Ghulam Mustafa Mughal, J.-- By our short order dated 19.9.2017, the captioned appeal was disposed of in the following manner:-- "The detailed reasons shall be followed. However, keeping in view the fact that the appointment of Civil Judges in the judiciary is since long awaiting issue, whereas, the selection process has already been initiated by the Public Service Commission, we deem it appropriate in the public interest to pass the following order:--
1. The public Service Commission is directed to complete the selection process within a period of 45 days in furtherance of advertisement already published.
2. For conducting the interview regarding selection of the candidate for the posts of Civil Judges, the Public Service Commission, in case of Committee, shall associate a Judge of High Court to be nominated by the Chief Justice of Azad Jammu and Kashmir High Court who shall chair the committee.
3. In case the interview is conducted by Public Service Commission as a whole then the Judge of High Court shall be associated as a professional expert under the provisions of clause (c), sub- section (iii) of section 3 of the Azad Jammu and Kashmir Public Service Commission Act, 1986.
This direction is subject to our final conclusion to be drawn in the detailed judgment."
In furtherance of the above short order dated 19.9.2017, now we proceed to record the detailed reasons as under:-
2. This appeal by leave of the Court has been directed against the judgment dated 9.8.2017 passed by the division bench of the Azad Jammu and Kashmir High Court rendered in writ petition No. 969 of 2017.
3. The precise facts forming the background of the captioned appeal are that the appellants and proforma-respondents No. 6 to 8, herein, challenged the vires of the notification dated 2.5.2017 through a writ petition before the Azad Jammu and Kashmir High Court on 2.6.2017. They also sought a direction to the Azad Government for making amendment in the Azad Jammu & Kashmir Judicial Service Rules, 2011 issued vide notification dated 19.5.2011 in the manner that the Azad Jammu and Kashmir High Court may be empowered for induction of Civil Judges, B-17 in the Judicial Department upon the recommendations of the Judicial Selection Board constituted by the Chief Justice of the High Court instead of Public Service Commission. A request was also made for making amendment in the syllabus prescribed for appointment of Civil Judges on the same patron as has been prescribed for appointment of Additional District and Sessions Judges. It was pleaded before the High Court that the Azad Jammu and Kashmir Interim Constitution, Act, 1974, recognized the trichotomy of powers, and the organs of the State i.e. Executive, Legislature and Judiciary have been given full autonomy within their allotted spheres. It was claimed that the judiciary has been given powers of judicial review of executive actions as well as to examine the Constitutionality of the legislative enactments, for which the independence of judiciary is considered as one of the basic characteristic of modern democratic system. It was further claimed that keeping in view the aforesaid principles, the legislature in the Azad Jammu and Kashmir has been empowered to induct its employees through the mechanism of Selection Board vide Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment, terms and conditions) Act, 1976. Similarly, the Azad Jammu and Kashmir Council has constituted its own Public Service Commission and the Government of Azad Jammu and Kashmir has also established the Public Service Commission for recruitment of the civil servants in the service of the Azad Jammu and Kashmir. It was further claimed that through the impugned notification, the powers of the selection of the Civil Judges have been given to the Public Service Commission which is negation of the trichotomy of the powers enshrined in the Azad Jammu and Kashmir Interim Constitution Act, 1974 as well as the principle of independence of judiciary. It was claimed that the notification is violative of the pronouncements of the superior Courts of the State as well as the Supreme Court of Pakistan reported as Province of Sindh through Chief Secretary and another vs. Rasheed A. Rizvi and others [PLD 2012 SC 649], Muhammad Ali Satakzai and others vs. Appointing Authority, through Registrar Balochistan High Court and others [2011 SCMR 1030] and Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others vs. Sharaf Faridi and others [PLD 1994 SC 105]. It was stated that in all the referred cases the concept of independence of judiciary was considered by the Superior Courts of Pakistan and it was concluded that the independence of judiciary demands that the judicial officers be selected by the High Court without any interference on the part of the Executive. The appellants claimed that in order to eliminate the involvement of the Executive, column 11 of item 4 of the Schedule I attached to the Azad Jammu and Kashmir Judicial Service Rules, 2011, issued vide notification dated 19.5.2011 may be deleted and the Government be directed to amend the Rules suitably for empowering the High Court to induct the judicial officers as is being done in the provinces of Pakistan.
