RASHEED A. RAZVI and others vs PROVINCE OF SINDH through Chief Secretary and others

' ANWAR ZAHEER JAMALL C.J.--- These two constitutional petitions; one filed by the Sindh High Court Bar Council and its President Mr. Rasheed A. Razvi, and the other filed by the Sindh Bar Council, and its Chairman Executive Committee Mr. Abdul Haleem Siddiqui, both challenging the legality of the Notification No,SOR-1 (5GA&CD)2-3/9 dated 04.12.2008 (hereinafter referred to as the impugned Notification), were heard together and vide our short order dated 15-6-2009 allowed to the extent of prayer clauses (a) and (c) to the petitions, which read as under:---

(a) That this Honourable Court be pleased to declare that the Amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994 and the Notification dated 4-12-2008 (Annexure "A") are without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires of the Constitution, 1973.

(c) A further declaration that the amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994, are illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to and in violation of Articles 4, 9, 14, 175 & 203 of the Constitution, 1973.

2. Before we proceed to record common reasons for the above short order, for ease of reference impugned Notification is reproduced as under:--- "Government of Sindh ' Services Central Administration ' Co-ordination Department (Regulation) Wing ' Notification.

' No, S.O.R.-I(5GA&CD) 2-3/93. In exercise of the powers contained in section 26 of the Sindh Civil Servant Act, 1973, The Government, of Sindh are pleased to make the following amendments in the Sindh Judicial Service Rules 1994.

Amendments ' In rule 2, after clause (a) the following new clause shall be inserted:- "(aa) "Commission" means the "Sindh Public Service Commission"

' In rule 5, in. Sub-rule (1), for the words "on the recommendations of the Provincial Selection Board" the words "through Commission on the requisition of the High Court of Sindh" shall be substituted.

Fazal-ur-Rehman.

Chief Secretary Sindh"

' No,S.O.R.-I(5GA&CD) 2-3/93, ' Karachi dated the 4th December, 2008

3. In a nutshell, the common grievance of the petitioners is that issuance of impugned Notification is violative of Articles 4, 9, 14, 175 and 203 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") and also against the doctrine of separation of powers and independence of judiciary, inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404, which was maintained by the Honourable Supreme Court of Pakistan in the case of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105.

4. Some other relevant features of the case gathered from the record are that after the pronouncement of judgment in the case of Sharaf Faridi (supra), following the directions contained therein, the Government of Sindh, in exercise of its power under section 26 of the Sindh Civil Servants Act, 1973, framed Rules for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto.

5. In terms of these Rules, position as it stood before the impugned Notification was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under section 2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, where after appointments were to be made by the Provincial Government on the basis of such recommendation of the Provincial Selection Board. However, after the issuance of impugned Notification in this regard, now the only authority left with the High Court of Sindh is the formality of sending requisition to the "Commission" as defined under newly added Rule 2(aa) of the Sindh Judicial Service Rules, 1994 (in short "Rules of 1994").

6. Notices of these petitions were issued to respondents as well as to the Attorney-General of Pakistan and Advocate-General Sindh, calling upon them to submit their parawise comments in terms of the order dated 16-12-2008. In response to it, on behalf of respondent No,3 (Federation of.

Pakistan), following statement was filed in Court on 13-1-2009:--- "It is submitted that the above titled petition mainly relates to respondents Nos.1 and 2 i.e, Government of Sindh. This Ministry is impleaded as pro forma respondent (No,3) and no relief whatsoever has been claimed/sought against it. Hence, no comments are offered on behalf of respondent No,3."

7. On behalf of respondent No,1 (Province of Sindh), precisely their case is that the impugned Notification is neither ultra vires, nor mala fide but has been issued to bring the policy of recruitment in the Sindh judiciary in consonance with the one followed in the other three Provinces of the country i.e, Punjab, N.-W.F.P. And Balochistan. Respondent No,1 also denied the allegations that the impugned Notification undermines the independence of judiciary or is violative of any judgment of the apex Court touching upon the issue ' of the independence of judiciary or appointment of Judges in the District judiciary.

8. The respondent No,2 (Sindh Public Service Commission) in their parawise comments have more or less, endorsed the case of respondent No,1 as regards the merits of the impugned Notification.

They further stated that the office of "Sindh Public Service Commission" is an important institution of the Government under the Constitution. Thus, exercise for recruitment of Civil Judges and Judicial Officers, if undertaken, through this office will cause no harm to the concept of independence of judiciary.

9. Mr. Rashid A. Razvi Advocate/petitioner in his arguments submitted that the legality or otherwise of the impugned Notification is to be examined by the Court, keeping in view the following four important aspects of this controversy:---

(a) Whether the impugned Notification is violative of Articles 2A, 4, 9, 14, 175 and 203 of the Constitution?

(b) Whether the impugned Notification is against the scope and spirit of independency(?) of judiciary as laid down in the Constitution?

(c) Whether the Sindh Government was competent to bring amendment in the Sindh Judicial Service Rules of 1994, despite directions contained in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404?

(d) Whether the amendments brought through impugned Notification needed prior approval of the Sindh High Court?

10. Dilating upon the above aspects of the matter, Mr. Razvi vehemently contended that the Constitution of Pakistan has a basic structure, providing for a tracheotomy of powers between the three organs of State i.e, Legislature, executive and judiciary. In this regard much law has been laid down by the superior Courts while analyzing the scope of Articles 2-A, 175 and 203 of the Constitution together with fundamental rights guaranteed under Chapter-II of the Constitution.

These Articles envisage complete independence of judiciary in all respects, including financial matters. Unfortunately, contrary to the same, the executive is bent upon encroaching the independence of judiciary by creating financial constraints in its working and also by creating administrative hurdles in its smooth functioning. The impugned Notification is a glaring instance of such mindset of the executive to undermine the independence of judiciary. Learned counsel further contended that unless the judiciary is allowed to function independently in the matter of fresh appointments in judicial service, the very concept of its independence will be compromised and there will be a complete failure of this organ of the State in the performance of its duties and functions if for this purpose it has to seek assistance from the Executive and is left at the mercy of the executive authority of the Province.

11. Making reference to the earlier notified Rules dated 24th November 1994, he submitted that these Rules were framed after their approval from the Full Court of High Court of Sindh, therefore, even if for argument's sake, any amendment was needed in it; as a pre-condition for that, a reference should have been made to the High Court for seeking its approval or otherwise from the Full Court, ' instead of permitting the executive for unilaterally exercising its authority and circumventing the role of the provincial High Court. Thus, thrusting its decision upon the highest judicial forum of the Province.

12. Mr. Rasheed A. Razvi also made reference to the process of recruitment undertaken by the High Court from time to time through the Provincial Selection Board after the enforcement of the Sindh Judicial Service Rules, 1994 in the Province of Sindh, to show the level of its transparency and "merit criteria", due to which, on several occasions even the available vacancies of the judicial officers could not be filled up by the Provincial Selection Board despite much higher number of applicants/candidates for these posts. In support of his submissions learned counsel made reference to the following cases:---

(1) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404, (2) Government of Balochistan. Through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341, (3) Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869, (4)

Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324, (5) Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, (6) Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, (7) Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416.

13. Before we proceed further, it will be useful to reproduce herein under, the relevant extracts from the above cited cases as referred to and relied upon by Mr. Rasheed Razvi.

' Sharaf Faridi and 3 others v the Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another.

"Reference may also be made to the Ballentine's Law Dictionary, Third Edition and Black's Law Dictionary, Fifth Edition for the meaning of the words "control" and "supervise".

Ballentine's Law Dictionary.

' Control': Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb 98 Ala 426, 432 Noun: A position of authority in direction and management.

'Supervise'. To exercise oversight. To keep under inspection. See Superintendence.

'Superintendence': Oversight, inspection, supervision, Moffitt v. Asheville, 103 NC 237, 9 SE 695.Care and oversight for the purpose of direction, and with authority to direct. The act of superintending.

"The word seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight." Dantzler v. De Bardeleben Coal and Iron Co. 101 Ala 309, 14 So 10.

Black's Law Dictionary.

'Control': v. To exercise, restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.

'Control': n. Power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied by power or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2 d 972."

'Supervise'. To have general oversight over to superintend or to inspect. See Supervisor, "Supervisor".A surveyor or overseer. Also in some states, the chief officer of a town; one of a board of country officers.

' In a 'broad sense, one having authority over others, to superintend and direct.

' The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, *promote, discharge, assign, reward, or discipline other employees or responsibility to direct 'them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment. National Labour Relations Act S.2(11)."

' I am inclined to hold that the. Supervision and control over the subordinate judiciary vested in the High. Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides it will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution.

' The Constitution should not be interpreted in a narrow and pedantic manner. It should be given liberal and broad interpretation but any enactment which transgresses the limitations placed by Constitution would be declared void. If there is a conflict in the provisions of the Constitution they should be interpreted harmoniously so that without violating the other both can be practised and coexist. In such a situation a construction which ensures smooth working of the Constitution in consonance with its other provisions should be adopted. No provision of the Constitution unless so provided by the Constitution itself is supreme to the other nor can it override the other provisions.

Such interpretation should be adopted which promotes harmony, consistency and keeps the Constitution alive and progressive.

' A mandatory duty has been cast upon the Executive and Legislature to separate the Judiciary from Executive, but they have remained completely silent, dormant and unconcerned. Such omission to exercise jurisdiction not only violates Article 175 but infringes Fundamental Right as well.

