KHALID ISHAQ, J. Through this single judgment, I intend to decide the instant petition as well as the W.P. Nos. 18296 of 2019 & 25359 of 2024 as all three petitions involve the interpretation of section 6 of Controller General of Accounts (Appointment, Functions and Powers) Ordinance, 2001 (Ordinance).
2. This is not the first time that the question of interpretation of the above said provision is posted for determination, instead, the same has already been decided by this Court in the case reported as Fazal-e-Haq and another v. Director of Accounts, Pakistan Post Office Department, Lahore and 2 others (PLD 2003 Lahore 726), which judgment has attained finality as it was not challenged or set aside. While elucidating the provision in issue i.e. section 6 of the Ordinance, the then learned single judge in Chambers traced the history of the law on the subject and considered applicable provisions of various relevant statutes before conclusively settling that the matter pertaining to terms and conditions of service of employees of Accounts Department of Pakistan Post Office, as well as, the administrative control and authority of all the departmentalized accounting organizations, including the Post Office Accounting Department, exclusively vests in the Controller General of Accounts of Pakistan. The operative part of the Fazal-e-Hap supra is reproduced herein below: "10. It is a clear case, where the powers, functions and authority of the Controller-General of Accounts, are specified in the Ordinance, mentioned above and according to the interpretation of law, I am left with no doubt in my mind to hold that, on enforcement of the Ordinance, the Controller General was vested with the exclusive administrative control and authority of all the departmentalized accounting organizations, including the Post Office accounting departments and thus, the power to create any regional offices; to effect the decentralization of the accounting office of a department, and for the postings and transfers of the employees thereof, could only be exercised by the Controller-General and respondents Nos. 1 and 2 had no authority in that behalf.
Resultantly, the impugned order being in violation and ultra vires of the Ordinance, is hereby declared to have been passed without lawful authority and jurisdiction, thus, the same is set aside, with the consequences to follow."
3. Needless to observe that unless the above findings and interpretation is varied or set aside, the judgment of this Court on the precise issue is binding under Article 201 of the Constitution of Islamic Republic of Pakistan (the "Constitution").
4. Since some employees/officers of the same department were aggrieved of non-implementation of the Judgment in Fazal-e-Haq supra, therefore, another constitutional petition bearing W.P. No. 1981 of 2009 was filed subsequently, somewhat on the same question. The said petition was decided on 25.01.2012 by learned single judge in Chambers of this Court. It seems that while failing to understand the true import of the observations made in the order dated 25.01.2012, the respondents misconceived the order, proceeded to interpret the same in a fancied manner and embarked upon creating a self-assumed opportunity to ignore the conclusive interpretation of Section 6 of the Ordinance by this Court in Fazal-e-Haq case. A careful perusal of the order dated 25.01.2012 passed by this Court leaves no doubt that law settled in Fazal-e-Haq case was unequivocally followed as binding precedent. The relevant observations of order dated 25.01.2012 are reproduced below: "3.. . . . . . . . In so far as the judicial view about the controversy is concerned, the opinion of the Court which has attained finality, is already expressed in the aforenoted judgment of the Court. As such there is no need to reiterate that opinion. However, the crucial point concerns the enforcement of the said judgment of the Court. That is a duty for the Executive to ensure and to render."
[Emphasis Supplied]
5. Perusal of the order further reveals that the observations made in para 4 of the order dated 25.01.2012 have been misconstrued by the respondents and they went on to decide the issue by way of minutes of the meeting dated 16th March, 2016 (the "Impugned Minutes") and consequent recommendations and decision thereof notified by Cabinet Division on 17.03.2016 under the guise of powers conferred upon the Prime Minister in terms of Rule 8 of the Rules of Business, 1973. The relevant provision for the purpose of the issue in hand is Rule 8(2), which is reproduced below for the sake of convenience:
8. Inter-Division procedure. -(1) ...............
(2) In the event of a difference of opinion between the Divisions concerned, the Minister primarily concerned shall try to resolve the difference in consultation with the other Ministers concerned. If no agreement is reached and the Minister primarily concerned desires to press the case, the case shall be submitted to the Prime Minister or, if the Prime Minister so desires, to the Cabinet: Provided that in a matter of urgency, the Minister primarily concerned may submit the case to the Prime Minister at any stage: Provided further that where the Prime Minister is the Minister-in-Charge, the final views of other Divisions concerned shall be obtained before the case is submitted to the Prime Minister. ............."
