MUHAMMAD KHALID MEHMOOD KHAN, J. - The petitioners being members of District Judiciary were appointed Judges of Accountability Courts, constituted under the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "the NAB Ordinance, 1999") through Notification dated 30.10.2006, on deputation in their on pay and scale for a period of three years with effect from the date they assume the charge.
2. On 21.12.2006, the Federal Government, Ministry of Law, Justice and Human Rights, granted a contract of service to petitioner No. 1 for a period w.e.f: 7.11.2006 to 1.11.2009; likewise the petitioners Nos. 2 and 3 were granted contract of service on 1.3.2008 and 8.2.2007 respectively. The petitioners were performing their duties in terms of their contract of service, when on 29.5.2009 their contract of service was terminated.
The petitioners have thus prayed as under;- It is humbly prayed that by allowing this petition, impugned notification may kindly be set aside as being illegal, void ab initio and unsustainable in law and of being no legal consequence.
It is further prayed that till final decision of this petition the operation of impugned notification may kindly be suspended.
Any other appropriate relief may also be allowed to the petitioners which this Hon'ble Court deems fit."
The petitioners assert that Notification dated 29.5.2009 is in violation of Section 5-A(4) of the NAB Ordinance, 1999 and the judgment of Hon'ble Supreme Court of Pakistan. The petitioners were not appointed as contract employees, they were appointed Judges of Accountability Court on deputation when they were serving as District & Sessions Judges and as such the petitioners' case is not hit by the National Judicial Policy. The National Judicial Policy has a prospective application and is not applicable retrospectively. The petitioners' services could not be terminated by a Section Officer.
3. Notice was issued to respondents, they submitted report and parawise comments and submitted, that petitioners' contractual appointments were terminated in pursuance of the decision of the National Judicial (Policy Making) Committee, headed by Honourable Chief Justice of Pakistan and attended by all the Honourable Chief Justices of respective High Courts; after the decision of Policy Making Committee, the respondent has no option except to implement the decision as under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973, every organ of the State is bound to act in aid of the Hon'ble Supreme Court of Pakistan. Honourable Chief Justice of Lahore High Court, Lahore vide letter dated 12.5.2009 directed to relieve all the retired Judicial Officers functioning under the control of Federal Government on ex-cadre judicial posts forthwith and the said direction is in accordance with Section 5-A(4) of the NAB Ordinance, 1999.
4. Learned counsel for petitioners submits that the petitioners' appointments are in terms of Section 5-A of the NAB Ordinance, 1999, which provides the qualifications for appointment of Judge, its tenure and procedure of its termination, the National Judicial Policy is not a statute, it may have persuasive force but could not overrule the statute. Learned counsel submits that there is no allegation against the petitioners of any sort and they were condemned unheard, as no show- cause notice was issued to them and as such the impugned termination letter is against the natural justice. Learned counsel adds that petitioners were initially posted as Judge of Accountability Court on deputation and when they retired from their parent department, their contract were redesigned, the petitioners' services thus can only be terminated as per the terms of their contract.
5. Learned Deputy Attorney-General for Pakistan submits that National Judicial (Policy Making)
Committee has decided to terminate the petitioners' contract of service and the decision of National Judicial (Policy Making) Committee is binding on all organs of State under Article 190 of the Constitution of Islamic Republic of Pakistan, 1973. The contract of service of the petitioners was terminated in terms of letter dated 12.5.2009, the letter/order of Hon'ble High Court is in terms of Section 5-A(4) of the NAB Ordinance, 1999. Learned Deputy Attorney-General submits that appointment of petitioners amounts to fraud to statute as the petitioner No. 1 was going tp retire on 6.11.2006, the petitioner No. 2 was retiring on 2.3.2008 and petitioner No. 3 on 31.12.2006, the petitioners managed to induct themselves as Judge of Accountability Court only to get the benefit of three years contract of service, hence the basic Contract of service of petitioners is void ab initio.
6. Heard, record perused.
7. The petitioners Nos. 1 and 2 and petitioner No. 3 were appointed by Federal Government vide Notification dated 30.10.2006 and 4.12.2006 respectively with the following terms:- "No. F.I(1)/2003-A.V(Pt-ll). - In exercise of powers conferred by National Accountability Bureau Ordinance, 1999 the President of Islamic Republic of Pakistan has been pleased to appoint Mr. Ahsan Ahmad, District and Sessions Judge as Judge of the Accountability Court-I, Lahore in his on pay and scale on deputation basis for a period of three years with effect from the date he assumes the charge.
