' JAMAL KHAN MANDOKHAIL, J.--- These Constitutional Petitions are being disposed of through common judgment.
2. Precisely stated facts of the case are that the Balochistan Public Service Commission has invited applications for appointment of Additional District and Sessions Judges (BPS-20) through a letter No,3816/120-ESTT, dated 19th December, 2009, issued by the Registrar, High Court of Balochistan, Quetta, on behalf of respondent No,l. The petitioners have challenged the jurisdiction of Balochistan Public Service Commission, as well as, the above cited letter.
3. Learned counsels for the petitioners have stated that, the Balochistan Public Service Commission has no authority to invite applications, conduct test and interviews, and recommend for appointment of Judicial Officers. According to them, power, given to the Commission under Rule 5 of the Balochistan Additional District and Sessions Judges Service Rules, 2002,,is contrary to the provisions of Article 175 of the Constitution of Islamic Republic of Pakistan and also contrary to the judgment in the case, Sharaf Faridi v. Government of Sindh reported in PLD 1994 SC 105, as well as, 2009 PLC (C.S.) 841 Karachi High Court: According to them, in the revised National Judicial Policy, all the High Courts have been advised to follow the dictum laid down in the said case, whereby mechanism has to be formed by High Courts for appointment of Judicial Officers.
' In addition to challenging the authority of the Commission, the petitioners have prayed for regularization of their ad hoc appointments on the ground that, earlier, a number of Judicial Officers, appointed on ad hoc basis, were regularized, as such, they requested for alike treatment. It is also contended that since they are working w.e.f, August, 2006, therefore, the competent authority, be directed to regularize their services by relaxing the rules. Furthermore, the cases of petitioners were twice sent to the Government for regularization of their services by respondent No, 1, but of no avail.
4. Learned Additional Advocate-General appearing on behalf of respondents has contested the petition and submitted that, the Balochistan Additional District and Sessions Judges and District and Sessions Judges Rules, 1980, has been amended in the year 2002, whereby, the honourable Chief Justice of High Court has been declared as appointing authority as such appointment of Judicial Officers are subject to his approval. Furthermore, the case-law, referred to above, is not applicable in the present case. He has further submitted that, until rules are amended, the appointment must be made in accordance with these rules, wherein, the Balochistan Public Service Commission has got ample jurisdiction to initiate and complete the process of appointment.
5. We have heard learned counsel for the parties and have perused the record, as well. Through in both the petitions, jurisdiction of the Balochistan Public Service Commission has been challenged on the touchstone of Article 175 of the Constitution of Islamic Republic of Pakistan supported by Sharaf Faridi's case. Through Notification dated the 15th November, 2002, the Government of Balochistan was pleased to enact the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, relevant provisions of which are reproduced as hereinbelow:---
2. Definitions.-- In these rules, unless the context otherwise requires the following shall have the, meaning whereby respectively assigned to them that is to say:--- :
(a) "Commission" means the Balochistan Public Service Commission.
(b) "Chief Justice" means the Chief Justice of the High Court of Balochistan.
(c) "Government" means the Government of Balochistan.
(d) "High Court" means the High Court of Balochistan.
(e) .
3. Constitution of the services.--- The Service shall comprise the posts of District and Sessions Judges and Additional District and Sessions Judges.
4. Appointing Authority.--- Appointment to the Service shall be made by Chief Justice.
5. Method of recruitment.--- Appointment to the posts of Additional Sessions Judges shall be made:---
(a) by initial recruitment against 50% of the posts on the recommendation of the Commission with the association of Chief Justice or his nominee.
(b) by promotion against 40% of the posts on the recommendation of the Promotion Committee by the Chief Justice from amongst the Senior Civil Judges on the basis of seniority-cumfitness.
(c) by transfer against the remaining 10% of the posts from the officers belonging to Central and Provincial Government by the Chief Justice: ' Provided that if no suitable officers are ailable by transfer, the appointment against the reserved quota as mentioned in clause (c) may be made by promotion of the recommendation of the Promotion Committee by the Chief Justice from amongst the Senior Civil Judges.
(2) .........................................................................................................................
(3) In case of adhoc appointment the Chief Justice shall advertise the posts, invite applications and after selecting suitable candidate, make appointment on adhoc basis.
(6) Age.
(7) Qualification and experience.
(8) Probation.---
(1) ...................................................................................
(2) ................................................
