' MUSHIR ALAM, C J.---All the above four petitions have been filed by different by and for categories of persons all associated directly or indirectly with the administration of justice, which includes judicial officers of the Districts Judiciary, employees and servants attached to the Districts Judiciary and employees/staff attached to Special Courts under the Federal Government. In all the petitions in essence enhancement of pay and judicial allowance at par with the judicial officer and officers and employees of Districts Judiciary Establishment and employees of Attorney General and Advocate-General in the Provinces of Punjab, Khyber Pakhtunkhwa (KPK) [formerly N. -W.F.P.] and Balochistan is claimed.
2. Petitioners have sought following relief(s) in their respective petition which read as follows:-- C.P. No,D-1465 of 2009:
(i) Direct the respondents Nos.1 and 2 to ensure that all District Judges, Additional District Judges, Senior Civil Judges and Civil Judge in the Province of Sindh are provided equal salaries, allowances, privileges and facilities as their counterparts in the Province of Punjab;
(ii) Grant such further or additional relief as this Hon'ble Court may deem appropriate in the circumstances. C.P. No,D-1930 of 2009:
(1) To declare that the petitioner and other employees of subordinate Courts in BPS-1 to BPS-16 are entitled to the facility of Judicial Allowance and Utility Allowance at enhanced rates as being availed by the employees of Honourable Lahore High Court, honourable Peshawar High Court, Honourable Balouchistan High Court and the failure of the respondents to provide/allocate funds to the subordinate Courts to meet the required expenses.
(2) To direct the respondents to grant and provide/allocate the required funds for the Judicial and Utility Allowances at the enhanced rates as mentioned in letter No,F.15(12)/03/LJCP/NJPMC dated 18th December, 2007 (Annexure "A") to be paid to employees BPS-1 to BPS-16 w,e,f, January, 2008.
(3) To grant any other/further relief(s) as deemed fit and proper in the circumstances of the case.
(4) To direct/implement the Term No,13 of National Judicial Policy, 2009 "in the Province of Punjab, the judicial officers of the subordinate judiciary are drawing additional judicial allowances equal to three times of their salaries, therefore, it is desirable that the judicial officers of all the Provinces be treated alike and disparity in their salaries and allowances be removed.
' Term No,14 of National Judicial Policy 2009: The salary/allowances of court staff should also be suitably increased, so that the corruption will minimize and Insaf Zaindabad.
C.P. No,D-2318 of 2009:
(1) Declare that the petitioners and the Staff of the Advocate-General's Office are liable to be granted 20% Judicial Allowance including 10% Utility Allowance w,e,f, 1-1-2008 as granted by the Government of Punjab, Finance Department, Karachi (sic.) by implementing the orders/judgment and consequently direct the respondents Nos.1 and 2 to act and grant the above Allowances.
(2) Declare that the petitioners and the Staff of the Office of the Advocate-General are liable to be granted Medical Facility as granted to the employees of respondent No,2 as well as Secretariat Staff by the Government of Sindh and consequently direct the respondent Nos.1 and 2 to act accordingly.
(3) To declare that the petitioners and the Staff of the Office of the Advocate-General are liable to be granted three Advance Basic Salaries as granted to the staff of honourable High Court of Sindh and direct the respondent No,1 and 2 to act accordingly.
(4) Declare that the posts of Sr. Scale Stenographers and Jr. Scale Stenographers as well as Assistants and Assistant Librarians are liable to be upgraded and re-designated in view the Annexure - 'G' , "Gil" and "G/2" and direct the respondent Nos.1 and 2 to issue order regarding upgradation of the said posts.
(5) Any other relief(s), which this honourable Court may deem fit and proper under the circumstances of the case.
C.P. No,D-2433 of 2009: ' Order that the petitioner and the employees/staff of all the Federal Courts may be granted 20% Judicial Allowance and 10% Utility Allowance w. e. f. 01/01/2008 with arrears.
3. In a nutshell, the cases of the petitioners Judicial Officers of District Judiciary, Courts/Tribunal established under Provincial and Federal legislation working under the supervision and control of Sindh High Court including employees and servants of establishment of District Judiciary and Courts/Tribunal working in the subordination of the High Court in terms of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 is that they are being discriminated with persons similarly placed in other Provinces.
4. It is the case of the petitioners that in order to bring the uniformity in practice, National Judicial.
Policy Making Committee was constituted through National Judicial (Policy Making) Committee Ordinance 2002 (hereinafter abbreviated as NJPMC). The NJPMC in terms of its mandate under the Ordinance, 2002 made recommendations for the uniformity of the terms and conditions of Judicial Officers and staff attached to the judiciary right from the District Judiciary to the apex Court.
5. It is the case of the petitioners that NJPMC in HR Case No,2122 of 2006 on 18-12-2007 recommended that High Courts of Sindh, Balochistan and the Peshawar may pay 30% of the pay to the staff of Judges and 50% of the pay to the staff of a Senior Judge transferred along with the Judge to a Bench out of Principal Seat of the High Court and under National Judicial Policy 2009 directed all the honourable High Courts to remove the disparity in salary and bring the salary of judicial service at par with that prevailing in the Province of Punjab.
6. According to the learned counsel for the petitioners, on the recommendation of NJPMC, the honourable Chief Justice of the respective Provinces have sanctioned the allowances to the officers and staff attached to the respective High Court establishment and such order of this Court dated 13-2-2008 is available at page 37 of the court file in C.P. No,D-1756 of 2009 and similarly with the approval of honourable Chief Justice of Punjab it was complied with on 22-11-2008 and the Peshawar High Court vide Notification dated 4-5-2009 respectively.
7. Learned counsel for the petitioners contend that the judicial officers in all categories and so also the staff and the employees attached to the District Judiciary or Federal/Provincial Courts/Tribunals are a separate class burdened with onerous responsibility, perform their duties untiringly from 8-00 a.m. To 5-00 p.m. Officially and invariably they sit till late night to discharge their arduous duty. In essence it was contended that since Province of Punjab was first amongst other High Courts to act swiftly to implement the recommendation of NJPMC to revise the salaries.
It is urged that on account of high inflationary cost even the increase made by the Punjab High Court has become meaningless, nevertheless the judiciary in Sindh is being meted out a discriminatory treatment.
8. It was urged that the then Advocate-General Sindh, had conceded such revision. Learned counsel for the petitioners have drawn our attention to letter dated 21-12-2009 addressed by Principal Law Officer of the Province of Sindh; namely, Advocate-General Sindh to the Chief Secretary and the Secretary Finance Department, Government of Sindh. In the letter while referring to revision made by the other Provinces, it was opined as follows:-- "This disparity in payment is discriminatory amounting to violation offiudamental rights guaranteed under the Constitution of 1973 as such challenged before the honourable High Court of Sindh through the above subject petitions and being heard together. Upon notice the undersigned appeared before the honourable Court on 4-11-2009, 11-11-2009 and 26-11-2009 and undertaken that the petitioner's matter of claim at par with the employees of courts of other Provinces to be resolved without any controversy very soon."
