SUPREME COURT OF AZAD JAMMU AND KASHMIR

[Appellate Jurisdiction] PRESENT:

Mohammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, J. Raja Saeed Akram Khan, J. Masood A. Sheikh, J.

Civil Appeal No. 274 of 2015 (PLA filed on 30.07.2015)

1. Azad Jammu & Kashmir Government through its

Chief Secretary, Muzaffarabad.

2. Secretary Law, Justice, Parliamentary Affairs and

Human Rights Department of AJ&K, Muzaffarabad.

3. Secretary Finance, Azad Jammu & Kashmir,

Muzaffarabad.

… APPELLANTS

VERSUS

Syed Khalid Hussain Gillani, Chairman, Azad Jammu &

Kashmir Service Tribunal, Muzaffarabad.

……. RESPONDENT

(On appeal from the judgment of the High Court dated 02.07.2015 in Writ Petition No. 1390/2011)

-----------------------

2

FOR THE APPELLANTS: M/s M. Noorullah Qureshi and Asghar Ali Malik, Advocates.

FOR THE RESPONDENTS: Raja Muhammad Hanif

Khan, Advocate.

Date of hearing: 10.12.2015.

JUDGMENT:

Ch. Muhammad Ibrahim Zia, J.— The

captioned appeal by leave of the Court has arisen out of a

consolidated judgment of the High Court, whereby both

the writ petitions filed by the contesting respondent have

been accepted.

2. The brief facts of the case necessary for

disposal of this appeal as stated are that the respondent

invoked the writ jurisdiction of the High Court alleging

therein that initially, he was appointed as Civil Judge on

the recommendations of Public Service Commission on

10.2.1987. He was promoted as Senior Civil Judge on

22.5.1999 and thereafter, he was further promoted as

Additional District & Sessions Judge on 15.1.2002 and

District & Sessions Judge on 10.4.2004. The respondent

claimed that he, being qualified to be appointed as Judge

3

High Court, was eligible for appointment against the post

of Chairman Service Tribunal, hence was appointed as

such by the Government vide notification dated 6.4.2011.

He assumed the charge of the post of Chairman Service

Tribunal on 6.4.2011. He further alleged that in his

appointment notification, it was mentioned that the terms

and conditions shall be determined later on. After a

period of two months, vide notification dated 13.6.2011,

the terms and conditions of petitioner‟s service were

determined as equal to the Judge High Court only during

service and he has to retire from service as a civil

servant. The respondent challenged the condition of

notification regarding retirement as a civil servant

through a writ petition before the High Court on

14.9.2011. The writ petition was admitted for regular

hearing on 17.2.2012. During pendency of writ petition,

the respondent was retired from service vide notification

dated 19.5.2015. The respondent challenged the vires of

the notification dated 19.5.2015 through an amended

writ petition on 19.6.2015. The writ petitions were

resisted by the other side. The High Court, after

necessary proceedings while accepting both the writ

petitions, declared the condition of retirement of

4

respondent as a civil servant ascribed through notification

dated 13.6.2011 as illegal, consequently the notification

dated 19.5.2015 has been quashed. The High Court,

while accepting the writ petition No. 257/2014 has also

ordered that the respondent shall not be transferred

from the post of Chairman of Azad Jammu and Kashmir

Service Tribunal till attaining the age of 62 years. The

appellants feeling aggrieved have approached this Court

challenging the legality of the impugned judgment

through the instant appeal by leave of the Court.

3. M/s. Muhammad Noorullah Qureshi and Asghar

Ali Malik, Advocates, the learned counsel for the

appellants after narration of necessary facts seriously

objected to the impugned judgment on the ground that

the same is not consistent with the statutory provisions

of law dealing with the subject. They further submitted

that in the law called the Azad Jammu and Kashmir

Service Tribunals Act,1975 (hereinafter to be referred as

Service Tribunal Act), with the passage of time, the

material changes through amendments have been

introduced. Previously, the terms and conditions of

service of Chairman Service Tribunal were determined by

the President of Azad Jammu and Kashmir. The

5

respondent was appointed vide notification dated

6.4.2011 as Chairman Service Tribunal. In his

appointment notification, it has been categorically and

expressly mentioned that his terms and conditions will be

determined later on. He has not raised any objection and

while accepting this order, assumed the charge of the

office. In furtherance of the appointment notification

dated 6.4.2011, vide another notification dated

13.6.2011, the terms and conditions of Chairman Service

Tribunal have been determined competently by the

President of Azad Jammu and Kashmir. Thus, the

respondent is estopped by his own conduct to raise

objection regarding the notification dated 13.6.2011

which has been issued validly under the statutory

provisions dealing with the subject matter. It is further

argued that the High Court has not applied its judicial

mind and failed to properly appreciate the constitutional

as well as statutory provisions. The High Court also fell in

error of law while misinterpreting the Fundamental Right

No.17, guaranteed by the AJ&K Interim Constitution Act,

1974 which provides that there shall be no discrimination

in the services on the basis of race, religion, caste or sex.