4. The writ petition was contested by the respondents, herein, by filing written statement, wherein, they have negated the claim of the petitioner-appellants. It was pleaded that the petitioner- appellants have got no locus standi to invoke the extraordinary Constitutional jurisdiction of the Court and they have suppressed the material facts from the Court, hence, they approached the Court with unclean hands, as such, are not entitled to any discretionary relief. It was stated that the appellants have failed to point out any violation of law or rules, therefore, the writ petition is misconceived. It was claimed that the Public Service Commission is not a Government institution rather it is a Constitutional body and has been established keeping in view the command of the Constitution. It was claimed that as the appointment of Civil Judges is an executive act, hence, liable to be performed by the Public Service Commission established under the Constitution. It was stated that the impugned Government notification has rightly been issued and the Government is empowered to amend, rescind or withdraw any notification issued by it under section 21 of the General Clauses, Act, 1897. The learned High Court after necessary proceedings and hearing the parties dismissed the writ petition through the
5. Sardar Abdul Hameed Khan and Barrister Humayun Nawaz Khan, the learned Advocates appearing for the appellants, inter alia argued that the Azad Jammu and Kashmir Interim Constitution Act, 1974, recognizes the principle of trichotomy of powers and all the organs of the State have been given separate system of recruitment of their employees. They referred to the Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment, terms and conditions)
Act, 1976, the Azad Jammu and Kashmir Civil Servants Act, 1976, as well as Civil Servants Act, 1973 adapted by the Azad Jammu and Kashmir Council. They added that as the judiciary is a very important component of the State, hence, the judicial officers are liable to be appointed by the High Court and the appointment of the Judges may not be left at the discretion of the Executive.
They argued that the appointment of the Civil Judges by the Executive through the Azad Jammu and Kashmir Public Service Commission would not be fair as the same militates against the concept of independence of judiciary and the rule of fairness and transparency in appointment of judicial officers. The learned Advocates in this regard placed reliance on the cases reported as Sharaf Faridi and 3 others vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another [PLD 1989 Karachi 409], Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others vs. Sharaf Faridi & others [PLD 1994 SC 105], Province of Sindh through Chief Secretary and another vs. Rasheed A. Rizvi and others [PLD 2012 SC 649] and Muhammad Ali Satakzai and others vs. Appointing Authority, through Registrar Balochistan High Court and others [2011 SCMR 1030]. The learned Advocates further argued that a combined reading of sections 46, 47-A and 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, would show that the Azad Jammu and Kashmir Public Service Commission is not mandated with any authority to recruit the judicial officers who cannot be regarded as civil servants. In this regard, they placed reliance on section 7 of the Azad Jammu and Kashmir Public Service Commission Act, 1986 read with rules 3 and 4 of Azad Jammu and Kashmir Public Service Commission (Functions)
Rules, 1978. The learned Advocates argued that the Government delegated the authority for recruitment of the judicial officers to the High Court vide notification dated 16.6.2016 and the same was withdrawn through the impugned notification which act was malafide and without lawful authority and violative of the above referred provision of the Constitution. They argued that the action of the Government cannot be protected from any angle in view of the judgments of the apex Court of Pakistan as well as various pronouncements of this Court. The learned Advocates further argued that in all the provinces of Pakistan, the appointment of the Civil Judges/Additional/ District and Sessions Judges are being made by the respective High Courts and there is no reason to deviate from this practice and give free hand to the Government of Azad Jammu and Kashmir to induct the persons of their own choice through the Public Service Commission. They submitted that as the Additional/ District and Sessions Judges are appointed by the High Court through a Selection Board after competitive examination, therefore, it is not understandable as to why the task of the appointment of Civil Judges in the judicial service of the Azad Jammu and Kashmir cannot be given to the High Court who is batterly placed and equipped to judge the fitness and suitability of judicial officers. They further argued that the judgment passed by the full bench of Peshawar High Court in writ petition No. 2956-P/2012 titled Ghulam Nabi Advocate & 02 others vs. Government of KPK through its Chief Secretary & 04 others, decided on 07.11.2012, was not attracted to the facts of the case in hand because the said judgment was given on the admission and consent of the High Court for finalizing the existing process of selection. They further argued that neither the judgments of the superior Courts of Pakistan nor the question of independence of judiciary has been considered by the division bench of the High Court in its true perspective, the impugned judgment is, therefore, arbitrary and militate against the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and concept of the independence of judiciary. The learned Advocates argued that the syllabus prescribed for examination of the Civil Judges is also discriminatory and arbitrary vis--vis to the syllabus prescribed for Additional/District and Sessions Judges/Section Officers Law because some additional and irrelevant papers have been included in the syllabus which have no nexus with the syllabus and capability of the Civil Judges and the judicial officers, hence, the additional papers are liable to be excluded. They prayed that the writ petition may be accepted and a direction may be issued to the Government to amend the relevant Act and Rules made thereunder in order to empower the Azad Jammu and Kashmir High Court for induction of the judicial officers in the judiciary.
