2023 P L C (C.S.) 348
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD ISMAIL MUHAMMAD SHAI
Versus
HON'BLE CHIEF JUSTICE BALOCHISTAN, through Registrar and others
C.Ps. Nos.967 to 969 of 2018, decided on 31st March, 2021.
Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989) ---
----S.5(b)(1) ---Constitution of Pakistan, Art.199 ---Constitutional petition ---Maintainability ---
Petitioners were from subordinate judiciary who assailed ord er passed by High Court with
regard to their promotions ---Validity ---Judicial orders of Supreme Court and High Court on
jurisprudential plan were already protected from exercise of Constitutional jurisdiction ---
Subject to provisions of Art.199(5) of the Co nstitution, it was only the administrative /
executive or consultative functions / orders and acts which in fact had been protected under
Art.199 of the Constitution --- High Court could not be deemed to be conferred with two
distinct characters, i.e. one j udicial which was immune from writ, and the other
administrative which was amenable to writ --- Petitioners assailed ante dated promotion and
seniority to that of respondents which could not be entertained while exercising
Constitutional jurisdiction under Art.199 of the Constitution ---High Court had already
expressed its view in respect of petitioners and could not revisit its own view in subsequent
proceedings in petition under Art. 199 of the Constitution --- Constitutional petition was
dismissed in circum stances.
Asif Saeed v. Registrar Lahore High Court and others PLD 1999 Lah. 350; Al -Jehad
Trust v. Federation of Pakistan PLD 1996 SC 324; Mehmood Khan Achakzai v. Federation
of Pakistan PLD 1997 SC 426; Shahid Nabi Malik v Chief Election Commissioner PL D 1997
SC 32; Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010
SCMR 632; Ch. Muhammad Akram v. Registrar, Islamabad High Court and others PLD
2016 SC 961 and Gul Taiz Khan Marwat v. Registrar Peshawar High Court PLD 2021 SC
391 ref.
Azmatullah Kasi and Ishaq George for Petitioner.
Khalil -uz-Zaman Alizai, Additional Advocate General for Respondents.
Date of hearing: 10th March, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----By means of this common
judgment, we propo se to dispose of the Constitutional Petitions Nos. 967, 968 and 969 of
2018, as common question of law and facts are involved in these petitions.
2. These Constitutional petitions are preferred by the petitioner with the averments that
he was inducted in j udicial service on 09th December 1999 and remained posted at different
stations of the province; that on 14th March 2011, some of the judicial officers including the
respondents Nos. 2 to 11 were promoted and consequently Shazia Shabir and Barakat
Marghaza ni, were also promoted by superseding the petitioner; whereby the petitioner made
representation and thereafter filed service appeals before the Balochistan Sub -ordinate
Judiciary Service Tribunal, Quetta, but his Appeals Nos. 03 and 15 of 2011 and 01 of 2 015
were dismissed vide judgment dated 13th June 2015; that the petitioner approached the
Hon'ble Supreme Court by filing Civil Petitions, which were also dismissed, but with certain
observations and permitting the petitioner to approach this court by way of filing a
Constitutional petition, 'if the merit of petitioner was not considered in its correct
perspective'.
2. Learned counsel for the petitioner inter alia contended that at the time of promotion
the case of the petitioner was not considered properly and he was superseded, however, no
reason for deferring or superseding the appellants' promotion was communicated to him, nor
any reason was assigned in the minutes of meeting; that there is/was no allegation of legal or
moral misconduct against the petit ioner, nor any adverse remarks are/were available against
him in the respective ACRs, but by means of impugned Notification, the petitioner was not
only condemned unheard, but has also been victimized without any valid reasons(s). He
finally urged for ante dated promotion by placing him senior to the respondents.
Conversely, learned Additional Advocate Generals, at the very out set contended that
in view of the latest pronouncement of the Hon'ble Supreme Court of Pakistan by rendering a
judgment in case of "Gul Taiz Khan v. The Registrar, Peshawar High Court, Peshawar and
others" (Civil Appeals Nos.353 -355/2010) (PLD 2021 Supreme Court 391) a constitutional
petition against the administrative order of the Chief Justice of High Court is not
entertainable, th erefore, the petition is liable to be dismissed.
4. We have heard the respective contentions of the learned counsel for the parties and
perused the record with their proficient assistance.
