DOST MUHAMMAD KHAN, J.---Through this constitutional petition, filed in representative capacity, the petitioners namely, Muhammad Sher Shah, District and Sessions Judge and eighteen (18) others have prayed for issuing writ of mandamus to the respondents, directing them to enhance the judicial allowance of the petitioners and that of the Establishment/staff of the High Court attached to the principal seat at Peshawar and the Benches at Abbottabad and D.I. Khan, at the ratio of three times over and above their initial substantive pay with effect from 1-1-2008 and to further declare the refusal of the respondents, not taking the required step as discriminatory, against the cause of justice in disregard of the decision of National Judicial Policy Making Committee hence, is liable to be set at naught.
2. Arguments heard and record perused.
3. The case of the petitioners is that they and others alike, whom they represent, are working as a constitutional body, being subordinate to the Peshawar High Court besides the establishment/staff of the High Court at principal seat and the two Benches at Abbottabad and D.I.Khan. All of them are working under the umbrella of the High Court. The petition further explains that to revamp, revitalize and reactivate the entire judicial system at all levels, the President of Pakistan promulgated National Judicial (Policy Making) Committee (NJPMC) Ordinance, 2002. Under the provision of section 3 thereof, the Committee is headed by Hon'ble the Chief Justice of Pakistan, as its Chairman while the Hon'ble Chief Justice of Federal Shariat Court and Hon'ble the Chief Justices of all the High Courts are its members. It has further been averred that under section 4(c) of the Ordinance, it is the obligatory duty of the Committee to suggest and bring improvement in the terms & conditions of service of the Judicial officers and Courts staff, ensuring highly skilled and efficient judicial system, so that, the backlog crises are overcome and the public at large is delivered timely justice without much expense and delay.
4. It has been stated in Para-5 of the petition that the present salaries/emoluments paid to the petitioners and the establishment/staff of the High Court do not commensurate with the job description, the most complicated nature of duties and the burden of heavy work load, they are by now dealing with and that too, in a highly inconvenient and absolutely unfriendly environments.
Their further grievance is that the salaries/ emoluments of similarly placed Judicial Officers and establishment/staff of the High Courts in the Provinces of Punjab and Sindh have been enhanced at the ratio of three times of basic pay much earlier but the Government of Khyber Pakhtunkhwa has failed to timely redress their grievance in an honourable and dignified manner.
5. Further, they state that under the New Judicial Policy, framed and formulated by the NJPMC, the working hours of all the Judicial Officers and the establishment/staff of the High Court has almost become more than double, as all of them, do work from 8-00 a.m. To 4-00 p.m. And in many cases it goes to late evening, leaving aside huge bundles of cases files they do carry homes for study to prepare brief for the next day and to apprise themselves of the facts of each case, involving highly delicate and complicated issues. Through very elaborate judgments they determined valuable rights of the parties involved in each case, the Provincial and Federal Governments both arc no exception, thus, on average basis, the minimum duty hours both in the Court Rooms/Offices/work place and at their residences at night comes to sixteen (16) hours per day which is incomparable and unmatchable. On no premises job done by them could be taken at par or parallel to the employees of other Departments / Ministries in the Province or at the Federal level.
6. It was vehemently contended at the bar that the Judges do dictate lengthy judgments, determining highly complicated and controversial issues while their staff/establishment do write the judgments in each case. In many cases, judgments are drawn late at night either in the chamber or at homes of the Hon'ble Judges by the establishment/staff.
7. The next limb of the submission was that preparation of decree-sheets, preparing and process of notices, institutions and receiving of fresh eases in hundreds are entered in different Registers maintained therefor under the Rules and it is a matter of judicial notice that in majority of cases several respondents are impleaded, thus, for each one separate notice is prepared with full address and parentage. On delivery to the Executing Agency these are again entered in the relevant Registers besides, daily cause lists are prepared according to the rosters. Proper table/chart are maintained for the institution and disposal of cases on daily basis. Numerous witnesses are examined in each case on day to day basis, volumes of evidence is dictated and taken for hours and after necessary corrections, at the conclusion, these are signed and stamped by the Presiding Officers. It was further submitted that the learned members of the Bar, the litigants and the general public are fully cognizant and well aware of this fact, an undeniable one. The case and Court management is an additional onerous task they do perform with utmost care and diligence on daily basis.
8. It was also urged with vehemence that to eradicate corruption from the judicial system, at all levels, is the pressing demand of the public at large, however, if these employees are not adequately compensated according to the Job description and duration of hard working hours then, being human, they may become susceptible to dip their hands in the dirty dust of corruption.
