2011 PLC (C.S.) 78
[Quetta High Court]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
MUHAMMAD ALI SATAKZAI and others
Versus
APPOINTING AUTHORITY OF THE ADDITIONAL DISTRICT AND SESSIONS
JUDGES and others
Constitutional P etitions Nos.803 of 2009 and 8 of 2010, decided on 4th March, 2010.
(a) Balochistan Additional District and Sessions Judges Service Rules, 2002 ---
----Rr. 4 & 5 -Constitution of Pakistan, Arts.175 & 199 ---Constitutional petition ---
Appointment of Additio nal District and Sessions Judges ---Authority to appoint ---
Balochistan Public Service Commission invited applications for appointment of
Additional District and Sessions Judges through a letter issued by Registrar, High Court --
Petitioners who were serving o n ad hoc basis as Additional District and Sessions Judges
had challenged the jurisdiction of Balochistan Public Service Commission ---Contention
of the petitioners was that Balochistan Public Service Commission had. no authority to
invite applications, cond uct test and interviews and to recommend for appointment of
Judicial Officers ---According to the petitioners, power given to the Commission under
R.5 of the Balochistan Additional District and Sessions Judges Service Rules, 2002, was
contrary to the provis ions of Art.175 of the Constitution ---Petitioners had also prayed for
regularization of their ad hoc appointment ---Validity ---Public Service Commission, being
under the control and influence of Government, appointment of Judicial Officers through
the Commi ssion would not ensure complete independence of the Judiciary from the
Executive ---Even otherwise, appearance before the Public Service Commission, would
amount to degrading the post and status of the Judicial Officers, which should otherwise
require to be protected ---Such could only be done,. if they were called only to appear
before the sitting Judges of the High Court, which would ensure the prestige and honour
of the judicial post, as well ---Under Art.175 of the Constitution, supervision and control
over the Subordinate Judicial Officer's by the Balochistan Public Service Commission
were contrary to provisions of the Constitution; and also in negation of settled law ---
Balochistan Public Service Commission had. no authority to appoint such officers ---
Letter sent by Registrar High Court for appointment of Additional District and Sessions
Judges to Balochistan Public Service Commission was of no legal effect ---Petitioners
requested for regularization of their ad hoc appointment ---No rule existed which could
entitle an ad hoc appointee to be confirmed against regular post ---Ad hoc appointment did
not confer on the petitioners any right or interest to continuous appointments, seniority or
promotion under the law ---Order accordingly.
(b) Civil service ---
----Ad hoc appointment ---Regularization ---Scope ---Ad 'hoc appointment does not confer any
right on the appointee for continuous appointment, seniority or promotion under law ---No
rule existed which could entitle the ad hoc appointee to be confirmed against regular post.
PLD 1994 SC 105; 2009 PLC (C.S.) 841; 1987 SCMR 16'7; PLD 2003 SC 420; 2003
SCMR 1269 and 2005 PLC (C.S.) 1085 ref.
Hadi Shakil Ahmed, Muhammad Aslam Chishti, Muhammad Qahir Shah, Shah
Muhammad Jatoi and Amanullah Kanrani for Petitioner s.
Tariq Ali Tahir, Addl. A. -G. along with Niaz Muhammad Kakar, Deputy Director, BPSC
for Respondents.
Date of hearing: 23rd February, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J. ---These Constitutional Petitions are being disposed
of through common judgment.
2. Precisely stated facts of the case are that the Balochistan Public Service Commission
has invited applications for appointment of Additional District and Sessions Judges (BPS -
20) through a letter No.3816/120 -ESTT, dated 19th December, 2009, issued by the
Registrar, High Court of Balochistan, Quetta, on behalf of respondent No.1. The
petitioners have challenged the jurisdiction of Balochistan Public Service Commission, as
well as, the above cited letter.
3. Learned counsels for the petitione rs have stated that, the Balochistan. Public Service
Commission has no authority to invite applications, conduct test and interviews, and
recommend for appointment of Judicial Officers. According to them, power, given to the
Commission under Rule 5 of the Balochistan Additional District and Sessions Judges
Service Rules, 2002, is contrary to the provisions of Article 175 of the Constitution of
Islamic Republic of Pakistan and also contrary to the judgment in the case, Sharaf Faridi
v. Government of Sindh re ported in PLD 1994 SC 105, as well as, 2009 PLC (C.S.) 841
Karachi High Court: According to them, in the revised National Judicial Policy, all the
High Courts have been advised to follow the dictum laid down in the said case, whereby
mechanism has to be fo rmed by High Courts for appointment of Judicial Officers.