6. Conversely, Mr. Raza Ali Khan, the learned Advocate-General appearing for the respondents, while controverting the arguments advanced on behalf of the appellants, contended that through the earlier notification though the High Court was given powers of induction of Civil Judges but the same has been withdrawn by the Government because it was ultra vires of the Azad Jammu and Kashmir Public Service Commission Act, 1986 and the rules made thereunder. He submitted that the notification issued earlier was also violative of the Azad Jammu and Kashmir Judicial service Rules, 2011, which empowers the Public Service Commission to conduct the test and interview for recruitment of the judicial officers in the Azad Jammu and Kashmir. The learned Advocate- General submitted with vehemence that the question of violation of the concept of independence of judiciary is not involved in the case because the Government has already delegated the authority to the High Court/Chief Justices of the High Court and Shariat Court for appointment of the judicial officers/Qazis on the basis of the recommendation of the Public Service Commission.
He submitted that the promotion, posting and transfers in the judicial department are already being made by the High Court. In this way, the concept of independence of judiciary has been properly secured. He further argued that no similarity and equality can be claimed with the employees of the Azad Jammu and Kashmir Legislative Assembly because under the Constitution as well as by an Act, the powers for induction of its employees have been given to Legislative Assembly. The learned Advocate-General further argued that the contentions of the learned Advocates for the appellants that the Civil Judges are not Government servants, is devoid of any force because they are civil servants for all the practical purposes as has been laid down in Muhammad Yousaf Haroon's case reported as [2014 SCR 1180]. The learned Advocate-General argued that the Public Service Commission has got a pivotal role in the induction of the civil servants in Azad Jammu and Kashmir and the defects in the composition of Azad Jammu and Kashmir Public Service Commission Act, 1986, has been removed in view of the pronouncements of this Court in the case reported as Syed Mumtaz Hussain Naqvi & 9 others vs. Raja Muhammad Farooq Haider Khan & 4 others [2014 SCR 43]. He argued that the impartiality in the modes of selection of the civil servants as well as the employees of the judicial officers has been ensured, therefore, mere suspicions and doubts may not be allowed to frustrate the mandate of law and functioning of a Constitutional institution. The learned Advocate-General submitted that the parity with the Azad Jammu and Kashmir Council can also not be claimed because under the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Council has been empowered to establish its own Public Service Commission for induction of the Council employees. He argued that even otherwise the impartial induction under the supervision of the Azad Jammu and Kashmir High Court can be achieved under the existing law and rules which regulate the functions of the Public Service Commission. He argued that the appeal has no merits, therefore, the same may be dismissed.
7. Raja Amjad Ali Khan, the learned Advocate has also addressed the Court on behalf of the Azad Jammu and Kashmir Bar Council. He submitted that the Azad Jammu and Kashmir Bar Council is of the considered view and has expressed its opinion through different resolutions that the induction in the judiciary may be made through the Public Service Commission because the judiciary has to redress the wrongs committed by the institutions. The learned Advocate further submitted that if any mistake is committed in the selection of the judicial officers by the High Court then an aggrieved person has got no right of appeal or remedy and he will be left without any remedy which is against the fundamental rights of an aggrieved candidate. The learned Advocate argued that in order to save the superior judiciary from unnecessary criticism and for maintaining the public confidence in the institution, the High Court should not accept the task of induction of the Civil Judges. He argued that the question of appointment of Additional/District and Sessions Judges through the High Court is recognized by the Rules and the powers have not been given through any notification. He further argued that this is being done in all the provinces of Pakistan and even in India, therefore, the same have no similarity with the induction of the judicial officers.