9. It was, therefore, urged that since Principal Law Officer also supports the case of the petitioners.
Contrary to the opinion of the Principal Law Officer, Secretary Fipance Government of Sindh expressed apprehension that if such utility allowance and judicial allowance or any other allowances are extended to judicial services who are civil servants working in subordinate courts then the Government will be faced with many such other claims from other civil servants. On 24-3- 2010 Chief Secretary of the Province of Sindh appeared in Court and expressed concern of the Secretary Finance that other government servants will also claim similar benefits. It was observed by the Court that such apprehensions are ill-founded as the establishment of the High Court and that of the District Judiciary formed altogether different categories of civil servants.
10. It was argued by the learned counsel for the petitioners that various special allowances are allowed to the various categories of service which are not admissible to other categories. To illustrate such arguments, it was contended that aviation service allowance, railway allowance, disturbance allowance to the armed force and hazardous allowance, shift allowance, Governor House staff allowance but are few categories of the allowances provided to the different categories of the servants and certainly one category cannot claim benefit extended to a category that perform special functions and duties having nexus to the respective job.
11. Learned counsel have drawn our attention to various authoritative pronouncement of the superior Courts reported as Government of Balochistan v. Azizullah Memon and others PLD 1993 SC 341 (370), Salman Adil Siddiqui v. Province of Sindh (2008 PLC (C.S.) 220) and Abdur Rashid v.
Secretary Establishment Division (1991 SCMR 1288).
12. All the learned counsel for the petitioners contended that honourable Chief Justice of the respective High Courts have power and authority to fix the terms and conditions and remuneration of the servants and staff of the High Court establishment which powers have been exercised by the honourable Chief Justice of the respective High Courts and as such the petition filed by the staff of the High Court of Sindh establishment being No,D-1756 of 2009 in respect of the employees of the High Court of Sindh was disposed of and the same was filed by the petitioners working in BPS 1 to 16 and another Petition being No, D-1912 of 2009 filed by the employees serving in BPS-17 in the Sindh High Court establishment in view of the Notification dated 2-4-2010 whereby the honourable Chief Justice in exercise of powers conferred under Clause-15, Part-I of the Sindh 'High Court Establishment Rules-2006 has been pleased to enhance utility and judicial allowances to the staff/officials of the Sindh High Court and its Bench at Sukkur, Circuit Courts at Hyderabad and Larkana w,e,f, 1-3-2010 and through another notification of the same date judicial and car allowances were also enhanced and both petitions were disposed of in terms thereof.
13. Mr. Salahuddin Ahmed, learned counsel pleading case for the judicial Officers (C. P. No, D-1465 of 2009) also made elaborate arguments and has taken serious exceptions to the reservation expressed by the Province of Sindh that resources of Sindh are not as compared to the Province of Punjab. Mr. Salahuddin has taken us to the various provisions of the Constitution to bring home his contention that discretion is being meted out by the Government of Sindh and Government of Pakistan and this Court should take judicial notice of the fact that it is the responsibility of the State to ensure elimination of all forms of exploitation and the State as a Guardian of all must act fairly, justly, equitably and the judiciary and staff Honourable or servant attached thereto are to be extended similar treatment throughout Pakistan. If emoluments and salaries of judicial officers and other staff attached to the judiciary are increased leaving other Province of Sindh would certainly create a feeling of deprivation and disparity and would fan the feeling of exploitation.
14. Learned counsel has taken us to Article 25, Article 27, Article 33 and Article 37 of the Constitution of Islamic Republic of Pakistan, 1973 to urge that it is the duty of State to promote social justice and eradicate the social evils, which is only possible if uniform terms are applied and that all persons placed in same classification are treated alike. It was urged that District Judiciary of Sindh is being discriminated in terms of employment and terms and conditions of service including emoluments.
According to him, low pay is one of the main reasons of corruption and malpractice. He urged that to avoid parochial, racial, tribal, sectarian and provincial prejudices among the citizens, State it is obligated to treat all persons similarly placed in like manner. To buttress his arguments he referred to the case of Government of Balochistan v. Azizullah Memon 1993 SCMR 1533; Attiyya Bibi v.
Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v. Selection Committee 2003 CLC 18 to highlight such arguments.
15. Mr. Salahuddin Ahmed, learned counsel, also made a very interesting argument that failure of the respondents, including Province of Sindh, to extend equal remuneration in Sindh qualitatively undermines the judicial independence to the citizens of Pakistan residing in the Province of Sindh.
To elaborate such arguments, it was contended that access to justice and speedy justice is undeniable right of every citizen and in case the judicial officers and other staff of judiciary in the Province of Punjab are paid better emoluments their efficiency and performance is increased, whereas due to disparity in terms of employment of District Judiciary in Sindh the performance of the officer and the quality of justice would not be at par with that of the Provinces who are being offered better service benefits and this is how the resident and citizen of Pakistan availing judicial dispensation are being deprived of impartial, independent and qualitative justice thus citizen of Sindh are also not treated alike as mandated in terms of Article 4 of the Constitution of Pakistan.
16. Mr. Salahuddin Ahmed, learned counsel, further contends that judiciary is not a provincial subject and the Federation of Pakistan is equally responsible to shoulder its duty to provide all resources to the Province to share the burden as the judiciary an important pillar of State and must be looked after well. According to him, High Court and District Judiciary are given to the Province as a matter of convenience.
17. To a specific query by the Court whether this Court can direct executive to allocate the budgetary grant to meet the challenge of increase in the emoluments and benefits, it was argued that while interpreting the Constitution expensive and dynamic interpretation to apply fundamental rights includes terms and conditions of the service and in terms of Articles 3, 37(d) and 38(e) are to be read with Article 25 of the Constitution 1973. It was urged that the judicial officers and the staff attached to the judiciary perform one and the same function in all four Provinces and it is not that the judicial officer in Punjab and other Provinces performs any different functions; therefore, the judiciary as a whole is a class in itself and must be treated alike.
18. Mr. Salahuddin Ahmed, learned counsel, has vehemently argued that the judicial officers in any Province do not discharge or perform any function that is relatable to the Province alone.
Elaborating his contention, it was urged that the duty of a judicial officer is to interpret, execute and apply provincial as well as federal laws. It was urged that appointment in the province and post in connection with the affairs of the Province is to be determined under the Act of the Parliament or the Provincial Assembly, as the case may be Judicial Service is separate and distinct class separate and distinct from executive.
19. Our attention was drawn to Item No,55 of the Federal Legislative List Part-1, which gives/empowers the Federation, confer jurisdiction and power to courts except Supreme Court, with respect to any matter in the List. It was urged that Federation has promulgated various laws, which confers jurisdiction on a provincial judicial officer to adjudicate and decide the matters relating to the federal law within the provincial domain. Like for instance Banking Court, Custom Court, Excise and Taxation Tribunal, Special Anti-Terrorist Court and numerous other Tribunals and Courts established under the law are presided over by the judicial officers of the Province. He has also relied upon the case-law of Northern Area of Supreme Court reported in PLC 2010 (C.S.)
141. In the case reported as Government of Punjab v. Mubarak Ali, PLD 1993 SC 375, secretariat allowance to the employees of the Federal Shariat Court or Supreme Court was claimed by the establishment of the Punjab High Court on the ground of equality, same was allowed. He has also drawn our attention to the unreported judgments, where the Advocate-General Office was directed to be placed equally with the Attorney-General Office on the ground that the officers attached to the Principal Law Officer performs similar function as is being performed by the Attorney-General and the officers attached thereto.