It has nothing to do with the terms and conditions of

6

service of a person who is appointed or is rendering

services in relation to any post in the service of Azad

Jammu and Kashmir for which specific laws are holding

the field. Same like, the High Court has also fell in error

of law while misconstruing the Right No.15 which deals

with the equality of the State Subjects before law. It does

not deal with the service matters or the terms and

conditions of service of a person. If such like broad

interpretation is accepted, the whole set of laws dealing

with the terms and conditions of service will become

redundant. It is further argued that even otherwise, no

discrimination has been made as while holding the office

of Chairman Service Tribunal, the respondent has been

given the same privileges which were given to the

predecessors in the office. So far as the question of

retirement or the matter of pension is concerned, it will

have to be dealt with according to law dealing with the

subject and not on the basis of broad application of the

principle of law while enlarging the scope of Right No.15

or 17 of the constitutionally guaranteed Fundamental

Rights. He further argued that so far as the principle of

law enunciated in previous cases is concerned, according

to the nature of the terms and conditions determined by

7

the competent authority those cases have no nexus with

the facts of the case in hand. They also referred to the

notification dated 25.6.2002 which is holding the field

since its date of issuance and submitted that the question

of extending equal terms to the person holding the post

other than the constitutional post, cannot be considered.

Therefore, the claim of respondent that he be treated at

par with the Judge High Court on same terms and

conditions, is not maintainable according to enforced law.

They further submitted that the respondent neither

challenged the vires of law nor the notification dealing

with the subject matter. Even, the respondent failed to

challenge the notifications issued by the Finance

Department especially, dated 3.6.2011 and 8.5.2011,

thus, in view of this state of affairs, his writ petition was

also not maintainable. The Courts have always

interpreted the statutory provisions applicable to the

specific order and person in the light of the peculiar facts

of the cases. As in the case of Raja Bashir Ahmed Khan

vs. Azad Govt. and others (civil appeal decided on

17.4.1998), and Raja Shahnawaz Khan, Chairman Azad

Jammu and Kashmir Zakat Council vs. Azad Govt. of the

State of Jammu and Kashmir and 3 others [PLJ 2013 SC

8

(AJ&K) 186], the terms and conditions of service were

clearly determined as that of Judge High Court, thus, the

judgment of the High Court was handed down correctly in

the light of the peculiar facts of those cases. Same like,

the matter of pension of Chairman Service Tribunal came

under consideration before this Court in the case reported

as Bostan Chaudhary vs. Audit and Accounts Department

and 6 others [2011 SCR 279] and the Court once again

determined the controversy on the basis of contents and

text of the appointment/determination of terms and

conditions of service notification, whereas the case of the

respondent is distinguishable, therefore, while accepting

this appeal, the impugned judgment of High Court may

be recalled. Consequently, the writ petition filed by the

respondent be dismissed with cost. They placed reliance

upon the cases reported as Secretary Services & 2 others

vs. Bashir Mir [2015 SCR 851], Azad Government and 4

others vs. M/s Spintex Limited [1998 SCR 167] Syed

Imdad Ali Shah and 59 others vs. Azad Government and

8 others [2003 SCR 95] Sardar Asif Mehmood Raza vs.

Abdul Khamid and 7 others [2004 SCR 298]

4. Conversely, Raja Muhammad Hanif Khan,

Advocate, the learned counsel representing the

9

respondent, forcefully defended the impugned judgment

and submitted that the same is well reasoned, based

upon the principle of law enunciated by the superior

Courts of subcontinent. There is no illegality or infirmity.