In such circumstances necessary orders can be passed and direction in mandatory form can be issued to ensure enforcement of the provisions of the Constitution and to prevent the breach of Fundamental Right".

' Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others.

' In fact the administration of justice cannot be made subject to or controlled by the executive authorities. The Constitution provides for separation of judiciary from the executive. It aims at an independent judiciary which is an important organ of the State within the Constitutional sphere.

The Constitution provides for progressive separation of the judiciary and had fixed a time limit for such separation. It expired in the year 1987 and from then onwards, irrespective of the fact whether steps have been taken or not, judiciary stands separated and does not and should not seek aid of executive authorities for its separation. Separation of judiciary is the corner-stone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of the executive officers. This is merely a- semblance of establishing Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of Constitution. Considering from this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the case till the revision is disposed of, the entire machinery is in the hands of the executive from Naib-Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly be conducive to the administration of justice and development of the rear nor will it achieve the desired result of bringing law and order, peace and tranquility or economic prosperity and wellbeing. The Constitution envisages independent judiciary separate from the executive. Thus, any Tribunal created under the control and superintendence of the executive for adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and 25."

' Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others.

"210. The Independence of Judiciary is a basic principle of the constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of Judiciary. The Preamble and Article 2A state that "the independence of Judiciary shall be fully secured"; and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive". The rulings of the Supreme Court in the cases of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105, Al-Jehad Trust (supra) and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161, indeed, clarified the constitutional provisions and thereby further strengthened the principle of the independence of Judiciary, by providing for the separation of Judiciary from the executive, clarifying the qualification for appointment of Judges of the High Courts, prescribing- the procedure and the time frame for appointment of Judges, appointment of Chief Justices and the transfer of a judge from a High Court to the Federal Shariat Court. Furthermore, the Supreme Court judgment in the cases of Mehram Ali and Liaquat Hussain (supra) are also in line with the above rulings, in as much as, they elaborated and reiterated the principle of judicial independence and the separation of Judiciary from the executive.

211.In a constitutional system of governance, guaranteeing Fundamental Rights and based on principles of trichotomy of powers, such as ours, the Judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between State and citizens or citizens inter se. The Judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.

212.The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances.' This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent Judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of cast, creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment which is conducive to economic growth and social development."

' Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabbul-Khairi and others v. Federation of Pakistan.

' The independence of Judiciary is inextricably linked and connected with the constitutional process of appointment of Judges of the superior Judiciary. The relevant constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may be able to meet the requirement of ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed. In other words, their colour and contents are derived from their context.

' The system of appointment of Judges obtaining in USA and UK has no direct bearing on the issue.

The systems of appointment of Judges in the above two countries are different as compared to Pakistan. The relevant Articles in Constitution of Pakistan relating to appointments in Judiciary with minor variations have been lifted from the Indian Constitution, 1950, and, therefore, the factum as to how they have been interpreted and acted upon in India is relevant.

' As stated in the short order, if we look at the Constitution of 1973, we find that the title is "The Constitution of Islamic Republic of Pakistan" and Article 2 thereof commands that Islam is to be its State religion. Preamble to the Constitution says that the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed and independence of judiciary fully secured Objectives Resolution as reproduced in the Preamble has been made as substantive part of the Constitution by Article 2A inserted by P.O.No,14 of 1985. Part IX of the Constitution contains Islamic provisions in which Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The institution of Judiciary in Islam enjoys the highest respect and in this judgment in the preceding paragraphs from 34 to 46 instances from the Islamic history have been given showing how and on what criteria Judges/ Qazis were appointed and how they were respected and even the rulers of the time used to appear in the Court and obey judgments without any demur, which were binding on them. The Islamic history also shows that rulers were God-fearing, humble, polite, benign, unsarcastic and righteous and did not claim any air of mundane superiority and submitted to the jurisdiction of the Courts as a matter of duty. In one case when Amirul Momineen appeared in the Court of Qazi who got up from his seat as a gesture of deference, Amirul Momineen disapproved it on the ground that it was inconsistent with the dignity and independence of the Court. In Islam Chief Justice was given power to appoint other Judges in the subordinate Courts."

' Liaquat Hussain v. Federation of Pakistan.

' The impugned Ordinance does not envisage the establishment of permanent Military Courts but it provides for the trial of civilians for the offences mentioned in the Ordinance by any of the four types of Courts mentioned in section 80 of the Army Act to be convened for each case comprising different Army personnel. In pith and substance the above types of Courts cannot be equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case of Mehran Ali v. Federation of Pakistan (supra). It may be pointed out that, this Court in the cases of Government of Balochistan v. Azizullah Memon (supra), Al-Jehad Trust (supra) and Mehram Ali (supra) has held that the right to have access to justice through independent Courts is a Fundamental Right and, therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law enunciated particularly in Mehram Ali's case (supra) will be violative of Articles 9, 25, 175 and 203 of the Constitution." (italics added).

' Khan Asfandyar Wali v. Federation of Pakistan.

"However, the functioning of any Court or tribunal, beyond the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, does not fulfil the mandatory requirement of the Constitution, in that, under Article 203 read with Article 175 of the Constitution, the supervision and control of the subordinate judiciary exclusively vests in the High Courts. The above principles were also recognized by a 5-member Bench of this Court in the case of Mehram Ali (supra) wherein it was inter alia held that the provisions of the Anti-Terrorism. Act, 1997 were valid except those which militated against the concept of independence of Judiciary or which were repugnant to the provisions of Article 175 and 203 etc."

' Benazir Bhutto v. Federation of Pakistan.

"Therefore, there can be no doubt that when the impugned legislation by reference to its provisions is ex facie violative of Fundamental Rights of an individual or political parties or associations or unions, proceedings lie for the enforcement of those rights irrespective, of the fact whether any prejudicial order has been passed by the Executive under the law as the Constitution treats the Fundamental Rights as superior to ordinary legislation and for that reason sub-Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly. Reflect the object and intention of the framers of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions. 'Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not to make law which takes away or abridges the rights so conferred, and any law made in contravention of this clause shall to the extent of such contravention, be void. Article 199(1)(c) authorizes the High Court to enforce the Fundamental Rights of an aggrieved person and to declare that so much of the law which is inconsistent with the Fundamental Rights shall be void. Therefore, there is the power to declare the law to be void and the power to enforce the Fundamental Rights which are violated by the law itself: Article 184(3) of the Constitution empowers the Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental Rights takes place by the operation of the law itself."

14. Mr. Abdul Haleem Siddiqui petitioner in C.P. No,D-38 of 2009 while adopting the arguments of Mr. Rashid Razvi, also submitted synopsis of his arguments which, inter alia, contained following grounds with some case-law from Indian jurisdiction, which reads thus:---

(1) Sindh Judicial Service Rules, 1994 were amended by the Government of Sindh through impugned Notification which is ultra wires to the Article 175(3) of the Constitution of the Islamic Republic of Pakistan 1973. The said Articles clearly state that the judiciary shall be separated from the Executives within fourteen (14) years from the commencing date.

(2) Article 203 of the Constitution of Islamic Republic of Pakistan 1973 states that each High Court shall supervise and control all Courts that are subordinate to it. The words "supervise and control" have been used in Article 203 of the Constitution and according to Oxford Dictionary the word "supervise" mean "to oversee, have the oversight of, superintend the execution or performance of a thing, the movements or a work of a person". Similarly, in Black's Law Dictionary the meaning assigned to it is "to have general oversight over, to superintend or to inspect". The word "control" according to Oxford English Dictionary means "to overrule a judgment or sentence", as understood in the legal parlance. Again in Black's Law Dictionary it means "power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee". These words from their meanings convey the same sense as the word "superintendence".

(3) Articles 233 to 236 of Constitution of India relates to the appointment of District Judges, their promotions and transfers. The object of this group of articles is to secure the independence of judiciary from the Executive as is held in the reported case law.

Chandra Mohan v. State of U.P. AIR 1966 SC 1987.

' At Pg. 1990 paragraph 7 of the case-law. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say he can only appoint a person to the Court of District Judge in consultation with the High Court. The object of consultation is apparent that the High Court knows better that the Governor in regard to the suitability or otherwise of a person belonging either to the "judicial service or to the bar" to be appointed as a District Judge.

' It was mentioned in reference to Article 233 that a mandatory provision (consultation with the High Court) was violated.

' At Pg. 1993 paragraph 14 of the case law. Indeed it is common knowledge that in pre- independence India there was a strong agitation that the judiciary should be separated from the executive. And the makers of the Indian Constitution also realized that "it is the subordinate judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed ever more important, that there independence should be placed beyond question in the case of the superior judges.

(4) The Constitution of India gave clear mandate to exercise the power of appointment of the district judges by the Governor, conditioned by his consultation with the High Court, that is to say that he can only appoint a person to the post of District Judges in consultation with the High Court.

State of Kerala v. A. Lakshimikutty AIR 1987 SC 331.

' Page 331-2 Paragraph 31-34. Under Article 233 Governor's consultation with the High Court on the point of appointment of judges is a necessary condition which has to be taken care of at all time.

The duty of the Governor to consult the High Court in the matter of appointment of District Judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided by Article 233(1) or not at all. If the State Government for "good and weighty reasons" finds it difficult to accept the recommendation of High Court, the State Government should communicate its view to the High Court and must have complete and effective consultation with the High Court in the matter.

State of Assam v. Kusseswa r AIR 1970 SC 1617.