20. It was urged that there is no justification to treat the citizen of Pakistan residing in the Sindh to be treated differently and, if that be the case; inevitable outcome will be fanning provincialism.
While placing' reliance on the case of Azizuullah Memon PLD 1993 SC 341 at page 374 it was urged that the Court may direct enforcement of the appropriate legislation and likewise the Court may issue appropriate directions to treat judicial officers and staff attached to the Court in equal fashion.
21. Learned counsel for the petitioners further contended that the power to revise the benefits and emoluments of the judicial officers and the other staff attached to the judiciary whether it be district judiciary or superior judiciary should vest with the judiciary and not with the executive functionaries. According to learned counsel trichotomy; in our constitutional dispensation is acknowledged. Object of Judiciary as an independent organ cannot be achieved unless financial autonomy is given. Our attention was drawn to the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341 which reaffirms the principles laid down in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404.
22. It was urged that this Court under Article 187(2) of the Constitution of Pakistan could order implementation of the directions issued by the honourable Supreme Court in the cases referred to above whereby categorical directions for separation of judiciary and giving financial independence have already been passed by the apex court. Almost 20 years have passed but the neither the Provincial nor the Federal Government has taken any step to separate the judiciary from the executive and to provide financial independence. It was, therefore, sought in the first instance this Court may pass directions to the Government of Sindh to immediately enhance the allowances and salaries structure at par with the Province of Punjab. It was urged that this Court may strike down the terms and conditions prescribed by the Government of Sindh and frame appropriate legislation to provide for Independent Judicial Service Board vesting power in the judicial hierarchy to determine terms and conditions including emoluments. It was urged that reasonable timeframe may be given to the Province of Sindh to frame and take above legislative measures.
23. Mr. Umer Hayat Sindhu and Mr. Ashraf Mughal learned D.A.-Gs, have drawn our attention to the comments filed on behalf of the (sic.) through Mumtaz Ahmed, Section Officer, Law and Justice Division, Federation of Pakistan, in C.P. 1465 of 2009, stand taken by the respondent No,1 is "grant of allowances and benefit Federation of Pakistan, to Subordinate Judiciary is solely the concern of the Finance Department of Provincial Government." It was by the learned D.A.-G. That the matter pertains to Province of Sindh and the Province of Sindh should bear the expenditure within its resources and Federation of Pakistan has nothing to do. It was further stated that in view of the NFC award, Province of Sindh has been allocated sufficient funds to meet the financial challenge.
24. Mr. Miran Muhammad Shah, learned Additional Advocate-General Sindh, contends' that there is no disparity in the service emoluments of different category of civil servants, according to him all the category of persons including the petitioners whether judicial officers or servants and employees of District Judiciary or other Courts and Tribunals working in the Province of Sindh, including employees of the Advocate-General, Sindh are Civil Servant and pay scale of all the civil servant in Province of Sindh are being treated equally and there is no discrimination or disparity according to him judiciary, in Sindh is better placed as compared to other Civil servants in Sindh, as they are paid reasonable Judicial allowance which is not' admissible to other Civil Servants.
25. As regard three fold increases in the salary of Judiciary in the Province of Punjab, it was contended that the salary in Punjab is being paid through overdraft and is artificial increase cannot be made yardstick. It was urged that the financial position of. Province of Sindh is far from weak, according to him, no sooner financial position is improved salaries and emoluments throughout Sindh would be revised and the judicial officers and other staff of judicial establishment would also benefit.
26. Mr. Miran Muhammad Shah, learned A.A.-G. Contends that Judicial Officers of the District Judiciary and staff attached thereto are all Civil Servants, their terms and conditions are governed under the Sindh Civil Servants Act, according to him they do not form a separate class therefore cannot claim different or for that matter better treatment from other Civil Servant governed under Sindh Civil Servant Act, 1973 and emolument and salary of all Civil Servants under Sindh Civil Servants are at par on the contrary, judicial officers and employees of judiciary are being paid judicial allowance, which other Civil Servants in the Province of Sindh are not being paid.
27. Mr. Miran. Muhammad Shah, learned A.A.-G. Referring to the employees of Advocate-General Office submits that they are civil servants and cannot be categorized with the judicial employees nor the secretariat employees. According to him, they may be considered for the grant of judicial allowance and nothing more.
28. Mr. Miran Muhammad Shah, learned A.A.-G., has seriously objected to the claim of financial independence to the judiciary as vehemently argued by Mr. Salahuddin Ahmed, learned counsel appearing for some of the petitioners. According to him, this aspect of the matter is not in issue in the instant petition, as it is not the case of financial independence of the judiciary, if at all petitioners are desirous to seek such declaration or enforcement, separate petition may be filed.
29. Mr. Anwer Mansoor Khan, learned counsel for petitioners in C.P. No,D-2318 of 2009 while adopting the arguments of Mr. Muhammad Ali Hakro and Mr. Salahuddin Ahmed, contends that the Advocate-General Offices in Lahore available at page 35, N.-W.F.P. At page 47 and Balochistan at page 49 revision has been made, therefore, they are entitled for equal treatment as are payable to the employees of the Advocate-General Offices in other parts of the country.
30. Exercising the right of rebuttal, Messrs Muhammad Ali Halal) and Salahuddin Ahmed, learned counsel for the petitioners, contend that issue of financial independence of the judiciary has been raised in the petition and it is germane to overall independence of judiciary. It was further contended that this is the relief, which this Court can grant under the facts and circumstances of the case and such relief is not beyond the purview of the petitions. It was further urged that the claim of petitioners was accepted by the Principal Law Officer which is reflected in the various orders including dated 4-11-2009, 21-12-2009 recorded in C.P. No,D-1756 of 2009 and such admission by the Counsel is binding on the government. In support of their contentions,reliance is placed on the case-law reported in PLD 1969 AJK 30(41).
31. We have heard the arguments and perused the record. Adverting to moot controversy as to whether the District Judiciary comprised of Judicial Officers and servants and employees of District Judiciary Establishment and Judges of Tribunal' and staff attached thereto are all class different from Civil Servants and secondly whether district judiciary in Sindh is being discriminated and is not meted out similar treatment as in other Provinces in Pakistan. Likewise whether employees of Advocate-General Office are being discriminated.
32. In order to address the controversy it would be beneficial to examine the scheme of the Constitution of Pakistan 1973. "Pakistan is a Federal System of Government, based on trichotomy of power i,e, Executive, Legislature and Judiciary, each organ of the State is required to function and operate within the bounds specified in the Constitution. Though judiciary is the pivotal yet weakest of the three pillars as it has to look towards executive for financial resources, which the Legislature and Executive enjoy. Judiciary plays very important and delicate roles, judiciary as a guardian of the Constitution ensures that none of the organs or Government functionary acts in violation of any provisions of the Constitution or any other law and because of the above nature of work entrusted to the judiciary. Constitution envisaged an independent Judiciary." (See Masroor Ahsan v.
Ardersher Cowasjee PLD 1998 SC 823, Registrar v. Wali Muhammad 1997 SCMR 141, 154, Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504). Chapter 3 Part-III provides for the Federal Government and the executive authority of the Federation vest in the President of Pakistan as per Article 90 of the Constitution of Pakistan, this is exercised directly or through officers subordinate to him. Prime Minister with array of cabinet ministers aid and advice the President in discharge of his executive functions. Likewise Executive authority in the Province is exercised by the Governor, who is aided and assisted by the Chief Minister and his cabinet of Ministers.