6. The above makes it abundantly clear that in case of a dispute amongst two divisions, the matter can be referred to the Prime Minister or Cabinet. Whereas, if a legal question is posed, involving interpretation of a statutory provision of a particular statute and such interpretation has been accorded by a Constitutional Court, having attained finality, as is the case in hand, no question of decision or interpretation by the executive branch arises. Bare reading of the observations made in para 4 of order dated 25.01.2012 leads to an ineluctable conclusion that no window was available with the executive to sit over a binding decision of a Constitutional Court; such a course is a mere misconception of the observations made vide order dated 25.01.2012, which order, in essence, directs implementation of the Fazal-e-Haq judgment supra. Be that as it may, although it is abundantly clear that the order dated 25.01.2012 neither desist from the interpretation already rendered by this Court in Fazal-e-Haq case nor should it have been assumed or construed as such on the basis of well settled law of precedent as the earlier decision of the Court in Fazal-e- Haq is binding on all subsequent Benches of same numeric strength. The reliance may be placed upon the case Mekotex (Pvt) Limited[1] wherein, it has been held: '......No doubt, the earlier decision of a bench of a High Court, or of this Court, on a question of law is binding on another bench of equal numeric strength when dealing with the same question, in the sense that the latter bench cannot decide the same question contrary to the first decision. However, the latter bench is not precluded from examining the correctness of the earlier decision or forming a different view. In such a case, the proper course of action is to refer the matter to the Chief Justice of the High Court, or in the case of this Court to the Bench-Constitution Committee, with a request for the constitution of a larger bench to examine the correctness of the earlier decision." The same subject has also been elaborately explained by Bryan A. Garner in the "Law of Judicial Precedents[2], the crux whereof has been summarized in the following terms: "A summary of vertical and horizontal precedents.
Four statements can sum up the principles of vertical and horizontal precedents discussed in ss 2 and in this ss 3:
(1) If an applicable precedent issued from a court hierarchically superior to the one deciding a new case, then the decision must follow the vertical precedent.
(2) If an applicable precedent issued from the very court deciding a new case, then the court should follow it, but in certain circumstances may depart from it[3].
(3) If a seemingly applicable precedent issued from a court hierarchically inferior to the one deciding a new case, then the decision need not (but may) adopt the reasoning and decision.
(4) If a seemingly applicable precedent issued from a court outside the jurisdiction, and there is no hierarchical relationship to the deciding court, it may be considered persuasive if it is cogently reasoned-but never binding."
The above principles are well settled in our jurisprudence and needs no further enunciation[4].
Thus, the precise and limited scope of referral of the matter vide order dated 25.01.2012 was the implementation of the Fazal-e-Haq Judgment.