' The High Court was of opinion that this was deliberately done to grab at the power of promoting subordinate judges by taking advantage of the definition of District Judge which includes an Assistant District Judge. By this device, which the High Court described as 'a fraud upon the Constitution' the power of promotion vested in the High Court in respect to persons belonging to the Judicial Service of a State and holding posts inferior to the post of the District Judge the jurisdiction of the High Court under Article 235 was taken away. Formerly, the subordinate service was composed of two grades and promotion between the two grades was made by the High Court. Under the new rules there is only one grade (i.e, grade III) in which Art.235 can operate if at all. Since all the posts there are equal and carry equal pay there is no scope for promotion at all.

The High Court is thus right that there is no scope for the exercise of the power of the High Court to make promotions in the case of persons below the rank of District Judges (which term includes an Assistant District Judge). The High Court was thus far right but the High Court is not right in thinking that it can ignore the hierarchy of Courts in Assam as established by law and treat the change as of no consequence. The remedy is not to go against the Civil Courts Act as amended, but to have the amendment rescinded. We are of the view that the change is likely to lead to an impairment of the independence of the judiciary at the lowest levels whose promotion which was vested by the Constitution in the High Court advisedly , will no longer be entire in the hands of the High Court. The remedy for it is by amendment of the law to restore the former position. We may say that we do not approve of the change of mere name without any additional benefits."

15. In reply, Mr. Muhammad Yousuf Leghari, Advocate-General, Sindh addressing the Court challenged the maintainability of these Petitions on the ground that under section 26 of the Sindh Civil Servants Act, 1973, the Government of Sindh has full powers for issuing the impugned Notification and it is not for the first time that such powers have been exercised by it for bringing amendments in the Sindh Judicial Service Rules, 1994. In this regard, he also made reference to three earlier Notifications dated 29th October 1995, 13th December, 1995 and 3rd June 2006, and cited the case of Hakim Khan and 3 others vs. Government of Pakistan PLD 1992 SC 595, which deals with the scope of Article 2A of the Constitution and lays down the principle that such provision of the Constitution of Pakistan is not a supra-Constitutional provision. The Objectives Resolution having been made a substantive part of the Constitution by virtue of Article 2A, became an essential and integral part of the Constitution, possessing the same weight and status as other Articles of the Constitution which were already a substantive part thereof. It further lays down the proposition that as a well established rule of interpretation the Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole scheme of the instrument in order to ascertain the true intent and meaning of any particular provision. Where any apparent repugnancy appears to exist between its different provisions, the Court has to harmonize them, as far as possible.

16. Further submission of the learned Advocate-General was that as long as the respondent No,1 is legally empowered to bring amendments in Sindh Judicial Service Rules, 1994 in the exercise of such powers by it, no interference is called for from the High Court. He further argued that Sindh Public Service Commission is an independent body, which is meant for the purpose of selection/appointment of Government servants, therefore, in the matter of appointment of Judicial Officers in the District judiciary too, no exception can be taken to such authority of the Commission and it is for this reason that the impugned Notification was brought into force by the Sindh Government, in order to ensure full transparency in the appointment of Judicial Officers in the District judiciary.

17. Learned Advocate-General, Sindh further made reference to the Punjab Judicial Service Rules, 1994 and the Rules in force in the other two Provinces of Balochistan and N.-W.F.P. To show that in three other Provinces, the selection process of the Civil Judges and Judicial Officers is undertaken through respective Public Service Commissions, whereas, in two of these Provinces the appointments in the judicial service are made by the respective High Courts.

18. The learned Advocate-General was, however, unable to show us, from the Rules of 1994 applicable in Sindh, whether any such parallel provision for appointment in the subordinate judiciary was available with the High Court, which, after the issuance of impugned Notification has been virtually left only with the authority of sending requisition to Sindh Public Service Commission, informing them about the number of Civil Judges and Judicial Magistrates required for the purpose of District Judiciary in Sindh.

19. In the end, learned Advocate-General made reference to the method of recruitment followed in United Kingdom to add force to his contention that as a matter of policy, recruitment of Judges in the District judiciary has always remained under the control of executive. However, we found little conviction in his arguments on this point,

20. Besides, reference to some of the cases earlier cited by the petitioner's counsel, learned Advocate-General, Sindh cited following other cases in support of his arguments about the validity of impugned Notification:-

(i) Hakim Khan and 3 others v. Government of Pakistan PLD. 1992 SC 595, (ii) Syed Imam Shah and others v. Government of N.-W.F.P. PLD 2004 SC 285, (iii) Federation of Pakistan v. Ammar Textile Mills (Pvt.) Limited and others 2002 SCMR 510.

21. In the case of Hakim Khan and others, examining the objection of insertion of Article 2A in the Constitution, the Court observed that Constitution is to be read as a whole and it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision and where an apparent repugnancy appears to exist between its different provisions the Court should harmonize them, if possible. It was further observed that since the Objective Resolution has been made a substantive part of the Constitution it has undoubtedly become an essential or integral part of the Constitution possessing the same weight and status as other Articles of the Constitutions, which were already a substantive part thereof.

22. In the case of Syed Imam Shah, the Honourable Supreme Court examined in detail the connotation of words "practice" and "rule" and observed that a mere practice cannot attain the status or rigidity of a rule. Practice has no binding element; because of its instatic nature and vulnerability to change it has no consequences, unless some mala fide is established for deviation from the same. Rules, on the other hand, are framed by a competent authority in exercise of powers conferred upon it by some statute(s), law, legislation or enactment having a binding effect which cannot be violated/or departed from, unless otherwise provided.

23. In the case of Federation of Pakistan v. Amin Textile Mills, making reference to section 21 of the General Clauses Act, the Honourable Supreme Court held that the authority of Government to amend; vary or rescind a notification issued earlier cannot be denied in view of such provision of the General Clauses Act, 1897.

24. Keeping in view the ratio of the above cited judgments, it will be pertinent to mention here that in the instant petition, there is no dispute as regards authority of the Provincial Government in framing rules under section 26 of Sindh Civil Servants Act, 1973, but the moot question for consideration is whether, despite clear and unambiguous directions of .a Full Bench of the Sindh High Court contained in Sharaf Faridi's case, affirmed by the Honourable Supreme Court of Pakistan, Sindh Judicial Service Rules, 1994 framed in compliance of such directions could be so bluntly and brutally amended so as to negate the very spirit and directions in the said Judgment and also to cause a serious blow to the sanctity of a separate and independent Judiciary in the province of Sindh.

25. Mr. Ashraf Khan Mughal, D.A.-G. On behalf of respondent No,3 adopted the arguments of Advocate-General, Sindh Mr. Yousuf Leghari, though such stance is contrary to their written reply to the petition.

26. Mr. Rashid A. Razvi in his reply arguments, contended that the mala fide of the respondent No,1 regarding the impugned Notification is evident from the fact that since the last almost two years all possible hurdles have been created to hamper the process of recruitment of Judicial Officers in the District judiciary in Sindh, which at one point of time, had reached an advanced stage, but could not materialize, and ended up in the form of impugned Notification for reasons that need not be dilated upon here.

27. To rebut the submissions of Mr. Leghari as regards mode of appointment of judicial officers in the United Kingdom, Mr. Razvi made reference to the Constitutional Reforms Act, 2005, introduced in United Kingdom which has brought about sweeping reforms in the policy of recruitment of judicial officers in the U.K. He contended that a drastic improvement had been brought about in the United Kingdom to make the superior judiciary more independent in the matter of selection and appointment of the Judges to the subordinate judiciary, this being their specialized field. He also made reference to Articles 8 and 9 of our Constitution in aid of his submissions that the instant Constitutional Petitions challenging the impugned Notification are very much maintainable in law and such illegal action of respondent No,1 is liable to be struck down by this Court, while exercising its powers under Article 199 of the Constitution.

28. Amplifying his submission on the point of mala fide nature of the impugned Notification, Mr. Rasheed Razvi made specific reference to the case of State of Kerala v. A. Lakshimikutty AIR 1987 SC 331, and the case of State of Assam v. Kusseswar AIR 1970 SC 1617. (Both already cited above).

29. In order to examine in detail the background of framing the Sindh Judicial Service Rules, 1994, we have perused the relevant record, which reveals that after thejudgment in Sharaf Faridi's case, the matter regarding framing of such rules was first taken up for consideration in the meeting of Honourable Chief Justices of High Court in all the four Provinces of Pakistan, held on 23-1-1993.

Thereafter, in Sindh Province, exercise of framing of such Rules was taken-up by the Administrative Committee of High Court, where the report of the sub-Committee comprising Justice Haider Ali Pirzada and Justice Syed Abdul Rehman, on the subject of framing of Sindh Judicial Service Rules, was considered along with the notes recorded thereon by Justice (R) Z.A. Channa, Justice Qaiser Hamdi and Justice Nazim Hussain Siddiqui.

30.,. Finally, after detailed deliberations, the drafted Rules were approved in the meeting of Administrative Committee of the High Court of Sindh and sent for formal approval to the Provincial Government. It was on these basis that the Rules were finally notified in the year 1994. Here it will not be out of place to mention, that even for the purpose of three earlier amendments in the Sindh Judicial Service Rules, as brought to the notice of this Court by Advocate-General, Sindh by placing on record Notifications dated 29th October 1995, 13th December 1995 and 3rd June 2006, the proposed amendments were first taken into consideration by the Administrative Committee of the Sindh High Court and upon its recommendations and reference, consequent amendments were brought in the said Rules. Thus, it is obvious that at the time of issuance of impugned Notification, contrary to this settled procedure and practice, an unconventional and unilateral step was taken by the Government of Sindh for issuance of impugned Notification, which has virtually paralyzed the very basic structure of the recruitment process as earlier envisaged in the said Rules for appointment of judicial officers.

