1. Azhar Saleem Babar , ACJ.--The captioned writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.
2. Facts forming background of the writ petition are that the petitioners are state subjects of Azad Jammu and Kashmir and being advocates of the Supreme Court are eligible to be appointed as Judge of High Court.
3. Petitioners No. 1 & 2 were appointed. Members Service Tribunal vide notification dated 24.3.2017, Petitioner No. 3 was appointed as Member Service Tribunal vide notification dated 10.4.2017 and Petitioner No. 4 was appointed as Chairman Service Tribunal for the period of three years vide notification dated 24.3.2017. It is contended that vide Act XXIX of 2016 of the Azad jammu and Kashmir Service Tribunals (Amendment) Act, 2016 an amendment has been effected in the Azad Jammu and Kashmir Service Tribunals Act, 1975. As per Section 3(4) of the Azad Jammu and Kashmir Service Tribunals (Amendment) Act, 2016 the Chairman and Member of the Service Tribunal shall be appointed for period of three years. It is the claim of the petitioners. that fixing of term, of three years for the service of Chairman and Member Service Tribunal is illegal, against the verdict of the Supreme Court of Pakistan rendered in Sheikh Riaz-ul-Haq's case (PLD 2013 SC 501) and is also ultra vires or the Constitution and against the concept of independence of judiciary . It is further contended that keeping in view the qualification and experience of the petitioners, they may be allowed to continue their services as Chairman and Members Service Tribunal till the age of superannuation. It is submitted that it view of the nature of fob, the Petitioners No. 1 to 3 are also entitled to salary and other allowance of grade B-21 instead of B-2C becaus e a District and Sessions Judge appointed as Member of the Service Tribunal draws salary of Grade B-21 while an advocate who is appointed as Member Service Tribunal receives salary of Grade B-20. In the above background the petitioners filed the instant writ petition and prayed that by amending Section 3 of the Azad Jammu and Kashmir Service Tribunal (Amendment) Act, 2016 words "for a period of three years" may be deleted. It is further prayed that by declaring Finance Department Memorandum dated 16.06.2017 as illegal, Petitioners No. 1 to 3 may be awarded grade B-21 and the petitioners may be allowed to continue their services till the age of superannuation.
4. Respondents contested the petition by filing written statement wherein it is stated that the petitioners by accepting the conditions of the notifications joined service, hence, now cannot take contrary stand. It is further stated that the petitioners have no locus standi to file the captioned writ petition.
5. This Court vide judgment dated 15.02.2018 accepted the writ petition. On appeal the Hon'ble Supreme Court of Azad Jammu and Kashmir remanded the case on the ground that the High Court firstly shall decide the question as to whether the Legislative Assembly whose Act is under challenge is necessary party and if the Legislative Assembly is impleaded as party then the case shall be decided afresh. The Legislative Assembly of Azad Jammu and Kashmir has been impleaded in line of respondents on the application filed by the petitioners vide order dated 30.04.2020.
6. The learned counsel for the parties have filed written arguments. It is argument of the learned counsel for the petitioners that the Supreme Court of Azad Jammu and Kashmir in Syed Khalid Hussain Gillani's case [2016 SCR 228] has concluded the independence of judiciary requires that appointment in the office of Chairman Service Tribunal should be made through consultation process. He emphasized that independence of judiciary requires that Azad Jammu and Kashmir Service Tribun al should disburse its liability free of any pressure from the Executive and to achieve such purpose Chairman and Members, of the Service Tribunal should be appointed on permanent basis and the procedure for removal of Chairman should be the same as provided by the Interim Constitution for Judge of the High Court. It is also claimed that District and Sessions judge appointed as Member Service Tribunal draws his salary in B-21 whereas an advocate elevated as Member Service Tribunal is paid monthly salary of B-20. The learned counsel pointed out that this anomaly should be removed.
7. On the other hard, it has been argued that terms and conditions of Chairman and Members of the Service Tribunal have been prescribed through the Govt. Notification which cannot be challenged because the learned Chairman and Members of the Service Tribunal joined service by accepting these terms and conditions. It is further stated that Govt. of Azad Jammu and Kashmir is not bound to follow the policies preva iling in any province of State of Pakistan. It has been emphasized that appointment of Chairman and Member has been ordered in accordance with provisions of the Act and there is no deviation from law in the order of appointment and in the terms and conditions of services of the petitioners.