7. It is well settled that a judgment of a High Court is binding on all organs of the State unless it is varied by the Apex Court. The Impugned Minutes and action of according a different interpretation to Section 6 of the Ordinance, than the one made by this Court, is clearly a contraption of abuse of settled principles of separation of power embodied in the spirit and essence of the Constitution. To interpret law is the exclusive judicial sphere and once an interpretation is rendered, the same is final. At first sight, the protection which an entrench separation of powers might afford, finality seems obvious and uncontroversial; that is, an absolute protection against interference by executive branch, intolerant of exception or qualification. This is not to deny the inherent jurisdiction in the courts themselves to reopen or revise final judgments in certain very limited circumstances - a jurisdiction, of course, which is perfectly consistent with the separation of powers because it is the judicial branch itself which is exercising this discretion, not the non-judicial branches[5]. The interference in a final judgment by the legislature also has definite circumspections. Constitutional limitations on legislative competence over final judgments have clear civil liberties implications, in particular, the objective that legal disputes be resolved by adjudication according to law by independent judges 'free from potential domination by the legislative and executive branches of government[6], and that the fruits of litigation are not denied to a successful litigant. The Rule of Law implications are also obvious in these circumstances. Prima facie, the protection of final judgments must constitute a basic minimum protection afforded by the separation of powers, even if it were to protect nothing else. Since the issue of legislative interference is not the scope of this opinion, therefore, I will not divulge into this discussion any further. However, one thing is settled: there is no scope of any authority of the executive to ignore a binding judgment of a Constitutional Court. In the words of Chief Justice Ajmal Mian[7]; "All three organs have to act within the bounds specified in the Constitution, any transgression or encroachment by one organ over the sphere of the other will result in chaos and uncertainty. It is, therefore, paramount that an equilibrium is to be maintained inter se between the three organs of the State within the limits delineated by the Constitution." Similarly, in the words of James Madison,[8] "If there is a principle in our Constitution, indeed in any free Constitution, more sacred than another, it is that which separates the legislative, executive and judicial powers". The same view was enunciated by Justice Scalia[9]: "The principle of separation of powers is absolutely central guarantee of a just government." Justice Scalia quoted Federalist No.47, where James Madison had said that: "no political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty" than the principle of separation of powers. "Without a secure structure of separated powers". Justice Scalia went on to say, "our Bill of Rights would be worthless, as are the bills of right of many nations of the world that have adopted, or even improved upon, the mere words of 10 ours". In the profound words of Justice Fazal Karim:[10] "Like the "rule of law", the principle of separation of powers is nowhere mentioned in the Constitution of Pakistan; it is not mentioned in the Constitution of United States of America either. Neither of these Constitutions contains a separation of power clause; yet beyond a shadow of doubt, the principle is fundamental to the organization of any State; it is fundamental to the systems of government adopted by these Constitutions, because, as was said in Mistretta, (1989) 488 US 361, it establishes "the appropriate relationship among the three co-equal Branches", and as was said by Justice Jackson in the famous case of Youngstown Sheet and Tube Co. v. Sawyer, (1952) 343 US 579: "What is at stake is the equilibrium established by our constitutional systems The whole object of allocation of power among the three organs is, wrote Justice Scalia in Morrison v. Olson, (1988) 487 US 654, "to preserve the equilibrium the constitution sought to establish so that a gradual concentration of the several powers in the same department can effectively be resisted". Thus, the principle of separation of powers is a "vital check against tyranny", but there is no "hermetic sealing off of the three branches of government from one another", because that "would preclude the establishment of a nation capable of governing itself effectively". (Buckley v. Valeo, (1976) 424 US 1).
Similarly, though India has written Constitution, but not one which unequivocally establishes a separation of judicial power but it is indeed one of the salient features of Indian Constitution. The leading scholar of Indian Constitution HM Seervai, pointed out that; it ought to be stated that the machinery of Govt. set up by our Constitution follows in essentials the British and not the American model. The doctrine of separation of powers...do[es] not form part of the Constitution of Great Britain or theConstitution of India[11].
8. It is a sine qua non for a successful state that the decisions passed by its judiciary must have binding force. The mandate is specifically supplied in certain Constitutions that expressly subjects the other powers of the State to the decisions of the Courts. The Spanish Constitution of 1978 contains a provision in that regard that "it is compulsory to execute the sentence and other final judgments of Judges and Court". Likewise, Article 205 of Portuguese Constitution provides that "the decisions of the Courts shall be binding on all public and private entities and shall prevail over all other authorities". While Article 165 of the South African Constitution states that "An order or decision issued by a Court binds all persons to whom an organ(s) of the State to which it applies".
