, which may normally be for three
years extendable by a further period not exceeding three years, as may be
determined by the President.”
Similarly, in terms of section 3(3)(b) of (PSTA, 1974) the
Government of Punjab has framed the Punjab Service Tribunals (Qualifications of
Members) Rules, 1978, which provides following qualification for the
appointment of Member of the Tribunal:-
“A member of the Tribunal shall be a person who is not
below the status of Secretary to Provincial Government and has at least 18
years service in Grade 17 or above.”
The qualifications of Members of the Tribunal have been
prescribed in section 3(3)(b) of provincial statutes of Sindh, NWFP (KPK) and
Balochistan, therefore, rules were not required to be framed thereunder. For
reference, same are reproduced hereinbelow:-
Sindh Service Tribunals Act, 1973:
3. Tribunals: (1) ………
(2) ……
(3) A Tribunal shall consist of—
(a) a Chairman, being a person who has been, or is
qualified to be, Judge of a High Court ; and
(b) not more than two members each of whom is a person who
has for a period of not less than seventeen years held a post in grade 16 or an
equivalent or a higher post under the Federal Government or a Provincial
Government.
(4) ………
NWFP (KPK) Service Tribunals Act, 1974:
3. Tribunals: (1) ………
(2) ……
(3) A Tribunal shall consist of:
(a) a Chairman, being a person who has been, or is
qualified to be, Judge of High Court ; and
(b) not less than two and not more than four members, each
of whom is a person who has for a period of not less than fifteen years held a
Class I or an equivalent post under the Federal Government or a Provincial
Government.
(4) ………
Balochistan Service Tribunals Act, 1974:
3. Tribunals: (1) ………
(2) ……
(3) A Tribunal shall consist of—
(a) a Chairman, being a person who has been, is a or
qualified to be, a Judge of High Court ; and
(b) two members each of whom is a person who has for a period
of not less than ten years held a Class I post under the Federal Government or
a Provincial Government.
(4) ………
3. Initially, the FST was under the administrative control
of the Establishment Division. Subsequently, its administrative control was
transferred to the Law and Justice Division. As such, it has been enjoying the
status of attached department of the Federal Government. The position of
Provincial Service Tribunals is also not different from FST.
4. Petitioner in Constitution Petition No.53 of 2007 has
submitted that the respondents may be directed to fulfill the Constitutional
Obligations to ensure independence of judiciary from the Executive by suitably
amending the Service Tribunal Acts and Rules framed thereunder. He further
prayed that the amended Acts and Rules should ensure as under:-
(a) The appointment of Chairman and the Members of the
Service Tribunals are made after meaningful consultation with the Chief Justice
of Pakistan or, as the case may be, the Chief Justice of the respective Province;
(b) The Tribunal should not be under the administrative or
financial control of the Executive. For this, on the analogy of the judges of
the High Courts and
(c) Appropriate legal and judicial experience may be
prescribed for appointment as Member. Practicing lawyers, who are qualified to
be appointed as Judge of the High Court, be given preference for induction as
Members of the Service Tribunals.
5. Mr. M. Shoiab Shaheen, learned ASC appearing for the
petitioner formulated following prepositions for consideration: -
“(1) Whether the Service Tribunals are judicial forums and
are performing functions of a Court within the meaning of Article 175 of the
Constitution of Islamic Republic of Pakistan, 1973;
(2) Whether section 3 of Service Tribunals Act, 1973 and
the Service Tribunals (Qualification of Members) Rules, 1974 promulgated by the
Federal Government including corresponding provisions applicable in the
provinces relating to appointment of Chairman and Members of the tribunals are
violative of Article 175 read with Articles 2A, 5, 8 & 25 of the
Constitution; and
(3) Whether appointments of the Chairman and Members of
the Service Tribunals should be made with the meaningful consultation with the
Chief Justice of
6. He argued that the Service Tribunals are the judicial
forums having exclusive jurisdiction for redressal of grievances of civil
servants relating to terms and conditions of service, under which they are
governed.
7. According to him, the Service Tribunals exercise
judicial powers with a limited scope of challenge before this Court under
Article 212(3) i.e. subject to satisfaction of the Court that the case involves
a substantial question of law of public importance. Thus, the matters regarding
appointment of the Chairman and Members of the Service Tribunals are as
important as those of judges of the High Courts. Under these circumstances, the
appointments of the Chairman and Members of the Service Tribunals must be made
in consultation with the Honourable Chief Justice of Pakistan, or as the case
may be, the Chief Justice of the respective High Courts. Reliance is placed on S.
P. Sampath Kumar v. Union Of
8. In continuation of his above arguments he further
submitted that appointment of serving or retired bureaucrats as Members with no
legal and judicial background is against the principle of
9. He also submitted that the spirit of Service Tribunal
(Procedure) Rules 1974 is against the fundamental principles as contained in
the Code of Civil Procedure, 1908. The administrative control of the Federal
Service Tribunal had earlier been with Establishment Division (Respondents
No.2) and was then transferred to the Law and Justice Division (Respondents
No.3). The matter regarding appointment of Chairman and Members of the Federal
Service Tribunal are processed through Respondents No.2 & 3. The other
matters regarding terms & conditions of Chairman and Members (such as
leave, allotment of cars, housing and telephone facilities etc.) are also dealt
with by the administrative Ministry. Further, since its constitution, the Federal
Service Tribunal has been working as an attached department of the Federal
Ministries. The position of the Provincial Tribunals too is not different.
Therefore, this state of affairs is clearly violates Article 175 of the
Constitution.
10. Learned Attorney General for
11. The learned Deputy Attorney General, appearing on
behalf of Federation of Pakistan, raised preliminary objections to the
maintainability of the petitions on the ground that the petitioners have no
cause of action to file the petition as the Chairman and the Members of Federal
Service Tribunal are appointed in accordance with law. The matter is not of a
great public importance and no Fundamental Right of the petitioner has been
infringed as well.
12. He submitted that the Chairman/Members of the Tribunal
are appointed in terms of section 3(4) of the STA, 1973 and the Service
Tribunals (Qualifications of Members) Rules, 1974 and not in terms of Article
193 of the Constitution, which provides qualification for appointment of a
Judge of the High Court, therefore, the role of these Tribunals in
administration of justice is not equal to that of the High Court.
13. His next submission was that the Act and the rules do
not provide consultation with respective Chief Justices as FST has been
established to exercise jurisdiction in respect of matters relating to the
terms and conditions of service of civil servants, therefore, provision of
Article 175 of the Constitution is not applicable in the context of separation
of Judiciary from Executive.
14. He further submitted that the appointment of
Chairman/Members of FST is made by the President of Pakistan, therefore, do not
fall directly under the control of Law Ministry and the Chairman/Members are
independent in making decisions with regard to the matters brought before it in
respect of terms and conditions of service. He contended that there could not
be a single instance where Ministry of Law and Justice ever interfered with or
exercised influence in the functioning of Service Tribunal.
15. According to him the High Courts are judicial forums
and are established under the Constitution presided over by a serving Judge,
whereas, the Tribunal does not function as a Court, it has only one subject to
deal with i.e. matters relating to the terms and conditions of civil servants.
The FST is an administrative Tribunal, as such it is not equal to a High Court,
thus no consultation with the Chief Justice is necessary.
16. Mr. Jawwad Hassan, learned Additional Advocate General,
Punjab has submitted that the Service Tribunals are administrative tribunals,
meant to resolve disputes between the persons in the service of
17. He contended that the PSTA, 1974 was enacted by the
Provincial Assembly, Punjab whereby the Governor was empowered to establish one
or more Service Tribunals; the rules have been framed under the authority of
section 11 of PSTA, 1974 and the appointment of Chairman/Members of the
Tribunal have been made strictly in accordance with law/rules. He further
contended that neither the provisions of Article 212 of the Constitution nor
the PSTA, 1974 or the rules framed thereunder envisage that the
Chairman/Members of the Tribunal should be appointed after consultation with
the Chief Justice.
Therefore, such appointment made without consultation of
Chief Justice cannot be construed as unconstitutional or impinging upon
independence of judiciary. Reliance has been places on the case of Mehram
Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein it has been held
that where the Constitution makers wanted to provide judicial forums other than
what is envisaged by Article 175, 202 and 203, they expressly provided for the
same in the Constitution in shape of Article 212 of the Constitution. He
further contended that in absence of term ‘consultation’ appearing in Article
212, it cannot be read into or introduce in the said Article. Even the law made
under the authority of the said Article does not envisage any consultation with
the concerned Chief Justice unlike the Indian approach where the same has been
provided. He submitted that the judgments relied upon by the petitioner were
rendered in the context of Articles 177 and 193 relating to the Supreme Court
and the High Courts and not with reference to Article 212 of the Constitution.
18. He further contended that Articles 175, 202 and 203 of
the Constitution provide the basic framework of the judiciary i.e. the Supreme
Court, a High Court for each Province as well as Islamabad and such other
Courts as may be established by law, i.e. the subordinate courts. However,
Constitution also stipulates other specified courts/tribunals to share judicial
powers with the courts mentioned in Article 175 of the Constitution, which
include
19. He further contended that the appointment of the
Chairman and Members of Tribunal after superannuation cannot be termed as
unconstitutional or in derogation of independence of judiciary, inter alia because
the Constitution nowhere prohibits appointment of a superannuated person
whereas the PSTA, 1974 and the rules provide a specific provision to that
effect. He submitted that the Tribunal and the High Courts are two separate
entities performing assorted functions under separate dispensations and should
not be construed as equal or comparable.
20. His last contention was that as per 1st Schedule to the Punjab Government Rules of Business, 2011,
PST has not been shown as an attached department rather it is reflected as
special institution associated for administrative linkages with Services &
General Administration Department like Lahore High Court, Provincial Ombudsman
and Punjab Public Service Commission. In fact PST has been assigned an
independent and autonomous status.
21. He informed that the Chief Minister, Punjab has
constituted a Cabinet Sub-Committee for review of Service Laws and following
recommendations have been made:-
(a) The existing Punjab Service Tribunal Act 1974
stipulates that the Chairman of the Punjab Service Tribunal shall be a person
who is or has been qualified to be a Judge of the High Court.