8. We have considered the written arguments filed on behalf of the parties and gone through the record of the case.
9. Firstly , we would like to attend the relief sought by the petitioners that the respondents may be restrained from relieving the petitioners, till the age of superannuation. Petitioners No. 1 and 2 were appointed as Members of the Azad Jammu and Kashmir Service Tribunal vide notification dated 24.03.2017. Petitioner No. 3 was appointed as Member Service Tribunal vide notification dated 13.4.2017 while Kh. Muhammad Naseem was elevated as Chairman Azad Jammu and Kashmir Service Tribunal on 24.03.2017 for a term of 3 years. The terms of appointment of the Petitioners No. 1, 2 and 4 came to a logical end on 24.03,2020 and the tenure of Petitioner No. 3 completed on 10.04.2020. The Petitioners No. 1 and 2 are no more in the service of Azad Jammu and Kashmir Service Tribunal at the moment becaus e their services have not been extended by the competent authority , however , service of Mr. Manzeor Hussain Raja, Member Service Tribunal has been extended till end of the current month, so is the case of Kh. Muhammad Naseem, Chairman Service Tribunal. It has already been stated that Ashfaq Ahmed and Mir Tanveer Hussain, learned Members of the Service Tribunal have already completed their terms of 3 years and are no more in service of Azad Jammu and Kashmir Service Tribunal so writ petition to the extent of prohibition not to relieve them till the age of superannuation has become infructuous.
10. Section 3(3) of the Azad Jammu and Kashmir Service Tribunals Act, 1975 (as amended) states that Chairman of the Azad Jammu and. Kashmir Service Tribunal shall not be less than 45 years of age and he should have an experience of 10 years as advocate of the high Court or 10 years experience of judicial service having at least 3 years, as District, and Sessions Judge, Section 3(4), ibid, provides a period of 3 years for appointment as Chairman and Member of the Tribunal. A further procedure has been prescribed in the Act which states that Chairman shall be appointed by the President on the advice of the Prime Minister with consultation at the Chief Justice of Azad Jammu and Kashmir and Chief Justice of the High Court on such terms and conditions as may be determined. A Member of the Tribunal can also be appointed for a period of 3 years with consultation of Chief justice of Azad Jammu and Kashmir and Chief Justice of High Court. Qualification, attached to the appointment of a Member is law graduate eligible for appointment as Secretary to Govt. having at least 5 years, experience of legal working in any Govt. Department or experience of practice as advocate High Court for not loss than 10 years.
11. It is true that Azad Jammu and Kashmir Service Tribunal is a Court for all practical purposes and should be free of any pressure from the Executive In this scenario fixation of terms of 3 years for Chairman and Members of the Service Tribunal is not appropriate. Obviously the Chairman or a Member appointed for a term of 3 years has to look towards Govt. for their further extention in service and the apprehension of removal from service may affect the functions of the Tribunal adversely . The term of 3 years for the Chairman and Member of Azad Jammu and Kashmir Service Tribunal is a obstacle in the way of independence of judiciary . It is necessary for fair functioning of the Tribunal that Chairman and Member of the Tribunal should be appointed on regular basis and in this regard an amendment is necessary in the Azad Jammu and Kashmir Service Tribunals Act. Independence of judiciary is the pivot of Interim Constitution and it has been emphasized by the superior Courts in plethora of judgments that judiciary must remain independent of any sort of pressure. The Interim Constitution provides under Article 4(15) the basic principle of equality before law. In this background, every State Subject has a right to be equally treated by law and it is possible only if the judiciary is independent of any kind of pressure from the Executive. Fixation of term of 3 years for Chairman and Member of the Service Tribunal is a hanging sort on Members of the Court which may adversely af fect smooth and fair functioning of the Court.
12. The petitioners have prayed to the Court to declare the Finance Department Memorandum dated 28.08.2017 as ineffective and without lawful authority . It has further been prayed to direct Finance Department to upgrade three posts of Members Service Tribunal to B-21. It may be stated that a District and Sessions Judge appointed as Member Service Tribunal draws monthly salary in B-21 whereas an advocate eleva ted as Member of the Tribunal is remunerated against BS-20. It is a clear discrimination which needs to be removed. The Petitioners No. 1 to 3 in the writ petition have been elevated from bar and are therefore, entitled to month ly salary of B-21. The Petitioner No. 1 and 2 have been relieved of job as Members Service Tribunal and are therefore, held, entitled to remuneration of a Govt. Servant in B21-for their arrears and so is case of Petitioner No. 3 whose service has been extended up to 31st July 2020.
13. It is the discretion of the Govt under the Act to appoint one or more Members in the Azad Jammu and Kashmir Service Tribunal and number of Members of the tribunal have to be fixed in accordance with, load of work, therefore, it is left for the Govt. to decide the number of Members of the Azad Jammu and Kashmir Service Tribunal.
14. In view of above Section 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 (as amended) is declared ultra wires of the Constitution to the extent of tenure of 3 years. The Govt. is directed to amend Section 4 accordingly and to introduce a bill for permanent induction of Chairman and Members of the Azad Jammu and Kashmir Service Tribunal. It is further directed that in order to avoid any obstruction in the funct ioning of the Azad Jammu and Kashmir Service Tribunal, the incumbent Chairman and Member shall not be removed from service until appropriate legislation in the light of this judgment. The writ petition is accepted in the aforementioned terms.