9. Separation of power does not only mean that Judges are independent; it also means that judiciary would effectively yield the power to review the legality, and eventually the constitutionality of the acts of other public and private powers. In John Locke's account of Separation of Power, the Executive is not limited to enforcing the rules laid down by the legislature. The Chief Magistrate also exercised the prerogative 'a power' "to act according to discretion for the public good, without the prescription of the law and sometimes even against it". Locke explained that such a discretionary power is required because "it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such law as will do no harm, if they are executed with an inflexible rigor on all occasions and upon all persons that may come in their way. In the oft-referred-to, classic Australian definition, Griffith CJ spoke of it as; "the power which every sovereign must of necessity have to decided controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has the power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take actions[12]."
Kitto J also emphasized that quality of finality and conclusiveness when he stated that: a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons[13].
The importance of the finality and implementation of a judgment in the context of separation of powers cannot be summed up without referring to the Abraham Lincoln's speech at the occasion of his First Inaugural Address (1861)[14]: "I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit . . .
And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over- ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice."
10. The upshot of the above discussion is that the interpretation of section 6 of the Ordinance, as accorded by Fazal-e-Haq judgment supra, still holds the field and the same is binding precedent for all intents and purpose, consequently, this petition is allowed, Impugned Minutes and consequent recommendations and decision thereof notified by Cabinet Division on 17.03.2016 are set aside. The respondents are directed to implement Fazal-e-Haq judgment in letter and spirit.
1. Commissioner Inland Revenue v. Mekotex (Pvt) Limited & others. (2024 SCMR 1168)
2. The Law of Judicial Precedent, by Bryan A. Garner (First Ed., p. 42), published by THOMSON REUTERS
3. In our jurisdiction, the mode and manner of departure is embodied in Multiline Associates' case.
4. Ardeshir Cowasjee and 10 others v. Karachi Building Control Authority (KMC) Karachi and 4 others (1999 SCMR 2883 - 5MB); Ameer Zeb v. The State (PLD 2012 SC 380 - 5MB); Multiline Associates v. Ardeshir Cowasjee and others (1995 SCMR 362); M/s. WAK Limited, Multan Road, Lahore v. Collector Central Excise and Sales Tax, Lahore (Now Commissioner Inland Revenue, LTU, Lahore) and others (2018 SCMR 1474); Muhammad Aamir Khan v. Government of Khyber Pakhtunkhwa through Senior Member Board of Revenue, KP and others (2019 SCMR 1021); Mst.
Samrana Nawaz and others v. M.C.B. Bank Ltd. and others (PLD 2021 SC 581);
5. The Separation of Powers and Legislative Interference in the Judicial Process, Constitutional Principles and Limitations by Peter Gerangelos, (1st Ed., 2009, p. 192)
6. Harris v Caladine (1991) 172 CLR 84 at 159 (McHugh J).
7. Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others (PLD 1998 SC 823)
8. Quoted by Chief Justice Taf in Myers v. US, (1926) 272 US 52
9. Justice Scalia's oft-quoted opinion in Morrison v. Olson, (1988) 487 US 564
10. Judicial Review of Public Actions (Second Ed., pp. 98,99, Vol. 1) by Justice Fazal Karim published by Pakistan Law House
11. HM Seervai, Constitutional Law of India, A Critical Commentary, vol 1 (Bombay, NM Tripathi, 1991) 159
12. Huddart, Parker & Co Pty Ltd. v. Moorhead (11909) 8 CLR 330 at 357 (Griffith CJ).
13. R v Trade Practices Tribunal; Ex Parte Tasmanian Breweries Pty Ltd. (1970) 123 CLR 361 at 374
14. RP Basler, The Collected Works of Abraham Lincoln, Vol IV (New Brunswick NJ, Rutgeres University Press, 1953) 268.