Thus, judicial experience is inbuilt in the existing
provision and no further amendment was required.
(b) The qualification for the members of Tribunal and
method of recruitment may, however, be revised as under in the light of the
observations of the Hon’ble court:---
“(2) A member of the Tribunal shall be a person who has been
serving as Secretary to the Government and has been performing quasi-judicial
functions or functions relating to service matters.
(3) A member shall be appointed on the recommendations of
the Selection Committee consisting of the Chief Secretary (Convener), Senior
Member Board of Revenue, Chairman P&D Board, Secretary Law and Secretary
Services (S&GAD).”
It was further informed that the Cabinet has already
approved the following recommendations:-
(a) Serving civil servants shall not be appointed as members
of the Tribunal;
(b) The terms of office of a member and Chairman shall be
fixed for a minimum period of 3 years or till attaining the age of 65 years,
for the members and 67 years for the Chairman, whichever is earlier; and
(c) The term of office of a member, including the Chairman
shall not be extended and a sitting incumbent shall not be appointed for
another term.
22. Mr. Muhammad Kassim Mir Jat, learned Additional
Advocate General, Sindh has submitted that the concept of Administrative
Tribunals was introduced by the framers of the Constitution which was
regularized through Legislation at the Federal and the Provincial level. He
stated that in the
23. He further submitted that it is not a parallel
judicial system as it has the backing of the Articles 175, 203 or 212 of the
Constitution. As the appeal against the judgments of Tribunal lies before the
Supreme Court under Article 212(3) of the Constitution, therefore, the
Tribunals fall under the judicial hierarchy. He has relied upon the case of Muzaffar
Hussain v. The Superintendent of Police [2002 PLC (CS) 442], which view was
also endorsed by this Court in the cases of Mehram Ali v. Federation of
Pakistan (PLD 1998 SC 1455), Khan Asfandyar Wali v. The
Federation of
24. Learned counsel also submitted that the cases referred
from the Indian Jurisdiction are not applicable in our jurisdiction as the
Indian Service Laws provided for consultation with the Chief Justice.
25. Syed Arshad Hussain, learned Additional Advocate
General, KPK has submitted that Article 212 of the Constitution empowers the
Provincial Legislature to establish as many Courts or Tribunal to exercise
exclusive jurisdiction in respect of matters enumerating therein. The
Provincial Service Tribunal, KPK has been established in terms of Article 212
of the Constitution read with NWFP (KPK) Service Tribunal Act, 1974 as such it
cannot be equated with the High Court. He contended that the appointment of
Chairman of the Tribunal in KPK has always been made in consultation with the
Chief Justice Peshawar High Court, whereas the Members of Tribunals are
appointed from civil servants in terms of section 3(2)(b) of NSTA, 1974 by the
Governor. He added that as per section 3(2)(b) of NSTA, 1974, there is no
requirement of making the appointment of Members from amongst the
lawyers/judicial officers as such there is no violation of the Constitution or
the law in the appointments made till date.
According to him, like Income Tax and Customs Appellate
Tribunal, where a matter is heard and decided by a Judicial and Technical
Member, it can be constituted to include a Judicial Member in the Tribunal. He
further contended that a situation where difference of opinion takes place
between the members of the Tribunal has been dealt with in section 6(4) of the
NSTA, 1974 which provides that in case of difference of opinion between the
Chairman and member or members, when the appeal is heard under sub-section (2)
and no majority view can be formed, the appeal shall be referred to the other
member, and the decision of the Tribunal shall be expressed in terms of the
view of the majority. He lastly submitted that a special committee in the light
of the directions of this Court has proposed the following amendments in NSTA,
1974:-
(i) Section 3(3)(b) of the Act, 1974 may be substituted
with the following:---
Such number of members to be determined by the Government
from time to time of which equal number may consist of judicial members, having
judicial or legal background of either being exercising the functions and
powers of Additional District & Sessions Jude or is an Advocate qualified
to be a Judge of High Court (ii) A proviso to be added at the end of subsection
(3)(b) to section 3 of the Act, 1974:---
Provided that non judicial members maybe appointed from
amongst the holders of the post in BS-20 or equivalent under provincial and
Federal Government.
(iii) In subsection (4) of section 3 of the Act, 1974 following
proviso to be added:---
Provided that the Chairman and judicial members of the
tribunal shall be appointed in consultation with the Chief Justice of the High
Court.
26. Learned Additional Advocate General, Balochistan has
stated that it remains the practice that appointment of Chairman of Service
Tribunal has been made in consultation with the Chief Justice of High Court of
Balochistan. He has contended that the incumbent Chairman/ Members are fully
qualified to be appointed as such and no provision of Constitution or the law
has been violated. Even in the past, the persons who were appointed as
Chairman/Members were fully qualified.
27. We have heard the parties and have gone through the
relevant provisions of law as well as the material placed before us.
28. It would be appropriate to first of all take up the
question of maintainability of instant petition under Article 184(3) of the
Constitution in view of the objections raised by the learned Deputy Attorney
General. The petitioner’s case is that he has approached this Court for the
vindication of Fundamental Right to have access to justice enshrined in
Articles 9 of the Constitution. It is to be noted that the right of “access to
justice to all” is a well recognized inviolable right enshrined in Article 9 of
the Constitution and is equally found in the doctrine of “due process of law”.
It includes the right to be treated according to law, the right to have a fair
and proper trial and a right to have an impartial court or tribunal.
29. The scope of jurisdiction of this Court under Article
184(3) of the Constitution by now is fairly settled in a plethora of case-law.
In the case of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC
416) it has been held as under:-
"... ... After all the law is not a closed shop and,
even in adversary procedure, it is permissible for the next friend to move the
Court on behalf of a minor or a person under a disability.
Why not then a person, if he were to act bona fide,
activise the Court for several reasons. This is what public interest litigation
seeks to achieve as it goes further to relax the rule on locus standi so as to
include a person who bona fide makes an application for the violation of any
constitutional right of a determined class of persons whose grievances go
unnoticed and un-redressed. The initiation of the proceedings in this manner
will be in aid of the meaningful protection of the rule of law given to the
citizens by Article 4 of the Constitution, that is, "(1) To enjoy the
protection of law and to be treated in accordance with law is the inalienable
right of every citizen, wherever he may be, and of every other person for the
time being within Pakistan. ..."
[the World Peace Through Law Conference at
"6. While construing Article 17 which guarantees
fundamental right, our approach should not be narrow and pedantic but elastic
enough to march with the changing times and guided by the object for which it
was embodied in the Constitution as a fundamental right. Its full import and
meaning must be gathered from other provisions such as preamble of the
Constitution, principles of policy and the Objectives Resolution, which shed
luster on the whole Constitution. Reference in this connection may be made to
the observations made by Muhammad Haleem, C.J. (as he then was) in Benazir
Bhutto v. Federation of Pakistan PLD 1988 SC 416 at 489:--
"... ... while construing Article 184(3), the
interpretative approach should not be ceremonious observance of the rules or
usages of interpretation, but regard should be had to the object and the
purpose for which this Article is enacted, that is, this interpretative
approach must receive inspiration from the triad of provisions which saturate
and invigorate the entire Constitution, namely, the Objectives Resolution
(Article 2A), the Fundamental Rights and the directive principles of State
policy so as to achieve democracy, tolerance; equality and social justice
according to Islam."
In the case of Al-Jehad Trust v. Federation of Pakistan
(PLD 1996 SC 324) it has been held that whenever the Constitution is
violated, every citizen has a right to challenge the same. Relevant paras there
from read as under:-
“12. Yet another objection raised was that the petitioner
could not invoke Article 184(3) of the Constitution as he has not been able to
show whether any one, of his fundamental rights was infringed. … It is
submitted by the petitioner that he is a practicing lawyer and has a very vital
interest in the Judicial set-up which can function independently only when
there is proper and total compliance of the Articles relating to the Judiciary
and appointments are also made in accordance with the Constitutional scheme
made there under. According to him, a lawyer cannot survive if the Judiciary is
not independent. … It appears that the remedies under Articles 199 and 184 (3)
available in a High Court and the Supreme Court respectively are concurrent in
nature and question of locus standi is relevant in a High Court, but not in the
Supreme Court when the jurisdiction is invoked under Article 184(3) of the
Constitution. According to the petitioner, he went to the High Court and his
writ petition was dismissed without deciding the questions of controversy. He
filed the petition for leave to appeal against the impugned judgment and also
filed the direct petition under Article 184(3) of the, Constitution praying for
examination of the Articles relating to the Judiciary and in that connection
has called in question some appointments in the Superior Judiciary. …
13. We are of the view that the petitioner has rightly
invoked the jurisdiction of this Court under Article 184(3) of the Constitution
and leave has rightly been granted in the other petition for the reason that in
both the cases common question of interpretation of the Articles relating to
the Judiciary are involved, which are of public importance. We are not impressed
by the contention that interpretation of the Articles in these cases would be
merely an exercise of academic nature. On the contrary, it can be said that
this exercise has become very essential and necessary and would help a great
deal in making the matters very clear by interpreting the relevant provisions
of the Constitution relating to the Judiciary. It is held by this Court in the
case of Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC
486 that the interpretation of the Constitution is the prerogative as well as
the duty of the superior Courts as envisaged in the Constitution and this
interpretative function cannot be a mere academic exercise without relation to
concrete dispute, either between a subject and subject or between a subject and
the State. … This right to interpret the Constitution is not acquired de hors
the Constitution but by virtue of the fact that it is a superior Court set up
by the Constitution itself. It is not necessary for this purpose to invoke any
divine or super natural right but this judicial power is inherent in the court
itself. It flows from the fact that it is a
In the matter of: Corruption in Hajj Arrangements in
2010 (PLD 2011 SC 963) it has been held as under:-
“20. The judiciary including the High Courts and the
Supreme Court is bound to protect and preserve the Constitution as well as to
enforce fundamental rights conferred by the Constitution either individually or
collectively, in exercise of the jurisdiction conferred upon it either under
Article 199 or 184(3) of the Constitution. We are fully cognizant of our
jurisdiction, it is one of the functions of the judicial functionaries to
decide the matters strictly in accordance with the Constitution and law. We are
conscious of our jurisdiction, and exercise the same with judicial restraint.