(4) .........................................................................................................................
(5) ..........................................................................................................................
(9) Seniority.
(10) Liability to transfer and serve.
(11) General Rules.
(12) Relaxation.--- Any of these rules may, for the reasons to be recorded in writing, be relaxed in individual cases, if Chief .Justice High Court is satisfied that a strict application of these rules would cause undue hardship to the individual concerned.
(13) Repeal.--- The Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 1980 are hereby repealed. By order of Governor of Balochistan.
Chief Secretary, Government of Balochistan.
' From perusal of above-quoted Rules, it transpires that an apparent attempt was made in the year 2002 to ensure independence of. Judiciary from Executive and Legislature by repealing the 1980 Rules by designating the Chief Justice of High Court as the Appointing Authority instead of the Government.
175. Establishment and jurisdiction of Courts.--- (1) There shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established by law.
(2) No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.
(3) The Judiciary shall be separated progressively from .The Executive within [fourteen] years from the commencing day.
' Through sub-Article (3) of Article 175 of the Constitution, it was the intention of our Legislature to secure independence of judiciary by separating it from Executive, progressively, by the deadline of 14th August, 1987, but unfortunately, this provision of the Constitution was not complied with. The Members of legal fraternity from Pakistan Bar Council, therefore, filed petitions before the Sindh High Court and sought issuance of appropriate directions against the Provincial Government for implementation of the mandate of the Constitution. While accepting the petition, the High Court issued following directions to the Government: "(i) ...............................................................................................
(ii). That necessary notification under sub-Rule (2) of Rule 2 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1978 and Rule 4 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, be issued to notify the High Court as the authority within the period of sixty days.
(iii)
(iv)
' The aforesaid judgment of the Sindh .High Court was assailed by Government of Sindh, through its Chief Secretary, before the honourable Supreme Court of Pakistan, which was pleased to uphold the same, with further directions to the Federal, as well as, Provincial Governments for implementation. In pursuance of said judgment, the Government of Sindh made amendments in the year 1994, in the Sindh Judicial Service Rules. It is noteworthy that after introduction of the Rules, initial appointment, on the posts of Judicial Officers from Subordinate Judiciary to the High Court, was to be undertaken by the Provincial Selection Board, which is defined under Rule 2(e) as under:- -- "Provincial Judicial Selection Board means the Administrative Committee of the High Court or a Committee of not less-than three High Court Judges, specially constituted for the purposes of these rules by the full Court."
' Similarly, in the Province of Punjab, the posts of Judicial Officers are to be filled up on the recommendation of the Provincial Judicial Selection Board, which is defined under Rule, 2(e) of the Punjab Additional District and Sessions Judges and District and Sessions Judges Service Rules as under:--- "Provincial Judicial Selection Board means Administrative Committee of High Court or a Board comprising such number of Judges of the High Court as may be nominated by the Administrative Committee."
' In Balochistan, though in the Rules 2002, Appointing Authority, i.e, Government of Balochistan has now been replaced by Chief Justice of High Court, but the selection of Judicial Officer is still to be made through the Balochistan Public Service Commission. Under Article 242 of the Constitution, the Provincial Government is empowered for the Establishment and Constitution of "Provincial Public Service Commission", to nominate its Chairman and Members with a fixed timeframe to hold such office, thus, in reality, the Commission is part of the Executive setup of the Province. The Provincial High Court has no role in the constitution of such Commission, nor any sitting Judge can be its Chairman or a Member. It means that the Commission is under the control and influence of Government. Thus, the appointment of Judicial Officers through Balochistan Public Service Commission will not ensure complete independence of the Judiciary from the Executive.
' It is observed that, the guideline given in sub-Article (3) of Article 175 of the Constitution, and as interpreted by Sindh High Court upheld by the honourable Supreme Court of Pakistan, through above-stated judgment, has been followed by the Provincial Government for substituting the Public Service Commission by Judicial Commission, whereas, it is Constitutional obligation of the Government of Balochistan to follow the judgment of the honourable Supreme Court of Pakistan in its later and spirit.
' It is an admitted fact that no step has been taken by the Government for separation of Judiciary from Executive, therefore, the National Judicial (Policy Making) Committee has rightly observed as under:--- National Judicial Policy ' A. Independence Of Judiciary.--- (1) .........................