In addition to challenging the authority of the Commission, the petitioners have prayed
for regularization of their ad hoc appointments on the ground that, earlier, a number of
Judicial Officers, appointed on ad hoc basis, were regularized, as such, they requested for
alike treatment. It is also contended that since they are working w.e.f. August, 2006,
therefore, the competent authority, be directed to regularize their services by relaxing the
rules. Furthermore, the cases of petitioners were twice sent to the Government for
regularization of their services by respondent No. 1, but of no avail.
4. Learned Additional Advocate -General appearing on behalf of respondents has
contested the petition an d submitted that, the Balochistan Additional District and Sessions
Judges and District and Sessions Judges Rules, 1980, has been amended in the year 2002,
whereby, the honourable Chief Justice of High Court has been declared as appointing
authority as such appointment of Judicial Officers are subject to his approval.
Furthermore, the case -law, referred to above, is not applicable in the present case. He has
further submitted that, until rules are amended, the appointment must be made in
accordance with thes e- rules, wherein, the Balochistan Public Service Commission has
got ample jurisdiction to initiate and complete the process of appointment.
5. We have heard learned counsel for the parties and have perused the record, as well.
Through in both the petiti ons, jurisdiction of the Balochistan Public Service Commission
has been challenged on the touchstone of Article 175 of the Constitution of Islamic
Republic of Pakistan supported by Sharaf Faridi's case. Through Notification dated the
15th November, 2002, t he Government of Balochistan was pleased to enact the
Balochistan Additional District and Sessions Judges and District and Sessions Judges
Service Rules, 2002, relevant provisions of which are reproduced as hereinbelow: ---
2. Definitions .-- In these rule s, unless the context otherwise requires the following
shall have the meaning whereby respectively assigned to them that is to say: ---
(a) "Commission" means the Balochistan Public Service Commission.
(b) "Chief Justice" means the Chief Justice of the High Court of Balochistan.
(c) "Government" means the Government of Balochistan.
(d) "High Court" means the High Court of Balochistan.
3. Constitution of the services .--- The Service shall comprise the posts of District and
Sessions Judges and Addit ional District and Sessions Judges.
4. Appointing Authority .--- Appointment to the Service shall be made by Chief
Justice.
5. Method of recruitment .--- Appointment to the posts of Additional Sessions Judges
shall be made: ---
(a) by initial recruitmen t against 50% of the posts on the recommendation of the
Commission with the association of Chief Justice or his nominee.
(b) by promotion against 40% of the posts on the recommendation of the Promotion
Committee by the Chief Justice from amongst the Seni or Civil Judges on the
basis of seniority -cum-fitness.
(c) by transfer against the remaining 10% of the posts from the officers belonging to
Central and Provincial Government by the Chief Justice:
Provided that if no suitable officers are available by transfer, the appointment against
the reserved quota as mentioned in clause (c) may be made by promotion of the
recommendation of the Promotion Committee by the Chief Justice from amongst the
Senior Civil Judges.
(2) …………………………….
(3) In case of adho c appointment the Chief Justice shall advertise the posts, invite
applications and after selecting suitable candidate, make appointment on adhoc basis.
(6) Age.
(7) Qualification and experience.
(8) Probation .--"- (1)
(2) ……………………………………………………..
(4) ……………………………………………………..
(5) ……………………………………………………..
(9) Seniority.
(10) Liability to transfer and serve.
(11) General Rules.
(12) Relaxation .--- Any of these rules may, for the reasons to be recorded in writing,
be relaxed in individual ca ses, if Chief .Justice High Court is satisfied that a strict
application of these rules would cause undue hardship to the individual concerned.
(13) Repeal .--- The Balochistan Additional District and Sessions Judges and District
and Sessions Judges Servi ce Rules, 1980 are hereby repealed.
By order of Governor of Balochistan.
Chief Secretary,
Government of Balochistan
From perusal of above -quoted Rules, it transpires that an apparent attempt was made in
the year 2002 to ensure independence of Judiciary from Executive and Legislature by
repealing the 1980 Rules by designating the Chief Justice of High Court as the
Appointing Authority instead of the Government.
175. Establishment and jurisdiction of Courts .--- (1) There shall be a Supreme
Court of Paki stan, a High Court for each Province and such other Courts as may
be established by law.
(2) No Court shall have any jurisdiction save as - is or may be - conferred on it by
the Constitution or by or under any law.
(3) The Judiciary shall be separated p rogressively from .the Executive within
[fourteen] years from the commencing day.
