' AYESHA A. MALIK, J.--- The Appellants are aggrieved by the impugned judgment dated 10.2.2015 in W.P. No,5406/2011 as the learned Single Judge has granted fifty percent increase in Judicial Allowance and fifty percent increase in Ad hoc Allowance with effect from 1.7.2010 to the employees of the Lahore High Court.
2. The case of the Appellants is that the Respondent is an employee of the Lahore High Court Establishment who sought a direction to the Provincial Government to act upon letter No,F.3(1)/2009-A-II dated 26.1.2011 issued by the Government of Pakistan, Law, Justice and Parliamentary Affairs Division, Islamabad wherein the Prime Minister approved a fifty percent increase in judicial Allowance and a fifty percent increase at the uniform rate of the basic pay, known as Ad hoc Allowance to the staff of all superior judiciary with effect from 1.7.2010. The learned Additional Advocate General, ("AAG") Mr. Shan Gull argued that the Prime Minister does not have any executive or legislative authority to direct the Province to make any such payment out of the Provincial Consolidated Fund. He argued that the Prime Minister cannot require the Provincial Government to make any kind of payment from the Provincial Consolidated Fund. He further argued that any payment with respect to Judicial Allowance or Ad hoc Allowance must be first approved by the Governor of the Province in terms of Rule 17 of Chapter 10, Part "C" of the High Court Rules and Orders (Volume-V), ("High Court Rules"). Further argued that the Respondent has no legal right on the basis of the Prime Minister's directive to agitate a claim for fifty percent increase in the Judicial Allowance with effect from 1.7.2010. He explained that the Administrative Committee ("AC") of the Lahore High Court took a decision on 13.5.2013 whereby it approved the payment of fifty percent increase in Judicial Allowance and Ad hoc 'Allowance to its employees with effect from 1.7.2010. He stated that the decision of the AC is premised on the directive issued by the Prime Minister dated 26.1.2011. Hence it cannot be followed. He further argued that Judicial Allowance has been granted with retrospective effect which is patently illegal as a liability has been imposed on the Provincial Government retrospectively. He argued that the Appellants are aggrieved by the interpretation given to Rule 17 of the High Court Rules in the impugned judgment as the same is contrary to the mandate of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").
With respect to Ad hoc Allowance the learned AAG argued that the same cannot be granted to the employees of the Lahore High Court because in terms of Notification dated 15,7.2010, issued by the Finance Department of the Provincial Government, Ad hoc Allowance granted in the year 2010 was not admissible to persons who were already getting allowance equal to one month's basic pay. He stated that on the basis of the said Notification, many employees of the Provincial Government including members of the Armed Forces, National Highway and Motorway Police were denied Ad hoc Allowance for the year 2010. For this reason since the employees of the High Court also fall in the category of persons who have received an allowance equal to one month's basic pay as provided in the Notification dated-15.7.2010 they are not entitled to this allowance. He clarified that with respect to Ad hoc Allowance the dispute pertains to the year 2010 only as Ad hoc Allowance for all other years has been paid.
3. Mr. Ahmad Raza Sarwar, Special Secretary, Finance Department appeared before us to explain the rationale of the case of the Appellants and to assist the Court with reference to the manner in which the process for granting the allowances with respect to the employees of the High Court is carried out. He explained that the payment for the employees of the judiciary comes from the Provincial Consolidated Fund which is a single and unified fund from which expenses are met by the Provincial Government. It is his understanding that in terms of the Constitution and Punjab Government Rules of Business, 2011 and the High Court Rules, if the AC and the Chief Justice recommend an allowance for its employees then that recommendation must be approved by the Governor of the Province. He stated that the Governor can modify the recommendation and send the matter back to the AC and the Chief Justice for reconsideration. He further stated that as per practice the AC has been submitting its recommendation to the Governor since 2003 which has been processed under the law and approved by the Governor. In this regard, he has placed before us the record containing approvals sought and granted for judicial allowance from the year 2003.