31. In our opinion, the terms "recruitment" and "appointed" used in the Rules do not convey a symbolic authorization for the High Court to issue requisition to the Government for this purpose or to sign for or issue appointment letters of the judicial officers, leaving the other main and crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities. Rather they provide for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government and consequent Notification to this effect.

32. The perusal of the scheme of Sindh Judicial Service Rules providing therein for establishment of "Provincial Selection Board" is in consonance with the spirit of such Rules, otherwise, the very purpose of constitution of Provincial Selection Board would become redundant. In the wake of such clear legal position coupled with the observations of the Honourable Supreme Court of Pakistan and the Full Bench of Sindh High Court, in the judgments referred to above, there remains no room for doubt to see that the "Sindh Public Service Commission" cannot be entrusted with the task of selection and recruitment of Judicial Officers and their appointment through Government of Sindh, as it will be a clear negation of the doctrine of separation of power and independence of judiciary as entrenched in the basic structure of the- Constitution. To add more, if amended rules as per impugned Notification are implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work will become only an authority, that has to make requisition to the Commission for such appointments with no further role or participation at any stage.

33. Examining the role of respondent No,2 (Sindh Public Service Commission), we find that by virtue of Article 242 of the Constitution the Provincial Government is empowered for the establishment and constitution of a "Provincial Public Service Commission". This Commission under sub-Article (2) can be assigned such functions as may be prescribed by law.

34. When we see the formation of respondent No,2 (Sindh Public Service Commission) under the Sindh Act XI of 1989, we find that the nomination of its Chairman and Members is in the hands of the Governor of the Province, with a fixed time frame to hold such office and the performance of its functions being in terms of section 7 of the Act. Thus in reality the Commission is part of the executive setup of the Province, whilst the judiciary, which is the third pillar of the State under the Constitution, has no role to play in its formation or working. Moreover, no sitting Judge of the High Court can hold such office during the term of his service in the superior judiciary. These undisputed facts go a along way to show that respondent No,2 has no jurisdiction to play any role in the recruitment/appointment of Civil Judges and Judicial Magistrates, which exercise exclusively falls within the domain of the Provincial Selection Board formed under the Rules of 1994. This is substantiated by the fact that Civil Judges-cum-Judicial Magistrates after their recruitment in judicial service do not acquire the status of civil servants. In this regard a reference to section 2(e) of The Removal from Service (Special Powers) Sindh Ordinance IX of 2000 is relevant, which reads as under:--- "2.. In this Ordinance, unless there is anything repugnant in the subject or context:---

(a) .......................................................................................................................

(b) .....................................

(c) .......................................................................................................................

(d) ..................................

(e) "person in Government service" includes every person who is a member of a Provincial Service or of a Civil Service of the Province or who holds a civil, post in connection with the affairs of the Province or any employee serving in any Court or Tribunal set up or established by government but does not include a Judge of the Supreme Court or of a High Court or Federal Shariat Court or any Court subordinate to the High Court or any employee thereof." (Underlining for emphasis).

35. Gleaning the past performance of Sindh Public Service Commission, we cannot remain oblivious of the voluminous litigation against it, mainly agitating grievances about malpractices and corruption and assertions of the Sindh 'Government contained in their comments filed in C.P.,No,D-1182 of 2008 together with the report of our learned brother Justice Faisal Arab dated 7-4- 2007, which speaks volumes about the mismanagement and malpractices prevalent in the said Commission. It is pertinent to mention that these allegations were duly supported by the Sindh Government, rather made basis for refusing appointments of certain candidates, who were recommended by the Commission for appointment as D.D.As. Etc.

36. For the sake of ready reference two relevant paragraphs of the comments filed by Secretary Law Department, Government of Sindh in this regard are reproduced as under:--- "It is submitted that in the selection of the petitioners as D.D.As. In BPS-17, The Sindh Public Service Commission did not adopt transparent procedure as in order to pick 69 most qualified candidates for viva-voce, Controller Examination, Sindh Public Service Commission had determined 47 marks as minimum qualifying marks. However, 25 candidates (including petitioners) who had secured less than 47 marks and failed to qualify written test were selected/called for viva-voce as indicated by inquiry report dated 7th July 2007 of Mr. Justice Faisal Arab, Honourable Judge of the High Court of Sindh. In the light of the inquiry report, the petitioners have been placed under suspension and show cause notices have been issued to them by the Chief Secretary, Government of Sindh so as to why one or any of the penalties as provided in Section 3 of the Removal from Service (Special Powers) Sindh Ordinance, 2000 should not be imposed upon them on account of having committed misconduct in procuring their appointments in illegal and clandestine manner. In fact petitioners are not eligible and had not qualified the criteria set for appointment of D.D.As.

' It is admitted that in view of enquiry report of his lordship Mr. Justice Faisal Arab, Judge of the Honourable High Court of Sindh, show-cause notices were issued to the petitioners by the competent authority on account of committing a misconduct as although petitioners had failed in the written test but in collusion with the Controller of the Sindh Public Service Commission, managed their names in the list of successful candidates."

37. While exploring the practicality and rationality of recruitment of Civil Judges and Judicial Officers through the "Provincial Selection Board" established under section 2(e) of the Rules of 1994, it will also be pertinent to mention here that all the members of that Provincial Selection Board are none else, but sitting Honourable Judges of the High Court before whom most of the candidates, who may have applied for such posts must have been appearing frequently. This in turn enables the members of Provincial Selection Board to form a better opinion about their level of efficiency and competence. This unique opportunity will be totally lacking ' in a situation where such exercise is allowed to be undertaken through the Commission as provided through the impugned notification.

38. In other words, the members of the Provincial Selection Board are experienced and specialized persons connected with and part of the judicial system, therefore, their suitability and experience to undertake the process of recruitment of Civil Judges/Judicial Magistrates is unparalleled with that of the members of the Commission. It is significant to mention here that under the Rules of 1994 (before the impugned Notification) though the exercise of initial recruitment of Civil Judges- cum-Judicial Magistrates was to be undertaken by the Provincial Selection Board or the Committee of not less than three Honourable High Court Judges specially constituted for the purpose of recruitment by the Full Court, nonetheless their recommendations were to be sent to the appointing Authority under Rule 4 (Government of Sindh), which had the option to disagree with such recommendations for valid reasons, in respect of all or some of the candidates, so recommended. However, such act on the part of appointing Authority was open to challenge before the judicial forum to see whether the decision of the Executive Authority was arbitrary, biased, mala fide or for some extraneous consideration other than merits. In this regard we can seek guidance from the two judgments of Sindh High Court in the cases of Nawaz Ali Sher v.

Province of Sindh 1988 PLC (C.S.) 337 and Manthar Ali Jatoi v. The Government of Sindh 1988 PLC (C.S.) 344.

39. Thus, it will be seen that under the original Rules of 1994 the rule making authority has adopted a fair approach for striking a suitable balance in the matter of recruitment/appointment in judicial service. Over and above by virtue of Rule 9, such appointments against substantive vacancies are required to be on probation for a period of two years, which enables the High Court to dispense with their service before the expiry of period of probation, if not found fit to be retained in service or even otherwise, as normally, for removal from service during probation period the competent Authority is not required to assign any reason for it.

40. Contrary to this as a result of impugned Notification, in a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of Civil Judges-cum- Judicial Magistrate has been completely eliminated, except to the extent of sending a requisition, which is nothing but a formality.

41. Scanning the law of some foreign countries having similar legal system on the subject of recruitment/ appointment of the judicial officers as ours reflects an increasing trend towards active involvement of superior judiciary/judicial officers in such process, which seems to be for the reason, to avail benefit of their experience and expertise in the field of law and to minimize the chances of political influence or corruption.

42. A deeper analysis of the practices, policies and procedures of recruitment/appointment of judicial officers followed in some other countries, we find that in France, there is a system of a self governing body to control judicial appointments' process knotvn as, Conseilsuperieur de la Magistrature (CSM), which consists of twelve members comprising five elected Judges, one Public Prosecutor, one Counsellor of State chosen by his or her peer and three individuals, of whom one Judge is nominated by the President of the Republic, Senate and the National Assembly. This Committee also own two ex-officio members, the President of the Republic and Ministry of Justice.

43. In Italy, the Self-Governing Body, which controls judicial appointment, is the "Consiglio Superiore Della Magistratura" (CSM), which consists of thirty three members, comprising twenty Judges elected directly by the Judiciary, ten lawyers, University Law Professors nominated by the Parliament and a number of Ex-Officio members, which 'include President of the Court of the Cassation, Prosecutor General Cassation and President of the Republic.

44. In Spain, Self-Governing Body for judicial appointments is the "Consejo General Delpoder Judicial", which consists of twenty one members comprising twelve Judges and eight lawyers with more than fifteen years' experience, all appointed by the Parliament and the President of the Supreme Court as ex-officio member.

45. In Portugal, Judicial Self Governing Body is the "Conselho Superior Da Magistrautra" (CSM), which consists of seventeen members comprising seven Judges elected directly by the Judiciary, one Judge nominated by the President of the Republic, seven non-judges nominated by the Parliament, one non-judge nominated by the President of the Republic and the President of the Supreme Court as an Ex-Officio member.