That would certainly be a doom day for the State and the nation if the judicature becomes corrupt, being well serving linchpin for the State and State authorities. Such dilemma would play havoc with the fate and destiny of the State and all our dreams would go into the whirlwind.
9. It was further urged that the nature of duty of the Judicial Officers and establishment/staff is not only complex but is also of multiple nature, the same is not confined to pure judicial matters but they do perform delicate and effective administrative duties of different natures, interacting with various Departments/Ministries in cases before them. All of them are under unbearable heavy burden and are working under a sky load, stress and strain. They are burning their blood till mid night when the others are resting. They cannot well attend the needs and requirements of their families and children.
10. It was in this backdrop that a foreign funding body realized and timely judged to prevent the collapse of the State. The Asian Development Bank came up with an offer to extend and provide a huge sum of soft loan for raising judicial infrastructure, to impart training and high skill to all these officers/staff for channelising and streamlining speedy dispensation of justice. The. MOU signed by the Government of Pakistan and the Bank was followed by joint declarations/commitments of all the four Provincial Governments and the Federal Government to bear all the running expenditure after consumption of the loan amount on planned and proposed projects.
It was also urged with vehemence that these Judicial Officers and the establishment / staff of the High Court are being regularly kept under strict vigilance and control to guard against corrupt practices. In these circumstances, it has become impossible for them to live with dignity and honour. The Constitution and the law of the land has placed the judicature at a- very high pedestal. The Islamic injunctions, practice and procedure have also bestowed them with greater dignity. The Caliph was made answerable before the "Qazi"/Court. The New Judicial Policy made and put into practice by the (NJPMC) with the object to counter the backlog crises, the capacity build up and skill management of Court affairs, extensive training and cases beyond any doubt has produced extraordinary positive results, however, the Judicial statistics issued and published by the Law and Justice Commission of Pakistan under caption Access to Justice Program (AJP) would show that Court litigations have increased 2000% (two thousand percent) while under the AJP the strength of Judicial Officers at District level and that of the establishment of the High Court has been enhanced at the rate of 5% to 10% entirely insufficient to cope with the rising phenomena of litigations because of enormous increase in population, in disputes over properties, in trade &, commerce and industries, in crimes of different categories, the irregularities committed by the State functionaries while dealing with citizens rights. The doing of administrative Justice by Executive limb has almost reduced to naught and this- way even for settlement of negligible and petty disputes, the citizens. Are unwisely shown the doors of the Courts.
12. Few years back, when the backlog crises had assumed the monster status, these Judicial Officers while strictly adhering to the New Judicial Policy at cost of their health, comfort and many risks while swiftly countering it with all odds have produced unbelievably positive results and admirable achievements. Not only the arrears have been reduced but also freshly instituted cases are decided speedily. The following table of statistics is a telling testimony to the above facts:-- Total pending instituted and decided cases in all district of Khyber Pakhtunkhwa for the year 1-1- 2004 to 31-12-2004.
Pending on 31-12-2003 159039 Instituted from 1-1-2004 to 31-12-2004 397894 Total for Disposal. 556929 Decided cases during the said period. 403288 Balance/Pending 153643
13. The statistics published in the year, 2008 are as follows:-- Pending on 1-1-2008 182883 Instituted from 1-1-2008 to 31-12-2008 367600 Total for disposal 550483 Decided cases during the said period. 364882 Balance/Pending 185601 The disposal of cases during the period from 1-1-2008 to 31-12-2008 has shown a negligible down trend, however, the decrease is exclusively attributable to the General Elections of 2007-2008 ultimately held in February, 2008. All the. Judicial Officers and its staff remained attached with election duties for more than 3/4 months as the earlier scheduled date of election was changed due to tragic death of late "Muhtarma Benazir Bhutto" otherwise, the disposal must have been much higher than the previous year.
14. It was due to the above ironclad undeniable facts that the petitioners have sought the prayed relief. The learned counsel for the petitioners further contended that under the same Judicial Policy, the petitioners have given much better results than those of the other Provinces. Despite this fact, the Governments of Punjab and Sindh have increased Judicial allowance of similarly placed officers / officials much earlier, then denying the same relief to the petitioners by the Provincial Government is an act or omission firmly by the prohibitory command containing in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.
When this petition came up for hearing on 11-5-2010 before the Bench, headed by Hon'ble the Chief Justice, an objection was raised by the respondent-side that being a member of NJPMC his lordship could not hear the same, thus, it was placed before this Bench.