He argued that according to the statutory provisions of

the Rules of Business, 1985, for determination of the

terms and conditions of Chairman Service Tribunal,

reference to the Finance Department‟s notification is not

required, therefore, there was no need to challenge any

order of Finance Department in this regard. He submitted

that the respondent‟s case is mainly based on the

principle of equality before law and even prohibition of

discrimination as according to the consistent practice, all

the predecessors in the office of Chairman Service

Tribunal have been given the terms and conditions equal

to Judge High Court. All of them had been retired after

attaining the age of superannuation as of Judge High

Court. Once a person is appointed as Chairman Service

Tribunal, he cannot be treated as civil servant or

Government servant, therefore, the High Court has

rightly declared the notification dated 13.6.2011 as

violative of law and the statute. He submitted that his

case is mainly based on the principle of law enunciated in

10

the cases of Raja Bashir Ahmed Khan vs. Azad Govt. and

others (civil appeal decided on 17.4.1998), and Raja

Shahnawaz Khan, Chairman Azad Jammu and Kashmir

Zakat Council vs. Azad Govt. of the State of Jammu and

Kashmir and 3 others [PLJ 2013 SC (AJ&K) 186] and

Sh.Riaz-ul-Haq, ASC and another vs. Federation of

Pakistan through Ministry of Law and others [PLJ 2013 SC

707]. It is further submitted that in view of the clear

statutory provisions and the principle of law enunciated

by the superior Courts, there was no need to challenge

the vires of the statutory provision of law. This appeal

has no substance, hence, is not maintainable, therefore,

while upholding the judgment of the High Court, the

appeal may be dismissed.

5. We have heard the learned counsel for the

parties and also carefully examined the record. According

to the legal and factual proposition raised in this case,

the pivotal question to be determined as emerged is, that

according to the enforced law what are and what is the

method for determination of terms and conditions of

service of the Chairman Service Tribunal. For resolution

of this point, the statutory provisions of Service Tribunals

Act, are of vital legal importance. Although in the

11

impugned judgment of High Court, section 3 of the

Service Tribunals Act has been reproduced but it appears

that sections 4-A and 4-B referred to by the High Court

are not holding the field. These provisions were

previously part of the Ordinance which by operation of

law has been deemed repealed. Presently, the statutory

provision holding the field is subsection 4 of section 3 of

the Service Tribunals Act.

6. For proper perception, in our opinion, the

consideration of the legislative developments is also of

vital importance. Before enforcement of Act V of 1993,

the matter of determination of terms and conditions of

service was dependant on the discretion of the President

of Azad Jammu and Kashmir. But it appears that after

enforcement of Act V of 1993, under the provisions of

subsection (4) of section 3 of Service Tribunals Act, the

legislature has taken out the discretionary powers vested

in President and laid down that the same shall be

prescribed under rules. The provision of subsection (4) of

Section 3 of Service Tribunals Act, reads as follows:-

“The Chairman and member of a Tribunal

shall be appointed by the President on

such terms and conditions as may be

determined by rules.”

12

It appears that due to some legislative vacuum, the

legislature further felt advised to enforce the amendment

Act XXVIII of 1995. For the purpose of this case,

subsection 2 of Section 1 of this Act, reads as follows:-

“1………………………………………………

(1)…………………………………………….

(2). It shall come into force at

once and shall be deemed to

have taken effect on and from

12th March, 1993.”

Through this amending Act, further proviso to subsection

(4) has been added as follows:-

“Provided that until the Rules

are framed under the Act, the terms

and conditions for the appointment

of Chairman and member

determined by the President before

the commencement of this Act shall

be deemed to have been

determined under this Act.”

In our opinion, due to this legislative development, the

matter of determination of terms and conditions of

service of Chairman Service Tribunal is no more

13

dependent on the discretion of the President rather it has

been clearly settled by law.

7. In this case, in our opinion from both sides, the

arguments have been advanced on misconception of law

while ignoring the exact statutory provision dealing with

the subject. Thus, in this perspective, even the case law

referred to by the parties has no strict application to the

case in hand.

8. According to the statutory provision enforced

dealing with the subject matter, the legislature has

clearly expressed its intention that the terms and

conditions of service of the Chairman Service Tribunal

shall be determined by the rules and until the rules are

made, the same shall be deemed to have been

determined under the proviso of subsection 4 of section 3

of the Service Tribunals Act.

9. According to the admitted position, in

compliance of subsection 4 of section 3 of the Service

Tribunals Act, up-till-now the terms and conditions of

service of the Chairman Service Tribunal have not been

determined by making rules. Thus, in absence of rules

the question of determination of terms and conditions of

14

service of Chairman Service Tribunal has to be resolved

by application of proviso added by amending Act, 1995.

10. Now we have to revert back to the statutory

provision of amending Act XXVIII of 1995. The proviso to

subsection 4 of section 3 clearly speaks that till the time

the rules are framed, the terms and conditions for

appointment of Chairman/member determined by the

President before commencement of amending Act, 1995

shall be deemed to have been determined under this Act.

This proviso clearly speaks that it is not the sweet

discretion of the President after enforcement of Act,

XXVIII of 1995 to determine the terms and conditions of

the office of Chairman Service Tribunal rather the terms

and conditions of Chairman Service Tribunal determined

before the commencement of amending Act, XXVIII of

1995 have to be determined under the Service Tribunals

Act. The discretionary powers of the President have been

taken back by the legislature. Neither he can add nor

alter or omit any of the terms and conditions of the

Chairman Service Tribunal which under the proviso to

subsection (4) of section 3 of the Service Tribunals Act

shall be deemed to have been determined under this Act.