46. In Germany, there is a regional governance system for judicial appointments. The boards are made up of members of Judiciary as well as members of Parliament and members of the bar in varying numbers who recommend the appointment to the Judiciary.

47. In Netherlands too such exercise is undertaken by a Board consisting of majority of Judges and persons from legal fraternity so as to ensure that in the matter of appointment of Judges there is no political impact and complete transparency is made in that.

48. This brief survey regarding the Judicial appointment in various European countries, coupled with the Constitutional Reforms Act. 2005, leads us to a clear conclusion that in all the democratic and civilized societies, now the importance of separation and independence of Judiciary is fully recognized. Consequently, as per their respective suitability, independent Selection Boards, Commissions/Institutions are being formed mostly consisting of members of superior judiciary to avoid political pressures and other malpractices in the matter of appointment of Judicial Officers and ensuring that merit criteria are met.

49. As the learned counsel has made specific reference to the Constitutional Reforms Act, 2005, in the United Kingdom. In this context, it will be useful to reproduce hereunder first paragraph of Chapter 5 of the Book titled as "Constitutional & Administrative Law" by Hilaire Barnett (Fifth Edition published in the year 2004), which highlights the background of such constitutional reforms' enactment, the same read as under:--- "The separation of powers, together with the rule of law and parliamentary sovereignty, runs like a thread throughout the Constitution of the United Kingdom. It is a doctrine which is fundamental to the organization of a State - and to the concept of constitutionalism - in so far as it prescribes the appropriate allocation of powers, and the limits of those powers, to differing institutions. The concept has played a major role in the formation of constitutions. The extent to which powers can be, and should be, separate and distinct was a central feature in formulating, for example, both the American and French revolutionary Constitutions. In any State, three essential bodies exist: the executive, the legislature and the judiciary. It is the relationship between these bodies, which must be evaluated against the backcloth of the principle. The essence of the doctrine is that there should be, ideally, a clear demarcation of functions between the legislature, executive and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances between the institutions. However, as wjll be seen, there are significant departures from the pure doctrine under the United Kingdom' Q Constitution, and it must be conceded that, while the doctrine is accorded respect, it is by no means absolute.

' In 2003 the government announced that it intended to pursue further constitutional reform which - if enacted - will have major implications for the separation of powers. There are found principal aspects of the reform; the areas are as follows: ' Abolition of the office of Lord Chancellor; ' Removal of the Law Lords from the Appellate Committee of the House of Lords and replacement by a Supreme Court located away from the Houses of Parliament; ' The role of the Lord Chancellor in relation to judicial appointments is to be taken over by a Judicial Appointments Commission; ' Arrangements are to be made to enable the House of Lords to appoint its own Speaker of the House."

50. In the same book, the Author has also discussed the historical development of the concept of separation of powers and written as under:--- "If we look at the history of concept of separation of powers between the Legislature, Executive and Judiciary, its traces are found from the days of Arristotle (384 - 322 BC), who in his Book 'Politic', proclaimed as under:--- "There are three elements in each constitution in respect of which every serious law giver must look for what is advantageous to it; if these are well arranged, the Constitution is bound to be well arranged, and the differences in Constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses every thing of common importance; second, the officials; and third the Judicial element."

51. Baron Montesquieu (1689 - 1755) a French Social Commentator, Political thinker and author stressing the importance of Independence of the Judiciary, in his book 'De l'Esprit des lois' (The Spirit of the Laws) (1748) wrote as under:--- "When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty. Again, there is no liberty if the power of judging is not separated from the legislature and executive. If it were joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control; for the Judge would then be the legislator. If it were joined to the executive power, the Judge might behave with violence and oppression. There would be an end to everything, if the same man, or the same body, whether of the nobles or the people, were to exercise those three powers, that of enacting laws, that of executing public affairs, and that of trying crimes or individual causes".

52. Tracing at the history of the independence of Judiciary in the sub-continent, we find that as far back in the year 1922, the Rossignol Committee had recommended a scheme for the separation of the Executive from Judiciary (Page 240 of the Report of the Law Reforms Commission 1967-70) but indicated that this had considerable cost implications. A decision on the recommendation of the report was thus deferred in the year 1928. With the passage of Government of India Act, 1935, the demand for separation of the Judiciary from the Executive then took on a political character, and in this regard, paragraph 27 at page 241 of the Report says as under:--- "By this time the issue had assumed a definite political character as the Indian National Congress which had been passing resolutions year after year putting forward the demand for the separation of the Judiciary from the Executive but included its issue in political programme. After passing of the Government of India Act, 1935, it was expected that the problem would receive the foremost attention of the representative government setup in the Province under the Act. The matter, however, remained under the consideration of the provincial government and before any decision could be taken there came the second world war, which brought it an emergency necessitating the further strengthening of the Executive hand.

53. After the creation of Pakistan in the year 1947, the issue as regards separation and independence of the Judiciary again received attention in the year 1951, when the Chief Justice of Lahore High Court, on the request of the Chief Minister of Punjab, was tasked with the examining of separation of the Judiciary from the Executive. He concluded a scheme that the separation of the Executive from the Judiciary should be implemented notwithstanding cost implications, which had already caused setback by deferring the Rossignol Committee Report .Of 1922. The scheme, however, was not a success largely due to reluctance of certain officials, holding executive position, in relinquishing their powers. Paragraph 36 at page 244 is instructive in this respect and is reproduced below:--- "36. The High Court pointed out that since the object of the separation of the two functions was to take away the Deputy Commissioner's control over the Judicial Magistrates, both the Deputy Commissioner and the Commissioner would be naturally dissatisfied with the new arrangement under which the Additional District Magistrate behaved as though he was independent. In the opinion of the Judges, the dissatisfaction of the Commissioners with the scheme was rather an indication of its success. As regards the control over the Judicial Magistrates, the High Court agreed with the proposal that the control and supervision should vest in the High Court through the District and Sessions Judges. The matter remained under consideration with the Provincial Government till the 28th October, 1958, when, after the promulgation of Martial Law, a circular was issued by the Government informing the Registrar of the High Court of West Pakistan and all the District Magistrates and District and Sessions Judges in West Pakistan that the scheme for the separation of the judicial from the executive functions introduced with effect from the 2nd January, 1954 in the areas of the former Province of the Punjab had been abrogated with immediate effect and that the criminal work would be carried out according to the system prevalent before the introduction of the scheme."

54. East Pakistan (now Bangladesh), however, fully implemented the scheme to separate the Executive from the Judiciary as is illustrated by Paragraph 38 at page 244 of the Report, which is reproduced as under:--- "38. Although no experiment was carried out in East Pakistan, the matter continued to receive occasional attention from the Government and ultimately in 1956, the Legislature in East Pakistan decided to implement the above Constitutional directive to effect a complete separation of the judicial and executive functions in the Province. A bill was, accordingly, introduced in the Provincial Legislative Assembly known as the Code of Criminal Procedure (East Pakistan Amendment) Bill, 1956 and the same was passed unanimously by the Assembly. This Act effected a complete separation by creating two classes of Magistrates known as Executive Magistrates and Judicial Magistrates. The Executive Magistrates were placed under the High Court through the District and Sessions Judge and they were to be appointed in consultation with the High Court like other judicial officers. For fuller details, a reference may be made to a copy of the Act added as Appendix I to this Chapter. This Act was to come into force on a date to be notified by the Provincial Government.

Before the Provincial Government could issue the requisite notification, the Constitution of the Country was abrogated and Martial Law was promulgated in 1958."

55. Unfortunately, the abrogation of the 1956 Constitution and the imposition of Martial Law in 1958 'led to the reversal of these schemes. As the Report indicated much of the opposition to the separation of the Judiciary from the Executive came from executive officers, who did not want to see a decline in their own prestige and still wanted to continue working as the eyes and ears of the Government as in the old days of British Rule. Paragraph 45 on page 247 is instructive in this regard, which reads thus:--- "45. It is noticed that some of the grounds on which the demand for separation of the judiciary from the executive was opposed in the early days of the .British are being put forward even up to this day. It is still maintained that the prestige of the District Magistrate is likely to suffer in case the Magistrates trying criminal cases are taken away from his,, control and supervision. This peculiar argument was advanced for the first time by the British administrators who thought that the District Magistrate, being the eyes and ears of the Government, should have control over all officials of different branches of administration."

56. In such event the Commission came to the following conclusions at paragraph 55 at page 250:-- "55. The Commission has been studying the various patterns on which the separation of judiciary from the executive should be effected. The basic principle for a complete separation of the judicial and executive functions is that there should be a separate and independent set of officers for doing judicial work and that they should not be under the administrative control of the executive.

This principle can be given effect to by making suitable amendments in the Code of Criminal Procedure. The Commission is of the view that the Code of Criminal Procedure (East Pakistan Amendment) Act 1957 (E. P. Act XXXVI of 1957) (Appendix I) can serve as a model in this behalf.

Besides these amendments in the Code of Criminal Procedure, some change in the administrative policy of the Provincial Government will also be necessary, such as the postings and transfers of the Judicial Magistrate will have to be made by the High Courts and The Provincial Government will have to be made by the High Courts and the Provincial Governments will be left only with the matter of promotion of these officers which of course, will be dealt with by the Government on the recommendation Of the High Courts."