15. Initially, as evident from their written replies, the respondents contested the petition, however, on 25-5-2010 when the learned counsel and legal advisor representing the respondents was apprised of the legal and factual position and the matter was deliberated upon in the Court, they candidly agreed to negotiate the matter with a team to be constituted by Hon'ble the Chief Justice of the High Court to reach at a reasonable settlement, hence, the case was posted to 2-6-2010.
16. On the posted date i,e, 2-6-2010 it was stated that negotiation was held between the two teams, however, they could not reach at a proper settlement.
17. Once again, the legal advisor and the learned counsel of the respondents were impressed upon to realize the sensitivity and urgency of the subject matter and that their approach should be more realistic, logical and liberal. The outmoded bureaucratic tactics could not be allowed to be super imposed or to override the principles of law and justice. The annual budget allocations were also discussed, besides the revenue generated/collected by the Provincial Judiciary for the Government in many areas. Once again, the respondents requested for short time/opportunity to renegotiate the matter with the Administrative Officers of the High Court, probably by then, they had received the nod from the high-ups to settle the matter. They further stated at the bar of having/possessing full authority and consent of the Competent Authority to negotiate the settlement with the establishment of the High Court. At this juncture, it was also suggested to them that the insurgency hit B Province is facing financial and economical problems, therefore, some areas can be taxed by it with Court fee which include Tax References, Writ Petitions, Corporate Law cases, Banking and Company cases, however, this process must be taken and concluded by the two teams, so that, the public at large is not unnecessarily burdened and taxed with extra expenditure in seeking justice. To this, they whole heartedly, agreed and appreciated the suggestion and promised that the matter would be settled amicably without any pinch of salt, therefore, the petition was once again posted for 15-6-2010.
18. On t5-6-2010 proposals/formula was placed before the Court, agreed upon by both the teams, however, for the third time another opportunity was sought because according to the legal advisor and the learned counsel of the respondents, summary was already put up before the Competent Authority for approval which, in their view, will consume some time, copy of the same is placed on tile. According to proposal at serial No,2, the Government/respondents have agreed to enhance the Special Judicial Allowance equal to one initial basic pay plus 50% of the running basic pay with arrears of one initial pay but with effect from 1st July, 2010.
19. Once again the case was adjourned because the proposal was to receive the final approval of the Competent Authority i,e, the Chief Minister of the Province,, who was away from the Provincial Headquarter and because the learned counsel for the petitioners under instruction, was unwilling to give up claim / relief sought relating to arrears of the past period.
20. On the adjourned date i,e, 6-7-2010, the Secretary Finance of the Provincial Government stated before the Court that the Competent Authority has approved the suggested agreed formula but arrears for one year from 1st July, 2009 could not be arranged due to financial constraints. This somersault and retrace made by the respondents was not acceptable to the petitioners, therefore, the Court was constrained to pass a short order on 6-7-2010, allowing formula/proposal No,2 which includes arrears for one year i,e, from 1st July 2009 to 30th June 2010, however, to provide a pause and breathing space to the Government, it was directed that the amount of arrears be paid in two instalments. The first one shall be paid in the .First week of September along with monthly salary of August, 2010 and the second instalment shall be paid in the first week of January, 2011 along with monthly salary of December, 2010. The respondents and their legal advisor/learned counsel were also directed to sit with the team of experts of the establishment of the High Court to search for ways and means, as to what type of petitions, appeals etc. Shall be taxed with court-fee to generate a reasonable amount of revenue for the public exchequer without placing burden on the public a large/genuinely aggrieved litigants.
21. The framer of the Constitution of Islamic Republic of Pakistan, 1973 by inserting various Articles in it guaranteed and had ensured the complete independence of Judiciary in very firm words. The sole object behind it was to enable it to dispense justice without fear and favour. The entire superior judiciary was put into correct channels in the matter of elevation of Judges and their emoluments, pension and privileges. An inbuilt mechanism was invented for elevation of Judges for the superior judiciary through consultative process, however, when at some time political interference and bureaucratic onslaught on superior Judiciary became the order of the day, the apex Court was constrained to counter the brunt. In Al-Jehad Trust's case PLD 1996 SC 324 it was held in unequivocal terms that the recommendations of the Chief Justice shall he binding on the President. No deviation therefrom was permissible nor it could be disregarded unless strong and sound reasons are recorded therefor. This judgment, a hallmark in the judicial history of Pakistan, plugged and thwarted all attempts of invasions made on the judiciary, the borderline for the relevant authorities fixed by the Constitution was elaborately explained and determined once for all.
