SHAHID ANWAR BAJWA, j. - Petitioners in these petitions are Stenographers postea/.Working in various District Courts/Subordinate Courts in the Province of Sindh. They are at present working in BS-12, In its meeting held on 30.6.2008 Administrative Committee of this Court ir. Cde the following decision:-- "Keeping in view the shortage and non-availability of the Stenographers in the Judicial Districts, the Committee is of the view that the posts of Stenographers be upgraded to BPS-15 and necessary task in this respect be taken in hand by the Registrar for budgetary approval with Government. Rest of the matter is deferred."
2. After this decision was made by the Administrative Committee a letter dated July 8, 2008 was written by the Registrar of this Court to the Secretary Law Department, Government of Sindh. Title of the letter was "UP-GRADATION OF THE POST OF STENOGRAPHERS FROM BPS-12 TO BPS-15. After reproducing order of the Administrative Committee (quoted above) it was stated in the letter as under:-- "You are, therefore, requested that the matter may be referred to the Finance Department, Government of Sindh, Karachi for upgradation of the post of Stenographers from BPS-12 to BPS-15 in the District and Subordinate Courts in the Province of Sindh, as well as in the Court of Judge Small Causes Court, Karachi. The Financial Implication is enclosed herewith."
3. This letter was duly sent by the Law Department to the Finance Department, Government of Sindh on 12th February, 2008. On August 13, 2009 reply was sent by the Law Secretary to the Registrar of this Court. Entire reply is as under:-- "Kindly refer to your letter No. Admin/.B.Up-Grade- 09/COC-Steno/1904, dated 6.5.2009, on the subject noted above.
A copy of letter dated 28.5.2009 received from Finance Department in the matter is sent herewith which is self-explanatory.
You are requested to favour with your recommendations in the light of the circular of Finance Department."
4. When the petitioners' counsel concluded his arguments on 6.9,2010 matter was adjourned for production of letter dated 28.5.2009 written by the Finance Department which letter has been referred to in the letter written by the Law Secretary to the Registrar on August 13, 2Q09. In the letter dated 28.5 2009 it was stated as under: ~ "The Section Officer (Opinion), Law Department, Government of Sindh may please refer to his letter No. OP:5(36)/2009/166, dated 16th May, 2009, on the subject noted above.
2. Administrative Department is advised to examine the instant case strictly under this department existing policy circular issued vide No. FD(SR-IV)2-43/2008, dated 10.7.2008 (copy enclosed) and after fulfilment of the requirement/criteria, if so desired may float such proposal through' Summary for Chief Minister, Sindh through Finance Department for taking further action in the matter."
5. Since reference was made in the letter to earlier letter dated 10.7.2008 the contents of that letter may also be reproduced as under:-- "I am directed to refer. To the subject noted above and to state that mostly the Administrative Department float Summaries for Chief Minister, Sindh regarding up-gradation of various posts from lower to higher grades for seeking approval being a competent authority to relax the ban on up- gradation of the posts imposed by the Government of Sindh.
2. However, up-gradation of the posts involve financial implication, whereas Provincial Government being resource constraint. Therefore, all the Administrative Departments before referring/moving the summaries in question, examine the cases under the following TORs to curtain un-necessary nondevelopment expenditure on Government exchequer.
(i) Position in Sister Provinces.
(ii) Technical Justification.
(iii) Impact on services delivery.
(iv) Financial implication.
(v) Isolated posts.
3. All the Administrative Departments are requested that before moving such proposals, they process the cases strictly under the above TORs.
6. Learned counsel for petitioners made, the following submissions:--
(i) That separation of judiciary from the executive and independent judiciary are corner stones in our Constitution and, therefore, it is incumbent upon Government to follow what has been approved by the Administrative Committee of the High Court. Learned counsel relied upon in the matter of Upgradation of Judicial Officers/Staff and Allowance etc. (2010 CLC 166), M.M. Gupta and others v. State of J&K and others (AIR 1982 SC 1579) and Inamur Rehman v. Federation of Pakistan and others (1992 SCMR563).
Learned counsel referred to notification issued by the Lahore High Court (Notification No. 6649, dated 26.4.2000) by which 33 percent of posts of stenographers of subordinate Courts were upgraded from BS-12 to BS-15 with selection grade of BS-16. Thereafter learned counsel referred to Notification No. 14638, s dated 27.7.2002. This notification states as under:- "(1) In exercise of powers conferred in subpara (iv) of Finance Department's Notification No. Judl-1- X(Home)/89, dated 8.10.1995, the Hon'ble Chief Justice, is pleased to up-grade the posts of Stenographers working with the Judicial Officers in the Punjab from BS- 15 to BS-16 with immediate effect.