(2)
(3) As regards, filling of vacant posts of Judicial Officers, the High Courts should make necessary amendments in the relevant recruitments rules enabling the High Court to conduct test/interview for recruitment of Judicial Officers in the light of principles set forth in the judgment passed by Sindh High Court in C.P. No,D-2404 of 2008 (Rasheed A. Rizvi and others v. Province. Of Sindh and others).
' It is important to mention here that in the Province of Sindh, the appointments of Judicial officers were to be made through Provincial Selection Board, but Government of Sindh, Services and General Administration Department, vide notification dated the 4th December, 2004, made amendment in the Sindh Judicial Service Rules, 1994, whereby, the Provincial Selection Board was substituted by Sindh Public Service Commission.
' Feeling aggrieved from said notification, the Sindh High Court Bar Association, through its President, Mr. Rasheed A. Rizvi, and Sindh Bar Council, through its Chairman Executive Committee, Mr. Abdul Haleem Siddique, filed Constitutional petitions before Karachi High Court on the ground that, the impugned notification is not only contrary to the provisions of Article 175 of the Constitution of Islamic Republic of Pakistan, but it also violates the judgment of Sindh High Court in Sharaf Faridi's case referred to above. The High Court of Sindh, while accepting both the petitions, set aside the impugned Notification and held as under:--- "(93) At the cost of repetition, when we again looked at the impact of impugned notification over the 'Sindh Judicial Rules, 1994, we find that in a crude manner, it is cutting at the very root of the concept of separation of power and independence of Judiciary. On one hand, by addition of sub- Rule (aa) to Rule 2, in it introduces a new constitution "Commission" (S.P.S.C.), which is otherwise an alien to the rules and on the other hand, by amendment in Rule 5, it completely ousts the role of Provincial Selection Board and makes the Highest of the Province simply an Institution that can only furnish requisition for new appointments/recruitments of Civil Judges and Judicial Magistrates, 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 be gauged on the yardstick of relevant Constitutional provisions and the case-law laid down by the Superior Courts, but also from the public prospective, that places genuine expectations upon us in this regard. Judiciary to be independent and appear to be independent is of utmost importance so that people have faith and confidence in the Judges and for that matter also in the Institution that has been entrusted the task of their appointment. If the recruitment/ appointment of Judicial Officer is entrusted to the Executive or to a body alien to Judiciary, then, a huge question mark is placed on the whole process."
Through above judgments, it has now been settled that the initial appointment/recruitment of Judicial Officers is integral part of the High Court, therefore, the process of appointment has to be fair, transparent and above all, should not be influenced by the Executive. The appointment of said Officers by the sitting Judges would ensure Selection of professional lawyers, who are regularly appearing before concerned High Court and subordinate Courts, where their skills, ability, competency and dignity are always under scrutiny. Thus, the sitting Judges are the best choice to undertake the exercise for the appointment/recruitment of Judicial Officers.
' Without prejudice to above, even otherwise, in our view, appearance before the Public Service Commission, amounts to degrading the post and status of the Judicial Officers, which should otherwise require to be protected. This can only be done, if they are called only to appear before the sitting Judges of the High Court which will ensure the prestige and honour of the judicial post, as well.
' Keeping in view the above discussion and ratio of the cited judgment we are inclined to hold that under Article 175 of the Constitution, supervision and control over the Subordinate Judiciary vests in the High Court with administrative power and disciplinary jurisdiction over the Subordinate Judicial Officers. In such view of the matters the power of appointment of such officers must divert to the domain and supervision of the High Court. Hence, the selection/ appointment of Judicial Officers by the Balochistan Public Service Commission is contrary to provisions of the Constitution and also, in negation of the judgments of the superior Courts referred to above. The Balochistan Public Service Commission has no authority to appoint such officers, therefore, letter dated 19th December, 2009, sent by respondent No,1, for appointment of Additional District and Sessions Judges to Balochistan Public Service Commission is of no legal effect.
' Now adverting to the request of petitioners for regularization of their adhoc appointment, it is to be noted that, they were appointed by respondent No,1 by exercising powers under sub-Rule .(3) of Rule 5 of the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002. It is an admitted fact that, in the said rules, there are two methods of recruitment, one initial/regular recruitment, through process of Balochistan Public Service Commission, and the other is ad hoc appointment/reruitment, directly through the High Court. The petitioners were appointed through Notification dated 7th August,. 2006, with certain conditions, extract of which is reproduced as under:--- "On the recommendation of the Selection Committee of honourable Judges of this Court and in exercise of powers of conferred upon him under Rule 4 of Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, the honourable Chief Justice High Court of Balochistan has been pleased to appoint the following Additional District and Sessions Judges (B-19) on ad hoc basis for a period of six months or till the regular selection is done by the Balochistan Public Service Commission whichever is earlier.