He argued that the selection through a third party i.e. National Testing Service (NTS) may ensure the public confidence, fairness and transparency and rule of merit in the appointments. He further argued that the Public Service Commission inducts the specialist doctors and engineers and also makes other appointments, therefore, it is not fair to say that the appointment of the judicial officers by the Public Service Commission would be politically motivated and bad. He argued that a direction may be issued to the Public Service Commission to conduct the test and interview through National Testing Service (NTS) as has been done in different provinces of Pakistan.
8. We have heard the learned Advocates representing the parties and also have gone through the record of the case. We have no cavil with the argument advanced on behalf of the appellants that the Azad Jammu and Kashmir Interim Constitution Act, 1974 recognizes the principle of trichotomy of powers. The scheme of the Azad Jammu and Kashmir Interim Constitution Act, 1974, in so far as the trichotomy of powers is concerned, is the same as provided in the Constitution of Islamic Republic of Pakistan, 1973, however, the argument that the judiciary being an important component of the State has a right to induct the judicial officers in the Azad Jammu and Kashmir judiciary as is being done by the Azad Jammu and Kashmir Legislative Assembly/Council, has no substance in it.
The services in the Azad Jammu and Kashmir are regulated by section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which empowered the Government as well as the Council to regulate the appointments in their respective spheres on the basis of an Act of the Council/Legislative Assembly. So far as the Azad Jammu and Kashmir Legislative Assembly is concerned, under section 30-C of the Azad Jammu and Kashmir Interim Constitution Act, 1974, it is provided that the Assembly shall have the separate Secretariat and may by law regulate the recruitment and condition of service of persons appointed to the Secretariat staff of the Assembly.
Similarly, the Azad Jammu and Kashmir Council is vested with the executive authority to the extent of all the matters enumerated in the Azad Jammu and Kashmir Council Legislative list provided in the third schedule under which the Azad Jammu and Kashmir Council is empowered to establish its own Public Service Commission for induction of the Azad Jammu and Kashmir Council employees.
9. The Government of Azad Jammu and Kashmir has also enacted the Azad Jammu and Kashmir Civil Servants Act, 1976 for induction of the civil servants in the service of Azad Jammu and Kashmir. There is no similar enactment holding the field on the basis of which inductions of the judicial officers in the judiciary can be claimed on the basis of equality and similarity. The contention of the learned Advocates that provisions of section 47-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 create a room for employment in the Supreme Court as well as the High Court, which includes the appointment of judicial officers in the District Judiciary as such the judicial officers are not civil servants, in our considered view, is devoid of any force and is based on wrong assumption of law. The mode of appointment of judicial officers is regulated by the Azad Jammu and Kashmir Judicial Service Rules, 2011, which have been framed by the Government under the provisions of section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976. Under section 47-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Supreme Court as well as the High Court of Azad Jammu and Kashmir have been empowered to make rules for induction of employees and determine their terms and conditions of the service, therefore, the employees serving under the administrative control of the Supreme Court as well as the High Court are not civil servants. By no stretch of imagination, it can be held that the judicial officers who are regulated under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, are not civil servants. This question has been considered by this Court in Muhammad Yousaf Haroon's case reported as [2014 SCR 1180] and the proposition has been answered affirmatively.
10. The next argument of the learned Advocates for the appellants that the appointments of the judicial officers by the Executive through Public Service Commission militate against the concept of independence of judiciary, has also no substance. Though in all the judgments of the superior Courts of Pakistan referred to and relied upon by the learned Advocates for the appellants have been handed down in the light of the doctrine of separation of Judiciary from the Executive as has been enshrined under Article 175 of the Constitution of Islamic Republic of Pakistan, 1973, which has now been amended. The relevant case law is referred to herein as under.
1. Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi and others [PLD 2008 SC 522];
2. Province of Sindh through Chief Secretary and another vs. Rasheed A. Rizvi and others [PLD 2012 SC 649];
3. Muhammad Ali Satakzai and others vs. Appointing Authority of the Additional District and Sessions Judges through Registrar Balochistan High Court and others [2012 PLC (CS) 1216];
4. Sh. Riaz-ul-Haq & another vs. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501];
5. Younas Abbas and others vs. Additional Sessions Judge, Chakwal and others [PLD 2016 SC 581];
6. Yousaf Ayub Khan vs. Government through Chief Secretary, Peshawar and 2 others [PLD 2016 Peshawar 57];
7. Amanullah Khan Yousufzai and others vs. Federation of Pakistan through Law Secretary and others [PLD 2011 Karachi 451];
8. Sharaf Faridi and 3 others vs. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another [PLD 1989 Karachi 404];
9. Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others vs. Sharaf Faridi and others [PLD 1994 SC 105];
10. Muhammad Ali Satakzai and others vs. Appointing Authority, through Registrar Balochistan High Court and others [2011 SCMR 1030];
11. Khan Toti and others vs. Government of NWFP through Secretary Finance and others [2017 PLC
(CS) 266]; and
12. Bashir Ahmed Mughal and 6 others vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 6 others [PLD 2015 SC (AJ&K) 31]. In the case reported as Accountant-General, Sindh and others vs. Ahmed Ali U. Qureshi and others [PLD 2008 SC 522], the apex Court has authoritatively held as under:-- "24. In the broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of the judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the State in all maters including pay and pension which is an essential component of independence of judiciary but unfortunately as is evident from judicial history of Pakistan Executive Authorities instead of acting in aid of judicial independence and taking remedial steps for judicial reforms have always behaved with step-motherly attitude towards judiciary and its independence of obvious reasons of maintaining their will and supremacy through administrative devices even at the cost of damaging the judicial system. This may be pointed out that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of the Executive Authorities and it has been observed that the Executive Authorities, without recognizing the independent status of judiciary as an important Organ of State, treat it as their subordinate department in such matters......In nutshell, the Executive is not supposed to interfere in the affairs of judiciary in any manner."
In the case reported as Province of Sindh through Chief Secretary and another vs. Rasheed A. Rizvi and others [PLD 2012 SC 649], the Hon'ble Supreme Court of Pakistan has concluded as follows:-- "9. Our constitutional courts have consistently held that the process of appointments to the judiciary must be carefully scrutinized through the lens of constitutional principles such as the principles of separation of powers. In the Al-Jehad Trust case, this Court stated with reference to appointment of judges of the superior judiciary....... "that the independence of the judiciary is inextricably linked and connected with the process of appointment of judges and the security of their tenure and other terms and conditions. "(PLD 1996 SC 324, 429). Although this was said in the context of appointment to the High Court, the principle applies with equal force to all judicial appointments, including those in the District Judiciary. Accordingly, the dictum laid down in the Al- Jehad case was soon reaffirmed by this Court in the case of Mehram Ali and others vs. Federation of Pakistan (PLD 1998 SC 1445, 1474) and Sh. Liaquat Hussain vs. Federation of Pakistan (PLD 1999 SC 504, 658), both cases which concerned the District Judiciary. The aforesaid dictum has also been recently reiterated in Sindh High Court Bar Association vs. Federation of Pakistan (PLD 2010 SC 879, 1182 and Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). In the later case, the Court, after examining the case-law, concluded that 'It is an undisputed tenet of our Constitutional scheme that in matters of appointment, security of tenure and removal of Judges the independence of the judiciary should remain fully secured.' (PLD 2011 SC 407 SC, 467)."
In the case reported as Muhammad Ali Satakzai and others vs. Appointing Authority of the Additional District and Sessions Judges through Registrar Balochistan High Court and others [2012 PLC (C.S.) 1216], the Hon'ble Supreme Court of Pakistan has opined that introduction of Public Service Commission in process of selection of Judicial Officers was offensive of concept of independence of judiciary and separation of judiciary from the executive.
In the case reported as Sh. Riaz-ul-Haq and another vs. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501], the apex Court has held as under:-- "41. It is pertinent to mention here that as the service Tribunals are not only deemed to be a civil Court but also exercise judicial powers, therefore, they are included in the term 'Court' mentioned in Article 175 of the Constitution. As such, these Tribunals are to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of Courts in Pakistan.
42. It is to be noted that independence of judiciary has been recognized as a universal human right. In terms of Article 10 of the Universal Declaration of Human Rights, G.A, 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial Tribunal. In Pakistan, the independence of judiciary is a basic principle of the constitutional system of governance. The Preamble and Article 2A state that "the independence of judiciary shall be fully secured". This Court while interpreting Article 175 has further strengthened the principle of the independence of judiciary, by emphasizing the separation of Judiciary from the Executive. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially......"