(2) The expenditure involved will be met out of the existing Budget Grant under Head of Account No. 11-21000-Justice Law Courts-21006-Sessions Courts, 21107- Civil Courts and . 2.1111-Small Causes Court."
Learned counsel also referred to similar notification issued by Baluchistan High Court on 27.3.20Q9 and submitted that in view of consistent practice of other High Courts decision of Administrative Committee of this Court should have been followed and obeyed by the Provincial Government.
7. Mr. Adnan Karim learned Assistant Advocate General, Sindh made the following submissions:--
(i) He referred to Para 4 of the comments where it is stated as under:-- "The Stenographer (BS-12) working in the Non-Secretariat Departments/Offices were allowed Selection Grade BS-15, equal to 1/3 of ground strength of posts of Stenographers in BS-12 vide advice No. FD(SR/IV)1- 4/82(Steno), dated 7.4.1990 (Annexure-A).
Further, Government of Sindh vide Advice No. FD(SR-IV)1-4/82(Steno), dated 30.6.1991 enhanced the existing ratio of Selection Grade (BS-16) from 25% to 33% for the posts of Stenographer (BS-15) in the Secretariat/Non- Secretariat Departments/Offices under the Provincial Government (Annexure-B).
Further pointed out that scheme of Selection Grade had been discontinued on introduction of RBPS-2001 with effect from 6.11.2001 (Annexure-C).
(ii) Learned AAG has further referred to Para 6 of the comments where it is stated that Finance Department had advised the Administrative Department to examine case in the light of Finance Department's policy circular after fulfilling criteria and thereafter it may be referred to Finance Department for necessary action.
(iii) Learned AAG submitted that selection grade has been abolished. Learned AAG lastly submitted that in view of financial constrained the Government has imposed ban on all upgradations.
(iv) While relying upon Mohammad perid Khattak and others v. Chief Secretary, Government of N.W.F.P, and others (2009 PLC (C.S.) 712). Learned AAG submitted that nobody has vested right in upgradation.
8. We have considered submission made by the learned and have also gone through the record as well as case-law cited at the bar.
9. It may be instructive to refer to the case-law cited at the bar in the first place, In the case of Upgradation of Judicial Officers/Staff and Allowance etc. (supra) which was matter before Northern Areas Supreme Appellate Court. The question involved was upgradation of judicial officers of subordinate judiciary of Gilgit Baltistan. The observation of the Supreme Court in the case of Government of Sindh through Chief Secretary to Government of Sindh and others v. Sharaf Faridi and others (PLD 1994 SC .105) were referred to and it was observed as under: "The concept of independence of judiciary is not confined only to the person of Judicial Officers rather judicial independence mostly depends on administrative and financial independence. The interference of executive in the affairs of judiciary with respect to the prospect of their service and terms and conditions of service directly or indirectly may affect the independence of judiciary. The better service status with better terms and conditions may ensure the independence of Judicial Officer to the expectation of a common man."
10. Thereafter it was held that there should not be any disparity in the status and standard of judicial service in Gilgit Baltistan, and it must be brought at par with judicial service in Pakistan, and it must be brought at par with judicial service in Pakistan, In Inamur Rehman's case (supra) which was a matter relating to the Foreign Exchange Regulations, it was held that equal protection of |aw is the basic principle on which rests justice under the law. In M.M. Gupta's case (supra) facts were that names of four petitioners belonging to the cadre of subordinate judicial service in a State were recommended by the High Court for appointment as District Judges. They file petition in the High Court challenging appointment of respondent by the Government of the State. When the matter came up for hearing before a Bench it was submitted that since on the Administrative Side High Court had already made recommendations High Court might not hear petition and grant certificate for filing of appeal, in the Supreme Court. Such certificate was granted holding that point involved in the petition related to interpretation of provision of the Constitution. Objection regarding maintainability of civil appeal was taken in the Supreme Court. Supreme Court held that in effect the order amounted to virtually refusal to entertain writ petition. However, in view of peculiarly facts and circumstances an important question of law involved, the Supreme Court though it revoked certificate granted by the High Court, it granted special leave to the petitioners for filing appeal.
Consequently, appeal was treated as appeal with leave of the Court. Supreme Court observed as under:-- "32. Before concluding, we consider it necessary to emphasize that independence of the Judiciary is one of the basic tenets and a fundamental requirement of our Constitution. Various Articles in our Constitution contain the relevant provisions for safeguarding the independence of the Judiciary. Article 50 of the Constitution which lays down that 'the State shall take steps to separate the judiciary from the executive in the public service of the State, postulates separation of the judiciary from the executive.
33. Unfortunately, for some time past there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level. The unfortunate interference by the executive results in prolonged and unnecessary delay in making the appointments and judicial vacancies continue for months and in cases for years with the result that the cause of justice suffers."