(2) This order will not confer upon them any right for permanent absorption as Additional District and Sessions Judge or claim to seniority, until they have undergone the procedure as laid down under the Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules 2002,
(3) By order of the Chief Justice Registrar:"
' Nature of above Notification clearly proves the fact that, the petitioners were appointed without adhering to the procedure for appointment of regular Judicial Officers in accordance with the provision of the Rule 5, and their regularization was subject to the regular selection by the Balochistan Public Service Commission.. The petitioners were appointed pursuant to the said Notification, they are, therefore, bound by its terms and conditions.
' Admittedly, such appointments were made otherwise than by the prescribed method of recruitment, till fresh recruitment by the Commission is made, thus, they were appointed for a particular object and for a particular period. In such view of the matter, there is no rule, which can entitle an ad hoc appointee to be confirmed against regular vacancy. It is to be noted that, the competent authority, while appointing the petitioners on ad hoc basis, has not followed the Zonal allocation in accordance with the Government of Balochistan Recruitment Policy of 1991, because ad hoc appointment does not require such condition, whereas, for regular appointment, the policy has to be followed, therefore, it is an irregular appointment.
' As regards the contention of counsel for petitioners that, earlier, some other Judicial Offiters were also appointed on adhoc basis, but later 'on, their services were regularized, therefore, the petitioners are entitled for same treatment. We have gone through the Notifications with regard to the said appointment and the same reveal that, all these were issued prior to the promulgation of the 2002 Rules. It is pertinent to mention here that before the existing Rules, the Appointing Authority was Government of Balochistan, who, by exercising its power, had regularized services of those incumbents. Even otherwise, since those notifications are not under our scrutiny, hence, we cannot comment upon them, therefore, those are of no help to the petitioners. In present Rules, the Appointing Authority is Chief Justice of High Court, who has not confirmed services of any of the adhoc appointees, therefore, there is no question of discrimination.
' As far as the contention of counsel for petitioners that they have served for more than three and half years is concerned, as has already been stated that their appointments were irregular and above all, there is no provision in the Rules to regularize ad hoes, appointees, therefore, they cannot claim to be permanent incumbents of the offices of Additional District and Sessions Judges by mere efflux of time.
Furthermore, adhoc appointments did not confer on the petitioners any right or interest to continuous appointments, seniority or promotion under the law, that is why, it has, specifically, been stated in the Notifications, hence, their services could be dispensed with at any moment without assigning any reason or the Appointing Authority may not extend their tenure, because such appointment is altogether different from that of appointment on probation. Therefore, status of the petitioners could not be changed unless regularized legally by adopting the prescribed procedure/method, as such, request so made has no legal footing and same is declined. Reliance is also placed on the following judgments:--- 1987 SCMR 167, PLD 2003 SC 420, 2003 SCMR 1269 and 2005 PLC (C.S.) 1085.
' We accordingly issue the following directions:-
(a) That the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Additional District and Sessions Judges. And District and Sessions Judges Service Rules, 2002, within sixty (60) days, enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(b) Similarly, the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Civil Judges/Judicial Magistrates Service Rules, 2002, within sixty
(60) days, enabling the High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(c) Further, the Government of Balochistan shall make necessary amendments in the relevant recruitment rules of Balochistan Qazis and Member Majlis-e-Shoora Service Rules, 2002, within sixty
(60) days, enabling the High Court to conduct, tests/interviews for recruitment of Judicial Officers through a Commission, comprising of the Administrative Committee of High Court, or a Committee of three or more Judges, constituted by the Administrative Committee.
(d) The Balochistan Public Service Commission is, permanently, restrained from conducting any tests/interviews regarding any post of Judicial Officers in future.
After aforesaid amendments in the Rules are made, if the Commission of High Court invites applications for appointment of Judicial Officers, the petitioners will be at liberty to appear before the same for regular appointment, according to the prescribed method.
' This judgment will, however, not affect the candidature of those Judicial Officers, who have, already appeared in tests, conducted by Balochistan Public Service Commission which process should be completed as early as possible.