45. The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all courts subordinate to it.......As it has been held that Service Tribunals discharges judicial functions, thus falls within the definition of a "Court" in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution."
In the case reported as Younas Abbas and others vs. Additional Sessions Judge, Chakwal and others [PLD 2016 SC 581], the apex Court has held that a provision of law can be declared ultra vires if it is violative of the provisions of the Constitution which guarantee fundamental rights, independence of judiciary or its separation from the executive.
In the case reported as Yousaf Ayub Khan vs. Government through Chief Secretary, Peshwar and 2 others [PLD 2016 Peshawar 57], the Division Bench of Peshawar High Court has held as under:-- "33. It is settled that the mandate and commencement of Article 175 must be obeyed and implemented; any laxity in this regard will amount to violation of Constitutional provisions. It is also admitted principle of law that a fair trial is deemed to be vitiated if judicial functions are given to the executive and its officer and the independence of the judiciary cannot be secured if the executive is made a part of judiciary....."
In the case reported as Amanullah Khan Yousufzai and others vs. Federation of Pakistan through Law Secretary and others [PLD 2011 Karachi 451], the Division Bench of Karachi High Court has held that judicial service is essentially and structurally distinct and separate service from the civil, executive and administrative services of Pakistan and Judicial service cannot be treated at parity with such services on any account nor can judicial service be combined, abolished, replaced, mixed up and or tied together with the civil executive and or administrative services. Judiciary as a whole is a separate and distinct class in itself. Further that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution, keeping in view Article 175 of the Constitution, is exclusive in nature, comprehensive in extent and effective in operation and such supervision comprehends the administrative power as to the working of the subordinate courts and disciplinary jurisdiction over the subordinate judicial officers and any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of Article 203 of the Constitution and militates against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution. The Division Bench has further held that High Court is quite competent to direct the concerned quarters to implement Article 175(3) of the Constitution in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that Pakistan as a nation may rank and stand out amongst comity of nations having independent, impartial and competent judiciary for all times to come.
In the case reported as Bashir Ahmed Mughal and 6 others vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 6 others [PLD 2015 SC (AJ&K) 31], this Court has also expressed the concept of independence of judiciary in the Islamic prospective and at page 62 of the report it has been opined as under:-- "This Schedule is part of the Constitution. The phraseology used in the oath of a judge clearly indicates the scheme and spirit of the Constitution which speaks of independence of judiciary by using the expressed words "without fear or favour, "affection or ill-will". Whereas no such words are visible in the oath pro forma of the other public office holders like the President, Prime Minister, Minister, Speaker, Member of Legislative Assembly and Advisor etc. because all these offices are not independent according to the spirit of the Constitution rather they are responsible to the Legislative Assembly. The survey of the above referred case-law and the constitutional provisions makes it abundantly clear that Islam is the State religion of the Azad Jammu and Kashmir.
According to the constitutional provisions and command of Almighty Allah, independence of judiciary is most sacred and important requirement of the State. This aspect of the matter according to the spirit of the Constitution Act, has not been considered by this Court while handing down the judgment in the Genuine Rights Commission's case [1999 MLD 268]. Thus, having due respect and regard of the Judges who delivered the supra judgment, keeping in view the concept of the constitutional and Islamic spirit, we are unable to agree with the opinion expressed in the judgment that in the Constitution Act, there is no concept of independence of judiciary. In our considered humble opinion, there is no concept of judiciary without independence. The view expressed in the supra judgment is result of over-sighting the provisions of sections 3 and 4 of the Constitution Act which represent the true scheme and spirit of the Constitution. Therefore, the expressed view cannot be termed as principle of law enunciated according to the spirit of the Constitution Act, hence, has not attained binding force."
As stated above all the judgments referred to hereinabove are based on the concept of "independence of judiciary" and the doctrine of separation of power as is enshrined in Article 175 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:-- "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.
Explanation:- Unless the context otherwise requires, the words "High Court" wherever occurring in the Constitution shall include "Islamabad High Court".
(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."