57. A Summary of the Report's recommendations appears at page 252 and is reproduced below:- timmary of recommendations

(1) There should be complete separation of the judiciary from the executive. (italics added)

(2) The patterns envisaged by the Code of Criminal Procedure (East Pakistan Amendment) Act, 1957 (E.P. Act XXXVI of 1957) should be adopted in this behalf.

(3) The scheme for separation of the judiciary from the executive should be introduced through a phased program extending over three to five years and there should be an integrated judicial '

Service in each Province. (italics added).

58. This Report highlights the demand and the struggle to separate the Executive from the Judiciary which, time and again, seems to have been thwarted by financial, administrative complications and even at times by outright resistance from officers holding executive posts based on their personal pride rather than the wider interests of the State and Society .

59. It is significant that the first Constitution of the Country being the 1956 Constitution provided under Article 30 that, "the State shall separate the Executive from the Judiciary as soon as practicable". A similar Article, however, found no mention in the 1962 Constitution, which was the Constitution which was promulgated after the abrogation of the 1956 Constitution. This may be because the 1962 Constitution was Presidential in nature, aimed to strengthen the hand of the Executive. In any event, 'the omission of this provision in our view significantly adversely affected attempts to separate the Executive from the Judiciary during the period 1958 to 1973.

60. Article 50 of the Constitution of India, 1949 also deals with the separation of the judiciary from the executive and provides as under:-- "50. Separation of the Judiciary from the executive.-The State shall take steps to separate the judiciary from the executive in the Public services of the State."

61. Article 233 of the Constitution of India 1949, dealing with appointments to the superior Courts also covers subordinate Courts in the same vein in Chapter VI of the Indian Constitution through Articles 233 to 237.

62. The recommendations of the Report were, however, translated into a Constitutional obligation in the Constitution of 1973, which is the only unanimously approved Constitution in the history of Pakistan which again through Article 175(3) read with Article 203, required the separation of the Executive from the Judiciary, except this time within a given period of time as opposed to "as soon as practicable", as provided under Article 30 of the earlier 1956 Constitution.

63. Such specified time restriction was most likely a result of the realization that such similar wording such as "as soon as possible" etc. Would only lead to the non-implementation of the Article as the debate over its manner of implementation would lead to it becoming buried and lost amongst various committees/commissions established to propose modalities for its implementation.

64. The drafters of the 1973 Constitution realized that the process-of separating the Executive from the Judiciary could not be achieved overnight probably based on the history of the struggle to separate the executive from the judiciary as set out in the Report and the failure to achieve this notwithstanding the Constitutional Obligation to do so under Article 30 of the 1956 Constitution.

Bearing this background in mind three years, later extended to five years and finally to fourteen years' time was given for its accomplishment. Regrettably, the Government was unable to entirely achieve its constitutional obligation of progressively separating the Executive from the Judiciary within this time frame.

65. This led to the land mark ruling in respect of the separation of the Judiciary from the Executive in terms of Article 175(3) and 203 in the case of Sharaf Faridi (supra) by a Full Bench of the Sindh High Court as discussed in the later part of this judgment.

66. There is no denial of the fact from the respondents' side that the Constitution of Pakistan provides for a structure of tracheotomy with independent judiciary separate from the Executive is terms of Article 175(3). In such circumstances, it is inconceivable that the most important exercise of fresh appointment to judiciary should be allowed to be undertaken through respondent No,2, who, as experience shows, has remained under the influence of the Executive and on several occasions successfully given results as per their expectations or to say the least, on considerations other than pure merits.

67. As against it, the past experience of recruitment of Civil Judges/Judicial Magistrates through Selection Board in terms of Rules of 1994 has shown a great level of transparency and consequently, better results.. The record of such recruitments undertaken by the High Court from time to time through its Provincial Selection Board goes to show that a high level of merit was made criteria for this purpose. As a result, on several occasions, out of huge number of candidates against such vacancies, the total number of suitable candidates could not be found, save few.

68. To be precise as per available data in the year 2005 out of 1920 candidates only 21 were selected by the Selection Board comprising Honourable Justice Ghulam Rabbani, Justice Mujeebullah Siddiqui and Justice Muhammad Moosa K. Leghari, though the number of available vacancies was 44.

69. To lay more emphasis to the mode of proper recruitment of Judges in District Judiciary, the following illustration may aid understanding:---

(a) A healthy and fruitful tree is beneficial to the whole of society. The recruitment of a Judge is analogous to sowing of the appropriate kind and quality of seed in the field of judiciary, quality of which will facilitate the growth of such system. However, if the selection of the very seed is not par excellence or is inferior, neither the most fertile of lands, timely watering and usage of fertilizers/ pesticides can yield the required results nor can the deficiency be cured at the nurturing stage.

Similarly, if the very induction of a Judge is unsuitable, irrespective of the kind of training and education he receives; he/she cannot excel in the profession or be beneficial for his institution and society at large."

70. An added benefit of recruitment through Provincial Selection Board is that of highly specialized skills of its members, which enable them to gauge the competency and suitability of candidates in a better way. All this is leaving apart, the main controversy relating to doctrine of separation of judiciary and its total independence from Executive, as dilated upon by the superior Courts of our country as well as Indian jurisdiction in a number of cases.

71. When we refer to some other judgments of our superior Courts, touching the issue of independence of judiciary and its separation from the Executive, reference to the case of Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445 is indispensable. In paragraph 11 of this judgment, inter alia, dealing with the scope of Articles 175 and 203 of the Constitution vis-a-vis the question of legality of establishment of Anti-Terrorism Courts under Act XXVII of 1997, making reference to a plethora of case law on the subject, the Honourable Supreme Court laid down as under:---

(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e, the Supreme Court, a High Court for each Province and such other Courts as may be established by law.

(ii) That the words "such other Courts as may be established bylaw" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.

(iii) That our Constitution recognizes only such specific Tribunal to share judicial powers with the above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter 3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that any Court or Tribunal which is not funded on any of the Articles of the Constitution cannot lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.

(iv) That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and effective in operation.

(v) That the hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution.

(vi) That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e, judicial hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the mandatory requirements of the Constitution.

(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment of Judges and the Security of their tenure and other terms and conditions."

(Underlining for' emphasis).

72. As much stress has been laid by the learned Advocate General Sindh upon the prevalent procedure/rules in the other three Provinces of the country, regarding initial appointment of Civil Judges and Judicial Magistrates, to justify the object of impugned Notification, it will also be useful to make a comparative study of these Rules. Copies of Rules placed on record by learned A.A.-G.

On 17.06.2009 show as under:--

(a) Exercising its powers under section 25 of the Balochistan Civil Servants Act 1974, the Government of Balochistan has framed Rules on 30th September 1994, whereby per Rule 4 the appointing authority is the Government of Balochistan and per Rule 5 initial recruitment is to be based on the recommendations of the Commission "Balochistan Public Service Commission", while there is no provision for formation of any Provincial Selection Board under the control of the High Court.

(b) In the North-West Frontier Province, the Government while exercising its powers under section 21 of the N.-W.F.P. Civil Servants Act 1973, has notified the Rules for recruitment to the judicial service and prescribing the terms and conditions of service of persons appointed thereof. Rule 2(a) relating to definitions, provides for Administration Committee of the High Court. Rule 2(d) provides for Commission "i.e, N.-W.F.P. Public Service Commission"; Rule 2(e) deals with the Departmental Promotion Committee constituted under the High Court Rules; and Rule 2(k) provides for Selection Authority. In these Rules the appointing authority is the High Court while the method of recruitment is regulated in a way that the initial appointment for the posts of Civil Judges-cum-Judicial Magistrates and Ilaqa Qazis is to be made on the recommendation of the Commission (N.-W.F.P.

Public Service Commission) on the basis of results of competitive examination to be conducted by it in the subjects specified in the appendix to the Rules. Appointment to the posts of Senior Civil Judges-cumJudicial Magistrates empowered under section 30, Cr.P.C. And Ala Ilaqa Qazis is to be made on seniority-cum-fitness basis from the Civil Judges-cum-Judicial Magistrates/Ilaqa Qazis on the recommendation of the Departmental Promotion Committee while the appointment for the posts of Additional District and Sessions Judges/Izafi Zila Qazis is to be made 2/3 by promotion on the recommendation of the Departmental Promotion Committee while the remaining 1/3 from amongst members of the Bar, Public Prosecutors/Government Pleaders and Additional Public Prosecutors/Additional Government Pleaders. Further the appointment of District and Sessions Judges/Zila Qazis is to be made by promotion on the recommendation of Department Promotion Committee on the basis of seniority-cumfitness from the amongst holders of the posts of Additional District Judges/Izafi Zila Qazis. In addition to it under proviso to Rule 5, the High Court is empowered to make appointments by initial recruitment on contract basis on the recommendations of Provincial Judicial Selection Board in accordance with the policy of Government applicable to appointments on contract basis.