5. The petitioner is aggrieved of the Notifications dated 14th Marc h 2011 and 14th
October 2014, whereby the respondents Nos. 2 to 11 were promoted. As per the petitioner's
stance, he being senior to that of private respondents was deprived from his legal right of
promotion being superseded without communicating any reaso n to him. He filed Service
Appeals Nos. 03, 05/2011 and 01/2015 before the Service Judicial Tribunal Balochistan,
which were dismissed vide judgment dated 13th July 2015. The petitioner feeling aggrieved,
approached the Hon'ble Supreme Court by way of fili ng Civil Petitions Nos. 158 -Q to 160 -Q
of 2015 and the Hon'ble Supreme Court of Pakistan vide order dated 19th January 2018 was
pleased to dismiss the Civil Appeals, but with following observations:
"The record reveals that what has been challenged before the Service Tribunal is a
decision as to fitness or otherwise of the petitioners to be appointed to or to be
promoted to a higher post or scale. As no appeal against such decision in view of
section 5(b)(i) of the Balochistan Subordinate Judiciary Service Tribunal Act, 1989
lies before the Service Tribunal, the appeals filed by the petitioners were rightly
dismissed. Such decision, however, is to immune from being challenged. In
appropriate cases, wri t petition could be filed if the merit of civil servant aggrieved
was not considered in its correct perspective. The view taken by the Service Tribunal
being in line with the law is not open to any exception. These petitions, thus, being
without merit are dismissed. We, however, while parting with the judgment would
observe that where no appeal lay before the Service Tribunal, no opinion should have
been expressed on the merit and that any opinion so expressed would not have any
effect nor would it be read against the petitioners."
(emphasis provided)
6. In view of afore -quoted observation of the Hon'ble Supreme Court these petitions
were filed. The main bone of contention as agitated on behalf of the petitioner is that since
promotion has wrongly been with held by superseding him by the respondents herein. The
question of paramount importance before this court is:
"whether the administrative order the Hon'ble Chief Justice or for that matter, of the
High Court, passed in administrative capacity either by th e Hon'ble Chief Justice or
by any other Judge of the High Court in his administrative capacity is amenable to the
Constitutional jurisdiction or otherwise".
This question has remained under consideration almost before all High Courts of the
country and ob viously before the Hon'ble Supreme Court as well. The impugned
Notifications which have been called in question through these petitions were earlier assailed
before the Subordinate Judiciary Service Tribunal Balochistan in Service Appeals Nos. 03,
05/2011 and 01 of 2015, which were dismissed vide judgment dated 13th July 2015. The
judgment was assailed before the Hon'ble Supreme Court, and the judgment rendered by the
learned Tribunal was upheld, however it was also observed that:
"..... Such decision, how ever, is not immune from being challenged. In appropriate
cases, writ petition could be filed if the merit of civil servant aggrieved was not
considered in its correct perspective."
Thus, this part of penultimate para of the judgment of Hon'ble Supreme Co urt gave
rise to filing of instant petitions. The perusal of judgment of Hon'ble Supreme Court shows
that the afore -quoted observation was rendered, when it was specifically pleaded by the
petitioner that "as no appeal against such decision in view of sect ion 5(b)(i) of the
Balochistan Subordinate Judiciary Service Tribunal Act, 1989 lies before the Service
Tribunal." The aforesaid discussion and after going through the judgment of Hon'ble
Supreme Court of Pakistan, coupled with various precedents rendered time to time, the main
bone of contention in these petitions was also emerged that
"That since no other remedy was available to the petitioner therefore, except invoking
the jurisdiction before this court under Article 199 of the Constitution, no other
remedy is provided under the law. "
7. It needs no further reiteration that the judicial orders of the Hon'ble Supreme Court
and the High Court on jurisprudential plan were already protected from the exercise of writ
jurisdiction, but subject to provision of Article 199(5) of the Constitution, it is only the
administrative/executive or consultative functions/orders and acts, which in fact have been
protected under Article 199(5) of the Constitution. Thus, by applying the settled rules of
interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e.