Through sub -Article (3) of Article 175 of the Constitution, it was the intention of our
Legislature to secure independence of judiciary by separating it from Executive,
progressively, by the deadline of 14th August, 1987, but unfortunately, this provision of
the Constitution was not complied with. The Members of legal fraternity from Pakistan
Bar Council, therefore, filed petitions before the Sindh High Court and sought issu ance of
appropriate directions against the Provincial Government for implementation of the
mandate of the Constitution. While accepting the petition, the High Court issued
following directions to the Government: --
"(i)…………………………………………….
(ii) That ne cessary notification under sub -Rule (2) of Rule 2 of the Sindh Civil
Servants (Efficiency and Discipline) Rules, 1978 and Rule 4 of the Sindh Civil
Servants (Appointment, Promotion and Transfer) Rules, 1974, be issued to notify
the High Court as the author ity within the period of sixty days.
(iii)…………………………………………….
(iv)…………………………………………….
The aforesaid judgment of the Sindh .High Court was assailed by Government of Sindh,
through its Chief Secretary, before the honourable Supreme Court of Pakistan, w hich was
pleased to uphold the same, with further directions to the Federal, as well as, Provincial
Governments for implementation. In pursuance of said judgment, the Government of
Sindh made amendments in the year 1994, in the Sindh Judicial Service Rules . It is
noteworthy that after introduction of the Rules, initial appointment, on the posts of
Judicial Officers from 'Subordinate Judiciary to the High Court, was to be undertaken by
the Provincial Selection Board, which is defined under Rule 2(e) as under :---
"Provincial Judicial Selection Board means the Administrative Committee of the
High Court or a Committee of not less -than three High Court Judges, specially
constituted for the purposes of these rules by the full Court."
Similarly, in the Province of Punjab, the posts of Judicial Officers are to be filled up on
the recommendation of the Provincial Judicial Selection Board, which is defined under
Rule, 2(e) of the Punjab Additional District and Sessions Judges and District and Sessions
Judges Servic e Rules as under: ---
"Provincial Judicial Selection Board means Administrative Committee of High
Court or a Board comprising such number of Judges of the High Court as may be
nominated by the Administrative Committee."
In Balochistan, though in the, Ru les 2002, Appointing Authority, i.e. Government of
Balochistan has now' been replaced by Chief Justice of High Court, but the selection of
Judicial Officer is still to be made through the Balochistan Public Service Commission.
Under Article 242 of the Cons titution, the Provincial Government is empowered for the
Establishment and Constitution of "Provincial Public Service Commission", to nominate
its Chairman and Members with a fixed timeframe to hold such office, thus, in reality, the
Commission is part of the Executive ' setup of the Province. The Provincial High Court
has no role in the constitution of such Commission, nor any sitting Judge can be its
Chairman or a Member. It means that the Commission is under the control and influence
of Government. Thus, the appointment of Judicial Officers through Balochistan Public
Service Commission will not ensure complete independence of the Judiciary from the
Executive.
It is observed that, the guideline given in sub -Article (3) of Article 175 of the
Constitution, and as interpreted by Sindh High Court upheld by the honourable Supreme
Court of Pakistan, through above -stated judgment, has been followed by the Provincial
Government for substituting the Public Service Commission by Judicial Commission,
whereas, it is Constitutional obligation of the Government of Balochistan to follow the
judgment of the honourable Supreme Court of Pakistan in its later and spirit.
It is an admitted fact that no step has been taken by the Government for separation of
Judiciary from E xecutive, therefore, the National Judicial (Policy Making) Committee has
rightly observed as under: ---
National Judicial Policy
A. Independence Of Judiciary. --- (1)
(2)…………………………………………….
(3) As regards, filling of vacant posts of Judicial Office rs, the High Courts should
make necessary amendments in the relevant recruitments rules enabling the High
Court to conduct test/interview for recruitment of Judicial Officers in the light of
principles set forth in the judgment passed by Sindh High Court i n C.P. No.D -
2404 of 2008 (Rasheed A. Rizvi and others v. Province. of Sindh and others).
It is important to mention here that in the Province of Sindh, the appointments of Judicial
officers were to be made through Provincial Selection Board, but Governme nt of Sindh,
Services and General Administration. Department, vide notification dated the 4th
December, 2004, made amendment in the Sindh Judicial Service Rules, 1994, whereby,
the Provincial Selection Board was substituted by Sindh Public Service Commissi on.
Feeling aggrieved from said notification, the Sindh High Court Bar Association, through
its President, Mr. Rasheed A. Rizvi, and Sindh Bar Council, through its Chairman
Executive Committee, Mr. Abdul Haleem Siddique, filed Constitutional petitions be fore
Karachi " High Court on the ground that, the impugned notification is not only contrary to
the provisions of Article 175 of the Constitution of Islamic Republic of Pakistan, but it
also violates the judgment of Sindh High Court in Sharaf Faridi's case referred to above.