33. Chapter 1 of Part-VII of the Constitution, 1973 comprises of two Articles. Article 175 deals with establishment and Jurisdiction of Supreme Court of Pakistan, a High Court for each Province and a High Court for the Federal Capital Territory and "such other Courts as may be established by law".
Article 175-A introduced through 18th Constitutional Amendment deals with the appointment of Judges of Supreme Court, High Courts and Federal Shariat Court. The expression "such other Courts" as used in Article 175(1) is relatable to the subordinate Court or befitting we may call it District Judiciary including Courts/Tribunal established under law as referred to in Articles 202 and 203 of the Constitution of Pakistan (one may gainfully see Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445 @ 1469). Constitution of Pakistan, 1973 does not draw any distinction between superior or subordinate judiciary. It was so observed in the case of Muhammad Mansha v. State (PLD 1996 SC 229 @ 233), "What the Constitution contemplates, therefore, is not a batch of unconnected courts but a judiciary composed of superior courts and subordinate courts. Subordinate Courts are therefore integral part of the judicial System of Pakistan".
34. Contention of Mr. Salahuddin Ahmed, learned counsel, for the petitioner, is not without force, that failure of the respondents, including Province of Sindh, to extend equal remuneration in Sindh qualitatively undermines the judicial independence to the citizens of Pakistan residing in the Province of Sindh. Access to justice and expedient justice is undeniable right of every citizen and in case the judicial officers and other staff of judiciary in other Provinces are paid better emoluments they would be to attract more qualified, efficient and competent judicial officers to join judicial service and their efficiency and performance would be better, whereas due to disparity in pay scale and other benefits the quality of judicial officers and staff of district judiciary in Sindh would be seriously compromised thus seriously affecting their performance and the quality of justice would not be at par with their counterparts in other Provinces who are being paid better service benefits, which would also have serious effect on persons availing judicial dispensation in the Province of Sindh who would be deprived of impartial, independent and qualitative justice thus citizen of Sindh in ultimate analysis would be denied their right to be treated alike as mandated in terms of Article 4 of the Constitution of Pakistan.
35. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal treatment to all persons similarly placed. In terms of Article 27 of the Constitution, no citizen in the service of Pakistan or the other persons shall be discriminated in, any manner. Article 27 of the E Constitution does not only safeguard against the discrimination at the time of appointment of service but subsequent to the appointment as well. Disparity in the pay scale allowances in the Province of Sindh as compared to other Provinces is in clear negation to the recommendation of NJPMC and low pay is one of the main reasons of corruption and malpractice.
36. Indeed in terms of Article 33 of the Constitution, it is the responsibility of the State to discourage parochial, racial, tribal, sectarian and provincial prejudices among the citizens, any disparity in the terms and conditions of District Judiciary and other Courts/Tribunal and staff attached thereto in various provinces it may fan parochial and other negative sentiments among citizens of Pakistan residing in Sindh and it would be dangerous to the integrity and solidarity of Pakistan. Such disparity is also one of the causes of social injustice and other social evils.
37. In terms of Articles 25, 27 and as per Principles of Policy (Articles 37 and 38) of the Constitution, cast duty on State to promote social justice and eradicate the social evils, which could only be possible if equality in terms and conditions in judicial service and unless same uniform terms and conditions with similar emoluments in services are provided to all the categories of the persons placed in similar position; namely, Judicial officers, servants and employees of the establishment of the District Judiciary in Sindh are provided similar terms and conditions of service including facility and salary and retiring benefits as are provided to their counterparts in the Province of Punjab, KPK and Balochistan.
38. To provide inexpensive and expeditious justice in terms of Article 37(d) of the Constitution, 1973 is the responsibility of the State and the Federation cannot shed its responsibility on the premise that it is responsibility of the Province of Sindh. Inexpensive and expedient justice could only be achieved by efficient, competent and independent judicial apparatus, which all attributes have direct nexus with better reward in terms and condition of service and financial independence of the Judiciary. To remove disparity and ensure wellbeing of the people is responsibility of the State, which in turn would eliminate inequality in the income and earning of individual including persons of various classes similarly placed. (See Attiyya Bibi v. Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v. Selection Committee 2003 CLC 18).
39. Constitution is living and organic document, while interpreting the Constitution expansive and dynamic approach and interpretation is to be adopted. Fundamental rights include equality in terms and conditions of the service Articles 27, 37(d) and 38(e) are to be read with Articles 4 and 25 of the Constitution 1973. Judicial Officers in District Judiciary and Courts and Tribunal and the staff attached thereto perform one in the same function in all four Provinces and it is not that the Judiciary in Punjab performs any different functions; therefore, the judiciary anywhere in Pakistan as a whole is a class in itself, this was also ruled by the apex court in Bangladesh in a landmark judgment reported as Secretary, Ministry of Finance v. Masdar Hussain (1999) DLR (AD) 82 as discussed in later part.
40. Supreme Court, High Courts, District Judiciary or. Courts/ Tribunal established by law do not discharge or perform any function that could be specifically attributed or that may be solely relatable to Federation, Province or Districts respectively. Item No,55 of the Federal Legislative List encompasses authority of the Federation to create courts and the Federation has promulgated various laws which confers jurisdiction on a provincial judicial officer to adjudicate and decide the matters relating to the federal law within the provincial domain. Thus the judiciary whereever it may be, right from the Supreme Court, High Court, District Court and or Tribunal/Court established under Federal or provincial law like for instance Banking Court, Custom Court, Excise and Taxation Tribunal, Special Anti-Terrorist Court, Drug Court, NAB Courts and numerous other Tribunals and Courts established under the law are mostly presided over by the judicial officers of the Province.
Responsibility of Judiciary as one of the three pivotal pillars of State is to interpret Constitution and law may it be federal or provincial, though as a matter of convenience it is described as Supreme Court, High Court established under the Constitution and Subordinate judiciary, Court/Tribunal established under the law. Thus 'Judicial Service' is essentially and structurally distinct and separate service from the civil, executive and administrative services of the Pakistan and judicial service cannot be treated at parity with such services on any account nor can judicial service can be combined, abolished, replaced, mixed up and or tied together with the civil, executive and or administrative services. Judiciary as a whole is a separate and distinct class in itself. After the Shad Faridi case it has been so recognized in various Statute and Rules framed pursuant to judgment rendered in the case Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 rendered on 31-3-1993.