22. Under Article 175(3) of the Constitution of Islamic Republic of Pakistan, 1973, it is clearly laid down with strong commitments given by the then constituent Assembly that the Judiciary shall be separated from the Executive at all levels and it would be made independent in all aspects within a prescribed period of five (05) years. This was indeed a sincere and laudable effort on the part of the constituent Assembly for securing national interest. This cherished goal could not be achieved due to political unrest as an aftermath of fresh election held for the Parliament and for the four Provincial Assemblies in 1977 and the then Chief of Army Staff toppled the democratic government and trampled the Constitution under his heavy boots. He imposed Martial Law and abrogated the Constitution/held it in abeyance. A well devised deceptive promise was made with the Nation that general election would be held within ninety (90) days, however, as was perceived the dictator did not honour his commitments, he has made with the nation and usurped the powers of all organs of the State for more than ten (l0) years till he met an unnatural death in an air brash.
23. During the period of Martial Law, for ulterior motives, the short period prescribed for separation of Judiciary from the Executive was extended to fifteen (15) years.
24. When the wilful desire of the nation to sec the Judiciary independent and the command of the Constitution in this regard was out aside even by the successive elected Governments, the State and the nation thus, were exposed to potential danger of misrule, the Hon'ble apex Court left with no 2nd option, in 'Sharaf Faridi's case (PLD 1994 SC 105) while endorsing the view held by the Hon'ble Sindh High Court gave a firm time frame to all the Governments for separation of Judiciary from the Executive, at all levels. The apex Court further directed that financial independence shall be given to the judiciary. This historical judgment also brought to end the dependence of judiciary in financial matters on the Executive limb of the State. The judgment was given effect in all the four Provinces and the commitments given at the bar by all the Provincial Governments were put into practice on the target date.
25. On the strength of this high profile judgment of the Hon'ble apex court, separate cadre was established/created for the District Judiciary. The Governor of N.-W.F.P., vide Notification No,SOR- IV(E&AD)/3-11/2001 while exercising his powers under section 26 of the Provincial Civil Servants Act, 1973 read with Cabinet Division, Government of Pakistan's Notification No,SOR 475(1)/2001 dated 28th June, 2001 framed and promulgated Rules, prescribing the terms and conditions of service and regulating recruitmentto Judicial Service. Under the notification, the entire powers and Authority was surrendered to the Chief Justice/Administration Committee of the High Court.
26. After coming into face of these Rules, the Judiciary at the District level was freed from the claws of the crab after a long battle for twenty or more years and the majesty of law was retrieved.
27. On the financial side, the High Courts and the Apex Court were allocated separate budgets with financial independence investing Authority in the Chief Justice Administration Committee, as drawing and disbursing officer, to allocate or reallocate fund for any project or purpose without the prior sanction of the Financial Managers of the Provinces or the Federal Government. To this effect Notification No,S0(A/Cs) FD/2-1/93 dated 8--10-1995 was issued, relaxing the delegation of powers under the Financial Rules and the powers of Re-appropriation Rules, 1981. The Chief Justice was empowered to sanction expenditure on any item from the allocated budget to create new posts and abolish old posts, to change nomenclature and upgrade / downgrade any post, however, the expenditure is to be met from within the overall allocated budget of the High Court. The amended Notification of the Finance Department to this effect is No,SO(A/Cs)FD/2-1/96 dated 7-12-1996. The Registrar of the High Court was further empowered to make appointments to the post in BPS-01 to 16 borne on the establishment of the Peshawar High Court.
28. A proviso to Rule-4 was added whereunder, the Chief Justice of the High Court was invested with powers and Authority as a head of Administrative Department i,e, the High. Court/District Judiciary. The above narration of facts shall not be construed as an attempt that history is being retold.
Through these remarks, we intend to tell those who unreasonably grudge the judiciary, its servants and officers fully knowing the facts highlighted above.
29. In Paras-13 and 14 of the judgment we have pointed out that litigations of different kinds have increased many folds. Daily cause-list of every Court is so congested that on looking do not believe that the Judge and the staff would be able to exhaust the same but the weekly, monthly, periodical and annual computerized statements would show that the disposal of cases by each Judge is almost 200% over and above than which were decided or disposed of ten (10) years back. In this way, the Judicial Officers of the District Judiciary and the Establishment/Staff of the High Court remains under unbearable stress and strain to cope with the challenging task of arresting the backlog crises. They are indeed delivering justice at much higher speed. The speedy disposal of cases at the district level has opened flood gate of inflows for the High Court and the result is that the Judges and the staff in High Court do work from morning till 8-00 or 9-00 P.M.