But such restraint cannot be exercised at the cost of rights of the citizens to
deny justice to them. The scheme of the Constitution makes it obligatory on the
part of superior Courts to interpret Constitution, law and enforce fundamental
rights. There is no cavil with the proposition that ultimate arbiter is the
Court which is the custodian of the Constitution, as it has been noted herein
before and without repeating the same, this Court had initiated proceedings in
the instant case as is evident from the detailed facts and circumstances noted
hereinabove to ensure that corruption and corrupt practices by which the Hujjaj
were looted and robbed has brought bad name to the country.”
In the case of Munir Hussain Bhatti v. Federation of
Pakistan (PLD 2011 SC 407) it has been held as under:-
“9. … … Article 184(3) ibid empowers this Court to
exercise jurisdiction thereunder whenever the Court considers a matter to: (i)
be of public importance and (ii) that it pertains to the enforcement of
fundamental rights. The determination on both these counts is to be made by
this Court itself, keeping the facts of the case in mind. That this case involves
a question which relates to the “enforcement of fundamental rights” has not
been seriously questioned. ...
10. Furthermore, in making this determination, the Court
is not to be swayed by expressions of public sentiment nor is it to conduct an
opinion poll to determine if the public has any interest in an issue being
agitated before the Court under Article 184(3) of the Constitution. Instead, a
whole range of factors need to be kept in mind, which have, over the years,
been expounded in numerous precedents of this Court.”
In the case of Muhammad Azhar Siddiqui v. Federation of
Pakistan (PLD 2012 SC 774)it has been held as under: -
“15. In the case at hand the Prime Minister stood
convicted by the apex Court of the land for wilfully, deliberately and persistently
defying a direction issued in Dr. Mobashir Hassan case, and such persistent
defiance at the highest level was considered substantially detrimental to the
administration of justice, and as tending not only to bring this Court, but
also the entire judiciary of this country into ridicule. The ruling of the
Speaker declaring that no question of disqualification of the respondent had
arisen despite a concluded judgment of the apex Court defied the principles of
independence of the judiciary and trichotomy of powers, and also constituted a
violation of the due process clause under Article 10A of the Constitution. All
this has made it a case suitable for invoking the original jurisdiction of this
Court. Accordingly, we hold that the instant petitions raise a question of
public importance with reference to the enforcement of Fundamental Rights
enshrined in Articles 9, 10A, 14, 17 & 25 of the Constitution and meet the
requirement of Article 184(3) of the Constitution, therefore, the same are held
to be maintainable. The objection raised by the learned counsel for the
respondents, being devoid of any merit, is overruled.”
In the case of Bank of
“25. A perusal of the above quoted provision would
demonstrate that this Court was possessed of powers to make any order of the
nature mentioned in Article 199 of the Constitution, if, in the opinion of this
Court, a question of public importance relating to the enforcement of any of
the Fundamental Rights was involved in the matter. As has been mentioned in the
preceding parts of this order, what was at stake was not only a colossal amount
of money/property belonging to at least one million depositors i.e. a large
section of the public but what was reportedly at stake was also the very
existence of the Bank of Punjab which could have sunk on account of the mega
fraud in question and with which would have drowned not only the said one
million depositors but even others dealing with the said Bank". And what
had been sought from this Court was the protection and defence of the
saidpublic property. It was thus not only the right of this Court but in fact
its onerous obligation to intervene to defend the said assault on the said fundamental
right to life and to property of the said public.”
In Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD
2012 SC 1089) it has been held that: -
80. The expression "public importance" has been
interpreted in a number of cases including Manzoor Elahi v. Federation of
Pakistan, (PLD 1975 SC 66), General Secretary, West Pakistan Salt Miners Labour
Union (CBA), Khewra,
In the case of Baz Muhammad Kakar v. Federation of
Pakistan (PLD 2012 SC 923) it has been held that the right of access to
justice and independent judiciary is also one of the most important rights of
the citizens and if there is any threat to the independence of judiciary, it
would be tantamount to denial of access to justice, which undoubtedly is a
fundamental right under Article 9 of the Constitution. Whenever there is a
violation of Articles 9 and 25 of the Constitution, it will involve a question
of public importance with reference to enforcement of the Fundamental Rights of
the citizens, who may approach the Court for the enforcement of these rights
under Article 184(3) of the Constitution without having to discharge the burden
of locus standi.
The scheme of the Constitution makes it obligatory on the
superior Courts to interpret the Constitution and the law and enforce the
Fundamental Rights.
30. It is to be noted that the independence of judiciary
is one of the salient features of our Constitution. The preamble to the
Constitution provides that whereas sovereignty over the entire Universe belongs
to Almighty Allah alone, and the authority to be exercised by the people of
Pakistan within the limits prescribed by Him is a sacred trust; and whereas it
is the will of the people of Pakistan to establish an order wherein the
independence of the judiciary shall be fully secured. The Objectives
Resolution, which is now a substantive part of the Constitution by means of
Article 2A of the Constitution, also commands that independence of judiciary
has to be fully secured. The superior Courts have elaborately interpreted the
words ‘fully’ and ‘secured’ to elucidate the concept of ‘independence of
judiciary’. In the case of Chairman, NWFP Forest Development Corporation v.
Khurshid Anwar Khan (1992 SCMR 1202) it has been held that our
Constitutional setup preserves the independence of superior Courts, by a
definite mandate including the command of the Objectives Resolution that
independence of the judiciary has to be fully secured.
In the case of Government of Balochistan v. Azizullah
Memon (PLD 1993 SC 341) it has been held that the Constitution aims at an
independent Judiciary which is an important organ of the State within the
Constitutional sphere. The Constitution provides for progressive separation of
the Judiciary and had fixed a time limit for such separation. The separation of
the judiciary as contemplated in Article 175 of the Constitution and
independence of the judiciary as envisaged in the Objectives Resolution
(Article 2A) cannot be achieved without having independent annual budget for
the judiciary. In the case of Government of Sindh v. Sharaf Faridi (PLD
1994 SC 105) it has been held as under: -
“The Constitution of the Islamic Republic of Pakistan,
1973 in its preamble (now made a substantive part thereof vide Article 2A)
declares that “the independence of the judiciary shall be fully secured”
therein.
Now, according to the consensus of the jurists, the
independence of the judiciary means: -
(a) that every Judge is free to decide matters before him
in accordance with his assessment of the facts and his understanding of the law
without improper influences, inducements or pressures, direct or indirect, from
any quarter or for any reason; and
(b) that the judiciary is independent of the Executive and
Legislature, and has jurisdiction, directly or by way of review, over all
issues of a judicial nature.”
In the case of Al-Jehad Trust v. Federation of Pakistan
(PLD 1996 SC 324) it has been held that our country has
Federal system of Government which is based on trichotomy of power; each organ
of the State is required to function within the bounds specified in the
Constitution, though one can say that the Judiciary is the weakest limb as it
does not have the resources or power which the Legislature or the Executive
enjoy but it has been assigned very important and delicate role to play,
namely, to ensure that none of the organs or the Government functionaries acts
in violation of any provision of the Constitution or of any other law and
because of the above nature of the work entrusted to the Judiciary, it was
envisaged in the Constitution that the Judiciary shall be independent. In the
case of Syed Zafar Ali Shah v. General Pervez Musharaf (PLD 2000 SC 869)
it has been held that the Constitution of Pakistan is the supreme law of the
land and its basic features i.e. independence of judiciary, federalism and
parliamentary form of government, blended with Islamic Provision cannot be
altered even by the Parliament. In the case of Dr. Mobashir Hassan v.
Federation of Pakistan (PLD 2010 SC 265) certain provisions of NRO were
strike down being contrary to the principle of independence of judiciary in the
following terms: -
“81. Thus, it would not be sustainable being contrary to
the principle of independence of judiciary, as mentioned in Article 2A of the
Constitution, which provides that independence of judiciary shall be fully
secured read with Article 175 of the Constitution, which lays down a scheme for
the establishment of the courts, including the superior courts and such other
courts as may be established by law.
In the present case, except an appeal under section 32 of
the National Accountability Ordinance, 1999 to the High Court of the Province,
no other remedy is available to a convict against his conviction/sentence, to
get it set aside.”
In the case of Baz Muhammad Kakar v. Federation of
Pakistan (PLD 2012 SC 923) it has been held as under: -
“64. In the case of Chairman, N.W.F.P. Forest Development
Corporation v. Khurshid Anwar Khan (1992 SCMR 1202), it was held that Court
acting under rules framed by virtue of the Constitutional power was not bound
to follow any other statutory dispensation, which came in conflict with the
independence of judiciary. Supreme Court was not even bound by the provisions
of Civil Procedure Code, 1908 or Criminal Procedure Code, 1898 in so far as
regulation and control of practice and procedure of the Court itself was
concerned. It was further held that Article 2A of the Constitution (Objectives
Resolution) commands that independence of judiciary has to be fully secured.
Words `fully' and `secured' are explicit enough not to leave any doubt that
Constitutional set up of
31. Admittedly, civil servants being citizens of
32. It may be mentioned here that the instant petition
falls in the category of public interest litigation, which is not adversarial
but inquisitorial in nature. It is well settled that this Court has the
jurisdiction to adjudicate upon a case if it falls within the ambit of
inquisitorial proceedings. Reference may be made to the cases of Watan Party
v. Federation of Pakistan (PLD 2011 SC 997), All Pakistan Newspapers
Society v. Federation of Pakistan (PLD 2012 SC 1) and Workers' Party
Pakistan v. Federation of Pakistan (PLD 2012 SC 681). Thus, the instant
petitions are maintainable and objection is overruled.