11. The case of Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375) may also be referred to. Facts of the case were that in 1988 Federal Government granted 20 percent of basic pay as Secretariat Allowance to all the employees of .Federal Secretariat, President's Secretariat, Prime Minister's Secretariat, National Assembly Secretariat and Senate Secretariat. Similar allowance was granted by the Provincial Governments, It led to grievance among employees working in the High Court. Matter was taken to the High Court, writ petition was allowed and it ended up in the Supreme Court. Honourable Supreme Court after referring to Article 208 of our Constitution held as under:-- "15. In the Context of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in establishment of the Supreme Court of Pakistan and the High Courts legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary -in the case of Supreme Court Employees' Welfare Association v. Union of India and others (AIR 1990 SC 334).''
12. In Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) aspect of financial independent was dealt with by a 7 Member Bench of this Court and the following observations were recorded in respect of Administrative Supervision and Control by the High Court over the Subordinate Courts:-- "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 subordinates 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."
13. The matter was taken to the Honourable Supreme Court and judgment of Supreme Court is reported as Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 Supreme Court 105). The Honourable Supreme Court in respect of financial independence made following observations:-- "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 its annual demands and this finding is elaborated by observing that this implies 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 their requirements.
The result of the above discussion is that this Court, while accepting the conclusion of the Sindh High Court as correct has also given due weight to the plea of the learned Attorney-General that the separation of the Judiciary from the Executive must be carried out in such a manner that administrative chaos does not result (which could be the result if the directions contained in the judgment exactly in accordance with its terms), It has, therefore, agreed to extend the date for the issuance of the requisite notifications under sub-section (2) of Section 1 of Ordinance XII of 1972 from 24.10.1989 (as ordered by the High Court) to 23.3.1994, the period for effecting the separation accordingly has been extended by more than four years, In this period considerable progress has already been achieved towards separating the Judiciary from the Executive and, in our opinion, if the Constitutional obligation cast on the Executive Government is seriously heeded to the remaining work still needed to be done in this connection can satisfactorily be completed by the Provincial Governments of Sindh and the Punjab in the next four or i.e months viz. Up to 23.3.1994, by which date these Governments are required by this Court's present order to issue the necessary notifications.
14. In the present case Administrative Committee of the High Court took up a conscious and considered decision which was communicated by the Registrar of this Court to the Provincial Government. Law Department of the Provincial Government sent decision of the Administrative Committee to the Finance Department and the Finance Department relied upon letter dated 10.7.2008, referred to above, and requested the Administrative Department to move such proposal after considering base stated in the letter of Finance Department.
15. We are indeed very surprised by contents of the letter of the Finance Department. Tone and tenor of letter indicates that the Finance Department thinks that it can sit in judgment and hold power of veto over decision made by the Administrative Committee of the High Court. Finance Department has referred to certain criteria laid down by the Provincial Government. Such criteria may be applicable to the employees of the Provincial Government and to the department of the Provincial Government. However, when the matter travels from the High Court and deals with employees of the High Court no such criteria can be laid down by the Provincial Government or any other hierarchy under the bureaucracy in the Provincial Government. Allowing departments and Provincial Government to lay down criteria for consideration by the High Court in respect of its employees and persons employed in subordinate judiciary amount to subordinate High Court and judiciary to will and whims of the bureaucracy and the executive. No such concept can be allowed to be imported and no decision by the High Court Administrative Committee can be allowed to be made subordinate to any such principle, practice or criteria laid down by the Provincial Government or any other department of the Provincial Government. Therefore, once a decision was made by the Administrative Committee it was not available to the Finance Department to try to subject such recommendation to any criteria laid down by the Provincial Government. Similarly a ban on recruitment or upgradation placed by the Provincial Government would have no applicability to employee in the judicial strata.
16. Therefore, in our view once approval has been granted by the Administrative Committee of the High Court the Provincial Executive could at best approach the High Court and point out the financial constrain and thereafter leave the matter for the High Court to decide. However, once High Court had decided Finance Department has no option, if amount provided in the budgetary provision is not adequate to meet such requirement to convey such budgetary position to the High Court and to ensure that in the next budget proposals are made to the Provincial Assembly and appropriate provision is made in this regard. If Provincial Assembly does not approve such budget any provision it would of course be another matter. We have not reacted that bridge and therefore we leave this aspect of question for consideration in an appropriate case.
17. Mr. Adnan Karim pointed out that these are stringent times and an almost unbearable burden has been imposed on the provincial economy by recent floods. The Court is fully cognizant of such predicament and would be most loathe to further imperil the already imperiled economy. Result of the above discussion is that Finance Department of the Provincial Government is directed to implement decision made by the Administrative Committee with effect from 1.7.2011 and also make appropriate provision in the budgetary proposals in this regard.
18. These Constitutional petitions are disposed of in above terms.