' SHAFIUR RAHMAN, J.--Leave to appeal was granted to a senior A Judicial Officer of North-West Frontier Province under Article 212 (3) of the Constitution to examine whether the appointments to the post of District and Sessions fudge were to be necessarily made on the recommendation of the High Court and whether the Provincial Government was justified in not abiding by the requirement.
2. On the 28th of June, 1981, the following notification issued:-- "No, SOI (S&GAD) 4-96/79-II. In accordance with the provisions of rule 8-B (1) of the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, the Governor N.-W.F.P., is pleased to appoint Mr. Muhammad Nawaz Khan, Malik Muhammad Pervez and Miss Khalida Yousaf, Additional District & Sessions Judges (Grade-18) as District & Sessions Judges (Grade-19) on acting Charge basis with immediate effect and until further orders."
3. The appellant submitted a representation to the Governor that he was recommended by the High Court for promotion to the post of District & Sessions Judge (Grade-19) and under the rules applicable "the Governor had no choice, but to order accordingly and the Provincial Selection Board had no role to play, nevertheless the P.S.B. In flagrant disregard of the law and precedents proceeded" in a manner "with total absence of power to deal with the case". Finding no relief, he approached the N.-W.F.P. Service Tribunal which too rejected his claim and the decision of the Tribunal is based on the following findings:-
(i) "The first point for determination is as to who was senior as Additional District and Sessions Judge. In this connection it may be mentioned that the three respondents were promoted as Additional District and Sessions Judges on regular basis with effect from 15-1-1979, 11-1-1979 and 6- 1-1979 while the appellant was appointed as Additional District and Sessions Judge on regular basis with effect from 3-11-1979."
(ii) "The word 'shall' used in the 2nd line of rule 4 does not mean that the Governor was bound to accept the recornendation of the High Court. If that was the intention of the rules then it would specifically have been mentioned in the rules that the Governor would be bound by the recommendation of the High Court. The rule as it is merely lays down that the Governor is not to make promotions without first asking for the recommendation of the High Court. Rule 5(b) read in the light of the rule 4 clearly suggests that the Governor has to pass an order in his discretion after asking for and considering the recommendation of the High Court. This second contention of the learned counsel is also, therefore, repelled."
(iii) "...Rules of 1979 do not provide for any minimum or maximum length of service for promotion to the various grades and in view of section 10 mentioned above Rules of 1975 to that extent will be applicable in the instant case. According to these rules the case had to be put up to the provincial Selection Board as none of the officers was eligible for promotion in view of their length of service and there is thus no force in this last contention of the learned counsel as well."
' A Member of the Tribunal who recorded a separate opinion made the following reservation: "It may, however, be mentioned rather clearly, that whenever regular promotions are made either before or after the completion of the required length of service fresh recommendations of the High Court shall be obtained which shall be placed before the "Competent Authority" with separate set of observations, if any, by the S&GAD or the provincial Selection Board, but neither of these advisory Bodies, shall withhold the recommendations of the Hig Court when placing before the "Competent Authority" the promotion case of appellant and respondents No,2 to 4, for order."
4. Mr. Abdul Hakeem Khan, Advocate, the learned counsel for the appellant has reiterated his claim and the grounds as were put forward before the Service Tribunal and did not prevail there.
5. When this appeal came up for hearing at an earlier date, we found in the written statement of the Government a recital to the following effect:-- "Paras. 3 and 4.-- Admitted to the extent that the appellant in the first instance was recommended by the Pewhawar High Court for promotion as District & Sessions Judge but when it was pointed out to the High Court, that on the basis of seniority the appellant was not within the zone of promotion, the High Court recommended those Additional District & Sessions Judges who were senior to the appellant,"
' To substantiate it, we called for the Record. We have been supplied a Working Paper" dated 3-5- 1981 which is called a "Supplementary Working Paper" signed by the Registrar of the High Court and it makes a mention of facts as hereunder:- "In continuation of our previous working paper and the recent development made in a meeting of the Provincial Selection Board held on 30-4-1981, the Chief Justice and Judges of the Peshawar High Court, Peshawar have been pleased to recommend the following Additional District and Sessions Judges (Grade-18 + Rs,220 S.P.) for promotion to Grade-19:--
(1) Mr. Mohammad Nawaz Khan.