33. Now we would examine as to whether or not the Service
Tribunals, Federal and Provincial, are judicial forums and are performing their
functions within the meaning of Article 175 of the Constitution of Islamic
Republic of Pakistan, 1973, which deals with the establishment and jurisdiction
of courts as well as independence of judiciary through its separation from the
Executive. Clause (1) of the said Article provides that there shall be a
Supreme Court of Pakistan, a High Court for each Province and a High Court for
the
Whereas, Clause (3) provides that the Judiciary shall be
separated progressively from the Executive within fourteen years from the
commencing day.
34. Firstly, it is to be examined whether Service Tribunals
established under Article 212(1)(a) of the Constitution read with Federal or
Provincial Legislation, fall within the definition of a court, under Article
175 of the Constitution.
35. It is to be noted that the word ‘Court’ has not been
defined in any legal instrument, therefore, we have to refer to its dictionary
meanings, which are as under:-
Corpus Juris Secundum; vol. 21
Generally, a court is a body in the government to which
the public administration of justice is delegated, being a tribunal officially
assembled under authority of law, at the appropriate time and place, for the
administration of justice, through which the State enforces it sovereign rights
and powers, and consisting in its jurisdiction and functions and not its title
or name.
The court exists as a forum to hear and resolve suits and
controversies raised by parties who have invoked its authority.
The term ‘court’ may include a Judge and a jury, ……….may
include a Tribunal presided over by a police judge, or by a justice or justices
of the peace, or various other tribunals.
Halsbury’s Laws of England, 4th Edition Vol.10:
Originally the term ‘Court’ meant, among other things, the
Sovereign’s place. It has acquired the meanings of the place where justice is
administered and, further, has come to mean the persons who exercise judicial
functions under authority derived either directly or indirectly from the
sovereign…… A Tribunal may be a court in the strict sense of the term even
though the chief part of its duty is not judicial.
The
A court was originally the King’s or a great lord’s place
or mansion……A court is accordingly a person or group of persons having
authority to hear and administer disputes in accordance with rules of law.
Tribunals or adjudicators who exercise adjudicative functions by virtue of
contract or of the voluntary submission of persons to their decisions.
Words and Phrases Legally Defined (1969 Edition, Vol. I,
p. 367)
the terms `Court' originally meant the sovereign's palace;
it acquired the meaning of the place where justice is administered and has come
to mean the person who exercises judicial functions.
The Major Law Lexicon, 4th Edition,
2010:
“Court” includes all Judges and Magistrates and all
persons, except arbitrators, legally authorized to take evidence. The “Court”
means the person or persons before whom a legal proceeding is held or taken.
“Court” means a civil, criminal or revenue Court and includes any tribunal or
any other authority constituted under any law for the time being in force, to
exercise judicial or quasi-judicial functions.
Black’s Law Dictionary:
An organ of government, belonging to the judicial
department, whose function is the application of the laws to controversies
brought before it and the public administration of justice.
Ballentine's Law Dictionary
Court is the organ of the Government, consisting of one
person, or of several persons called upon and authorized to administer justice.
In Nasir Muhammad v. Murad Ali (PLD 1960 Lahore
757), a Division Bench, has held that “the expression ‘Court’ has not been
defined either in the Limitation Act or the General Clauses Act and this can be
said of almost all Acts in force in
“7. The Black's Law Dictionary defines the
"Court" as "an organ of the Government belonging to the judicial
Department, whose function is the application of the laws to controversies
brought before it and the public administration of justice".
This definition finds support from White Country v. Gwin
(136
In Words and Phrases Legally Defined by Butterworths, Vol.
1, p. 367I the word "Court" has been defined as a Department
entrusted with the' administration of justice and it also includes in its
definition the Parliament I. Parliament is included because it passed verdict
in impeachment proceedings.
Otherwise, parliament would not fall into the category of
the Court. Similarly Jury is included in the term Court and Mr. Ansari on this
premises argued that alike Jury a Tribunal could also be called Court. It is a
fallacy to says so. Jury in the Anglo Saxson system is the Judge of facts but
in the Tribunals under Ordinance I of 1968, it is only a recommendatory body
and its verdict is in no way binding upon the Deputy Commissioner over and
above this Deputy Commissioner is not a judicial Officer but an executive
authority. That makes all the difference. The "Shorter. Oxford English
Dictionary" also defines the Court as a forum for the decision of causes
and here also decision means decision in the fashion I have referred
heretofore.
It is thus manifest that although the term
"Court" is at times used for quasi judicial or administrative
tribunals also but on this premises it cannot be inferred that such forums
should be equated with the "Court" of law. Therefore, in our opinion
"Courts" are such organs of the State which administer justice
strictly in accordance with law, meaning thereby that while applying laws to
the controversies, they follow certain rules with regard to procedures and
evidence and are not left altogether unguided and uncontrolled to act on their
whims and fancies as in the case of the Ordinance I of 1968, which although a
procedural law, nullifies all laws and all doctrines hitherto universally
considered necessary for the imparting of justice.
The Tribunal under the Ordinance I of 1968 is one such
forum which is not bound by any law of procedure or Evidence and like the Jirga
under the erstwhile F. C. R., it may or may not even record evidence; and if
recorded, the applicability or otherwise of the same has no criterions. It all
depends on the whims of the tribunal to deny or allow any kind of evidence.”
According to the Dictionary meanings, following three
elements are essential for the conception of Court: -
(1) Time when Judicial functions may be exercised.
(2) A place for the exercise of Judicial functions.
(3) A person or persons exercising Judicial functions.
Thus, the judicial functions are the common characteristic
of each element. The term `judicial function' has also not been clearly spelt
out either in any Dictionary or in any other book. However,
36. Under section 5(2) of the STA, 1973, the Tribunal is
deemed to be a civil Court having all the powers which are vested in the civil
Court as such it has the power to grant temporary injunction, mandatory or
prohibitory, under Order XXXIX, Rules 1 & 2 CPC during the pendency of the
appeal before it and has also the power of the appellate Court under Order XLI,
Rule 5 to stay the execution/operation of the decree or order. In terms of
section 5(1) ibid, the Tribunal can set aside, vary or modify the order in an
appeal before it, of course, after full and final hearing of the appeal. Thus,
the tribunal performs the judicial function. Reference may be made to the case
of Imran Raza Zaidi v. Government of
Relevant portion therefrom is reproduced hereinbelow:-
“12. … … Service Tribunal in the instant case is
established under section 3 of the Punjab Service Tribunals Act and appeal
thereto is provided under section 4 while the powers conferred on it are
reflected in section 5 … …
Under subsection (2) of section 5, Service Tribunal is
deemed to be a
In the case of Tariq Transport Company v. The
Sargodha-Bhera Bus Service (PLD 1958 SC 437) while considering the question
that as to whether an act is judicial, quasi-judicial or administrative,
Justice Muhammad Munir, CJ has observed that the said question is clouded by a
confusion which is extremely difficult to resolve and no clear cut distinction
between these three functions can be discovered from the case law. In modern
States where expertise is the dominating feature of Government more than one
function is combined in administrative tribunals, and more often than not an
administrative agency discharges not only legislative and administrative but
also judicial functions. The true question in the case of such tribunals always
is whether the act which is complained of is a judicial act and not whether the
procedure adopted by the tribunal is judicial or uasijudicial or whether the dominant or
general aspect of the tribunal is that of a judicial, quasi-judicial or
administrative body. A tribunal is not always furnished with the trappings of a
Court, nor will such trappings make its
action judicial. The character of the action taken in a given case and the
nature of the right on which it operates must determine whether that action is
judicial, ministerial or legislative or whether it is simply the act of a
public agent. A tribunal acts judicially in the full sense of the term if it
has to determine a dispute; the dispute relates to a right or liability which,
whatever its immediate aspect, is ultimately referable to some right or
liability, recognised by the Constitution or statute or by custom or equity
which by the domestic law is declared to be the rule of decision; since every
right or liability depends upon facts, the tribunal is under an obligation to
discover the relevant facts; the ascertainment of the facts is in the presence
of the parties either of whom is entitled to produce evidence in support of its
respective case and to question the truth of the evidence produced by his
opponent; and after an investigation of the facts and hearing legal arguments
the tribunal renders a judgment which so far as the tribunal is concerned
terminates the dispute. In the case of an administrative tribunal, however, the
emphasis is on policy, expediency and discretion to enable it to achieve the
object with which it was set up.
In the case of such a tribunal the, approach in
determining the relevant facts is therefore often subjective and not objective,
there being generally no lis before it in which the parties are arrayed against
each other for the enforcement of a private right or liability and who for that
purpose are entitled to produce evidence and adduce legal argument. The word
`quasi' as prefixed to the word `judicial' may either indicate that the
tribunal is not acting purely administratively or that it is acting in a manner
in which a judicial tribunal is expected to act.
37. In the case of Mohammad Hashim Khan v. Province of
Balochistan (PLD 1976 Quetta 59) it has been held that the Tribunal under
section 5 of the Service Tribunals Act is deemed to be civil Court for the
purpose of deciding any appeal before it with all the powers under the Code of
Civil Procedure. As any other civil Court, the Tribunal will have the
jurisdiction to examine whether or not a law is void by reason of its conflict
with the Fundamental Rights or is otherwise ultra vires or that the
order made is mala fide. The conferment upon the Tribunal the exclusive
jurisdiction to adjudicate upon these matters cannot be given any less effect
even if it were to be assumed, though there is no warrant for such an
assumption, that one or the other ground of challenge may not be available to
the petitioners before the Tribunal. In the case of Iftikhar Ahmad v. Muslim
Commercial Bank Ltd. (PLD 1984 Lahore 69) it has been observed that despite
the collection of elaborate views above, it has been generally observed that
the definitions so far attempted are not exhaustive of the term ‘Court’.
However, inspired by all that has peen said so far, and without claiming that
it will be exhaustive, in my humble view, ‘judicial power’ is the legal right,
ability and authority to hear and decide, objectively and after allowing
opportunity to produce evidence, a justifiable issue, dispute, or controversy,
concerning the existing legal rights, duties or interests of persons or
property, arising out of relations and dealings, between two or more parties,
who bring the same for an authoritative decision, binding on them and may
include the authority to execute or get executed its decision and protect
rights, prevent and redress wrongs and punish offences through legal process.