11. The perusal of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973, shows that it has been provided that the judiciary shall be separated progressively from the executive although no such corresponding provisions with regard to the separation of judiciary from the executive find place in the Azad Jammu & Kashmir Interim Constitution Act, 1974 but it does not make any difference because even otherwise the concept of independence of judiciary is the spirit of the Interim Constitution Act, 1974. This proposition has been dealt with in detail in the case reported as Bashir Ahmd Mughal vs. Azad Govt. & 6 others (2014 SCR 1258). In this case the proposition involved only relates to process of selection of candidates for appointment against the posts of Civil Judges and Qazis through Public Service Commission. Thus, the selection process conducted by the constitutionally independent institution (Public Service Commission) in view of hereinafter proposed direction for participation of a Judge High Court/Shariat Court in viva will not adversely affect the independence of judiciary rather the desired target shall be achieved bitterly. It may be stated that in Azad Jammu and Kashmir the Executive has generously taken the effective steps in pursuance of aforesaid pronouncements of the superior Courts of Pakistan. For instance, the Supreme Court and High Court of Azad Jammu and Kashmir have been given full financial autonomy within the allocated budget. Similarly, the powers of promotions, posting and transfers including the disciplinary matters in respect of the judicial officers which were previously exercised by the Government were conferred on the High Court by amending the relevant rules. The powers of appointment of Additional/District and Sessions Judges have also been delegated to the High Court by amending the relevant rules. The High Court also enjoys the full supervisory jurisdiction as has been conferred by section 46 (1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In so far as the appointments of judicial officers in the district Judiciary are concerned, those were being made in Azad Jammu and Kashmir by the Government through Public Service Commission. Now the powers have been delegated to the Chief Justice of the High Court who appoints the Civil Judges on the recommendations of Azad Jammu and Kashmir Public Service Commission. Therefore, in our view the method of induction of the judicial officers through Public Service Commission is in the public interest and it is also necessary so that the High Court may not be stigmatized and criticized by the unsuccessful candidates. The Public Service Commission in the Azad Jammu and Kashmir is a Constitutional body which has been vested with the task of induction of civil servants in the service of Azad Jammu & Kashmir. Thus, any post, therefore, cannot be taken out of the purview of Public Service Commission without amending the Azad Jammu and Kashmir Public Service Commission Act, 1986, as has been opined in the case reported as Muhammad Younas Tahir and another vs. Shaukat Aziz, Advocate Muzaffarabad and others (2012 SCR 213). The legislature has removed the defect in the composition of Public Service Commission by amending the Public Service Commission Act, 1986 in view of the pronouncement of this Court in a case reported as Syed Mumtaz Hussain Naqvi & 9 others vs. Raja Muhammad Farooq Haider Khan & 4 others [2014 SCR 43]. Through the amendment made in the Act, now the composition of Public Service Commission has been changed in order to ensure its impartiality and transparency in making appointments, therefore, we are not inclined to accept the contentions advanced on behalf of the learned Advocates for the appellants that the process of appointment of the judicial officers through Public Service Commission militates against the concept of independence of judiciary. The comparison of the previous and present composition of the Public Service Commission may be viewed as under:-- Original Amended 3.Composition of Commission etc.-(1)
There shall be an Azad Jammu and Kashmir Public Service Commission consisting of seven members including the Chairman.
Provided that the President may, by notification in the Official Gazette, increase the number of Members for such period as he may determine and may appoint one or more persons in the service of Azad Jammu and Kashmir to be member's ex-officio for the discharge of such functions as he may determine; Provided further that administrative Secretary incharge of the Department to which the post for recruitment belongs, shall be ex-officio member of the Commission. 3.Composition of Commission etc.-(1)
There shall be an Azad Jammu and Kashmir Public Service Commission consisting of ten members including Chairman: Provided that the Administrative Secretary incharge of the department to which the post for recruitment belongs, shall be ex-officio member of the Commission.
(I-A) The person appointed as Chairman and other Members of the Commission immediately before the commencement of this Act shall be deemed to have been appointed under this Act.
(2) The Chairman and the other members of the Commission shall be appointed by the President.
(I-A) The person appointed as Chairman and other Members of the Commission immediately before the commencement of this Act shall be deemed to have been appointed under this Act.]
(2) The Chairman and the other members of the Commission shall be appointed by the President.
Provided that the President may assign the additional charge of the Chairman to any official who is otherwise eligible to be appointed as such: Provided further that the present incumbent of the post shall be deemed to have been appointed under this Ordinance.