15

11. According to the provisions of subsection 2 of

section 1 of Act. XXVIII of 1995, the same commenced

and taken effect from 12th March, 1993. Thus, for the

purpose of main proposition involved in this case, the

material date is 12th March, 1993, as at that time the

terms and conditions of Chairman Service Tribunal

determined by the President shall be deemed determined

under the Service Tribunals Act, 1975. The record

produced by the parties reveals that at the relevant time,

one Sardar Sajawal Khan (late) was holding the office of

Chairman Service Tribunal whose terms and conditions of

service were determined vide notification dated

8.4.1990 which reads as follows:-

عشوعض ایڈ جضل ایڈهغٹشیشي ڈیپبسٹوٹ"

آصاد حکوهت سیبعت جووں و کشویش

"هظفشآثبد"

ع 0991اپشیل 8

:وٹیفیکیشي

۔ ثتغلغل 91(/ 42وجش اتظبهیہ / شعجہ دوم / ایظ ٹی /)

هوسخہ 89( / 42وٹیفکیشي وجش اتظبهیہ / شعجہ دوم / ایظ ٹی )

ے اى اختیبسات کی سو ع، جبة صذس آصاد جووں و کشویش 0989۔8۔0

ع کی 0991عے جو اہیں آصاد جووں و کشویش عشوط ٹشثیولض ایکٹ

( کے تحت حبصل ہیں ، اط اهش کی هظوس صبدس 2کی ریلی دفعہ ) 3دفعہ

فشهبئی ہے کہ جبة عشداس هحوذ عجبول خبى کب ثحیثیت چیئشهیي عشوط

ف کی چبس عبل ہوگب اوس هوصو (Tenure)ٹشثیول عشصہ هالصهت

حیثیت، تخوا، االؤغض اوس هشاعبت جج عذالت العبلیہ کے ثشاثش ہوگی۔

ع عے هؤثش ہوگب۔ 0989وٹیفکیشي ہزا یکن اگغت ۔4

)خواجہ هقجول احوذ(

عیکشي آفیغش عشوعض

")دوم(

16

Sardar Sajawal Khan, retired w.e.f 31.7.1993. It will be

useful to reproduce here the notification dated 29.7.1993

which reads as under:-

"عشوعض ایڈ جضل ایڈهغٹشیشي ڈیپبسٹوٹ

آصاد حکوهت سیبعت جووں و کشویش

"هظفشآثبد"

ع 0993۔9۔49هوسخہ

:وٹیفیکیشي

ع۔ جبة صذس 93( شعجہ عوئن / 42) -وجش اتظبهیہ / ایظ ٹی

ٹ ایڈ عیشي جج کو آصاد جووں و کشویش ے عشداس عجبول خبى ڈعٹشک

عوش پیشاہ عبلی و ثحیثیت چیئشهیي عشوط ٹشثیول عشصہ هالصهت

(Tenure) ع ) 0993۔ 9۔ 30چبس عبل هکول کشے کی ثبء پش هوسخہ

ثعذ دوپہش( پشي پش سیٹبئش کے عالو اکے حك هیں حغت اعتحقبق

سخصت اکیشوٹ ادا کیے جبے کی ثھی هظوس ی صبدس فشهبئی ہے۔

وہذسی ثبس احوذ ثبس()چ

عیکشي آفیغش عشوعض

”)عوئن(Thus, it appears that at the time of commencement of

amending Act, XXVIII of 1995, according to enforced

terms and conditions determined by the President, the

Chairman Service Tribunal being the Chairman was

entitled to receive the pay, allowances and privileges,

equal to the Judge High Court.

12. According to both the notifications determining

the terms and conditions of service and retirement, the

tenure for the post of Chairman Service Tribunal is fixed

as 4 years according to law. Thus, according to spirit of

the presently enforced statutory provision of section 3 of

the Service Tribunals Act, the terms and conditions of

service of Chairman Service Tribunal applicable to Sardar

Sajawal Khan (late) Chairman Service Tribunal shall be

17

deemed to have been determined under the Service

Tribunals Act. In this state of affairs, there remains no

ambiguity that according to law, the Chairman Service

Tribunal while holding the office is entitled to the pay,

allowances and privileges equal to Judge High Court and

the term of his office shall be 4 years. Thus, according

to the spirit of the enforced law, the Chairman Service

Tribunal has to hold the office as Chairman for a term of

4 years unless the law is amended or the vires of the

same are specifically challenged. There can be no

variation in the terms and conditions of service of

Chairman Service Tribunal as were applicable on 12th

March, 1993. Therefore, we have no hesitation in holding

that the respondent according to law may hold the post

of Chairman Service Tribunal for a term of 4 years and

after completion of the tenure, he cannot claim to remain

further in the office.