Further, the judicial power must be conferred by the State under Constitution
or law and not the mere consent of parties, on persons who are paid by the
State and removable by it only. The authority or body in which this power is
vested is generally called ‘Court’ and in performing its functions it declares,
construes and applied law or custom or usage, having the force of law. The
‘judicial power’ is thus the instrument to be used by the Court.
38. In the case of Mehram Ali and others v. Federation
of Pakistan,( PLD 1998 SC 1445) it has been held that Constitution
recognizes only such specific Tribunals to share judicial powers with the
Courts, established under Article 175 of the Constitution, which have been
specifically provided by the Constitution itself, namely, Federal Shariat Court
under Chapter 3A, Tribunals under Article 212, Election Tribunals under Article
255 of the Constitution. The same view was reiterated with approval by this
Court in the case of Liaqat Hussain v. Federation of
39. In the case of Messrs Ranyal Textiles v. Sindh
Labour Court (PLD 2010
However, the Tribunals are only limited to the Tribunals
specified in the Constitution such as Election Tribunal [Article 225],
Administrative Tribunal [Article 212] and Tribunal relating to military affairs
[Article 199(5)]. Beside these Tribunals, whenever judicial power is vested in
a forum, whatever be its designation, be it called a Court, be it called a
Tribunal or be it called a Commission, for all legal intends and purposes it is
a Court and therefore has to be manned, controlled and regulated in accordance
with the established judicial principles and the law relating to manning,
regulation and control of Courts in Pakistan.
Therefore, it was held that the Labour Appellate Tribunal,
legally speaking, through denominated as a Tribunal, is a Court: nothing more,
nothing less.
40. The perusal of above case law makes it abundantly
clear that a tribunal is not always function as a ‘Court’, nor its action is
always judicial; however, the determining factor is the nature of the dispute
to be resolved by the Tribunal. If the Tribunal has to determine a dispute
relating to a right or liability, recognised by the Constitution or law and is
under an obligation to discover the relevant facts, in the presence of the
parties, in the light of the evidence produced by them, it acts judicially.
Besides, whenever judicial power is vested in a forum, be it called a Court or
Tribunal, for all legal intends and purposes it is a Court. Further, such
Tribunals have to be manned, controlled and regulated in accordance with the
established judicial principles.
41. It is pertinent to mention here that as the service
Tribunals are not only deemed to be a civil Court but also exercise judicial
powers, therefore, they are included in the term ‘Court’ mentioned in Article
175 of the Constitution. As such, these Tribunals are to be manned, controlled
and regulated in accordance with the law relating to management, regulation and
control of Courts in
42. It is to be noted that independence of judiciary has
been recognized as a universal human right. In terms of Article 10 of the Universal
Declaration of Human Rights, G.A, 1948, everyone is entitled to full
equality to a fair and public hearing by an independent and impartial Tribunal.
In
Reference may be made to the case of Shahid Nabi Malik
v. Chief Election Commissioner(PLD 1997 SC 32).
43. In the case of
44. In Kilbourn v. Thompsons [103 US 168; 26 L ED
377], it has been held that because, living under a written constitution, no
branch or department of the government is supreme; and it is the province and
duty of the judicial department to determine in cases regularly brought before
them, whether the powers of any branch of the government, and even those of the
legislature in the enactment of laws, have been exercised in conformity to the
Constitution; and if they have not, to treat their acts as null and void. The
house of representatives has the power under the Constitution to imprison for
contempt; but the power is limited to cases expressly provided for by the
Constitution, or to cases where the power is necessarily implied from those
constitutional functions and duties, to the proper performance of which it is
essential.
45. The Principle of separation and independence of
judiciary as envisaged in Article 175 of the Constitution is also applicable to
the lower judiciary as it is the part of the judicial hierarchy. Thus, its
separation and independence has to be secured and preserved as that of superior
judiciary. In terms of Article 175 read with Article 203 of the Constitution,
the lower judiciary should be separated from the Executive and the High Court
shall supervise and control all courts subordinate to it. Reference may be made
to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105).
In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010
SC 265) it has been held that the Legislature is competent to legislate but
such legislation would not be sustainable if it is contrary to the principle of
independence of judiciary as mentioned in Article 2A of the Constitution, which
provides that independence of judiciary shall be fully secured read with
Article 175 of the Constitution, which lays down a scheme for the establishment
of the Courts, including the superior Courts and such other Courts as may be
established by law. As it has been held that Service Tribunal discharges
judicial functions, thus falls within the definition of a “Court’ in view of
the above discussion, therefore, the Tribunals have to be separated from
Executive following the principle of independence of judiciary in view of
Article 175(3) of the Constitution.
46. In the light of the finding given hereinabove to the
extent that the Service Tribunals are included in the term ‘Court’ mentioned in
Article 175(3) of the Constitution and are to be managed, controlled and
regulated in accordance with the law relating to the Courts in Pakistan, the
question arises as to whether Service Tribunal enjoys independence even in the
appointment of its Chairman and the Members. Although the Act and the rules do
not provide consultation with the respective Chief Justice, yet having been
declared that the Tribunals established under Article 212 fall within
contemplation of Article 175(3) of the Constitution, the requirements of said
provision has to be adhered to while making appointment to the Chairman/Members
of the Tribunal. We are in agreement with the learned counsel for the
petitioner that the Service Tribunals exercise judicial powers with remedy of
appeal before this Court under Article 212(3), if the case involves a
substantial question of law of public importance, as such, the matters
regarding appointment of the Chairman and Members of the Service Tribunals are
as important as those of judges of the High Courts. Thus, we are in agreement
with the learned counsel for the petitioner that the Tribunal should not be
under the administrative or financial control of the Executive. On the analogy
of the judges of the High Courts and
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 been
held that the Constitution provided that 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, rather supposed to be effective, meaningful, 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 recorded in writing by the
President/Executive.
48. In the case of Imran v. Presiding Officer, Punjab
Special Court (PLD 1996 Lahore 542), constitution of Special Courts under
the 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: -
“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 Courts howsoever
designated 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 Statute 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 the Civil Courts Ordinance, 1962, for making appointments of
District Judges under section 5, for 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 option are to be
accepted by the High Court provided they fulfil 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 independence of judiciary. In addition to these features, the power to
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 matter of appointment of the judges of the special
Courts 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
judgments of the Supreme Court in the cases of Al-Jehad Trust through Raeesul
Mujahideen Habib Al-Wahabul Khairi, and others v. 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 Honourable Chief
Justice of the High Court except for valid reasons justifying a departure. We
were informed by the learned Attorney General for
49. In the case of Hazrat Baz v. Political
Agent/District Magistrate Khyber Agency (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
50. From the above case law, it is manifest that whenever
the appointment of a ‘judicial officer’ or the Chairman/Member of a 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.
51. Learned counsel for the petitioner has emphasized that
there must be requirement of possessing legal and judicial experience for a
Member of the Tribunal, to be able to deal with the judicial questions arising
in a particular case and in this behalf, appropriate experience should be
prescribed. According to him, practicing lawyers, who are qualified to be
appointed as Judge of the High Court, be given preference for induction as
Members of the Service Tribunals. In this regard it is to be noted that the law
prescribes that the Chairman of the Tribunal must be a person who is or has
been qualified to be a Judge of the High Court, which has an inbuilt mechanism
of having legal/judicial experience, however, there is no requirement of having
legal or judicial experience for the Members of the Tribunal. Whereas,
according to law a Bench can be constituted comprising two members and Chairman
or two members. Thus, the Bench, comprising the members only, could decide a
particular case. If the Members who belong to the executive constitute a Bench,
there is likelihood that they may not be able to decide the judicial question
in appropriate manner, having no judicial experience and if the case is against
the orders of the President/Governor or senior officers they may not be able to
act fairly, justly and independently being under pressure, thereby eroding the
concept of fair administration of justice. Keeping in view such situation, a
full Bench of Lahore High Court in the case of Muzaffar Hussain v. The
Superintendent of Police [2002 PLC (CS) 442], considered the possibility of
appointment of Judicial Members in the Service Tribunal in line with the
provisions of (Indian) Administrative Tribunals Act, 1985 and observed that the
Tribunal should also have equal number of judicial members from amongst the
persons qualified to be Judge of the High Court and to be appointed after
meaningful consultation with the Chief Justice of and every Bench should be
headed by at least one Judicial Member so as to eliminate any misgiving or
apprehension of an aggrieved person as regards independent working of the
Tribunal. Relevant portion from the said judgment is reproduced hereinbelow: -
“62. … … We are of the view that in line with the
provisions of (Indian) Administrative Tribunals Act,1985 the Tribunal should
also have equal number of judicial members from amongst the persons qualified
to be Judge of this Court and to be appointed after meaningful
consultation with the Chief Justice of
this Court and every Bench should be headed by at least one Judicial Member so
as to eliminate any misgiving or apprehension of an aggrieved person as regards
independent working of the Tribunal. This observation is not to be construed as
a direction of this Court to legislate because we are conscious of our
limitations but to improve the quality of justice by the Tribunal we very
strongly feel that it is required to be done.”
52. As it has already been held that the Service Tribunals
act as a Court and perform judicial functions, therefore, it is necessary that
not only the Chairman but also the Members of the Tribunal must have
legal/judicial experience. For that purpose, the person who is or has been
qualified to be a District Judge, may be appointed as Member of the Tribunal.
53. It is to be noted that in the neighbouring country
corresponding provision to Article 212 of our Constitution is Article 323A of
the Constitution of India. In pursuance of said provision of Indian
Constitution, Administrative Tribunal Act (Act No.13) of 1985 has been
promulgated, section 28 whereof has excluded the jurisdiction of the High Court
in relation to recruitment and matters concerning recruitment to any service or
post or service matters concerning members of any service or persons appointed
to any service, or post. A challenge was thrown to the said Act in the case of S.P.
