DOST MUHAMMAD KHAN, C J.--- Petitioners namely, (1) Ghulam Nabi, (2) Abdul Qayyum and (3)
Muhammad Tahir Zaman, Advocates of the High Court, have filed this writ petition and have prayed for issuance of writ to the following effect:---
(i) that Section 7(1)(a)(i) of the N.-W.F.P. (Khyber Pakhtunkhwa) Public Service Commission Ordinance, 1978;
(ii) that Rule 3 of the N.-W.F.P. (Khyber Pakhtunkhwa) Public Service Commission (Function Rules, 1983); AND
(iii) that Rule 5 of Judicial Service Rules, 2001 be declared illegal, unlawful being in disregard and ultra vires of the provisions of Constitution, contained in Articles 4, 2-A, 175 and 203. The offending provisions, therefore, to the extent of inconsistency with the Constitution are void ab initio, of no legal effect and are liable to be struck down. The recruitment of Judicial Officers including Civil Judges, Magistrates, Illaqa Qazis and others alike through Public Service Commission be declared illegal, being in violation of the constitutional command and the Provincial Government/respondents be directed' to amend the law and the rules on the subject ibid accordingly and that the recruitment of all such Judicial Officers and their appointments order shall be made/issued by the High Court or a Commission/Committee, constituted and established by the High Court. Further that recruitment of all such Judicial Officers be initiated without fail and without any delay by the High Court itself.
2. Notice of this petition was given to the respondents, after it was admitted to full hearing, and they were directed to file their respective replies, if they so desired.
3. When the petition came up for hearing on 7-11-2012, the learned Additional Advocate-General, representing the Provincial Government and all respondents, stated at the bar that the respondents would not contest the case because the Provincial Cabinet recently deliberated upon the summary, sent to it, which has been referred back to a Committee for final opinion. He was asked to explain that when the matter is almost six (06) months old and all controversial issues and points were discussed thoroughly with all the respondents and stakeholders at different occasions then, why the same has been referred to the Committee, constituted by Cabinet.
4. It is deemed essential to point out that the case was discussed by the Team of Officials of the High Court with all the concerned Secretaries including the Chief Secretary of the Provincial Government in light of the judgthent of the Hon'ble apex Court in the case of "Province of Sindh through Chief Secretary and another v. Rashid A. Rizvi and others" and the one given in the case of "Province of Sindh through Chief Secretary and another v. Abdul Haleem Siddiqui and others", the very judgment of the Sindh High Court, the Notification issued by the Government of Balochistan through Services and General Administration Department (Regulation-II) dated 14th April, 2011 vide SOR-H-22(51)/2011/S&GAD/1050-1100 and the Notification issued by the Government of Punjab through Services and General Administration Department (Section Admn-IV) dated Lahore, the 10th February, 2012 bearing No,1-1/2003-SO(ADMN-IV) and it was agreed in principle that the view point of the Peshawar High Court shall prevail and let the recruitment of Judicial Officers of all categories be taken away from the fold of the Provincial Public Service Commission and the High Court shall have the authority to recruit such officers, the learned A.A.-G. Could not convince the Court that what was the motive and purpose behind, referring the. Subject matter to the Committee constituted by the Cabinet, to be headed by. The Minister for Law, vide Notification dated 5th October, 2012, more so, when it had already agreed in principle to the suggested mode.
The only plea he took was that sometime be given to the Provincial Government, so that, the matter is discussed at all levels and final decision taken would be submitted to the Court.
' When the learned A.A.-G. Was apprised of the fact that there are 108 vacancies of Judicial Officers throughout the Province and due to acute shortage of Judicial Officers, the National Judicial Policy for speedy and inexpensive justice is getting setback due to the delaying tactics of the Government, he could not advance any convincing reason for such negative attitude of the Provincial Government. Left with no alternative, the case was heard at length with the assistance of both sides.
5. The petitioners argued the case and reiterated the stance which they have taken in the petition, however, they emphatically urged that if the process of recruitment of the said Judicial Officers is not taken in hand by the High Court, the independence of judiciary would remain merely a dream which could not be materialized in future, more so, when vested interests elements are bent upon to retain such power and authority within its folds, using Public Service Commission a channel for recruitment of the Judicial Officers according to their whims and wishes. According to them, these phenomena would definitely corrupt and pollute the system of Administration of Justice rather Justice itself would become a casualty and the noble cause of administering justice without fear and favour and independently would remain a faraway cry.
6. On the other hand, the learned. A.A.-G. Urged that let the Government decide this issue conclusively once for all and till that time the Court has to wait for its decision. In this way, he repeated his arguments: he offered initially when the case was opened for hearing, however, he was not sure as to when the Government would be able to decide the issue and in what manner.
7. From the conduct of the respondents, we have come to a definite conclusion that they are in no mood to retrace and set the things right, as has been done in the cases of other Provinces by the Provincial Governments i,e, Punjab and Balochistan and through authoritative judgment of the Sindh High Court which was upheld by the Hon'ble apex Court.
8. Under the provisions of Article 2-A of the Constitution, the Objectives Resolution set the code and ethics for the Nation, has been made integral part of the Constitution which is by now inseparable limb of the supreme law of the land.
' The Objectives Resolution squarely provides as under:- "Wherein the independence of the judiciary shall be fully secured".