Full Bench of Sindh High Court in a case reported as "Rashid A Razvi v. Province of Sindh PLD 2010 Karachi 63 in paragraphs 29 and 24(sic.) at pages 83 and 84 has elaborately dilated in detail the manner in which Sindh Judicial Services Rules 1994, were framed. The Sindh Judicial Staff Service Rules, 1992 were promulgated on 24-3-1994, wherein "Service" has been defined to "mean the Sindh Judicial Staff Service". Sindh Subordinate Judiciary Service Tribunal (Procedure) Rules 1993 were notified on 10th March, 1994. Through another Notification S.R.0.-1(S&GAD)2/3-93 dated 24 November, 1994, Sindh Judicial Service Rules, 1994 were promulgated defining "Service" per Rule 2(g) to "mean the Sindh Judicial Service". An attempt by the Government of Sindh to take away the initiative of appointment of Judicial officers by the Chief Justice of High Court of Sindh on the recommendation of Provincial Selection Board (Comprised of three High Court Judges) by amending Sindh Judicial Service Rules, 1994 whereby Sindh Public Service Commission was to make initial appointment to the post of Civil Judge and Judicial Magistrate on the requisition of the High Court. Amendment was challenged in the High Court of Sindh and Full Bench comprised of five Judges struck down such amendments. Judgment is reported as "Rashid A Razvi v. Province of Sindh PLD 2010 Karachi 63, in j paragraphs 93, 94 and 96 at pages 109 and 110 it was held as follows;
93. At the cost of repetition, when we again look at the impact of the impugned notification over the Sindh Judicial Service Rules, 1994, we find that in 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 ,(SPSC), which is otherwise an alien to the Rules and on the other hand by amendment in Rule 5, it completely oust the role of Provincial Selection Board and makes the highest court of the Province simply an institution, that can only furnish requisition for new appointment/recruitment of Civil Judges and Judicial Magistrate to the Government, with no further role to play at any stage of such exercise.
94. The doctrine of separation of Judiciary from executive and its independence is not only to be gauged on the yardstick of the relevant constitutional provisions and the case-law laid down by the superior courts, but also from public perspective that places genuine expectation 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 Judges and for that matter also in the institution that has been entrusted the task of their appointment. If the recruitment/appointment of judicial officer is entrusted to the executive or to a body alien to the judiciary than a hug question mark is placed on the whole process.
96. Summing up the above discussion, we hold that the independence of the judiciary is something which has to be jealously guarded and cannot be compromised at any cost. The initial appointment/recruitment of Civil Judges/ Magistrate is integral part forming its foundation stone, thus the impugned notification negating this position and transgressing limit of judicial independence is liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution".
41. On 30-8-2000 the Removal from Service (Special Powers) Sindh Ordinance, 2000 was promulgated, which inter alia provided measures for the dismissal and removal of certain persons from government and corporation service. Definition clause (e) of section 2 excludes Judges of Supreme Court, High Court and Federal Shariat Court and members and K employees of Subordinate Court. Above fact clearly demonstrate that since after the announcement of judgment case Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 rendered on 31-3-1993, judiciary has been treated as separate and distinct from executive and any attempt to undermine its authority or independence as guaranteed in the Constitution of Pakistan has been seriously and jealously guarded and protected by the superior courts right from the case Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404 as upheld in Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 till recent pronouncement in "Rashid A Razvi v.
Province of Sindh PLD 2010 Karachi 63 and Ranyal Testile v. Sindh ' Labour Court No,3 PLD 2010 Karachi 27.
42. No doubt better emoluments and remuneration would attract persons of integrity and high qualification to join judicial service and it is the right of all citizens to access equally qualitative dispensation of justice and different standards of judiciary one underpaid, less competent and more prone to corruption and their counterpart in other provinces highly paid, more competent and less prone to corruption would certainly create disparity amongst the judicial officers in other provinces. Resultantly, the citizens of Pakistan in Sindh and all those who invoke jurisdiction of courts or tribunals in. Sindh would be deprived of qualitative dispensation of justice and fair trial which is only be possible by providing equal emoluments and better terms and condition of service.
43. Article 208 of the Constitution, 1973 empowers the Supreme Court, Federal Shariat Court with the approval of the President and High Court with the approval of the Governor concern, to frame Rules providing for appointment by the Court of officers and servants of the Court and their terms and condition of employment. Sindh High Court in exercise of such powers has made "High Court Establishment (Appointment and Condition of Service) Rules, 2006, Gazetted on 18-11-2006. In terms of Rule 15 thereof, the Administration Committee either itself or may delegate such authority upon any other Judge to exercise power of Provincial Government. Chief Justice is further empowered to grant special allowance to any officer or employee of High Court Establishment. On 2-4-2010 Chief Justice of High Court of Sindh in.Exercise of such power read with power conferred by the Finance Department Notification No, B1/2(18)/1996 dated 26-11-1996 through two different notifications one for staff/official in B-1 to 16 and other for staff/officers in B-17 enhanced the Utility and Judicial Allowance and Car Allowance with effect from 1-3-2010 payable with effect from the month of March, 2010 and arrears were directed to be paid on availability funds by the Finance Department, which has since been allowed. Likewise respective High Courts have revised the emoluments in consonance with the decision of NJPMC and respective authorities have also increased the emoluments of District Judiciary and employees of district judiciary. In KPK, the increase was effected pursuant to judgment of the Peshawer High Court in Writ Petition No, 1098 of 2010 dated 6-7-2010.
44. Power to revise salaries as regards Supreme Court, Federal Shariat Court and High Court Establishment vests with the respective. Chief Justice of the Supreme Court, Federal Shariat Court and High Court in terms of Article 208 of the Constitution, which is in consonance with Article 175 read with Article 203 of the Constitution and it is a step towards independence of judiciary. Effective supervision and control of the judiciary as envisaged under Article 203 could only be obtained once financial independence is secured. Since Constitution speaks of the judiciary as a whole and division into superior and subordinate judiciary has been created artificially by the executive in an attempt to wield control and exercise control over the judiciary and to make the judiciary subservient to the executive. In the case of Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341 which reaffirms the principles laid down in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404. In the said case at page 438, it was held as follows:- "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."
45. Case of Azizullah Memon (PLD 1993 SC 341), carried forward the principle of independence of Judiciary linking it with financial independence at page 370, it was held as follows:- "This observation in effect finds support from Articles 81, 82, 121 and 122. The first two Articles relate to remuneration payable to the Judges of the Supreme Court and the administrative expenses including the remuneration payable to officers or servants of the Supreme Court. The expenditures are charged on the Federal Consolidated Fund which under Article 82 "may be discussed in, but shall not be submitted to the vote of, the National Assembly". The same provisions have been made in respect of High Court 0 Judges and administrative expenses of the High Court. The financial equirements of the Supreme Court and the High Courts should be assessed by the Courts and after meaningful consultation with such Courts annual funds as per requirement be allocated and placed at the disposal of the Courts. All remunerations, expenses and disbursements relating to the judiciary should be made without any interference by any department, which are usually technical in nature requiring compliance with certain rules and practice of other departments of the Government. In case of any objection, if approval of the Chief Justice concerned is given, it should stand waived and set aside. Such steps should be taken to avoid financial dependence of judiciary on the executive. Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well. The lower judiciary is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and prone to financial dependence and harassment at the hands of the executive. In practice and effect the separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is practically under the control and supervision of the executive. Articles 175 and 203 lay down that the judiciary including lower judiciary shall be separate from the executive and "High Court shall supervise and control all Courts subordinate to it". Such control and supervision can be achieved only when the judiciary is administratively and financially separate from the executive.
Separation of Magistracy is the first step towards separation and independence. The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people." (underlined to add emphasis)
46. In the case of Mehram Ali and others v. Federation of Pakistan and others, PLD 1998 SC 1445, the apex Court summarized the legal position obtaining in Pakistan, which is as follows:--
(a) 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,
(b) That the words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(c) 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 founded on any of the Articles of the Constitution cannot lawfully share judicial power with the Court referred to in Articles 175 and 203 of the Constitution.