(c) In the Province of Punjab in exercise of powers under section 23 of the Punjab Civil Servants Act 1974, Rules regulating recruitment to the Punjab Judicial Services and prescribing conditions of services for the persons appointed thereto were notified on 31.03.1994. Under Rule 2, which provides for definitions, the provision for formation of "Provincial Judicial Selection Board", "Departmental Promotion Committee" and "Commission" i.e, "Punjab Public Service Commission" is envisaged under sub-Rule (e),(f) and (i) respectively. In terms of Rule 4, the appointing Authority is the High Court as defined in Rule 2(c). Rule 5 dealing with the method of recruitment provides that appointment to the post of Senior Civil Judge-cumJudicial Magistrate is to be made by initial recruitment on the recommendation of the "Commission" based on the result of competitive examination conducted by it in the subjects specified in the appendix to these Rules. This Rule further empowers the Government to nominate any person within six months from the date of notification of these Rules, who possesses a degree in law and has exercised the powers of the Magistrate of First Class for a period not less than two years, for appointment by transfer as Civil Judge-cum-Judicial Magistrate, who shall be on deputation till his absorption in service. The appointment for the post of Senior Civil Judges-cum-Judicial Magistrates is to be made on seniority-cum-fitness basis from amongst the Civil Judges-cum-Judicial Magistrates on the recommendation of Departmental Promotion Committee. Appointment to the post of Additional District Judges is to be made to the extent of 60% by promotion from amongst Civil Judges-cum- Judicial Maginstrates with 10 years as Judicial Officers by selection on merits with due regard to seniority on the recommendation of Provincial Judicial Selection Board and 40% by initial recruitment from members of the Bar with 10 years standing as Advocate. Moreover, appointment to the posts of District and Sessions Judges is to be made 3/4 by promotion from amongst the Additional District Judges by selection on merits with due recommendation by the Provincial Judicial Selection Board and not more than 1/4 by transfer of A.P.D.G., D.M.G. Officers.

(d) In Sindh, the Sindh Judicial Service Rules were notified by the Sindh Government on 24th November 1994, in the manner as already discussed in the preceding paragraphs. Under these Rules by virtue of Rule 4, appointments in the judicial service are to be made by the Government.

Rule 5 deals with the method of recruitment and provides that posts of Civil Judges/Judicial Magistrates are to be filled through initial appointment on the recommendation of the "Provincial Selection Board. The appointment to the post of upper grade of Service i.e, Senior Civil Judges/Assistant Sessions Judges is to be made by promotion from amongst the members of the lower grade of service on the recommendation of the Provincial Selection Board. However, in case no suitable member of the lower grade of service amongst Civil Judges and Judicial Magistrates is available for promotion, such vacancy can also be filled up by initial appointment. For appointment to the post of Additional District and Sessions Judge not less than 2/3 of the vacancies are to be filled up by promotion from amongst Senior Civil Judges/ Assistant Sessions Judge on recommendation of the Provincial Selection Board while 1/3 of the vacancies can be filled by initial appointment through Provincial Selection Board. The appointment for the post of District and Sessions Judge is also to be made by promotion amongst senior most Additional District and Sessions Judges, on the recommendations of the Provincial Selection Board.

73. A study of above Rules prevalent in other Provinces of Pakistan, goes to show that after the introduction of Rules of 1994, in the Province of Sindh, initial appointments as Civil Judges/ Judicial Magistrates, Senior Civil Judges/Assistant Sessions Judges and Additional District Judges/Additional Sessions Judges, and the whole process of selection is to be undertaken by the Provincial Selection Board, which is defined under Rule 2(e) as under:--- "Provincial 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."

' However, under Rule 4, the appointing Authority is the Provincial Government.

74. In the Province of Punjab, the Punjab Public Service Commission has a pivotal role to play in the initial recruitment of Civil Judges/Judicial Magistrates, while the other vacancies i.e, Senior Civil Judges/Assistant Sessions Judges, Additional District Judges/Additional Sessions Judges and District and Sessions Judges are to be filled up on the recommendation or the Provincial Judicial Selection Board, which is defined under Rule 2(e) as under:--- "Provincial Judicial Selection Board means Administrative Committee of the High Court or a Board comprising such number of Judges of the High Court as may be nominated by the Administrative Committee."

75. In the North-West Frontier Province, as discussed above, the initial recruitment for the posts of Civil Judges-cum-Judicial Magistrates is undertaken through N.-W.F.P. Public Service Commission, while appointment for the posts of Senior Civil Judges-cum-Judicial Magistrates empowered under section 30, Cr.P.C. Is to be made on a seniority-cum-fitness basis on the recommendation of Departmental Promotion Committee. The appointment for the posts of Additional District and Sessions Judges to the extent of 2/3rd is to be made on the recommendation of the Departmental Promotion Committee whilst the remaining 1/3rd, by way of initial recruitment. The appointments to the posts of District and Sessions Judges are also to be made on the recommendation of Departmental Promotion Committee on the basis of seniority-cum-fitness from the holders of the posts of Additional District and Sessions Judges. In addition to it, High Court has also been empowered to make appointments by initial recruitment on contract basis on the recommendation of the Provincial Judicial Selection Board, which is defined under Rule 2(i) as under:- "Provincial Judicial Selection Board means a Board comprising the Administration Committee or such number of Judges of the High Court as may be nominated by the Administration Committee."

' Moreover, under Rule 4, the appointing authority is the High Court.

76. In the Province of Balochistan, the appointment in the judicial service is to be made by the Government. The matter of appointment provides for initial recruitment on the recommendation of the Commission based on the results of the competitive examination while as regards appointments against other vacancies, the Rules seem to be silent.

77. Thus, the conclusion derived from the above comparative study of these Rules, in our view, is that Sindh Judicial Service Rules 1994, as stood before impugned Notification were more close to the directions contained in the case of Sharaf Faridi (supra), and its spirit has been more effectively, adhered to and followed while framing such Rules.

78. In any case, the argument that in the other three provinces of Pakistan, the policy of initial recruitment envisaged in the Rules is different from the province of Sindh, does not justify the issuance of the impugned Notification. Each province is autonomous and has its own authority to legislate law on this subject, according to its suitability and requirement and if at all this issue is to be revisited then for that purpose, the proper forum will be the Honourable Supreme Court of Pakistan.

79. Addressing, the next point of mala fide in law in issuing the impugned Notification, as argued by Petitioners' counsel, we find much force in their submissions that the issuance of impugned Notification amounts to negating the directions of the Full Bench of the Sindh High Court contained in its Judgment in the case of Sharaf Faridi (supra), which read thus:--- "12. I would, therefore, allow the above two petitions in the following terms:---

(A) The respondent in the first petition i.e, respondent No,2 (i.e, the Province of Sindh) in the second petition is directed--

(i) to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No,XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control of the High Court within a period of six months.

(ii) to issue necessary Notification under sub-rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978, and Rule 4 of the $indh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days.

(iii) to initiate legislative measures within a period of six months in order to make necessary amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sindh Civil Servants Act, 1973, Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and in the other enactments to make the same in conformity with above Articles 175 and 203 of the Constitution.

(B) Respondent No,1 (i.e, the Federation of Pakistan) in the Second Petition is directed to initiate all legislative/ administrative steps/ measures to bring the existing laws relating or affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period of six months."

80. The above directions were maintained by the Supreme Court of Pakistan in the case of Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105, only with some extension to the time frame for its implementation. In fact even the Provincial Government had itself conceded to this position, as is evident from the following observations of the Honourable Supreme Court:- "The Committee appointed by this Court held five meetings on various dates. The first meeting was held on 9-12-1989 and the last one on 21-12-1991. In these' meetings the problems and difficulties pointed out by the Provincial Governments in carrying out the Constitutional mandate into effect as also the measures being taken to fulfil their obligations in this respect were carefully considered and ways and means of overcoming these obstacles also discussed. The Chairman of the Committee pointed out to the representatives of the Provincial Governments that notwithstanding the difficulties with which they were confronted separation of the Executive from the Judiciary was an obligation cast upon them by the Constitution and this obligation could not be willed away or avoided. It had, willy nil)/ to be carried into effect despite all the difficulties. During the course of the deliberation of the Committee considerable progress was achieved in securing separation of the Judiciary from the Executive and the steps being taken for this purpose. The Provincial Governments were intimated by the representatives of the parties to the Committee during the period that the Committee remained seized of this matter.

' In this respect the situation today is that in relation to the enforcement of the Scheme for separation of the Judiciary from the Executive in the Province of Sindh that 100 posts of Judicial Magistrates have been sanctioned. So far 25 Judicial Magistrates have been appointed on the recommendations of the High Court. Furthermore some candidates (seven in all) have been recently selected (for the posts of Judicial Magistrates) and their names forwarded to the Provincial Government for notifying their appointment and they are receiving judicial training in the Sindh Judicial Academy at present. On notification of their appointment it is proposed to post them against the vacant Courts of Judicial Magistrates. The process of selection of 25 more Judicial Magistrates is in process and the last date for receipt of the applications has been fixed as 10-10- 1993.

' So far as the matter of control of the High Court over the subordinate judiciary is concerned the Chief Justice has been delegated powers of Authority under the Sindh Civil Servants (E&D) Rules in respect of Members of the subordinate judiciary and a separate Service Tribunal has been established for resolution of disputes of judicial officers. Rules for appointment, promotion and transfer etc. Of Judicial Officers have been drafted and are likely to be approved by the High Court soon.

' In the impugned judgment of the High Court it has been observed that the mandate of Article 175 requiring separation of the Judiciary from the Executive shall be met if the Judiciary has an effective say in the formulation of its annual demands and this finding is elaborated by observing that this implied that the executive shall place the annual, funds allocated to the superior Courts at their disposal for operating them without interference by any agency of the Executive in accordance with requirements.

' The above findings 'of the High Court were not questioned or challenged either by the learned Attorney-General or by any of the representatives of the Provincial Governments and we 'too are in agreement with it and would endorse this finding."