one judicial, which is immune from writ, and the other administrative, which is amenable to
the writ. An identical preposition, whereby a fitness certificate was refused to the petiti oner,
the order whereof was assailed before the larger Bench comprising of three members Bench
of Hon'ble Lahore High Court in case of "Asif Saeed v. Registrar Lahore High Court and
others" (PLD 1999 Lahore 350), and thus the scope of Article 199(5) of the Constitution, was
thoroughly thrashed out and relevant passage whereof stipulates as under:
"However, the question is whether such proceedings are barred by virtue of the
definition of 'person' as given in paragraph (5) of Article 199 which definition
excludes the Supreme Court as well as the High Court from its purview. It seem that
intention of the Constitution makers is to exclude, from the writ jurisdiction of the
High Court, all actions/acts and orders made by the High Court, or the Supreme Court
or by 'any Judge thereof in the exercise of the functions and powers of his office."
8. That a question with regard to non -availability of any other alternate remedy was also
attended by placing reliance on "Al -Jehad Trust v. Federation of Pakistan" (PLD 1996 SC
324), "Mehmood Khan Achakzai v. Federation of Pakistan" (PLD 1997 SC 426) and "Shahid
Nabi Malik v. Chief Election Commissioner" (PLD 1997 SC 32), when it was observed as
under:
"28. The final submission from the petitioners' side that as no other/fur ther remedy is
available to them, therefore, the provisions of sub -Article (5) should be construed in a
way, permitting the invocation of writ, cannot be allowed because, if this sub -Article
is interpreted as suggested by the learned counsel it would tanta mount to reading into
the Constitutional provisions something which is not permissible under the law.
Reference can be made to the cases reported as PLD 1997 SC 426 and PLD 1997 SC
32.
29. It may also be stated that no writ can be held to be competent if otherwise it is
untenable only on account of the fact that the petitioners have no remedy. View of the
Honourable Supreme Court on this point as envisaged by PLD 1998 SC 103, is
undoubtedly clear:
"The factum that the aggrieved party may have no other legal remedy simpliciter will
not bring his case within the purview of Article 199 of the Constitution, if, otherwise.
It does not fall within its compass.""
And therefore, in the directive part/last paragraph of the judgment it was observed as
under:
"In view of the above, holding that the writ petitions are not competent under the
provision of sub -Article (5) of Article 199 of the Constitution, we hereby dismiss the
same with no order as to costs."
9. After the afore -referred judgment, again t his question came for consideration before
the two members Bench of Hon'ble Supreme Court of Pakistan in a case of "Muhammad
Iqbal and others v. Lahore High Court through Registrar and others" (2010 SCMR 632),
when judgment rendered in Asif Saeed's case su pra was approvingly endorsed with following
observation:
7. The view held by Lahore High Court is challenged in the light of Mahesh Prakash's
case (supra), which is very well distinguished by Mr. Justice Mian Saqib Nisar
speaking on behalf of the full Ben ch in Asif Saeed's case (supra). The learned Judge
distinguished the Indian ruling on the ground that there are no provisions in the Indian
Constitution analogous or parallel to Article 199(5) of our Constitution. Secondly, it
was reasoned that the Indian Supreme Court was of the view, despite no analogous
provision in their Constitution, that no writ would lie against the judicial order of a
High Court. Meaning thereby "that the true purpose of this sub -Article is more
pointed towards protecting the non -judicial actions/orders/steps of this Court rather
than its judicial orders". We perfectly agree with the view taken by Lahore High
Court that all judicial orders passed by a High Court can be challenged in accordance
with the Constitution or the law and are individually and specifically protected. For
such purpose of protecting judicial orders, there was no need absolutely to enact the
provisions of sub -Article (5) of Article 199 and that such provisions were given in the
Constitution to protect, rather, the non judicial orders of the High Court. We are
further of the view that if such orders are allowed to be challenged before the same
High Court, it would lead to creating ludicrous situations and hazardous
consequences.
8. If a Chief Justice of a High Court transfers a subordinate officer, so to say, in his
administrative capacity and if the same is set aside by another Bench of the same
High Court, one can well imagine the devastating consequences. This can be
visualized about any order of the High Cou rt and the resultant consequences thereof.
It runs diametrically opposed to the principles of comity and can lead to the complete
destruction of judicial as well as administrative fabric of the institution.