Sampath Kumar v. Union of India (AIR 1987 SC 386), mainly to question the
abolition of the jurisdiction of the High Court in respect of specific service
disputes. In this judgment, the Indian Supreme Court without declaring the
provision of section 28 of the Act, 1985 unconstitutional, as it has taken away
the jurisdiction of the High Court, issued certain directions for making
amendments in the Act, 1985, emphasizing that as the Administrative Tribunal
has been made a substitute of the High Court, therefore, constitutionally and
legally it must exercise its jurisdiction as a replacement of the High Court
providing confidence to the litigants and the public that the statutory body is
capable to administer efficaciously the powers of the judicia review. Relevant
paras there from are reproduced herein below:-
“3. Here, in the present case, the
impugned Act has been enacted by Parliament in exercise of the power conferred
by clause (1) of Article 323A which was introduced in the Constitution by
Constitution (42nd Amendment) Act, 1976. Clause (2) (d) of this Article
provides that a law made by Parliament under clause (1) may exclude the
jurisdiction of courts, except the jurisdiction of the Supreme Court under
Article 136, with respect to the disputes or complaints referred to in clause
(1). The exclusion of the jurisdiction of the High Court under Articles 226 and
227 by any law made by Parliament under clause (1 ) of Article 323A is,
therefore, specifically authorised by the constitutional amendment enacted in
clause (2) (d) of that Article. It is dear from the discussion in the preceding
paragraph that this constitutional amendment authorising exclusion of the
jurisdiction of the High Court under Articles 226 and 227 postulates for its
validity that the law made under clause (1) of Article 323A excluding the
jurisdiction of the High Court under Articles 226 and 227 must provide for an
effective alternative institutional mechanism or authority for judicial review.
If this constitutional amendment were to permit a law made under clause (1) of
Article 323A to exclude the jurisdiction of the High Court under Articles 226
and 227 without setting up an effective alternative 444 institutional mechanism
or arrangement for judicial review, it would be violative of the basic
structure doctrine and hence outside the constituent power of Parliament. It
must, therefore, be read as implicit in this constitutional amendment that the
law excluding the jurisdiction of the High Court under Articles 226 and 227
permissible under it must not leave a void but it must set up another effective
institutional mechanism or authority and vest the power of judicial review in
it. Consequently, the impugned Act excluding the jurisdiction of the High Court
under Articles 226 and 227 in respect of service matters and vesting such jurisdiction
in the Administrative Tribunal can pass the test of constitutionality as being
within the ambit and coverage of clause (2) (d) of Article 323A, only if it can
be shown that the Administrative Tribunal set up under the impugned Act is
equally efficacious as the High Court, so far as the power of judicial review
over service matter is concerned. We must, therefore, address ourselves to the
question whether the Administrative Tribunal established under the impugned Act
can be regarded as equally effective and efficacious in exercising the power or
judicial review as the High Court acting under Articles 226 and 227 of the
Constitution.
4. It is necessary to bear in mind
that service matters which are removed from the jurisdiction of the High Court
under Articles 226 and 227 of the Constitution and entrusted to the
Administrative Tribunal set up under the impugned Act for adjudication involve
questions of interpretation and applicability of Articles 14, 15, 16 and 311 in
quite a large number of cases. These questions require for their determination
not only judicial approach but also knowledge and expertise in this particular
branch of constitutional law. It is necessary that those who adjudicate upon
these questions should have same modicum of legal training and judicial
experience because we find that some of these questions are so difficult and
complex that they baffle the minds of even trained Judges in the High Courts
and the Supreme Court. That is the reason why at the time of the preliminary
hearing of these writ petitions we insisted that every bench of the
Administrative Tribunal should consist of one judicial member and one
administrative member and there should be no preponderance of administrative
members on any bench. Of course, the presence of the administrative member
would provide input of practical experience in the functioning of the services
and add to the efficiency of the Administrative Tribunal but the legal input
would undeniably be more important and sacrificing the legal input or not giving
it sufficient weightage would definitely impair the efficacy and effectiveness
of the Administrative Tribunal as compared to the High Court. Now section 6
provides that the Chairman of the Administrative Tribunal should be or should
have been a Judge of the High Court or he should have for at least two years
held office of Vice-Chairman or he should have for at least two years held the
post of 445 Secretary to the Government of India or any other post under the
Central or State Government carrying a scale of pay which is not less than that
of a Secretary to the Government of India. I entirely agree with Ranganath
Misra, J. that the Chairman of the Administrative Tribunal should be or should
have been a Judge of a High Court or he should have for at least two years held
office as Vice-Chairman. If he has held office as Vice-Chairman for a period of
at least two years he would have gathered sufficient experience and also within
such period of two years, acquired reasonable familiarity with the constitutional
and legal questions involved in service matters, But substituting the Chief
Justice of a High Court by a Chairman of the Administrative Tribunal who has
merely held the post of a Secretary to the Government and who has no legal or
judicial experience would not only fail to inspire confidence in the public
mind but would also render the Administrative Tribunal a much less effective
and efficacious mechanism than the High Court. We cannot afford to forget that
it is the High Court which is being supplanted by the Administrative Tribunal
and it must be so manned as to inspire confidence in the public mind that it is
a highly competent and expert mechanism with judicial approach and objectivity.
Of course, I must make it clear that when I say this, I do not wish to cast any
reflection on the members of the Civil Services because fortunately we have, in
our country, brilliant civil servants who possess tremendous sincerity, drive
and initiative and who have remarkable capacity to resolve and overcome administrative
problems of great complexity. But what is needed in a judicial tribunal which
is intended to supplant the High Court is legal training and experience. I am,
therefore, of the view, in agreement with Ranganath Misra, J. that clause (c)
of section 6 (1) must be struck down as invalid.
6. That takes me to another serious
infirmity in the provisions of the impugned Act in regard to the mode of
appointment of the Chairman, Vice Chairman and members of the Administrative
Tribunal.
So far as the appointment of judicial
members of the Administrative Tribunal is concerned, there is a provision
introduced in the impugned Act by way of amendment that the judicial members
shall be appointed by the Government concerned in consultation with the Chief
Justice of India. Obviously no exception can be taken to this provision,
because even so far as Judges of the High Court are concerned, their
appointment is required to be made by the President inter alia in consultation
with the Chief Justice of India. But so far as the appointment of Chairman,
Vice-Chairmen and administrative members is concerned, the sole and exclusive
power to make such appointment is conferred on the Government under the
impugned Act. There is no obligation cast on the Government to consult the Chief
Justice of India or to follow any particular selection procedure in this
behalf. The result is that it is left to the absolute unfettered discretion of
the Government to appoint such person or persons as it likes as Chairman,
Vice-Chairman and administrative members of the Administrative Tribunal.
Now it may be noted that almost all
cases in regard to service matters which come before the Administrative
Tribunal would be against the Government or any of its officers and it would
not at all be conducive to judicial independence to leave unfettered and
unrestricted discretion in the executive to appoint the Chairman, Vice-Chairmen
and administrative members, if a judicial member or an administrative member is
looking forward to promotion as Vice Chairman or Chairman, he would have to
depend on the goodwill and favourable stance of the executive and that would be
likely to affect the independence and impartiality of the members of the
Tribunal. The same would be the position vis-a-vis promotion to the office of
Chairman of the Administrative Tribunal. The administrative members would also
be likely to carry a sense of obligation to the executive for having been
appointed members of the Administrative Tribunal and that would have a tendency
to impair the independence and objectivity of the members of the Tribunal.
There can be no doubt that the power of appointment and promotion vested in the
executive can have prejudicial effect on the 447 independence of the Chairman,
Vice-Chairmen and members of the Administrative Tribunal, if such power is
absolute and unfettered. If the members have to look to the executive for
advancement, it may tend, directly or indirectly, to influence their
decision-making process particularly since the Government would be a litigant in
most of the cases coming before the Administrative Tribunal and it is the
action of the Government which would be challenged in such cases. That is the
reason why in case of appointment of High Court Judges, the power of
appointment vested in the executive is not an absolute unfettered power but it
is hedged in by a wholesome check and safeguard and the President cannot make
an appointment of a High Court Judge without consultation with the Chief
Justice of the High Court and the Chief Justice of India and a healthy
convention has grown up that no appointment would be made by the Government
which is not approved by the Chief Justice of India. This check or safeguard is
totally absent in the case of appointment of the Chairman, Vice-Chairmen and
administrative members of the Administrative Tribunal and the possibility
cannot be ruled out indeed the litigating public would certainly carry a
feeling that the decision making process of the Chairman, Vice-Chairmen and
members of the Administrative Tribunal might be likely to be affected by reason
of dependence on the executive for appointment and promotion. It can no longer
be disputed that total insulation of the judiciary from all forms of
interference from the coordinate branches of Government is a basic essential
feature of the Constitution. The Constitution makers have made anxious
provision to secure total independence of the judiciary from executive pressure
or influence. Obviously, therefore if the Administrative Tribunal is created in
substitution of the High Court and the jurisdiction of the High Court under
Articles 226 and 227 is taken away and vested in the Administrative Tribunal,
the same independence from possibility of executive pressure or influence must
also be ensured to the Chairman, Vice-Chairmen and members of the
Administrative Tribunal. Or else the Administrative Tribunal would cease to be
an equally effective and efficacious substitute for the High Court and the
provisions of the impugned Act would be rendered invalid. I am, therefore, of the
view that the appointment of Chairman, Vice-Chairmen and administrative members
should be made by the concerned Government only after consultation with the
Chief Justice of India and such consultation must be meaningful and effective
and ordinarily the recommendation of the Chief Justice of India must be
accepted unless there are cogent reasons, in which event the reasons must be
disclosed to the Chief Justice of India and his response must be invited to
such reasons. There is also another alternative which may be adopted by the
Government for making appointments of Chairman, Vice Chairmen and members and
that may be by setting up a High Powered Selection Committee headed by the
Chief Justice of India or a sitting Judge of the Supreme Court or concerned High
Court nominated by the Chief Justice of 448 India. Both these modes of
appointment will ensure selection of proper and competent persons to man the
Administrative Tribunal and give it prestige and reputation which would inspire
confidence in the public mind in regard to the competence, objectivity and
impartiality of those manning the Administrative Tribunal. If either of these
two modes of appointment is adopted, it would save the impugned Act from
invalidation. Otherwise, it will be outside the scope of the power conferred on
Parliament under
Article 323-A. I would, however
hasten to add that this judgment will operate only prospectively and will not
invalidate appointments already made to the Administrative Tribunal. But if any
appointments of Vice-Chairmen or administrative members are to be made
hereafter, the same shall be made by the Government in accordance with either
of the aforesaid two modes of appointment.