81. To further shed light on the point of mala fide in law, strongly agitated by Petitioners with reference to the impugned Notification, reference to the following cases will also be useful:---

(i) Haji Hashmatullah v. K.M.C. PLD 1971 Kar 514, (ii) Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lah. 49, (iii) Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26, (iv) Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38, (v) Muhammad Mubinus Salam and others v. Federation of Pakistan and others PLD 2006 SC 602.

82. In the first case of Haji Hashmatullah a Division Bench of Sindh High Court, examining the question of mala fide observed that an order in violation of law is mala fide, though actual malice may not be present in the mind of the authority passing the order. The Bench further observed that rules framed under the Statute are subordinate to it. Therefore, anything contained in the rules contrary to the provisions of the Statute, or in deviation from the Statute, conferring excessive powers, will be repugnant to the Statute and void to the extent of such repugnancy.

83. In the second case of Ghulam Mustafa Khar, a three-member Bench of the Honourable Lahore High Court dilating upon the principles of interpretation of statutes observed that statute must be interpreted according to the intention- of the legislature and if the words adopted therein, are clear and unambiguous these should be expounded in their natural' and ordinary sense. However, where the language used vividly demonstrates ouster of jurisdiction, then the ouster must be absolute and even on the acts performed without jurisdiction, or mala fide will not be open to judicial scrutiny. The Bench further held that for expounding an Act, not only its words are to be considered but the intent of the legislature may also be gathered from the cause and necessity of making the Act and sometimes from extraneous circumstances so far as they can properly shed light on the subject.

84. In the third case of Federation of Pakistan vs. Ghulam Mustafa Khar, which was an appeal against the earlier judgment of the Lahore High Court and many other connected cases, the Honourable Supreme Court of Pakistan dealing with the question of interpretation of statutes observed that where the ouster clause in a statute is clear and unequivocal, admitting of no other interpretation, Courts unhesitatedly give effect to it. Provisions seeking to oust the jurisdiction of the superior courts are to be construed strictly with pronounced leaning against ouster. Further held presumption is that legislature does not perpetuate inequity or injustice, such presumption can be invoked while interpreting provisions of a statute or Constitution.

85. In the fourth case of Manzoor Ahmed Wattoo, a three-member Bench of Lahore High Court dealing with the question of mala fide made distinction in malice in law and malice in fact and observed that an action is said to be suffering from mala fide on facts if it is taken due to some personal grudge, or animosity, or some personal benefit. Thus, the state of mind of the person taking action is of great importance. On the other hand, action is said to be suffering from malice in law if the authority taking the action is not competent to do so or has acted beyond its powers or in violation of the law applicable, even though it may have acted bona fide and without ill will. It was further held that malice in law is different from the malice as known in the common parlance, which is usually associated with evil motive influencing the mind of the person committing the malicious act. An order in violation of law is mala fide in law though actual malice may not be present in the mind of the authority passing the order.

86. In the last case of Muhammad Mubinus Salam, Honourable Supreme Court of Pakistan while disposing of a bunch of identical petitions relating to service matters, dealing with the subject of interpretation of statutes observed that the question of constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires does not depend upon consideration of jurisprudence or of policy. Such question depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-constitutional law by which the Parliament purports to exercise that authority.

It was further held that general terms following particular ones apply to such persons or things as are "ejusdem generis" with those comprehended in the language of the Legislature.

87. Keeping in view the above discussion and the case law, when we again revert to the facts of the present case and the background of the impugned Notification, we find that in the prevailing circumstances, issuance of impugned Notification on 4-12-2008, when already the process of recruitment of Civil Judges and Judicial Magistrates was in the pipeline for over one year and six months having being delayed for different unavoidable reasons, was not only mala fide in law but also mala fide on facts, though not so argued by the petitioners' counsel.

88. The conclusion that can be deduced from the above cited cases, in simple words, is that if the rules framed are in conflict with the spirit of the statute or any constitutional provision or against the mandate of the direction of the Supreme Court/High Court, though framing of rules may not be mala fide, or strictly with ulterior motive, still the same shall be deemed to be mala fide in law and liable to be struck off on that account.

89. When further dilating upon and discussing the question of separation of powers and independence of judiciary, particularly keeping in mind the ratio of judgments in Sharaf Faridi's case and Al-Jehad Trust's case and the recent events of November 3rd, 2007 and thereafter, we cannot turn a blind eye to the fact that the Independence, which the judiciary enjoys today, in a very large part, is owed to the civil society of this Country, who, joined hands with the lawyers' movement and successfully struggled to restore the prestige of the Judiciary, which had been badly damaged by unconstitutional executive actions.

90. Both the Judges and legal community in this Country always had an obligation to protect the rights of its citizens against State or other forms of oppression and injustice. Through the public support and faith in the legal system in recent times that obligation has been further re-enforced and the public has now even greater expectations of the judiciary.

91. In this regard not only has the National Judicial Policy of June, 2009 attempted to deal with the backlog of cases by ensuring speedy disposal of cases thereby, in particular nursing the wounds of litigant public, but it has also taken further measures in line with the expectations of the people to ensure the Independence of the Judiciary by reassuring that the judiciary is further separated from the executive and is seen to be so by the public. In this context it is instructive to set out an earlier decision of the Committee and pages 11 to 12 of the National Judicial policy which came into force from 1st June, 2009.

Separation of Judiciary from the Executive.

' The Committee discussed the issue of separation of judiciary from executive and independence of judiciary as mandated by the Constitution. In this regard the Committee decided that in future no Chief Justice or a Judge of superior Court shall accept appointment as Chief Justice or a Judge of superior Court shall accept appointment as acting Governor of the Province. Sub-Article (2) of Article 207 of the Constitution prohibits Judges of the superior judiciary from holding an office of profit before expiration of two years after retirement. The same reads as under:---

(2) A person who has held office as a Judge of the Supreme Court r.1 of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a Law Commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office.

' The Committee resolved that in future no retired Judge of the superior Court shall accept an appointment which is lower to his status and dignity including appointment as presiding officers of Banking Court, Customs Court and Administrative Tribunals etc. The Committee further asked that a letters should be written to such Judges to resign from such posts in the interest of independence of judiciary. The Committee further recommended that the Federal and Provincial Governments may also be asked to relieve such Judges and may not make such appointments in future. The Committee observed that this will be a safeguard against Judges of the superior Courts as well as subordinate Courts from being induced/ influenced for appointment against executive posts. The Committee further recommended that the trend of retired judicial officers being appointed to Special Courts be also discouraged and as per the requirement of principles of independence of judiciary, qualified serving Judges should be appointed against these posts in consultation with the Chief Justice of respective High Court.

National Judicial Policy ' A. Independence of Judiciary

(1) In future no chief justice or a judge of the superior court shall accept appointment as acting Governor of a Province.

(2) No retired Judge of the superior court shall accept an appointment which is lower to his status or dignity including appointment as presiding officer of Banking Court, Customs Court, Administrative Tribunal, etc. ' The Committee asked the retired Judges of the superior judiciary to maintain the highest standards of decorum and voluntarily relinquish the charge of such posts which are lower to their status to earn respect in public and uphold the principle of the independence of judiciary.

' The Committee asked the Secretary, National Judicial (Policy Making), Committee to write letters to the Secretary, Establishment Division and Provincial Chief Secretaries to relieve all such Judges and may not make such appointments in future.

(3) Instead of appointing retired judges/judicial officers as presiding officers of the Special Court/Tribunal, qualified serving Judges be appointed against these posts, in consultation with the Chief Justice of the High Court.

(4) Posting of serving Judges against executive posts in Federal and Provincial Government Departments on deputation , be discontinued. All such Judges should be repatriated to the respective High Courts, where their services are needed most for expeditious disposal of pending cases.

(5) All special courts/tribunals under the administrative control of Executive must be placed under the control and supervision of the judiciary, their appointments/postings should be made on the recommendation of the Chief Justice of concerned High Court.

(6) In future judiciary would avoid its involvement in the conduct of elections, as it distracts the judicial officers from professional duty and complaints of corrupt practices tarnish the image of judiciary.

92. It is satisfying to observe that only a few weeks down the road from the coming into force of the above policy a large part of it has already been implemented so far as the separation and independence of the Judiciary is concerned.

93. At the cost of repetition, when we again look at the impact of the impugned notification over the Sindh Judicial Rules, 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, it introduces a new institution "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 Court of the Province simply an Institution, that can only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise.

94. The doctrine of separation of Judiciary from the Executive and its independence is not only to be gauged on the yardstick of the relevant 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 so 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 Officers is entrusted to the Executive or to a body alien to judiciary then a huge question mark is placed on the whole process.

95. Dealing with the doctrine of separation of powers between the three pillars of the- State i.e, Legislature, Executive and Judiciary, we must not loose sight of the fact that under this doctrine there is no room for any adversarial stance between these pillars of the State, rather this system could only flourish and become strong when each of the three organs of the State function strictly within their domain and jurisdiction, with respect for each other and spirit of harmonious working without any overlapping or sharing of powers.

96. Summing up the above discussion, we hold that the independence of the judiciary is something, which is to be jealously guarded and cannot be compromised at cost. The initial appointment/ recruitment of Civil Judges/Judicial Magistrates is its integral part, forming its foundational stone, thus the impugned notification negating this position and transgressing the limits of Judicial independence is liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution.

97. Foregoing are the reasons for our short order dated 15-6-2009.