(d) 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.
(e) 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.
(f) That 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 requirement of the Constitution.
(g) 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.
47. While judiciary in Pakistan was making stride through various judicial pronouncement S as noted above, enforcing mandate of the Constitution in securing independence from executive, Bangladesh did not lag behind. In a landmark judgment reported as Secretary, Ministry of Finance v. Masdar Hossain (1999) DLR (AD) 82 highlighted to what extent the Constitution of Republic of Bangladesh has actually ensured the separation of judiciary from executive organs of the State. In essence, the case was decided on the issue of how the independence of judiciary is guaranteed by the Constitution of Bangladesh and whether provisions of the Constitution have been followed in practice. Case was initiated in 1995 by Masdar Hussain along with 441 judicial officers who were Judges in different civil court impugning inter alia that:
(i) Inclusion of judicial service in the name of BCS (Judicial) under the Bangladesh Services (Re- organization) Order, 1980 is ultra vires. The Constitution;
(ii) Subordinate Judiciary forms Chapter-11 of the Part-VI (THE JUDICIARY) Constitution and thereby the Subordinate Judiciary has already been separated by the Constitution. Only the rules under Article 115 of the Constitution and/or enactment necessary, are required to be made for giving full effect to this separation of judiciary;
(iii) Judges of the subordinate Judiciary being the Presiding Judges of the courts can be subordinate to any tribunal and as such. The judicial officers are not subject to jurisdiction of the Administrative Tribunal;
48. High Court Division of Bangladesh delivered its historic judgment with 12 directive points reported in 18 BLD 558. The Government preferred an appeal by leave (Civil Appeal No,79 of 1999 popularly cited as Masdar Hossain case (1999) DLR (AD) 82) and the Appellate Division partly reversed the decision of the High Court Division by its judgment delivered on 2nd December, 1999 in landmark ruling. The Appellate Division directed the Government to implement its 12 points direction including for formation of separate Judicial Service Commission to serve appointment, promotion and transfer of members of the judiciary in consultation with Supreme Court, amendment of the criminal procedure and the new rules for the selection and discipline members of the Judiciary.
49. Court extensively examined constitutional provisions relating to subordinate courts (Articles 114- 116A Constitution of Bangladesh) and services of Bangladesh (Articles 133-136), Appellate Division in paragraph 76, held that 'judicial service is fundamentally and structurally distinct and separate service from the civil, executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it can be amalgamated, abolished, replaced, mixed up and tied together with the executive and administrative services."
50. It also directed the government for making separate rules relating to posting, promotion, grant of leave, discipline, pay, allowance, pension and other terms and condition of service consistent with Articles 116 and 116A of The Constitution.
51. However, in delivering judgment, the Bangladesh Court of Appeal, made an attempt to differentiate between terms 'independence' and impartiality' and subscribed to opinion of Supreme Court of Canada in Walter Valente v. Her Majesty the Queen (1985) 2 SCR 673, on protection of judicial independence under Canadian Charter of Rights and Freedoms, wherein it was held that "the concepts of 'independence' and 'impartiality' although obviously related, are separate distinct values or requirements. 'Impartiality' refers state of mind or attitude of the tribunal in relation to the issues and the parties' particular case. 'Independence' reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status relationship to others particularly to the executive branch of government.
52. Pursuant to direction in the case of Masdar Hossain (supra) Government of Bangladesh though with some reluctance and prolonged struggle of the bar associations enacted four of essential legislative measures installing independent judiciary namely: 1) Bangladesh Judicial Service (Formation of Service, Appointment in Service and Temporary Dismissal, Dismissal and Removal)
Rules 2007,' 2) Bangladesh Judicial Service Commission Rule, 2007. (BJSC). Members of BJSC are drawn from amongst high judicial offices. Which are less likely to be allured or influenced by executive or political forces. BJSC is responsible for the selection of competent candidate for the judicial service, another enactment titled as 3) Bangladesh Judicial Service (Pay Commission)
Rules, 2007, which ensures that financial aspect of judicial officers are no more entangled with officers or servants of other category and 4. The Bangladesh Judicial Service (Determination of Posting, Promotion, Grant of Leave, Regulation, Discipline and other Conditions of Service) Rules 2007. Code of Criminal Procedure (Amendment) Act, separating judicial magistracy from executive.
53. Thus it could be seen that struggle for the independence of Judiciary is not a phenomenon unique and particular to Pakistan, it has received equal importance in India, Bangladesh and the West alike, every. Where Bar associations and members of legal fraternity have made struggle and valuable contribution, in Pakistan in addition to legal fraternity, deposed members of judiciary, Civil Society and independent media also played remarkable and historic role unique and unprecedented in the judicial history of the world. Whatever independence is presently enjoyed or exercised by the judiciary is the result of joint struggle as noted above and resultant judicial pronouncement. Though independence of Judiciary is ground norm in constitutional regime in all most all the modern time Constitutions including Constitution of Pakistan, which cast mandatory and constitutional obligation on Government to ensure separation of judiciary from the executive control progressively but not later than 14 years which term expired on 1-3-1999 but irony of the matter is that whatever independence earned was not conceded voluntarily either by the executive or legislature. (one can also see Chapter 5 on Judicial Power page 18 in celebrated treatise of Justice (R) Fazal Karim titled as "Access to Justice in Pakistan" 2003 edition, printed by Pakistan Law House),
54. Independence of judiciary and the impartial judicial practice are interrelated concepts, one cannot sustain without the other. No judiciary could claim neutrality and independence unless it is insulated and detached from executive and administrative influence in all respect including in terms of appointment, tenure and security of service and in financial matters. To a great extent Supreme Court and High Court are provided constitutional protection in terms of appointment, tenure and security of service as well as financially. It is not true as far as Subordinate Courts established under law and its staff and employees are concerned. As could be seen that the Subordinate Judiciary or more befittingly called District Judiciary is concerned in Sindh, appointments, of Judicial officers and Staff and employee of District Judiciary is in the hands of Judiciary, removal from service and disciplinary proceedings are taken by the Tribunal comprised of members of Judiciary. However as far as emoluments and for other financial need dependency is still on the executive. Independent judiciary was envisioned by our founding fathers and the framers of 1973 Constitution, such vision is manifest from the preamble and Article 2A of the Constitution pronounces "Independence of Judiciary shall be fully secured". To achieve the objective of independent judiciary Article 175(3) of the Constitution provided for separation of Judiciary from the Executive progressively within 3 years, which period was increased to five years and then 14 years with effect from commencing day which per Article 265 was 14th day of August, 1973 such period has not been extended any further and has lapsed on 14th August, 1987 and even under, 18th Constitutional Amendment, Act, 2010 period for separation of judiciary from executive has not been extended and despite judgment in the case of Azizullah Memon (PLD 1993 SC 341) apex Court advised the authorities "The next step should be taken to devise proper scheme and frame rules dealing with financial problems within the framework of the Constitution. So long financial independence is not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion to meet the growing needs of the people" almost 24 years have lapsed from the date fixed in Article 175(3) of the Constitution, 1973 and 18 years since judgment in Azizullah Memon case (supra) several military and political regime had lost the golden opportunity to take the credit of separation of Judiciary from Executive, though each and every political party when not in power commit and assure the nation to sovereignty or independence to the judiciary and such claim only proved to be slogan to gain political mileage. Credit goes to present regime that came into through democratic process with equal participation of opposition parties, which displayed commitment to implement such mandate of the Constitution in letter and spirit. Which was manifested by the establishment of Islamabad High Court, it is breath of fresh air and has shown ray of hope translating dream into reality; a true and independent judiciary in all respect including in terms of appointment, term and tenure of service and financial autonomy.