(3) Two members of the Commission shall be persons who have held office in the service of Azad Jammu and Kashmir for not less than twenty years.
(4) ........................
(5) ........................
(Omitted)
(Omitted)
(3) (i) four Members of the Commission shall be appointed from amongst the retired officers who have held office in the service of Azad Jammu and Kashmir in basic pay scale 20 or above:
(ii) Two Members of the Commission shall be educationist to be appointed from amongst the retired officers, who have held office as a head of an institution or educational department,-
(a) In the Service of Azad Jammu and Kashmir belonging to teaching or administration cadre of Education Department in basic pay scale 20 (substantive) or above; or
(b) In any recognized University or educational institution of Azad Jammu and Kashmir in basic pay scale 20 or above:
(iii) Four Member of the Commission shall be as under:-
(a) a retired judge of superior judiciary or a retired District and Sessions Judge in basic pay scale 21: Provided that a judge so appointed shall get pay and allowances etc,, equivalent to other Members of the Commission.
(b) a women possessing PhD or master degree and fifteen years relevant experience in public or private sector; and
(c) one professional with not less than twenty years experience in the field of engineering, agriculture, medicine, environment, applied sciences, law, psychiatry or any other professional field;
(d) one retired officer from amongst the State Subject of Azad Jammu and Kashmir not below the rank of lieutenant colonel or equivalent from Armed Forces of Pakistan.
(4) ........................
(5) ..........................
A perusal of the above shows that the scope for appointment of a retired Judge of the superior judiciary as a member of the Public Service Commission is provided in the amending Act. Be that as it may, we are of the considered view that a major change has been made in the composition of the Public Service Commission as has been listed hereinabove and maximum effort has been made by the legislature to ensure the independence of the Public Service Commission in its functioning. Moreover, fairness and transparency in making the appointments has also been ensured. Though a scope is provided for associating professional expert under the provision of clause (c) subsection (3)(iii) of section 3 of the Azad Jammu & Kashmir Public Service Commission Act, 1986, however, for ensuring transparency and fairness in the selection process, the relevant provision be amended in the light of the guide-line given at serial No. 2 of the short order dated 19.9.2017 in the terms that the viva of the judicial officers/Qazis shall be conducted by a committee consisting of a Judge of the High Court/Shariat Court, as the case may be, who shall be nominated by the Chief Justice of the Azad Jammu & Kashmir High Court/Shariat Court. Such nominee Judge will chair the committee, if the viva/interview is conducted through the committee. However, if the viva/interview is conducted by the whole Public Service Commission then a Judge of the High Court/Shariat Court, as the case may be, nominated shall be associated as a professional expert.
This amendment in the relevant Act, in our view shall achieve the desired target as well as the concept of independence of judiciary in the selection process of Judicial officers including the Tehsil Qazis.
12. The contention of the learned Advocates for the appellants that the syllabus prescribed for examination of the Civil Judges is discriminatory and arbitrary for the reason that for induction of the Additional/District and Sessions Judges, no additional papers, i.e., English, General Knowledge, Islamiyat and Urdu have been included in the syllabus, in our considered view, is not tenable as it is the prerogative of the Public Service Commission to prescribe the syllabus for induction of the Civil Judges and no one can claim the syllabus of his own choice. In exercise of writ jurisdiction the Court cannot direct to prescribe a particular syllabus for a particular post. In the judgment under challenge, the reasons listed by the learned High Court are not tenable and the judgment relied upon is also not attracted to the facts of the case because that judgment was passed on no objection of the respondents, therein.
13. The contention of Raja Amjad Ali Khan, the learned Advocate appearing for the Azad Jammu and Kashmir Bar Council that the High Court may not accept the task of induction of the Civil Judges for the reasons that the mistake in the selection process cannot be rectified because no forum would be left for aggrieved persons, hardly requires any deliberation in view of the above findings.
14. In the light of what has been discussed above this appeal is partly accepted in the manner indicted above and disposed of with the following directions:--
(a) that in view of the short order dated 19.9.2017, the process of induction of judicial officers/Qazis initiated and completed by the Public Service Commission shall not be affected by any observation made in the detailed judgment; and
(b) that the Government of the State of Azad Jammu and Kashmir shall amend the Public Service Commission Act, 1986, in the manner indicated in paragraph No. 11 of the judgment.
No order as to costs.