13. In view of the legal position recorded

hereinabove, the question of validity of notification issued

on 13.6.2011 becomes irrelevant. As according to law the

office of Chairman Service Tribunal is a tenure post for 4

years and after serving 4 years‟ period, the person

holding the office has to revert back to his post according

18

to the other laws applicable to him, but after completion

of this tenure, neither he can claim any benefits of

pension nor any privileges of a Judge High Court

according to law.

14. As it has been submitted on both sides that the

vires of the statutory provisions dealing with the subject

especially the hereinabove discussed, have not been

challenged by the respondent, therefore, the enforced

law will have to be given effect. Until and unless the

same is challenged by any aggrieved person and its

status is determined by the Court of competent

jurisdiction, it will remain operative and effective.

15. So far as the reference to fundamental Rights

No.15 and 17 discussed hereinabove in the impugned

judgment is concerned, we have no cavil with the

argument of counsel for the appellants that the same has

to be considered in the light of peculiar facts and subject

to application of laws dealing with the specific

proposition. It has been rightly pointed out that

fundamental Right No.17 specifically deals with the

discrimination on the basis of race, caste, religion and

sex etc., which has no nexus with the case in hand.

19

16. So far as the application of Right No.15 is

concerned, according to the celebrated principle of law, it

is not uniformly applicable to every State Subject, rather

its application is always subject to a reasonable

classification based on intelligible distinguishable criteria.

Therefore, the same has no nexus with the case in hand.

While holding the office of Chairman neither the

respondent nor anyone previously, has been treated

discriminately in the matter of terms and conditions.

However, so far as the question of retirement / pension is

concerned it has always been dealt on the basis of

reasonable classification.

17. We may further observe here that the

judgments in the cases titled Raja Bashir Ahmed Khan vs.

Azad Govt. and others (civil appeal decided on

17.4.1998) and Raja Shahnawaz Khan, Chairman Azad

Jammu and Kashmir Zakat Council vs. Azad Govt. of the

State of Jammu and Kashmir and 3 others [PLJ 2013 SC

(AJ&K) 186], the terms and conditions were also based

upon distinguishable legal and factual proposition, thus,

has no application to the case in hand.

18. Although in this case, the matter of terms and

conditions of service of Chairman Service Tribunal is

20

confined with reference to the retirement of the

respondent but broadly speaking the terms and

conditions of the office of Chairman Service Tribunal have

deep nexus with the concept of independence of

judiciary. So far as the enforced statutory provisions to

the extent that the discretionary power for determination

of terms and condition of service Chairman Service

Tribunal have been taken out from the hands of

President, in our opinion is a legislative step to advance

the cause of independence of judiciary because such

matter if left upon the discretion of executive or

President, it may adversely affect the concept of

independence of judiciary. But we have concerns with

this matter from another angle i.e., the mode of

appointment of Chairman Service Tribunal. In this regard

no further deliberation is required. The apex Court of

Pakistan while dealing with the identical proposition, after

going through number of judgments on the subject has

expressed its wisdom in Sh. Riaz-ul-Haq’s case [PLD

2013 SC 501]. After survey of the case law on the

subject by the apex Court of Pakistan as well as this

Court, the thorough deliberation has been made in the

case reported as Bashir Ahmed Mughal vs. Azad Govt.

21

and others [2014 SCR 1258], wherein, it has been

observed as under:-

“32. It is no more a dispute that for

attaining and maintaining the independent

status of the judicial organs, the mode of

appointment is of much importance and

without following the mode which is required

according to the constitution for independent

judiciary, no Court can be established. In this

regard, this Court has already while following

the golden principles of law laid down in the

authoritative judgment of the Aljehad Trust

case has observed in the case reported as

Muhammad Younas Tahir & another vs.

Shaukat Aziz, Advocate, Muzaffarabad and

others [PLD 2012 SC (AJ&K) 42] as under:-

“22. The Supreme Court of Pakistan in a

case titled Al-Jehad Trust through Raees-

ul-Mujahidin Habib Al-Wahabul Khairi,

Advocate Supreme Court and another v.

Federation of Pakistan and others [PLD

1997 SC 84], again reiterated the earlier

view at page 134. It was observed in

paragraph 66 as under:

„66. The third point is whether

appointment of Judges is executive

power/action. This Court has

already rendered authoritative

judgment in the case of

appointment of Judges in the

22

superior Courts [PLD 1996 SC 324]

in which all the Articles relating to

judicature in the Constitution of

1973 have been interpreted to

determine the scope of the word

“consultation” in respect of

appointments and such other allied

matters. It is held as under:-

„(i) The words „after consultation‟

employed inter alia in Articles

177 and 193 of the

Constitution connote that the

consultation should be

effective, meaningful,

purposive, consensus-oriented,

leaving no room for complaint

or arbitrariness or unfair play.