Establishment of Court for Islamabad Capital Territory was ornamented in Article 175 of the Constitution 1973 through 18th Constitutional Amendment Act 2010. Islamabad High Court owes its existence through Islamabad High Court Act, 2010 (IHC Act, 2010), which was promulgated on 2nd August, 2010, IHC Act, 2010 is the first legislative measure that could be said to be in fulfilment of constitutional obligation in term of Article 175(3) of Constitution of Pakistan, 1973 credit must be given to Parliamentary setup of the day. In terms of section 6 ibid all Civil, Criminal, Revenue Courts and other Courts and Tribunal working and functioning within the jurisdiction of Islamabad Capitol Territory came under the superintendence and administrative Control of Islamabad High Court.
Islamabad High Court was also empowered to establish subordinate judiciary. In terms of power conferred under section 6 ibid, full court has already approved "Islamabad Judicial Service Rules, 2011, where by all the appointment to the subordinate judiciary is to be made by the Chief Justice on the recommendation of the Administrative Committee. Most importantly power to prescribe scale of pay admissible to persons appointed under the rules whether in substantive, officiating or temporary basis is conferred on the Islamabad High Court itself. And for the time being Judicial officers are entitled to the scale of pay package and other facility admissible to the corresponding officers of the Province which is at the highest side, rules have been approved by the competent authority and are awaiting publication in the official Gazette any time.
55. In the case of Zafar Ali Shah v. Pervaiz Musharaf PLD 2000 SC 869 it was held at pages 1120-1121 a system of constitutional governance, guaranteeing fundamental rights and based on the principle 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 right are nullified and the rule of law upheld in the society 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 legal obligation assigned to judiciary judiciary has to be properly organized and effective and efficient....And has also to be strong and independent enough to dispense justice fairly and impartially. It is such an independent judiciary, which can foster an appropriate legal and judicial environment where there is peace and security in the society.
56. In the case of Accountant General v. Ahmed Ali Qureshi PLD 2008 SC 522, it was observed that judiciary though separate and independent organ of State is treated by the executive as its subordinate department. It is true that without financial autonomy independence of judiciary will always be illusory and the executive always considered independent judiciary as a threat. The Judges whether of superior court or District Judiciary perform and discharge their duties according to their conscience, Constitution and law, it is executive and extraneous forces that always over awed the judiciary to achieve their own covert objective to claim legitimacy to their extra constitutional measure. Judicial history of Pakistan right from Iskandar Mirrza till General Pervaiz Musharaf is replete with such incidents. Executive and extraneous adventures missed no opportunity to influence, subdue, control and derail the judiciary, which has seriously impeded judiciary in fair, impartial independent administration and dispensation of justice. The judiciary is a central column of the State edifice and without strong and independent, judiciary at all levels in all its affairs, including the financial matters, the right to access justice would only be illusory and in negation of constitutional mandate. Therefore, independent, impartial, competent and strong judiciary is sine qua non not only for good governance, survival of democracy, building and strengthening institutions and for welfare of the people of Pakistan. Independent judiciary is guardian of rights of people as guaranteed under the Constitution.' To secure independent Judiciary than matter from selection and appointment of Judicial officers and employees of judicial services, guaranteeing tenure, fixing terms and conditions, emoluments, retiring benefit, are all interdependent matters and should be in the hands of judiciary and not in the hands of executive. The perception that judiciary is not capable to shoulder such financial independence is no more true since after enforcement of National Judicial Policy Making Committee Ordinance, 2002 and since it has been activated and is sphere headed by honourable Chief Justice of Pakistan Ifthikhar Muhammad Chaudhry, several judicial reforms in real sense have been being made.
NJPMC is now a highest statutory judicial policy making body, which consists of the honourable Chief Justices of all High Courts and Chief Justice of Pakistan as its Chairman. NJPMC attend all matters concerning with the judiciary and in recent time has taken bold initiative to bring reform in justice delivery mechanism and for framing coherent policy to combat delays, promote automation, and bring out administrative reforms indeed an arduous responsibility that ensure free, fair, independent and conscious judiciary and in shortest time achieved enviable results.
57. National Judicial Policy, 2009 was framed by the NJPMC in consultation with all the stake- holders including Judges from Judicial Magistrate to Chief Justices of Supreme Court and High Courts, litigants, law-enforcing agencies, prosecutors, law officers and public functionaries from all across Pakistan. NJPMC, the apex judicial forum is working day and night, with an aim to consolidate and strengthen the independence of judiciary, thereby enabling the judicial organ of the State to exercise institutional, administrative and decisional independence. In addition to other important far-reaching decision to regulate affairs of judiciary and streamlining expedient dispensation of justice at all level, various measures and recommendations were made in National Judicial Policy, 2009 which are yielding fruitful results. In National Judicial Policy, 2009 special focus was made on Independent judiciary. Innumerable decisions were taken to insulate judiciary from the executive, serving Judges were withdrawn from executive offices even retired Judges were also disciplined. One, of the recommendations in the chapter Long Term Measure at page 41 is "In the Province of Punjab, the Judicial Officers of the subordinate Judiciary are drawing additional judicial allowances equal to three times of their salaries, therefore it is desirable that the Judicial Officers of all the provinces be treated alike and disparity in their salaries and allowances be removed.
' The salary/allowances of Court staff should also be suitably increased".
58. It may be observed that all the Provinces have responded to the decision of the NJPMC except in the Province of Sindh salary in Judicial Service has not been revised. It may be observed that sufficient time was given by this Court to the Province of Sindh and despite the fact that principal law office of the Province had expressed that judicial service in Sindh is being prejudiced, but to no avail. Contention of Mr. Miran Shah, that Province of Sindh is seriously effected by flood, it may be observed that KPK and Balochistan are not only war stricken, met devastating earthquake, but were also more seriously effected by shocking flood yet were able to revise the pay scale in Judicial Service unhesitatingly. As held above in para 38 that "judicial service" is separate and distinct class from civil, administrative, executive service and functionary, therefore judiciary any where in Pakistan is to be treated alike, as noted above all the Provinces have responded to the call of NJPMC decision and have revised the emoluments of Subordinate Judiciary befittingly called District Judiciary except in Province of Sindh, which is nothing but discrimination with the Judicial Service in Sindh, such discriminatory treatment is adversely affecting judicial dispensation of qualitative justice, which itself is injustice with the people of Pakistan availing redressal of their dispute and conflict by approaching Judiciary in the Province of Sindh.
59. Matter relating to staff and employees of Advocate-General of Sindh office is on the same footing. Office of Advocate-General perform same function in the Province as is performed by the office of the Attorney General, therefore are entitled for equal treatment. In the case of Northern Area of Supreme Court reported in the matter of upgradation of Judicial Officers/Staff Allowance and others reported in PLC 2010 (C.S.) 141 and in the case reported as Government of Punjab v.