2. The appointment of the above Judge shall be governed by the relevant provisions of N.A.B.
Ordinance. 1999 and terms and conditions prescribed in Law, Justice and Human Rights Division's letter No. 1(2)/2000- A.V., dated 26.9.2001 and 15.12.2001."
8. Again on 21.12.2006, 1.3.2008 and 18.2.2007 petitioners were appointed by the Federal Government in the following terms:-- (1)
Pay His pay will be fixed at that stage of the time scale of the post at which he was drawing his pay before retirement.
(2) Allowances As admissible to corresponding Judges of Accountability Courts except Deputation Allowance.
However, Qualification, Pay/Allowance, Senior Post Allowance and Orderly Allowance shall not be admissible in case /these allowances were taken into account while calculating pension after retirement from previous 2 service.
(3) Travelling Allowance As admissible to civil servants of the corresponding pay scale under the rules.
(4) Seniority This contract appointment does not confer any right for being placed in the gradation/seniority list of the cadre/group to which the. Subject post belongs.
(5) Leave As admissible under the Revised Leave Rules, 1980. However, provisions contained in Rules 5(c), 8, 11, 14, 16, 17, 18, 18-A, 19, 27, 33, 34, 35; 36 and 39 of Rules ibid, shall not apply. All leave at their credit will lapse on the termination of this contract.
(6) Medical Facilities As admissible to officers of the Federal Government under the rules.
(7) Pension/Gratuity Service rendered under this contract shall not qualify for pension or gratuity.
Pension in respect of previous service, if any shall continue to be drawn in addition to pay.
(8) General Provident Fund No contribution towards G.P. Fund shall be required,
(9) Conduct and Discipline Rules made and instructions issued by the Government or a prescribed authority as for civil servants under Sections 15 and 16 of the Civil Servants Act, 1973 as amended from time to time shall apply.
(10) Appeal Civil Servants (Appeal) Rules, 1977 with amendments, if any, shall apply.
(11). Termination of Contract/T transfer A Judge shall not be removed or transferred from his office before completion of the term without consultation of the Chief Justice of High Court concerned.
(12) Whole time employment posting Whole time of the contract appointee would be at the disposal of the Government. He may be employed in any manner required by appropriate remuneration. He shall at a times obey the rules prescribed for the time being for the regulation of the service or cadre to which the post in which he has been employed belongs.
(13) Other matters In respect of other matters not specified in this contract, the rules/regulations as applicable to Federal Civil Servants shall apply.
(14) Accommodation The persons employed on contract shall be entitled to the same facility as admissible to persons of corresponding grade in the civil service. However, they will be entitled to such house rent allowance as may be prescribed by Government from time to time.
9, The respondent vide Notification dated 29.5.2009 terminated the petitioners' services of contract in pursuance of the decision of the National Judicial (Policy Making) Committee. The issue required for resolution is whether the petitioners contract of service could be terminated in terms of National Judicial (Policy Making) Committee or not?
10. There is no dispute about the qualification of petitioners as Judges. It is also not a dispute that they after attaining the age of superannuation were allowed to complete their remaining period of contract by the competent authority. However, learned Deputy Attorney-General for Pakistan argues that the petitioners managed their induction as Judge of Accountability Courts when they were at the verge of their retirement and as such their appointments are not regular. The argument of learned Deputy Attorney- General for Pakistan is without any substance. All the three petitioners were appointed by the competent authority on 30.10.2006 and 4.12.2006 under the NAB Ordinance, 1999 for a period of three years with effect from the date they assume the charge. During the service, the petitioners attained the age of superannuation and the respondent Federal Government on 21.12.2006, 8.2.2007 and 1.3.2008, the petitioners were allowed to complete their remaining period of their deputation on new terms and conditions under Section 5-A(3) of the NAB Ordinance, 1999. The petitioners were performing their duties as per their contract with Federal Government.
11. In the year 2009, National Judicial (Policy Making) Committee a statutory body at national level headed by Honourable Chief Justice of Pakistan comprising of Chief Justice, Federal Shariat Court and for Chief Justices of High Courts as members after long discussion and examining the facts and figures promulgated, National Judicial Policy and Chapter A, INDEPENDENCE OF JUDICIARY decided as under:- "A. INDEPENDENCE OF JUDICIARY
(1) In future no Chief Justice or a Judge of the superior Court shall accept appointment as acting Governor of a Province.
(2) No retired Judge of the superior Court shall accept an appointment which is lower to-his status or dignity including appointment as Presiding Officer of Banking Court, Customs Court, Administrative. Tribunal, etc. The Committee asked the retired Judges of the superior judiciary to maintain the highest standards of decorum and voluntarily relinquish the charge of such posts which are lower to their status to earn respect in public and uphold the principle of the independence of judiciary.