7. I may also add that if the
Administrative Tribunal is to be an equally effective and efficacious
substitution for the High Court on the basis of which alone the impugned Act
can be sustained, there must be a permanent or if there is not sufficient work,
then a Circuit Bench of the Administrative Tribunal at every place where there
is a seat of the High Court. I would, therefore, direct the Government to set
up a permanent bench and if that is not feasible having regard to the volume of
work, then at least a Circuit Bench of the Administrative Tribunal wherever
there is a seat of the High Court, on or before 31st March, 1987.
That would be necessary if the provisions of the impugned Act are to be
sustained. So far as rest of the points dealt with in the judgment of Ranganath
Misra, J. are concerned, I express my entire agreement with the view taken by
him.”
54. As far as Article 212(1) of the Constitution is
concerned, it has also excluded the jurisdiction of the High Court to the
extent of some of the terms & conditions of the civil servants. Reference
in this behalf may be made to the case of Syed Arshad Ali v. Pakistan
Telecommunication Company Ltd. (2008 SCMR 314), wherein it has been held
that jurisdiction of High Court was barred under Article 212 of the
Constitution, as specific forum was provided for redressal of grievance of
employees, even if order proposed to be challenged might have been passed in
whatsoever circumstances viz. mala fide, coram non judice or without
jurisdiction. Whereas, jurisdiction of this Court is also confined to
fulfillment of the conditions mentioned in Article 212(1) of the Constitution,
in view of the observations made in S.P. Sampath Kumar’s case (supra),
reproduced hereinabove from the added note of Bhagwati, CJ, who had agreed with
other members of the Bench, but in view of the importance of the case had added
his independent note as well.
55. In the above background, this Court has also to
examine the vires of section 3 of the STA, 1973 along with corresponding
provisions of the Provincial Service Tribunal Acts, reproduced hereinabove, to
make it possible that a Service Tribunal, having backing of the Legislation as
well as the Constitution, is capable to maintain the principle of independence
of judiciary as well as to ensure enforcement of Fundamental Rights enshrined
in Article 9 of the Constitution, namely, access to justice. At this juncture,
it may be noted that under this Article, right to ‘access to justice’ has been
recognized to be one of the Fundamental Rights. Reference in this behalf may be
made to the case of Ms. Benazir Bhutto's case (PLD 1989 SC 416) wherein
it has been held as under: -
“In this milieu, I am of the view that the adversary
procedure, where a person wronged is the main actor if it is rigidly followed,
as contended by the learned Attorney General, for enforcing the Fundamental
Rights, would become self-defeating as it will not then be available to provide
"access to justice to all" as this right is not only an
internationally recognized human right but has also assumed constitutional
importance as it provides a broadbased remedy against the violation of human
rights and also serves to promote socio-economic justice which is pivotal in
advancing the national hopes and aspirations of the people permeating the
Constitution and the basic values incorporated therein, one of which is social
solidarity, i.e. , national integration and social cohesion by creating an
egalitarian society through a new legal order.
In Sharaf Faridi v Islamic
The right of 'access to justice to all' is a
well-recognised inviolable right enshrined in Article 9 of the Constitution.
This right is equally found in the doctrine of 'due
process of law'. The right of access to justice includes the right to be
treated according to law, the right to have a fair and proper trial and a right
to have an impartial Court or Tribunal. This conclusion finds support from the
observation of Willoughby in Constitution of United States, Second Edition,
Vol. II at page 1709 where the term 'due process of law' has been summarised as
follows: -
(1) He shall have due notice of proceedings which affect
his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are
adjudicated is so constituted as to give reasonable assurance of his honesty
and impartiality, and
(4) That it is a Court of competent jurisdiction. "It
therefore follows that in terms of Article 9 of the Constitution a person is
entitled to have an impartial Court and tribunal. Unless an impartial and
independent Court is established the right to have a fair trial according to
law cannot be achieved. Therefore justice can only be done if there is an
independent judiciary which should be separate from executive and not at its
mercy or dependent on it.
In the case of Government of Balochistan through
Additional Chief Secretary v Azizullah Memmon (PLD 1993 SC 341), it was
held as under: -
13. The above extract indicates what are the basic
requirements of the doctrine "due process of law", which is enshrined
inter alia in Article 4 of our Constitution. It is intrinsically linked with
the right to have access to justice, which this Court has held inter alia in
the above report as a fundamental right. This right inter alia includes the
right to have a fair and proper trial and a right to have an impartial Court or
Tribunal. A person cannot be said to have been given a fair and proper trial
unless he is provided a reasonable opportunity to defend the allegation made
against him. In the instant case the Returning Officer was seized of the
question, whether respondent No.1 was qualified to be a candidate for the
office of the President.
His decision that respondent No.1 was not qualified to be
elected as a member of the Parliament would have entailed his non-seating as a
member of the Senate, which was a question of the nature, which could not have
been adjudicated upon in a summary inquiry under Rule 5(3)(a) of the rules,
particularly when the correctness of the contents of the interview was not
admitted by respondent No.1.
In the case of Al-Jehad Trust v. Federation of Pakistan
(PLD 1996 SC 324) after referring the Sharaf Faridi’s case (supra)
it was observed that the right to have access to justice through an independent
Judiciary is a Fundamental Right; without having an independent Judiciary, the
Fundamental Rights enshrined in the Constitution will be meaningless and will
have efficacy or beneficial value to the public at large. The same view has
been reiterated in the case of Al-Jehad Trust v. Federation of Pakistan (PLD
1997 SC 84), Muhammad Nadeem Arif v. Inspector General of Police, Punjab (2011
SCMR 408) and All Pakistan Newspapers Society v. Federation of Pakistan (PLD
2012 SC 1).
56. On having discussed hereinabove and before identifying
void parts of certain provisions of the Federal and the Provincial Service
Tribunal Acts, it is observed that under Article 8 of the Constitution, any
law, inconsistent with the rights conferred by the said Chapter, shall, to the
extent of such inconsistency, be void.
57. This Court in exercise of judicial review, time and
again has maintained that violation of Article 8 casts a duty/obligation upon
this Court to declare any such law to be void. In the case of Baz Muhammad
Kakar v. Federation of Pakistan (PLD 2012 SC 923) it has been held as
under: -
“14. The apprehensions expressed by the learned counsel
for the Federation are unfounded.
However, if an act of contempt of Court persists and no
prompt action is taken, the court loses its authority and all its decisions and
the judgments will be considered mere paper decrees, therefore, to maintain its
dignity and respect and to restore the confidence of the citizens in the
supremacy of the Constitution and the rule of law, as a last resort,
proceedings for contempt of Court are initiated.”
Reference may also be made to the cases of Mrs. Benazir
Bhutto v. Federation of Pakistan (PLD 1988 SC 66), Government of
Balochistan v. Azizullah Memon (PLD 1993 SC 341), Muhammad
Mubeen-us-Salam v. Federation of
58. On having discussed the cases supra it is concluded
that Service Tribunals (Federal and Provincial) falling in the category of
Court capable to exercise judicial powers are bound to follow the principal of
independence judiciary for the purpose of ensuring enforcement of fundamental
rights of access to justice under Article 9 of the Constitution, thus, are
required to be separated from the Executive under Article 175(3) of the
Constitution. These listed constitutional objects ought to have been redressed
by the Legislature in making suitable amendments in the law governing the
Tribunals and the rules framed thereunder to the extent as noted hereinabove,
any of the provisions of the law contrary to the fundamental and constitutional
provisions if any.
59. To make the Chairman and the Members of the Service
Tribunal independent, it is necessary to make their appointment with the
meaningful consultation of the Chief Justice i.e. for the purpose of Federal
Service Tribunal, with the Chief Justice of Pakistan and for Provincial Service
Tribunals, with the Chief Justice of the respective High Court. It is to be
noted that compliance of such condition seems to be necessary, because if the
Chairman has to be appointed amongst the sitting Judges of a High Court,
without consent of the Chief Justice, judicially and administratively, no Judge
of the High Court can relinquish the post of Judge of High Court without the
approval of the concerned Chief Justice as he has to discharge his function as
a Judge of High Court under the administrative control of the Chief Justice.
Similarly, a person qualified to be the Judge of High
Court, either a District Judge or an advocate, has to be appointed with the
meaningful consultation of the Chief Justice of the High Court because the
District Judge, if is allowed to hold the charge of Provincial Service
Tribunal, can only be released, if permission is granted by the Chief Justice.
As far as the appointment of an advocate who is qualified to be the Chairman of
a Tribunal or the Member is concerned, his performance or capability can only
be evaluated during the period when he had been practicing law because a person
who had obtained enrollment but had never appeared before the High Court or
Supreme Court cannotclaim to have legal experience.
60. As far as a sitting Judge of the High Court acting as
Chairman of the tribunal is concerned, there is no difficulty in determining
the tenure during which he shall hold the charge in addition to his own
functions, simultaneously performing as a Judge of the High Court and the
Chairman of the Tribunal. Preferably, it would be appropriate and in the
interest of institution if a sitting Judge is not asked to perform his duties
as Chairman of a Federal or Provincial Service Tribunals. However, appointments
for the position of Chairman can conveniently be made from amongst the Judges
who had been a Judge of the High Court. If a retired Judge of the High Court is
to be appointed as Chairman of the Tribunal, selection should be made in
consultation with the Chief Justice of the High Court in the case of a
Provincial Service Tribunal and in consultation with the Chief Justice of
Pakistan in the case of Federal Service Tribunal, who may nominate a retired
Judge. The tenure of such incumbent should not be for a period of more than
three years for one time only. By adopting these measures, the object of
ensuring the principle of independence of judiciary and also enforcement of the
right of access to justice could be achieved, otherwise such Hon’ble retired
Judges would try their best to continue to hold such post for an indefinite
period against the principle of independence of judiciary, which also speaks
about the tenure of such post. Reference in this behalf may also be made to the
notification No. F.38(1)/2012-A.II, dated 03.09.2012, whereby the incumbent
Chairman of Federal Service Tribunal, Mr. Justice (R) Abdul Ghani Shaikh, was
appointed contrary to the rules, for an indefinite period, as a Chairman,
whereas, the Federal Service Tribunal Chairman and Members Service Rules, 1983,
provide that a Chairman shall not continue to hold office for a period over
three years at a time.