Mubarak Ali, PLD 1993 SC 375, Secretariat Allowance no the employees of the Federal Shariat Court or Supreme Court wa's claimed by the establishment of the Punjab High Court on the ground of equality, same was allowed. In unreported judgment in WP Sadaqat Ali v. Government of Punjab, where the Advocate-General Office was directed to be placed equally with the Attorney-General Office on the ground that the officers attached to the Principal Law Officer performs similar function as is being performed by the Attorney-General and the officers attached thereto. Therefore employees of Advocate General office at Sindh are being discriminated.,
60. Judiciary has been termed as a custodian and sanctuary of the rights of the people and is the custodian of the Constitution. The judiciary holding such central and exalted position must be independent and separate from executive in all respect as envisioned by our founding fathers and framers of the Constitution. After Post November 3, 2007 scenario, expectations of entire nation in focused on judiciary, bold and independent decision by the superior courts have given high hope, build confidence and trust of all and sundry alike in the judiciary, though there appears to be resistance from the executive who were earlier not used to or prone to be disciplined by Constitution and rule of law. Now the Judiciary has some of age and matured into a responsible and organ of the State.This Court is quite competent to direct the concerned quarters to implement Article 175(3) in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so Pakistan as a nation rank and stand out amongst comity of nations having independent, impartial and competent Judiciary for all times to come.
61. In the case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341 apex court directed Federal Government to take certain measure for separation of judiciary from executive but the directive as to fmancial independence is still unfulfilled. This Court in exercise of jurisdiction conferred under Article 199(1)(c) as a custodian of Constitution and guardian of fundamental rights read with Preamble, Article 2A, Article 175(3), Articles 25, 27, Articles 37 (d), 38 (b), (c), (d) and
(e) of the Constitution of Pakistan, 1973 the Court may issue appropriate directions to treat Judicial Officers and staff attached to the Court in equal fashion and can also issue appropriate direction to any person, authority including Federal or Provincial Government to remove anomaly and disparity in the, terms and conditions including emoluments of members of Judicial service in Sindh. This court is competent to issue necessary direction to Government both Federal and Provincial to take such steps and legislative measure to separate and insulate Judiciary from other civil, executive and administrative service of Pakistan so as to ensure independence of judiciary is fully secured including and not limited to financial independence within the contemplation of Preamble, Article 2A read with objectives Resolution and Article 175(3) of Constitution of Pakistan and in fulfilment of rights guaranteed under the Constitution of Pakistan and in compliance to Principles of Policy.
62. It may be further observed that in addition to jurisdiction under Article 199 (1)(c) to issue directions to any person including Government, this court may also under Article 187(2) of the Constitution, 1973 direct implementation of orders passed by the honourable Supreme Court in the cases referred to above, wherein apex Court categorically directed for separation of judiciary and given financial independence, this petition could be treated as petition for seeking enforcement of the judgment rendered in the above cases. Almost 28 years have passed since the commencing date of the Constitution and 28 years from the date of judgment rendered in the case of Azizullah Memon, PLD 1993 SC 341, but the Provincial as well as Federal Governments have neglected to take any step to completely separate the judiciary from the executive and to provide financial independence. It was, therefore, sought in the first instance; this Court may pass directions to the Government of Sindh to immediately enhance the allowances and salaries structure at par with the Province of Punjab. It was urged that this Court may strike down the terms and conditions prescribed by the Government of Sindh and frame appropriate legislation to provide for Independent Judicial Service Board and reasonable timeframe may be given to the Province of Sindh to frame and take above legislative measures.
63. In view of the foregoing discussion Constitution Petitions No,D-2318/2009 is granted in following terms:-- Respondents Nos. 1 to 3 in the said petition are directed to extend benefits to the employees in the office of Advocate-General of Sindh in similar terms as granted to the office of Attorney-General of Pakistan, but with effect from 1-3-2010 when such benefits was extended to the employees and servants of Sindh High Court Establishment by the honourable Chief of Sindh through Notification dated 2-4-2010, such increase to be paid with effect from 1st July, 2011 and arrears with effect from 1-3-2010 be paid in monthly instalments along with monthly salary with effect from 1st January, 2012 till entire arrears are paid along with monthly salary for the month it is due.
64. And in view of the discussion made above, Constitution Petitions No, D-1930/09, C.P No, D- 1465/09 and C.P D-2433/09 are disposed of in following terms:--
1. The Government of Sindh is directed to pay Special Judicial Allowance equal to three times of the initial of their substantive pay scale (as allowed in Province of Punjab through notification dated 12- 8-2008) with effect from 1-3-2010 when such allowances were extended to Servants and Employees of the High Court Establishment, (through Notification dated 2-4-2010 by the then honourable Chief Justice of High Court of Sindh) to all the Judicial Officers of the. District Judiciary including those working on ex-cadre posts, which shall include the District and Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges, all Civil Judges and Judicial Magistrates working under the control, superintendence, and within the territorial jurisdiction of the High Court of Sindh per Article 203 of the Constitution, 1973.
2. Similarly, the employees and servants of establishment of Subordinate Judiciary/District Judiciary (Sindh Judicial Service) and that of Courts and Tribunal established under Federal or Provincial law, which are under the control, superintendence, of High Court of Sindh and functioning and discharging duties within the territorial jurisdiction of the High Court of Sindh per Article 203 of the Constitution, 1973 are also granted the same relief as is allowed through this order to the Judicial Officers referred to in para 1 above and in the same manner.
3. In view of financial constraints of the Provincial Government of Sindh, we would direct that the arrears to the Judicial officers of District Judiciary including Judicial Officers discharging judicial function/duty in Courts/Tribunal established under either Federal or Provincial law with effect from 1st March, 2010 to 30th June, 2011 shall be paid in monthly instalment together with and in addition with the monthly salary with effect from 1st January, 2012 till such time entire arrears with effect from 1-3-2010 are totally set off.
4. Government of. Sindh and Government of Pakistan are also directed to take steps and initiate such legislative measures as may be necessary to empower High Court of Sindh and or the Chief Justice of High Court of Sindh to fix and determine the pay scale of members of Sindh Judicial Service including judicial officers and servants and employees of Sindh Judicial Service in consonance with Article 203 and other enabling Articles of the Constitution of Pakistan and as per direction given in the case of Government of Balochistan v.' Azizullah Memon, PLD 1993 SC 341 to fully secure financial independence and separation of judiciary from executive.
5. Government of Sindh and Government of Pakistan are further directed to take such steps and legislative measures as may be necessary to empower High Court of Sindh and or the Chief Justice of High Court of Sindh to appoint, determine terms and conditions of employment, emolument, disciplinary proceedings removal from service and other incidental power and authority as regard Presiding Officers, servants and employees of Courts and Tribunals established under the Provincial and Federal laws in consonance with Article 203 and in implementation of Article 175(3) of the Constitution of Pakistan, which are under the control and superintendence, of High Court of Sindh and are functioning and discharging duties within the territorial jurisdiction of the High Court of Sindh as per Article 203 of the Constitution, 1973 and as per direction given in the case of Mehram Ali and others v. Federation of Pakistan and others, PLD 1998 SC 1445 and in case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341.
6. Registrar High Court of Sindh is directed to intimate Government of Sindh and Government of Pakistan to take immediate steps for the implementation and compliance of above order/directive.