The opinion of the Chief Justice

of Pakistan and Chief Justice of

a High Court as to the fitness

and suitability of a candidate

for Judgeship is entitled to be

accepted in the absence of

very sound reasons to be

recorded by the President/

Executive.

(ii) If President/Executive appoints

a candidate found to be unfit

and unsuitable for Judgeship

by the Chief Justice of Pakistan

and Chief Justice of the High

23

Court concerned, it will not be

a proper exercise of power

under relevant Article of the

Constitution.

(iii) That the permanent vacancies

occurring the office of the Chief

Justice and Judges normally

should be filled in immediately

by not later than 30 days but a

vacancy occurring before the

due date on account of death

or for any other reason, should

be filled in within 90 days on

permanent basis.

23. The word „consultation‟ used in

section 42(4) and section 43(2-A) of the

Act, 1974 is used in similar sense as used

in Articles 177 and 193 the Constitution

of 1973. The Supreme Court of Pakistan

has held that the consultation should be

effective, meaningful, purposive,

consensus oriented, leaving no room for

complaint or arbitrariness or unfair play.

The opinion of the Chief Justice of

Pakistan and the Chief Justice of a High

Court as to the fitness and suitability of a

candidate for Judgeship is to be accepted

in absence of sound reasons to be

recorded by the President/Executive.

While applying the above criteria, we will

decide the matter in hand.”

24

Whereas the apex Court of Pakistan

has also expressed its latest view in Sh. Riaz-

ul-Haq’s case [PLD 2013 SC 501], as under:-

“47. In this context, it is to be noted that

in the case of Al-Jehad Trust v.

Federation of Pakistan (PLD 1996 SC

324), it has 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

25

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:-

26

„20. The principles deductible from

the survey of the Constitutional

provisions and the case-law are that

in order to comply with the mandate

of independence and separation of

Judiciary, the 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 Statue

itself. The concept of consultation

with the Chief Justice/ the High

Court is not a new concept

introduced by the Supreme court in

its recent judgment. The

consultation with the High Court is

provided by the Civil Courts

Ordinance, 1962, for making

appointment 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

27

option are to be accepted by the

High Court provided they fulfill the

requisite qualifications prescribed by

the relevant Service Rules. The

appointments made to the judicial

posts / tribunals as such by any

contrary method is thus violative of

the theory of 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

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

28

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 honorable

Chief Justice of the High Court

except for valid reasons justifying a

departure. We were informed by the

learned Attorney General for

Pakistan and the learned Advocate-

General, Punjab, that no Presiding

Officer of the Special Court shall be

removable except with the

honorable Chief Justice of the High

Court. Even otherwise, the power of

removal is basically an adjunct to

the power of appointment. We,

however, notice that the security of

tenure for a certain period is also

required to be provided by making

necessary provisions in the statute

itself as held by a Full Bench of this

Court in the case of Imran v.

Presiding Officer, Punjab Special

29

Court No Vi, Multan and 2 others

(PLD 1996 Lahore 542). In the

precedent case, provisions of

Suppression of Terrorist Activities

(Special Courts) Act, 1975 and the

Offences in Respect of Banks

(Special Courts) Ordinance, 1980,

were examined threadbare. We

allow two months time of making

necessary amendments in the law.‟

49. In the case of Hazrat Baz v. Political

Agent / District Magistrate Khyber (PLD

2010) Peshawar 7) it has been held that

if it is required to establish Special Courts

and then to appoint a Sessions Judge or

an Additional Sessions Judge as a Judge

Special Court, same should be done after

consultation with the Chief Justice of the

High Court. In the case of Messrs Ranyal

Textiles v. Sindh Labour Court (PLD 2010

Karachi 27) it has been held that in the

appointment of Chairman of Labour

Appellate Tribunal, the consultation with

the Chief Justice of the High Court is an

essential prerequisite and a condition

precedent. It was further held that all

judicial appointments must be

subordinate to the High Court and it is

only High Court which can and should

exercise exclusive administrative and

supervisory control over subordinate

30

judiciary. Such supervisory and

administrative control cannot exist if a

credible and pivotal role is denied to the

High Court in appointment of such

persons. It will the axiomatic to say that

a Court is subordinate to High Court but

its Presiding Officers is to be appointed

by the Provincial Government without

consulting High Court. Reliance can also

be placed on S.P. Sampath Kumar v.

Union of India (AIR 1987 Supreme Court

386).