However, when the petitioner and his counsel objected on
issuance of such a notification by filing a Civil Miscellanies Application,
then the same was rectified and a fresh notification has been issued on
22.09.2012. It may not be out of context to point out that the incumbent
Chairman had been holding the same position earlier for the period of three years
from 05.06.2009 to 04.06.2012. Prior to it, he had remained as Chairman, Sindh
Service Tribunal w.e.f. 11.11.2000. Had the Chief Justice of Province or the
Chief Justice of Pakistan been consulted, they would have advised to nominate
someone else for the purpose of said appointment. Therefore, the Executive
cannot be allowed to interfere in the process of appointment of such important
functionaries of Tribunals i.e. Chairman, who is required to be appointed
independently because while discharging its functions the tribunal does not act
as an executive body rather performs judicial functions. If such a
body/tribunal is not in a position to enforce Fundamental Rights, including the
right to have access to justice because of the reason that when the appointments
have to be made, they remain at the mercy of the executive, which is itself a
litigant party in most of the cases before the Tribunal, and no hope can be
pinned on such a tribunal to discharge its functions independently.
61. As far as the Members of the Tribunal are concerned,
except in few cases i.e. in the
Sr.No. Name of the Tribunal Chairman Members
1. Federal Service Tribunal Retired Judge of the High Court
Four
retired government servants;
Two
Advocates and
Two retired
District Judges.
2.
All the six Members are
retired government servants
3. Sindh Service Tribunal Retired
Judge of the High Court
One
retired government servants; and
One
retired Addl. District Judges.
4. KPK Service Tribunal Serving District Judge All the four Members are Serving government
servants
5. Balochistan Service
Tribunal Advocate One retired government servants; and
One
District Judge.
62. The above table shows that in the case of Sindh,
Punjab and KPK, retired government officers have been appointed as Members of
the Tribunals because there is no restriction in the law for the appointment of
any person notwithstanding whether he has reached the age of superannuation as
a government servant or not, therefore, efforts are made at the Federal and the
provincial level to accommodate retired officers including civil servants or
the servants belonging to disciplinary forces like police department etc. The
record, if collected, would reveal no dearth persons who were appointed as
Members of the Tribunal with no judicial experience.
63. We are conscious of the fact that there are civil
servants who are quite capable of performing their functions independently
without being influenced by any of their seniors amongst the Executive,
however, the selection of Members has to be made in consultation with the Chief
Justice, on having gone through the credentials of nominees and by also giving
preference to those, who have a legal background and had not reached the age of
superannuation with their tenure, which is to be restricted to a one time
tenure not more than a period of three years or till the date of
superannuation, whichever is earlier.
64. In the
65. It is to be observed that the Chairman would also be
facilitated by the presence of a combination of judicial officers i.e. District
Judge/Advocate and the civil servants to constitute the Bench. In such a
situation, with reference to the disputes of civil servants, both can give
their input on the judicial and executive sides, which would improve the
quality of the decision making and the judgments pronounced and strengthen the
independence of judiciary in its role of enforcing the Fundamental Right of
access to justice.
66. It is also to be observed that where District Judges
or incumbent civil servants are not available for appointment, the Executive
with the consultation of the respective Chief Justice may appoint Advocates
qualified for appointment as a Judge of the High Court, either as a Member or
the Chairman, as the case may be.
Reference in this behalf has already been made to the
incumbent Chairman of the Balochistan Service Tribunal, who was an Advocate,
qualified to be appointed as a Judge of the High Court. Similarly, the KPK
Service Tribunal is presently headed by a sitting District & Sessions
Judge.
67. It has already been discussed hereinabove that the
Service Tribunal performs ‘judicial functions’ in exercise of ‘judicial powers’
conferred upon it by the Legislature and therefore, enjoys status of a ‘Court’
and is required to be separated from the Executive in terms of Article 175(3)
of the Constitution; however, no steps have been taken in this behalf by making
suitable amendments in the Service Tribunals Acts, because existing provisions
of the law relating to the appointment of Chairman and Members of the Service
Tribunals do not provide for consultation of the Chief Justice and ensure that
they (Chairman and the Members) should act independently following the
principle of independence of judiciary, especially since their role is in
substitution of the highest constitutional body i.e. High Court. And the
Tribunal, as judicial fora, must enforce the Fundamental Right of access to
justice and they should also enjoy financial autonomy as has been given to the
High Courts and the Supreme Court. Reference in this behalf may be made the
case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105), relevant
Para therefrom is reproduced hereinbelow:-
“In our opinion, financial independence of the judiciary can
be secured if the funds allocated to the Supreme Court and High Courts (by the
Parliament and the Provincial Assemblies in their respective annual budgets)
are allowed to be disbursed within the limits of the sanctioned budget by the
respective Chief Justices of these Courts without any interference by the
Executive (in practical terms without reference and seeking the approval of the
Ministry of Finance/the Provincial Finance Department). Thus, the Chief Justice
would be competent to make reappropriation of the amounts from one head to
another, create new posts, abolish old posts or change their nomenclature and
to upgrade or downgrade etc. as per requirements of their respective Courts and
this should be possible, as has been observed earlier, without being obliged to
seek the approval of the Ministry of Finance or the Provincial Finance
Departments as the case may be, provided of course the expenditure that is
incurred by them falls within the limits of the budget allocation for their
Courts. To ensure financial discipline, an Accounts Officer of the Accountant
General may sit in all Courts for pre-audit and issue of cheques. In this way,
the control of the executive over the judiciary in this important sphere will
be eliminated and the judiciary enabled to function independently.”
68. In view of the above discussion, the following
provisions of STA, 1973; PSTA, 1974; SSTA, 1973; NSTA, 1974 and BSTA, 1974, to
the extent reproduced hereinbelow, are void and unconstitutional being in
derogation of Article 2A and 9 read with Article 175 of the Constitution: -
Service Tribunals Act, 1973 (Federal)
Section 3(1):
The President may, by notification in the official
Gazette, establish one or more Service Tribunals and, where there are
established more than one Tribunal, the President shall specify in the
notification the class or classes of civil servants In respect of whom, or the
territorial limits within which, or the class or classes of cases in respect of
which, each such Tribunal shall exercise jurisdiction under this Act.
Section 3(3):
A Tribunal shall consist of—
(a) a Chairman, being a person who is, or has been, or is
qualified to be Judge of a High Court.
Section 3(3)(b):
Such number of members not exceeding three, each of whom
is a person who possesses such qualifications as may be prescribed by rules, as
the President may from time to time appoint.
Section 3(4):
The Chairman and members of a Tribunal shall be appointed
by the President on such terms and conditions as he may determine.
Section 3(7):
Notwithstanding anything contained in sub-section (3),
sub-section (4), sub-section (5) or sub-section (6), a Tribunal established to
exercise jurisdiction in respect of a specified class or classes of cases may
consist of one or more persons in the service of
Service Tribunals (Qualifications of Members) Rules, 1974
Rule 2:
A member of the Tribunal shall be a person who has for a
period of or for periods aggregating not less than 20 years held an appointment
or post in the Service of Pakistan, or in a Corporation or other body set up by
Government or who, for the said period, has been an advocate or legal practitioner.
Federal Service Tribunal Chairman and Members Service
Rules, 1983
Rule 1:
The Chairman and members shall hold office at the pleasure
of the President, for such tenure, which may normally be for three years
extendable by a further period not exceeding three years, as may be determined
by the President.
Similarly, Section 3(3)(b) of the Sindh Service Tribunals
Act, 1973, Section 3(3)(b) of the KPK Service Tribunals Act, 1974 and Section
3(3)(b) of the Balochistan Service Tribunals Act, 1974 are
also declared to be ultra vires to the Constitution of the Islamic
Republic of Pakistan, 1973.
69. It is to be noted that while constituting a Bench, the
Chairman shall preferably constitute each bench comprising one Judicial/legal
Member and one Member from civil service. However, where a single Member Bench
is to be constituted, preference should be given to the Judicial Member to hold
the hearing.
70. The Service Tribunals Acts do not contain any specific
provision providing for the financial autonomy of the Tribunals. Thus, on this
score as well, the Service Tribunals cannot discharge their functions
independently. The Tribunals must be duly empowered to disburse their annual
funds, allocated by the Parliament and the Provincial Assemblies, in their
respective annual budgets, within the prescribed limit by the Chairman of the
respective Tribunals, without the need to seek approval of the Finance Ministry
or provincial Finance Department.
71. The Service Tribunals both Federal and Provincial
perform vital judicial functions by adjudicating upon issues pertaining to the
terms and conditions of Civil Servants, therefore, it is imperative that
appropriate legislation action be taken post-haste. Consequently, to avoid
denial of access to justice to them, the Federal and the Provincial Governments
through their respective Law Secretaries are hereby allowed 30 days’ time to give
effect to the above conclusions/findings and implement this judgment forthwith
by making fresh appointments of Chairmen/Members of the Tribunals, following
the observations made hereinabove. If no steps are taken within the stipulated
time, either through temporary or permanent legislation, the provisions of the
legislation which have been declared void under Article 8 of the Constitution
shall seize to have effect. As a consequence whereof, the incumbent
Chairman/Members of the Tribunals, whose cases are not covered under the
above-said proposed provisions, shall also seize to hold said positions, as the
case may be. Similarly, independent budgetary allocation for annual
expenditures of the Service Tribunals shall be provided for in accordance with
the Constitution, enabling the Tribunals to function independently.
72. The petitions are disposed of in the above terms. No
order as to costs.
Chief Justice
Judge
Judge
Announced in
Chief
Justice
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