30. It is the constitutional obligation of the Government to provide speedy and inexpensive justice to the people. All the Judges, like the petitioners and their colleagues, and establishment/staff of the High Court are matchlessly confronting the phenomena without any let and lose, however, they are not paid the emoluments/salaries and allowances according to the cumbersome job done and according to their duration of working hours, as stated above, therefore, the inaction on the part of the Provincial Government for the last more than one year, not enhancing the judicial allowance, it has now agreed to enhance, was a grave omission on its part and the petitioners and others alike were grossly discriminated as the same were enhanced in the other two Provinces, much earlier without the intervention of the High Court. The Asian Development Bank has highlighted on its website that under the Access to Justice Program the Peshawar High Court and the District Judiciary of the Khyber Pakhtunkhwa has excellently achieved the target by deciding huge number of old cases. This message with commendable remarks alone was enough for the Provincial Government to have taken timely steps much prior to the other Provinces, providing the incentives for infusing new spirit in the Judicial Officers and the Staff of the High Court to do more.
Such action would have produced more positive effects by compensating these devoted hard workers on one hand and thwarting any one in the cadre to indulge in corruption. In our view, the Executive limb more particularly the Financial Managers of the Province were jealously thwarting the process and was putting a wrong picture before the democratically elected Government.
Probably, it was, for this reason that the matter was delayed. This fact was more perceivable during the hearing of this petition at different occasion, as we closely watched them and their antecedents in this regard.
31. Despite of these omissions, we are constrained to appreciatethe elected Government of Khyber Pakhtunkhwa for agreeing to the negotiated formula, without much reluctance, initially exhibited by the Administrative Secretaries and their Advisors. In our view, probably, the Chief Executive of the Province, the head of elected government, was improperly briefed rather misguided by vested interest, however, when the ground realities were discovered, the agreed formula/settlement was thus materialized.
32. As the petitioners and others alike have worked hard day and night for more than two years for longer duration much beyond the office working hours required by the law, but they were not compensated therefor, in the circumstances, it is highly justifiable to grant the petitioners and others alike, including the establishment/staff of the High Court one year arrears of the enhanced Special Judicial Allowance on the pattern and in the manner elaborately mentioned in our short order of the even date which shall be treated as part of this detailed judgment. The same is reproduced below for the sack of convenience:-- "For the detailed reasons to be recorded later, this petition is partially allowed. The respondents (Provincial Government of Khyber Pakhtunkhwa) is issued a writ, directing it to pay Special Judicial Allowance on the basis of one initial basic pay plus 50% of running basic pay with arrears of one initial pay but from 1st July, 2009 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 & Sessions Judges, Senior Civil Judges/Special Magistrates and all Civil Judges/Magistrates working under the control and jurisdiction of the Peshawar High Court, Peshawar.
(2) Similarly, the Establishment of the Peshawar High Court, Peshawar is also granted the same relief as is allowed through this order to the Judicial Officers referred to above and in the same manner/way. Keeping in view the plea of financial constraints of the Provincial Government, we further direct that the arrears from 1st July, 2009 to 30th June, 2010 shall be paid in two instalments, i,e, the 1st one shall be paid along with the monthly salary of August, 2010 in the first week of September, 2010 and the second half of the amount/instalment be paid in the 1st week of January, 2011 with the monthly pay of December, 2010.
(3) We further direct the respondents, particularly, the Establishment Department/Ministry, the Finance Department/ Ministry, the Law Department/Ministry and the learned Advocate-General of Khyber Pakhtunkhwa to sit with the team of experts/Administrative Officers including the Registrar of the High Court to invent ways and means, to ascertain the areas where Court Fee on certain Petitions, Appeals, Revisions, Tax References, Review Petitions, Suits, Process Fee and on other alike matters can be reasonably levied and/or enhanced without burdening and taxing the poor litigants or tile public-at-large. Further to raise the existing slab of Court Fee on different kind of cases/petitions to a reasonable extent not because the Province is suffering due to financial crises in view of the peculiar circumstances but also because that the local currency has constantly shown down trend due to depreciation and devaluation vis-a-vis foreign currency particularly, US $, the main source of exchange with it. No deviation from this order shall be made by the respondents in any manner whatsoever and on any pretext."
33. The Registrar, Peshawar High Court, shall intimate in writing all the above Departments/Ministries an appropriate date for a joint meeting/meetings on the issue of levying and raising Court fee on the specified cases/petitions etc. And the process shall be taken to a logical conclusion.
NOTE: In this judgment the expression District and Sessions Judges, Additional District and Sessions Judges, Senior Civil Judges, Special Magistrates and Civil Judges cum-Judicial Magistrates shall include all grades of Qazies, Izafi Zilla Qazies and Illaqa Qazies serving in PATA etc.