9. While discussing the implications involved, t he learned author Judge of Asif
Saeed's case (supra) has gone further to reinforce his reasoning, saying: --
"It is clear that the Supreme Court of Pakistan has also been excluded from the
definition of the word "person" clubbed, together with the High Cou rt. Undoubtedly,
it is inconceivable that the order of the Supreme Court on its judicial side can be
challenged before the High Court in writ, irrespective of sub -Article (5). Now if the
interpretation of the petitioners that administrative order of the Hi gh Court can in writ
be challenged is accepted, the same rule would also apply to the Supreme Court,
situation may arise where a full Court of the apex forum takes a non -judicial decision
then on the basis of above reasoning a Single Judge of this Court ma y issue writ to
quash the same which would be just preposterous. This also applies to the
administrative decision taken by the Full Court of a' High Court, particularly, when
the same Judge/Judges are party to such a decision. There can be numerous example s
cited to show fallacy of such an interpretation. If the same rule is allowed to prevail,
rules made by the Supreme Court, under Article 191 and by the High Courts, under
Articles 203 and 208 are not safe from attack and may become subject of every day's
litigation leading to a hazardous situation.
16. To our mind the judicial orders of the Supreme Court and the High Court on
jurisprudential plane, were already protected from the exercise of writ. It is only the
administrative/executive or consultative fu nctions/orders and acts which in fact have
been saved under the sub -Article. By plain reading of sub -Article (5) and by applying
settled rules of interpretation, High Court cannot be deemed to be conferred with two
distinct characters i.e. one judicial, wh ich is immune from writ, and the other
administrative which is amenable to the writ."
10. Whether such person aggrieved has any remedy, is to be seen in the light of each
case but the fact remains that this ground of having no further remedy cannot be
pressed into service if the relief claimed is not otherwise tenable. This Court in
Muhammad Ikram Chaudhry's case PLD 1998 SC 103 has emphatically held that "the
factum that the aggrieved party may have no other legal remedy simpliciter will not
bring his cas e within the purview of Article 199 of the Constitution, if otherwise, it
does not fall within its compass". In Asif Saeed's case (supra) almost every aspect of
the case has very elaborately been discussed, answered and distinguished wherever
necessary. In the instant case the scenario would have been altogether different if the
appointments had been challenged by someone seeking a writ of quo warranto.
10. The afore stated scenario was altogether changed, when in case of "Ch. Muhammad
Akram v. Registrar, I slamabad High Court and others" (PLD 2016 Supreme Court 961) the
three members Bench of Hon'ble Supreme Court, while dealing with illegalities and
irregularities committed during the recruitment process in the Islamabad High Court
observed as under:
42. W e have gone through aforementioned judgments and have examined the case law
cited by the Counsel in support of their contentions. We, with great respect, are not in
agreement with the conclusion reached by the learned Lahore High Court that the
judicial, a dministrative, consultative and executive powers are indistinguishable
within the meaning of Article 199(5), and hence, unassailable through a writ petition.
It is our considered view that the Constitution confers judicial powers (jurisdiction)
on the High Court only under Article 199 and the administrative, consultative or
executive powers are conferred on the High Court by virtue of the rules framed under
Article 208. Rules framed by the High Court or Supreme Court further require
approval of the Governor or President as the case may be. It needs to be highlighted
that Article 199(5) excludes a High Court and Supreme Court from the definition of
'person'. High Court is defined under Article 192, the relevant part of which is
reproduced as under:
"192. Con stitution of High Court. (1) A High Court shall consist of a Chief Justice
and so many other Judges as may be determined by law or, until so determined, as
may be fixed by the President."
This definition does not include the Registrar or any other officer of a High Court
Establishment, who is appointed by the Chief Justice or the Administration
Committee under the Rules. The executive/ administrative/ consultative powers
conferred on the Chief Justice or an Administration Committee are drawn from the
Rules ; whereas the judicial powers (jurisdiction) conferred upon the High Court and
exercised by the judges are embedded in Article 199 itself; hence, both the powers are
different and unparalleled.
43. We, for the aforesaid reason, are of the considered view that the view of learned
Lahore High Court and maintained by this Court in the cases of Asif Saeed (Supra)
and Muhammad Iqbal is against the language of Article 192 and Article 199 of the
Constitution. Moreover, the provisions of Article 20 8 which empowers the High
Court or Supreme Court to frame Rules for their establishments have been completely
overlooked. As a result, the judicial powers and the powers which are
administrative/consultative/executive in nature have been mixed up leading t o denial
of remedy to an aggrieved person even in a case where codal formalities or eligibility
or other mandatory requirements have been blatantly disregarded.