He stated that if any allowance is recommended by the AC without the approval of the Governor, then as per his understanding the Provincial Government is under no obligation to make the funds available. The Government of Punjab sanctioned fifty percent increase of the existing basic pay known as Ad hoc Allowance in the year 2010 to its employees with effect from 1.7.2010 subject to the condition that those employees who were already in receipt of any special allowance equal to one month's basic pay would not be allowed Ad hoc Allowance. He stated that the employees of the High Court have been denied the grant of Ad hoc Allowance as they were in receipt of different allowances equal to one month's pay hence they do not qualify for the Ad hoc Allowance. He stated that the Government of Punjab is paying Judicial Allowance from 1.7.2014 which was duly approved by the Governor. As to the Ad hoc Allowance, since there is a bar on the payment of Ad hoc Allowance pursuant to Notification dated 15.7.2010, they are not willing to pay the same. He clarified that .The issue of Ad hoc Allowance is only with respect to the year 2010 as the Ad hoc Allowances for the subsequent years have been paid to the employees of Lahore High Court.
4. Mian Bilal Bashir; learned counsel for the Respondent in support of the impugned judgment argued that fifty percent increase in Judicial Allowance and fifty percent increase in Ad hoc Allowance have been given to all the employees of the other High Courts of the country and the august Supreme Court of Pakistan except for the employees of the Lahore High Court. He stated that Ad hoc Allowance is granted every year to the employees of the Lahore High Court and could not be refused for the year 2010. He stated that there is no basis to deny the employees the Ad hoc Allowance on the strength of the Notification dated 15.7.2010 as they are not at par with the civil servants mentioned in Notification dated 15.7.2010. He stated that the employees of the Lahore High Court fall directly under the control of the Hon'ble Chief Justice. He stated that the Hon'ble Chief Justice and the AC approved fifty percent increase in Judicial Allowance and in Ad hoc Allowance with effect from 1.7.2010 for its employees on 15.5.2013. He stated that the Appellants are obligated to comply with the decision of the AC and the Hon'ble Chief Justice in terms of Rule 17 of the High Court Rules.
5. Mr. Mohammad Azhar Siddique, learned counsel for Applicant in C.M. Nos.5061 and 5062 of 2015 and for the Petitioner in Criminal Original No,1719-W/2015 while supporting the impugned judgment argued that the Appellants have never challenged the directive of the Prime Minister dated 26.1.2011. They have also not challenged the decision of the AC dated 15.5.2013. Therefore they are obligated to comply with the same. Learned counsel further stated that the matter for grant of Judicial Allowance and Ad hoc Allowance falls exclusively within the domain of the Hon'ble Chief Justice and the AC in terms of Rule 17 of the High Court Rules and as such no approval is required from the Governor.
6. Heard and record perused.
7. The facts of the case are that on 26.1.2011, the Prime Minister through a directive approved a fifty percent increase at the uniform rate of basic pay, referred to as Ad hoc Allowance and fifty percent increase in Judicial Allowance to the staff of the superior judiciary across the country with effect from 1.7.2010. No positive action was taken by the Appellants on the basis of the directive hence on 15.5.2013 the AC in its meeting approved a fifty percent increase in the Judicial Allowance and in the Ad hoc Allowance with effect from 1.7.2010. The said allowances were not granted by the Provincial Government, hence the Respondent filed W.P. No,5406/2011 before this Court seeking implementation of the Prime Minister's directive dated 26.1.2011. The impugned judgment while relying on Articles 121, 122, 175 and 208 of the Constitution essentially held that judicial independence means and includes financial independence which means that the High Court has total budgetary and financial control and it can draw its own administrative expenses including remuneration of its officers and servants. The judgment further holds that administrative expenses do not require the approval of the Governor or the assent of the Provincial Assembly in terms of Article 121 of the Constitution. The impugned judgment concludes that the expenses proposed by the High Court cannot be turned down, revised or altered by the executive or by the legislature and that there is no provision under the Constitution that allows the Provincial Executive to delay or reconsider, legate, alter, reduce the administrative expenses of the High Court which is a charged expenditure under Article 121 of the Constitution.
8. The basic issue raised by the Appellants is that in terms of Rule 17 of the High Court Rules approval of the Governor is necessary before any allowance, Judicial or Ad hoc, can be increased.
The said Rule is reproduced hereunder for convenience:-- ' Members of the High Court Establishment shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from time to time with the approval of the Governor to these rules.
' The learned AAG while relying on the stated Rule argued that no other rule in the High Court Rules requires the approval of the Governor except Rule 17. Since Rule 17 specifically makes mention of the approval of the Governor it means that an approval was thought to be necessary for the purposes of pay and allowances.