9. Article 175(3) of the Constitution provides that judiciary shall be separated progressively from the executive within five (5) years context (original text), however, the dictators and even democratically elected Governments did not attend to this important issue for ulterior considerations and the judiciary was constrained to snatch its independence while giving authoritative judgment in the case of "Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v. Sharaf Faridi and others" (PLD 1994 SC 105). When this case was under consideration of the apex Court, all the Provincial Governments, represented by their respective Chief Secretaries, willingly agreed to the separation of judiciary from the executive and giving it full independence, however, till date arrangements were not made for the recruitment of Judicial Officers through inbuilt mechanism by the higher judiciary itself through its own Commission or Committee and this important process was retained by the executive within its folds which was a clear invasion on the independence of judiciary.
10. It is squarely not understandable that when judges of the High Court and Supreme Court are elevated on the recommendations of the Chief Justices and after 18th Amendment such recommendations are to be endorsed by the Judicial Commission, headed by Hon'ble the Chief Justice of Pakistan then, no earthly reason exists for the executive to retain the power and authority by making recruitment of the junior Judicial Officers of the District Judiciary through Public Service Commission. The only inference which could be legitimately drawn from such a move is that the executive authority is in no mood to give full independence to the judiciary and to implant their own favourities in the district judiciary, who would ultimately be elevated to the High Court and then to the Supreme Court in due course. Retention of such powers and authority by the executive has virtually chocked the efforts of the judiciary, made through authoritative judgment in Sharaf Faridi's case ibid and to thwart the attempt of judiciary to get full independence from the executive limb of the State.
11. In the case of "Province of Sindh through Chief Secretary and another v. Rashid A. Rizvi and others" the Hon'ble apex Court has laid down a binding dicta and while answering the question "the link between the independence of the judiciary and the process of appointment of Judges", held 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 by referring to the Rule laid down in the case of "Al-Jehad Trust through Raees-ul-Mujahideen Habib-ul- Wahab-ul-Khairi and others v. Federation of Pakistan and others" (PLD 1996 SC 324, 429). It was further held that although such rule was laid down in the context of appointment of judges to the High Court, however, the principle applies with equal force to all judicial appointments including those in the district judiciary. Accordingly, the dictum laid down in the aforesaid case was soon reaffirmed by the Supreme Court in the case of "Mehram Ali and other v. Federation of Pakistan"
(PLD 1998 SC 1445, 1474) and in the case of "Sheikh Liaqat Hussain v. Federation of Pakistan"
(PLD 1999 SC 504, 658) which directly relate to the district judiciary. This dicta of binding nature was reiterated in the case of " "Sindh High Court Bar Association v. Federation of Pakistan""
(PLD 2010 SC 879, 1182) and in the case of " "Munir Hussain Bhatti v. Federation of Pakistan"" (PLD 2011 SC 407). In the latest case, it was squarely held that it is an undisputed tenet of our constitutional scheme that in the matter of appointment, security o: tenure and removal of judges the independence of the judiciary should remain fully secured, hence, it was concluded that making appointments of judicial officers through an authority, other than the High Court, has the effect of negating the independence of judiciary and the separation of powers envisaged in Articles 175 and 203 of the Constitution because the High Court is neither involved in the selection of judges nor in their appointments as the function is to be performed by the Provincial Public Service Commission exclusively.
12. While concluding the judgment, the apex Court supported the judgment of the Sindh High Court on the same issue and held that the High Court alone shall be competent to make recruitment and selection of judges of the District Judiciary and not the Public Service Commission thus, the subsequent Notification, issued by the Government of Sindh, was struck down.
13. The Provinces of Punjab and Balochistan through their respective notifications, mentioned in the earlier para, have also surrendered this power and authority to their respective High Courts.
14. In the above background, the Provincial Government of Khyber Pakhtunkhwa is left with no justification much less plausible to retain such powers and authority by making recruitment of Judicial Officers of the District Judiciary through the Provincial Public Service Commission because it would amount to giving discriminatory treatment to the Peshawar High Court, undermining its authority and independence when in the rest of the country such authority and powers are exercised by the respective High Courts.
' Accordingly, the impugned action taken by the Provincial Cabinet, referring the summary to the Committee, constituted by it, is held to be without lawful authority, coram non judice, void ab initio, based on mala fide and of no legal effect and the same is declared as such. It is further held that the provisions of section 7(1)(a)(i) of the N.-W.F.P. (Khyber Pakhtunkhwa) Public Service Commission Ordinance, 1978, Rule 3 of the N.-W.F.P. (Khyber Pakhtunkhwa) Public Service Commission (Function Rules, 1983) and Rule 5(e) of the Judicial Service Rules, 2001 are equally ultra vires of the constitutional command, contained in Articles 175(3) and 203, hence, the same are declared void ab initio and shall ceases to have effect to the extent of recruitment of Judicial Officers of the District Judiciary. It is further directed that the Provincial Government, particularly the, Establishment Department, shall move the summary for the required amendments immediately without any fail and amendments shall be made where High Court shall be substituted for the Public Service Commission for all these Rules and provisions of law, so that, to make the High Court as a sole authority with powers and function to appoint all the Judicial Officers of the District Judiciary through its own process, independent of Public Service Commission or any other authority. Till such amendments are carried out in the impugned provisions of law, the same are held in abeyance and of no legal effect and the High Court shall have the authority to initiate the process of recruitment and appointment of all the judicial officers of the district judiciary under the Rules, framed by it and through the process and mode already set out for that purpose. Accordingly, Notification No, SOR-IV (E&AD)/3-11/2001 dated 28th August, 2001 are hereby restored and shall remain effective and operative in the field. This constitutional petition is allowed in the above terms.
These are the detailed reasons for our short order of the even.