The Committee asked the Secretary, National .Judicial (Policy Making) Committee to write letters to the Secretary, Establishment Division and Provincial Chief Secretaries to relieve all such Judges and may not make such appointments in future.
(3) Instead of appointing retired Judges/Judicial Officers as Presiding Officers of the Special Court/Tribunal, qualified serving Judges be appointed against these posts, in consultation with the Chief Justice of the High Court.
(4) Posting of serving Judges against executive posts in Federal and Provincial Government Departments on deputation be discontinued. All such Judges should be repatriated to the respective High Courts, where their services are needed most for expeditious disposal of pending cases.
(5) All Special Courts/Tribunals under the administrative control of Executive must be placed under the control and supervision of the Judiciary, their appointments/postings should be made on the recommendation of the Chief Justice of concerned High Court.
(6) In future the Judiciary would avoid its involvement in the conduct of elections, as it distracts the Judicial Officers from professional duty and complaints of corrupt practices tarnish the image of Judiciary.
The reputation of Judiciary is at stake during election due to involvement of vested interests groups, etc. In corrupt practices. On the other hand, it also adversely affects the judicial functions of the Courts. Even otherwise, the Conduct of General Elections Order, 2002, Representation of the People Act, 1976 and Local Government Ordinance, 2001 do not contain any provision which requires that the elections are to be held under the supervision of the Judiciary. Therefore, in future, the Judiciary should remain aloof from the process of election to focus on disposal of cases.
However, in case of request from the Government, the NJPMC would decide the extent to which and form of help to be extended to Government in the conduct of elections. The Judiciary will continue to extend support and cooperation in adjudication of election related disputes/complaints as provided under the law."
12. The respondent Federal Government in compliance of National Judicial (Policy Making)
Committee issued impugned termination letter; The petitioners are not the retired Judges of the Superior Judiciary and admittedly are the retired Judges of District Judiciary but the respondent wrongly treating the petitioners the retired Judges of Superior Judiciary terminated the petitioners' contract of service prematurely.
13. The petitioners were awarded the contract of three years commencing from the date of their initial appointment when they were the member of District Judiciary and after their retirement from District Judiciary, the respondent under Section 5-A(3) of the NAB Ordinance, 1999. Learned Deputy Attorney-General for Pakistan argued that under Clause 11 of the petitioners' contract of service, the petitioners' contract are terminated with the consultation of Hon'ble Chief Justice, Lahore High Court. Learned Law Officer has placed reliance on letter dated 12.9.2009 issued by the acting Registrar, Lahore High Court, Lahore.
14. The letter referred to above clearly find mention that Hon'ble Chief Justice in terms of National Judicial Policy has desired to relieve the petitioners. It seems that drafter of summary submitted to Chief Justice, Lahore High Court has not properly drafted the summary nor examined the National Judicial Policy. In its true letter and spirit and presented the same to Hon'ble Chief Justice, Lahore High Court assuming that petitioners are the retired members of Superior Judiciary. The National Judicial Policy clearly provides that no retired Judge of the Superior Court shall accept an appointment which is lower to his status or dignity including appointment as Presiding Officer of Banking Court, Customs Court, Administrative Tribunal, etc.
15. The post of Judge of Accountability Court was declared the post of District and Sessions Judge by the Hon'ble Supreme Court of Pakistan in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), the Hon'ble Supreme Court of Pakistan has opined as under:-- "193. We are of the view that for smooth and effective functioning of the Accountability Courts all the Judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief justice of Pakistan as contemplated in Section 5(g) of the NAB Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct, or physical or mental infirmity by the competent authority i.e. The High Court concerned, after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their counterparts who are performing functions in respect of Courts and Tribunals established by the Federal Government. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such judges from being elevated as Judge of a High Court if so appointed in terms of Article 193 of the Constitution.
194. The present incumbents/Judges of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the time of their retirement as District and Sessions Judges for the remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months salary."
16. From the above it is clear that petitioners are not the retired , members of Superior Judiciary and as such National Judicial Policy is not applicable to the petitioners' case.
17. In view of the above, the notification dated 29.5.2009 is declared illegal and without lawful authority; consequent upon the petitioners will be deemed to be the Judges of Accountability Courts till the expiry of their respective tenure in terms of letter dated 21.12.2006, 1.3.2008 and 8.2.2007. As the petitioners' contracts of service have been expired, they will only be entitled to the salary and other benefits as payable to them according to their respective contract.
18. The petition is allowed in view of the above-said terms.