9. We have considered the arguments made before us however, we find that the emphasis on the approval of the Governor is totally misplaced. The High Court Rules provide for the appointment and conditions of service for the Establishment of the Lahore High Court. These Rules have admittedly been approved by the Governor and essentially, lay down the terms and conditions of service of the employees of the High Court. The case of the Appellants is that the approval under Rule 17 is mandatory for the grant of increase in Judicial Allowance and Ad hoc Allowance because when compared with the other rules, Rule 17 is the only Rule which requires approval from the Governor. We have gone, through the High Court Rules and find that Rule 4 provides for the establishment of as many posts as may be fixed from time to time by the Chief Justice. As per the High Court Rules all appointments are made by the Chief Justice and increments are granted under Rule 18 by the Chief Justice. In all these cases; the approval of the Governor is not required.
Rule 17 however, provides that members of the High Court Establishment shall be entitled to pay, special pay and allowances as fixed by the Chief Justice, from time to time, with the approval of the Governor to these rules. We find that reference to 'approval of the Governor' is specifically in relation to the approval sought for making the High Court Rules and not for approval each time pay or allowance has to be increased. Not only does this understanding fit in well when reading the High. Court Rules in its entirety but it is also in consonance B with the principles of independence of the judiciary as held by the august Supreme Court of Pakistan in the case titled Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 ethers (PLD 1993 SC 341), Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105) and Abdul Rasheed and others v. Province of Sindh and others (2011 PLC (C.S.) 926). The Chief Justice as the competent authority creates the posts, makes the appointments, fixes the seniority and grants promotion. He is also competent authority to determine pay C and allowances of the members of the Establishment of Lahore High Court. The argument that only for the purposes of pay and allowances the approval of the Governor is required but for all other matters relating to terms and conditions of service the Chief Justice is the competent authority does not find favour with the spirit of the High Court Rules. To our mind when reading the High Court Rules, it is evident that fixation of posts, appointment to the posts, grant of increment, seniority and promotion are all subject to the decision of the Chief Justice without any approval from the Governor. On the basis of the same understanding, the terms and conditions of service, the pay and any increase thereof along with grant of any allowance will also be decided by the Chief Justice without any approval of the Governor. It is only the rules themselves when promulgated that need approval of the Governor in terms of Article D 208 of the Constitution. It is the Constitution when mandates that the Governor approves the rules related to the terms and conditions of service. Once the rules are approved, the Governor has no role and cannot interfere in the pay and allowances fixed by the Chief Justice. Therefore the finding in the impugned judgment, that the approval of the Governor under Rule 17 is a one off act is in accordance with the mandate of the Constitution and the spirit of the High Court Rules. In this regard, it is held in the case titled Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375) that In the context of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Courts the legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the ' independence of judiciary. It was further held in this case that it is admitted that under Rule 17 no separate dispensation with the approval of the Governor has taken place in respect of pay and allowances. For this reason the residuary Rule 22 gets attracted.
10. The next issue is with respect to the implementation of the decision dated 15.5.2013 of the Chief Justice and the AC wherein the increase in Judicial Allowance and Ad hoc Allowance was allowed.
A lot of emphasis was placed on the fact that the decision of the AC was based on the Prime Minister's directive dated 26.1.2011 which directive is not binding on the Provincial Government.