The High Court of Sindh, while accepting both the petitions, set aside the impugned
Notification and held as under:
"(93) At the cost of repetition, when we again looked at the impact of impugned
notification over the Sindh Judicial R ules, 1994, we find that in a crude manner, it
is cutting at the very root of the concept of separation of power and independence
of Judiciary. on one hand, by addition of sub -Rule (aa) to Rule 2, in it introduces a
new constitution "Commission" (S.P.S.C.) , which is otherwise an alien to the rules
and on the other hand, by amendment in Rule 5, it completely ousts the role of
Provincial Selection Board and makes the Highest of the Province simply an
Institution that can only furnish requisition for new appoi ntments/recruitments of
Civil Judges and Judicial Magistrates, with no further role to play at any stage of
such exercise.
(94) The doctrine of separation of Judiciary from Executive and its independence'
is not only be gauged on the yardstick of relevan t Constitutional provisions and
the case -law laid down by the Superior Courts, but also from the public
prospective, that places genuine expectations upon us in this regard. Judiciary to
be independent and appear to be independent is of utmost importance s o that
people have faith and confidence in the Judges and for that matter also in the
Institution that has been entrusted the task of their appointment. If the recruitment/
appointment of Judicial Officer is entrusted to the Executive or to a body alien to
Judiciary, then, a huge question mark is placed on the whole process."
Through above judgments, it has now been settled that the initial appointment/recruitment
of Judicial Officers is integral part of the High Court, therefore, the process of
appointme nt has to be fair, transparent and above all, should not be influenced by the
Executive. The appointment of said Officers by the sitting Judges would ensure Selection
of professional lawyers, who are regularly appearing before concerned High Court and
subo rdinate Courts, where their skills, ability, competency and dignity are always under
scrutiny. Thus, the sitting Judges are the best choice to undertake the exercise for the
appointment/recruitment of Judicial Officers.
Without prejudice to above, even o therwise, in our view, appearance before the Public
Service Commission, amounts to degrading the post and status of the Judicial Officers,
which should otherwise require to be protected. This can only be done, if they are called
only to appear before the s itting Judges of the High Court which will ensure the prestige
and honour of the judicial post, as well.
Keeping in view the above discussion and ratio of the cited judgment we are inclined to
hold that under Article 175 of the Constitution, supervision' and control over the
Subordinate Judiciary vests in the High Court with administrative power and. disciplinary
jurisdiction over the Subordinate Judicial Officers. In such view of the matters the power
of appointment of such officers must divert to the do main and supervision of the High
Court. Hence, the selection/ appointment of Judicial Officers by the Balochistan Public
Service Commission is contrary to provisions of the Constitution and also, in negation of
the judgments of the superior Courts referred to above. The Balochistan Public Service
Commission has no authority to appoint such officers, therefore, letter dated 19th
December, 2009, sent by respondent No.1, for appointment of Additional District and
Sessions Judges to Balochistan Public Service C ommission is of no legal effect.
Now adverting to the request of petitioners for regularization of their adhoc appointment,
it is to be noted that, they were appointed by respondent No.1 by exercising powers under
sub-Rule (3) of Rule 5 of the Balochista n Additional District and Sessions Judges and
District and Sessions Judges Service Rules, 2002. It is an admitted fact that, in the said
rules, there are two methods of recruitment, one initial/regular recruitment, through
process of Balochistan Public Ser vice Commission, and the other is ad hoc
appointment/recruitment, directly through the High Court. The petitioners were appointed
through Notification dated 7th August, 2006, with certain conditions, extract of which is
reproduced as under: ---
"On the re commendation of the Selection Committee of honourable Judges of this
Court and in exercise of powers of conferred upon him under Rule 4 of
Balochistan Additional District and Sessions Judges and District and Sessions
Judges Service Rules, 2002, the honoura ble Chief Justice High Court of
Balochistan has been pleased to appoint the following Additional District and
Sessions Judges (B -19) on ad hoc basis for a period of six months or till the
regular selection is done by the Balochistan Public Service Commissi on whichever
is earlier.
(2) This order will not confer upon them any right for permanent absorption as
Additional District and Sessions Judge or claim to seniority, until they have
undergone the procedure as laid down under the Balochistan Additional Di strict
and Sessions Judges and District and Sessions Judges Service Rules 2002.
(3)…………………………………………….