In the penultimate para of the afore -referred judgment it was also observed that:
"The judgme nt rendered in the case of Mohammad Iqbal (supra) approving the case of
Asif Saeed (supra) being against the provisions of the Constitution is per incuriam
and is not a good law."
11. That after the judgment announced by the Hon'ble Supreme Court of Pakist an, the
complete recruitment process carried out in the Islamabad High Court was declared null and
void. Meanwhile, again a number of petitions came before the five members Bench of the
Hon'ble Supreme Court of Pakistan and all these cases were clubbed wit h titled as "Gul Taiz
Khan Marwat v. Registrar Peshawar High Court" (PLD 2021 Supreme Court 391) and again
the basic question involved in those cases was: -
"Weather the Executive, Administrative or consultative action of the Chief Justices or
Judges of a High Court were amenable to the Constitutional Jurisdiction under Article
199 of the Constitution or otherwise."
Once again the law laid down in case of Muhammad Iqbal's supra, which approvingly
upheld the principle laid down in Asif Saeed 's case supra, was not only approved and
upheld, but the judgment rendered in Ch. Muhammad Ikram's case was declared as per
incuriam with following observation: -
We are clear in our mind that Chief Justice or judges of High Court exercising their
executive, administrati ve and consultative actions in the context of the instant matters
do not act as persona designate, rather act for and on the behest of, and as a High
Court as defined in Article 192 of the Constitution and are therefore, not amenable to
the constitutional jurisdiction of a High Court under Article 199 thereof."
12. Thus, after the aforesaid discussion the only question, which requires our attention
and decision was that which view of the Hon'ble Supreme Court is holding the field. In Asif
Saeed's case supra , the judgment passed by a three members Bench of Hon'ble Lahore High
Court, was approvingly upheld by the two members Bench of the Hon'ble Supreme Court in
Muhammad Iqbal's case supra, both these judgments were declared as per incurium being not
a good la w, by the Hon'ble three members Bench of the Hon'ble Supreme Court of Pakistan
in Ch. Muhammad Ikram's Case, but the Hon'ble five members Bench of the Hon'ble
Supreme Court in Gul Taiz Khan's case supra overruled the judgment, rendered by the three
member Bench in Ch. Muhammad Ikram's case.
13. In view of the observations of the Hon'ble Supreme Court of Pakistan in afore -
referred case, there is no cavil is left to hold that the decision of the Chief Justice of this
court or of the Promotion Committee of thi s court cannot be assailed in a Constitutional
petition. Albeit, in the Civil Petition filed by the petitioner before the Hon'ble Supreme
Court, the petitioner was permitted to avail the remedy of filing Constitutional petition
before this court in case th e petitioner's merit was not considered in its true perspective,
however, in view of the referred to pronouncement, these petitions are declared to be barred
against any administrative or consultative order of the Hon'ble Chief Justice of the High
Court.
Admittedly, in the instant case the Civil Petitions Nos. 158 -Q to 160 -Q/2018 were
heard and decided by a Bench comprising of two Hon'ble Judges of the Hon'ble Supreme
Court, whereas, the case of Gul Taiz Khan Marwat was decided by a larger bench comprising
of five Hon'ble Judges of the Hon'ble Supreme Court, thus, when two dichotomous opinions
of the Hon'ble Supreme Court, either simultaneously or non -simultaneously, or subsequently,
being one after other come forward, usually the view expressed by a bench of greater
numerical strength is to be followed. Even if its view was expressed prior in time to a
different view expressed by a bench of smaller numerical strength at some subsequent stage.
It is noteworthy to add here that the petitioner is seeking anted ated promotion and seniority
to that of respondents Nos. 2 to 11, which too cannot be entertained while exercising the
constitutional jurisdiction under Article 199 of the Constitution and even otherwise, this
court has already expressed its view in respec t of the case of the petitioner, thus, cannot
revisit its own view in the subsequent proceedings, in the petitions under Article 199 of the
Constitution.
In view of the above discussion, and without rendering any observation on merit of
the case, the inst ant Constitutional petitions being not maintainable are dismissed
accordingly, but with no order as to costs.
MH/147/Bal. Petition dismissed.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,
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