Although the Appellants have argued that 'they are not bound by the said directive, we are of the opinion that this argument is not relevant to the controversy at hand because the Chief Justice and the AC took a decision on 15.5.2013 that it will give all its employees fifty percent increase in Judicial Allowance and Ad hoc Allowance with effect from 1.7.2010. Given that a decision was taken by the AC and the Chief Justice, the Appellants were obligated to follow the same and ensure its compliance irrespective of the fact that the decision may have been based on the Prime Minister's directive dated 26.1.2011. The only answer to the question as to why the decision of the AC was not followed is that Rule 17 of the High Court Rules requires the approval of the Governor. Therefore there is no merit in this argument as the Appellants are bound to comply with the decision of the Chief Justice, through the AC. The issue that the decision of the AC required Judicial Allowance and Ad hoc Allowance to be paid with effect from 1.7.2010, being retrospective in nature is also misconceived as the Appellants are bound to comply with the orders of the Chief Justice and the AC. The Constitution protects the independence of the judiciary from the executive and the legislature which includes financial independence from the other two pillars of the state. The doctrine of separation of power means that each pillar of the State shall take care of itself. Hence the Constitution specifically provides under Article 120 that an Annual Budget Statement be submitted in respect of every financial year before the Provincial Assembly. The Annual Budget Statement and its explanatory memorandums include the expenses related to the Lahore High Court. Article 121 of the Constitution protects the administrative expenses and remunerations payable to the officers and servants of the E High Court by declaring it to be an expenditure charged upon the Provincial Consolidated Fund. Article 122 of the Constitution provides that charged expenditures as detailed in the Annual Budget Statement may be discussed in the Assembly, but shall not be submitted to the vote. Therefore the Constitution specifically provides that no interference shall be made with respect to the administrative expenses and remuneration payable to the employees of the High Court. The strength and effectiveness of an independent judicial system means that it has absolute control over its employees and in this context that it decides on all matters related to the terms and conditions of their service. As an independent branch it is presumed that the judiciary will regulate and monitor its finances in the most prudent manner possible and take reasonable decisions. Such decisions cannot be made subject to the approval of the Governor and any matter related to pay and allowances cannot be turned down, modified or sent back by the Governor to the AC and the Chief Justice for reconsideration. In the instant case the Minutes of the Meeting of the AC dated 15.5.2013 show that the decision to grant E Judicial Allowance and Ad hoc Allowance with effect from 1.7.2010 was subjected to a process of deliberation by the AC and the Chief Justice, who in their wisdom concluded that the allowances should be granted with effect from 1.7.2010. The Appellants before us accept that the Judicial Allowance should be given to the employees of the High Court and they have stated that they are paying it with effect from 1.7.2014. Therefore with respect to Judicial Allowance they essentially dispute the effective date of 1.7.2010 and the amount due from 1.7.2010 to 30.6.2014. As to Ad hoc Allowance they have expressed their inability to accept the decision of the AC and the Chief Justice on the strength of Notification dated 15.7.2010. However we are of the opinion that the Appellants are obligated to comply with the decision of the Chief Justice and the AC dated 15.5.2013. Since this obligation is the mandate of the Constitution the question of retrospectivity and reliance on Notification dated 15.7.2010 does not arise. Furthermore reference to past practice when the increase in Judicial Allowance was sent to the Governor will also not change the mandate of the Constitution. In this regard, we find that the impugned judgment has aptly dealt with the matter by finding that The budgetary process of the High Court must be a collaborative exercise, where comments, suggestions and inputs are solicited from the provincial government, financial experts and other relevant institutions, in order to examine, appreciate and gauge the fiscal and economic conditions and realities of the Province before finalizing the charged expenditure. This is in line with the democratic spirit of co-operation, coordination, responsibility and accountability. Working relationship between different organs of the State is a path that enriches and strengthens democracy.
11. With respect to the Ad hoc Allowance, the issue raised by the Appellants is on the basis of Notification dated 15.7.2010 where certain departments of the Provincial Governments have been denied Ad hoc Allowance. They argue that the same will be made applicable to the employees of the Lahore High Court. The basic concern as explained by Mr. Ahmad Raza Sarwar, Special Secretary, Finance Department and the learned AAG is that if the employees of the High Court are granted the Ad hoc Allowance for the year 2010, it will prompt claims from other Departments who have been specifically ousted on the basis of the Notification dated 15.7.2010, to agitate their right to Ad hoc Allowance for the year 2010. However we find that there is no justification in denying Ad hoc Allowance for the year 2010 on the basis of Notification dated 15.7.2010. The employees of the Lahore High Court do not fall under the control and management of the Appellants/Provincial Government hence the question of discrimination would not arise. As per Rule 22 of the High Court Rules they have only adopted to be governed by the provisions of the Civil Service Rules (Punjab) in matters of salaries, allowance, leave or pension. However, since they are not civil servants the said Notification cannot be made binding on them and the question of discrimination, in our opinion will not arise as they do not fall under the control of the Provincial Government.
12. In view of the aforesaid, impugned judgment dated 10.2 2015 passed by the learned Single Judge is upheld and this appeal is dismissed.