By order of the Chief Justice
Registrar:"
Nature of above Notification clearly proves the fact that, the petitioners were appointed
without adheri ng to the procedure for appointment of regular Judicial Officers in
accordance with the provision of the Rule 5, and their regularization was subject to the
regular selection by the Balochistan Public Service Commission. The petitioners were
appointed purs uant to the said Notification, they are, therefore, bound by its terms and
conditions.
Admittedly, such appointments were made otherwise than by the prescribed method of
recruitment, till fresh recruitment by the Commission is made, thus, they were appoi nted
for a particular object and for a particular period. In such view of the matter, there is no
rule, which can entitle an ad hoc appointee to be confirmed against regular vacancy. It is
to be noted that, the competent authority, while appointing the pet itioners on ad hoc basis,
has not followed the Zonal allocation in accordance with the Government of Balochistan
Recruitment Policy of 1991, because ad hoc appointment does not require such condition,
whereas, for regular appointment, the policy has to be followed, therefore, it is an
irregular appointment.
As regards the contention of counsel for petitioners that, earlier, some other Judicial
Officers were also appointed on adhoc basis, but later on, their services were regularized,
therefore, the petiti oners are entitled for same treatment. We have gone through the
Notifications with regard to the said appointment and the same reveal that, all these were
issued prior to the promulgation of the 2002 Rules. It is pertinent to mention here that
before the e xisting Rules, the Appointing Authority was Government of Balochistan,
who, by exercising its power, had regularized services of those incumbents. Even
otherwise, since those notifications are not under our scrutiny, hence, we cannot comment
upon them, the refore, those are of no help to the petitioners. In present Rules, the
Appointing Authority is Chief Justice of High Court, who has not confirmed services of
any of the adhoc appointees, therefore, there is no question of discrimination.
As far as the co ntention of counsel for petitioners that they have served for more than
three and half years is concerned, as has already been stated that their appointments were
irregular and above all, there is no provision in the Rules to regularize ad hoes,
appointees , therefore, they cannot claim to be permanent incumbents of the offices of
Additional District and Sessions Judges by mere efflux of time.
Furthermore, adhoc appointments did not confer on the petitioners any right or interest to
continuous appointment s, seniority or E promotion under the law, that is why, it has,
specifically, been stated in the Notifications, hence, their services could be dispensed
with at any moment without assigning any reason or the Appointing Authority may not
extend their tenure , because such appointment is altogether different from that of
appointment on probation. Therefore, status of the petitioners could not be changed unless
regularized legally by adopting the prescribed procedure/method, as such, request so
made has no lega l footing and same is declined. Reliance is also placed on the following
judgments: ---
1987 SCMR 167, PLD 2003 SC 420, 2003 SCMR 1269 and 2005 PLC (C.S.)
1085.
We accordingly issue the following directions: ---
(a) That the Government of Balochistan s hall make necessary amendments in the
relevant recruitment rules of Balochistan Additional District and Sessions Judges
and District and Sessions Judges Service Rules, 2002, within sixty (60) days,
enabling the High Court to conduct tests/interviews for re cruitment of Judicial
Officers through a Commission, comprising of the Administrative Committee of
High Court, or a Committee of three or more Judges, constituted by the
Administrative Committee.
(b) Similarly, the Government of Balochistan shall make ne cessary amendments in
the relevant recruitment rules of Balochistan Civil Judges/Judicial Magistrates
Service Rules, 2002, within sixty (60) days, enabling the High Court to conduct
tests/interviews for recruitment of Judicial Officers through a Commission ,
comprising of the Administrative Committee of High Court, or a Committee of
three or more Judges, constituted by the Administrative Committee.
(c) Further, the Government of Balochistan shall make necessary amendments in the
relevant recruitment rules of Balochistan Qazis and Member Majlis -e-Shoora
Service Rules, 2002, within sixty (60) days, enabling the High Court to conduct
tests/interviews for recruitment of Judicial Officers through a Commission,
comprising of the Administrative Committee of High C ourt, or a Committee of
three or more Judges, constituted by the Administrative Committee.
(d) The Balochistan Public Service Commission is, permanently, restrained from
conducting any tests/interviews regarding any post of Judicial Officers in future.
After aforesaid amendments in the Rules are made, if the Commission of High Court
invites applications for appointment of Judicial Officers, the petitioners will be at liberty
to appear before the same for regular appointment, according to the prescribed method.
This judgment will, however, not affect the candidature of those Judicial Officers, who
have already appeared in tests, conducted by Balochistan Public Service Commission
which process should be completed as early as possible.
H.B.T./86/Q Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.