50. From the above case-law, it is

manifest that whenever the appointment

of a „judicial officer‟ 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.”

It is concluded that for

independence of judiciary, the

appointments in the Courts in

consultation with the Chief Justice of High

31

Court and the Chief Justice of Azad

Jammu and Kashmir is the mandatory

constitutional requirement. Thus, it is

clear that the appointments in the

judiciary without consultation with the

Chief Justices are against the spirit of the

Constitution Act. For establishment of

independence of the judiciary to protect

the constitutionally guaranteed

fundamental rights, in our considered

view, in the light of the above discussed

law, if any Court is established in

violation of the spirit of the constitution

without consultation of the Chief Justices,

it amounts to abridge and take away the

fundamental rights.

33. Now, the question arises as to

what is the importance of the mode of

appointment for achieving the purpose of

independence of judiciary or safeguard of

the constitutionally guaranteed

fundamental rights. For this purpose we

have made survey of some of the

constitutional provisions of the

constitutional states of the world relating

to appointment, removal of the Judges

and the concept of independence of

judiciary. For this purpose, first of all let

us to have a survey of the constitution of

India. The relevant portion of the

constitutional provisions of Articles 233

32

and 234 of the Constitution of India read

as under:-

„233. Appointment of District

Judges:-- (1) Appointments of

persons to be, and the posting and

promotion of District Judges in any

State shall be made by the

Governor of the State in

consultation with the High Court

exercising jurisdiction in relation to

such State.

(2) A person not already in the

service of the Union or of the

State shall only be eligible to

be appointed a District Judge if

he has been for not less than

seven years an advocate or a

pleader and is recommended

by the High Court for

appointment.

234. Recruitment of persons other

than District Judges to the judicial

service ---- Appointment of persons

other than District Judge to the

judicial service of a State shall

beamed by the Governor of the

State in accordance with rules made

by him in that behalf after

consultation with the State Public

Service Commission and with the

33

High Court exercising jurisdiction in

relation to such State.”

A bare reading of these articles

clearly speaks that all the appointments

in the judiciary even at the district level

are to be made with consultation. There

is no concept of appointment of judges in

an arbitrary manner by the executive.

34. In the constitution of the

Kingdom of Saudi Arabia under Article 52

for appointment in the judiciary there is a

higher council of justice with whose

consultation and recommendations the

appointments and determination of

termination of the judges in the judiciary

is made. According to the provision of

Article 6 of this constitution, judiciary is

an independent authority. There is no

control over the judges in the

dispensation of justice except in the

matters of the Islamic Shariah.

Under the Constitutional

Provisions of the Islamic Republic of Iran,

the Supreme Leader shall appoint a just

Mujtahid well versed in judiciary affairs

and possessing prudence and

administrative abilities as the head of the

judiciary power for a period of five years

who shall be the highest judicial

authority. The chief of the Supreme Court

34

and the Prosecutor-General must both be

just mujtahids well versed in judicial

matters. They will be nominated by the

head of the judiciary branch for a period

of five years, in consultation with the

judges of the Supreme Court. The

appointments in the judiciary including

the Prosecutor General are made on the

proposal of Just Mujtahid.

According to the provision of

Article 138 of the Constitution of Republic

of Turkey, the Judges shall be

independent in the discharge of their

duties. No organ, authority, office or

individual may give orders or instructions

to courts or judges relating to the

exercise of judicial power, send them

circulars, or make recommendations or

suggestions. Judges shall discharge their

duties in accordance with the principles

of the independence of the courts and

the security of tenure of judges. The

qualifications, appointment, rights and

duties, salaries and allowances of judges

and public prosecutors, their promotion,

temporary or permanent change in their

duties or posts, the initiation of

disciplinary proceedings against them

and the subsequent imposition of

disciplinary penalties, the conduct of

investigation concerning them and the

35

subsequent decision to prosecute them

on account of offences committed in

connection with, or in the course of, their

duties, the conviction for offences or

instances of incompetence requiring their

dismissal from the profession, their in-

service training and other matters

relating to their personnel status shall be

regulated by law in accordance with the

principles of the independence of the

courts and the security of tenure of

judges. All the appointments are made

in consultation with the concerned bodies

consisting of the Supreme Council of

Judges and the Public Prosecutors.

Under the Constitutional

Provisions of the Constitution of Egypt,

interference in the affairs of the Courts

under law shall constitute crime. Every

judicial body administers its own affairs

and has its own budget. The

appointments in the judiciary are

regulated by law who are selected by the

Supreme Judicial Council of the Judiciary.

According to the Constitutional

provisions of the Republic of Indonesia,

the judicial power is independent and

possesses the power to organise the

judicature in order to enforce law and

justice. All the appointments are made

on the proposal of the Judicial

36

Commission keeping in view the

integrity, and a personality that is not

dishonourable, and must be fair,

professional, and possess legal

experience. Article 24-B of this

Constitution speaks that there must be

an independent Judicial Commission

which shall possess the authority to

propose candidates for appointment as

justices of the Supreme Court and

possesses further authority to maintain

and ensure the honour, dignity and

behaviour of judges.

According to the Constitution of

the Malaysia, the appointments in the

judiciary are made by the President on

the advice of the Prime Minister after

consulting the conference of rulers. The

appointments are also made in

consultation with the Chief Justice.

In the United Kingdom, the

appointments in the superior judiciary

are also made on the recommendations

of the Selection Commission consisting of

the Senior Judges.

In Ireland, the appointments

of Judges are made on the

recommendations of the Judicial

Appointment Advisory Board.

Even according to the

provisions of the Constitution of United

37

Arab Emirates, the appointments in the

judiciary are made by a decree issued by

the President of the Union after approval

by the Supreme Council.

Thus, according to the survey of the

constitutional provisions of the different

states, whether democratic or non-

democratic, the common feature is the

independence of judiciary and

appointments are made in consultation

with or on the recommendations of the

concerned bodies consisting of the Chief

Justices, Judges and Jurists of the

country. Thus, it can be safely held that

according to the universally applicable

principles, there is no concept of

subservient judiciary in the world rather

there is a universal consensus on the

independent status of the judiciary. For

upholding the independence and dignity

of the judiciary with minor modification

according to the constitutional structure

and scheme of the different statutes, the

power of appointments in the judiciary is

not arbitrarily or solely vests in the ruler

rather all the appointments are made in

consultation with the Chief Justices or the

prescribed bodies or persons commonly

consisting of the Chief Justices, Jurists

or the persons or office holders

38

concerned with the field of administration

of justice.‟

Thus, it is almost settled according to the principle of law

enunciated by the apex Court of Pakistan and this Court

that the institution of Service Tribunal is a judicial one

which requires the manner of appointment ensuring the

independence of judiciary.

19. As in Bashir Ahmed Mughal’s case and Sh. Riaz

Ul Haq’s cases (supra), it has been held that for

maintaining the transparency and independence of

judiciary the appointment in the office of Chairman

Service Tribunal has to be made through consultation

process. The legislature has to introduce suitable

amendments providing the mode that the appointment of

Chairman Service Tribunal has to be made after

consultation. Therefore, in this state of affairs, the

concerned are advised to provide in the statute the mode

and manner for appointment to the office of Chairman

Service Tribunal providing consultation with the Chief

Justice of Azad Jammu and Kashmir and the Chief Justice

of the High Court. Till the time the new amendment is

introduced, the present statutory provision dealing with

the appointment can only be operated with condition of

consultation, hence, it is directed that the appointment of

39

the Chairman Service Tribunal and Members must be

made in consultation with the Chief Justice of Azad

Jammu and Kashmir and the Chief Justice of the High

Court.

20. So far as the other proposition raised in this

case regarding the notification of the Finance Department

dated 25.6.2002 is concerned, in view of the above

recorded reasons, remains no more relevant, therefore,

this question is left open to be resolved in some other

appropriate case.

21 In furtherance of the above recorded findings,

as the tenure of the office of Chairman Service Tribunal is

4 years, thus, the respondent under law validly can held

his office for 4 years. After completion of the tenure the

holding of office by him is against law. However, keeping

in view the principle of law laid down in Bashir Ahmed

Mughal’s case (supra), all the acts done by the

respondent being Chairman Service Tribunal including the

drawing of the financial benefits are declared valid under

the doctrine of defecto.

22. In view of the hereinabove discussed detailed

reasons and the conclusion drawn in paragraph 13, we

are constrained to recall the impugned judgment of the

40

High Court and hold that according to the terms and

conditions as settled under the provision of sub-section

(4) of section 3 of the Service Tribunals Act, the

respondent‟s appointment against the post of Chairman

Service Tribunal shall be deemed for a period of 4 years.

However, till the announcement of the judgment, the acts

performed by him including the receipt of monitory

benefits shall be deemed valid under the principle of

defecto doctrine as mentioned hereinabove.

The appeal stands disposed of in the terms

indicated hereinabove.

J U D G E CHIEF JUSTICE J U D G E J U D G E

Muzaffarabad, ___.01.2016.

Azad Govt. & others VS Syed Khalid Hussain Gillani ORDER:

The judgment has been signed. The same shall

be announced by the Registrar, after notifying the

learned counsel for the parties.

CHIEF JUSTICE J U D G E J U D GE J U D G E

Muzaffarabad, ____.01.2016.