(2) Malik Mohammad Pervez.
(3) Miss Khalida Yousaf.
' This is being done for the reason that if for one reason or the other the officers previously recommended for Grade-19 are not found suitable for promotion to Grade-19 then the above- mentioned three officers may be considered for promotion to Grade-19 as they are next senior in the seniority list."
5. If this is the only document with the Government for making the comments which it did before the Service Tribunal, then we are clear that the comments were factually incorrect and misleading and this should not have happened at the instance of a party to the proceedings, more so the Government itself. The High Court did not at any stage substitute its recommendations. On the contrary, it reiterated it even while submitting the alternative proposal.
6. In order to understand the issue involved, it is necessary to go through the rules applicable. In exercise of powers possessed by the Governor under subsection (1) of section 26 of the North-West Frontier Province Civil Servants Act, 1973 (N.-W.F.P Act XVIII of 1973), the Governor framed on the 29th of August, 1979, the North-West Frontier Province Senior Judicial Officers (Terms and Conditions of Service) Rules, 1979 (hereinafter referred to as the Rules). It came into force at once. In the definition clause, 'post' was defined to mean "a post of an Additional District and Sessions Judge or, as the case may be a District and Sessions Judge". Rules 5 and 10 which are relevant for the purpose of this appeal are reproduced hereunder in extenso:- "5. Method of recruitment.--(1) Recruitment to post under these rules shall be made in the following manner;
(a) in the case of Additional Districts and Sessions Judges;
(i) not less than two-third by promotion, on the recommendation of the High Court, from amongst the holders of the post of Civil Judges who have rendered at least five years service as such: and
(ii) not more than one-third by initial recruitment, in the manner specified in sub-rule (2), from amongst the members of the Bar with such qualification and experience as specific in Rule 7, and
(b) in the case of District and Sessions Judges, by promotion on the recommendation of the High Court, on the basis of seniority-cum-fitness, from amongst the holders of the post of Additional District and Sessions Judges.
(2) For filling up vacancies specified in sub-rule (1)(a) (ii) above, the High Court shall recommend the names of suitable candidates twice the number of vacancies to be filled and Government would make selection from amongst such candidates for appointment to the said posts.
10. General Rules.- In all matters not expressly provided for in these rules, the holders of posts under these rules shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to them."
7. Rule 5 reproduced above had a constitutional backing. At the time when the rule was framed, though the Constitution had been kept in abeyance it contained a provision in clause (3) of Article 175 that "the Judiciary shall be separated progressively from the Executive within five years from the commencing day". On this requirement the period of five years (which period has since been extended to fourteen years by P.0.14 of 1985) expired on 24th August, 1978. The Rules recognised this requirement of the Constitution and the separation constitutionally mandated demanded that the recommendation of the High Court should be treated as sacrosanct in the matter of Senior Judicial Officers' appointment. The Service Tribunal has unfortunately used the word `discretion' for Governor, which has an altogether different connotation. The discretionary functions of the Governor are specified in the Constitution. It is not possible to add to them by such dispensation.
8. The appointment to the post of Senior Judicial Officer, whether acting, officiating, temporary or in any capacity, had to be made under the Rules on the recommendation of the High Court. No departure can be countenanced under the Rules from the recommendation. If the recommendations are defective then the High Court can be called upon to reconsider it in the light of Rules and Regulations but nothing more can be done. It is for the High Court to determine as to who is more qualified to hold a Judicial post and as between the Governor and the High Court the recommendation of the High Court has to prevail. If anybody feels aggrieved by it, he may approach the Service Tribunal just as he can do if the grievance is against the order of the Governor. It is clear to us that in subjecting the recommendations of the High Court to a further examination by the Selection Board and in not accepting the recommendation of the High Court in the matter of appointment, the Governor has violated the rules which have a constitutional backing and force.
' In view of the existence of the Rules which were 'Special', recourse to the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975, which are 'general' in character, was impermissible and on the strength of Rule 10 of the Rules, rule 8-A of the Appointment Rules also, was not attracted, for the purposes of making appointments not in conformity with the recommendation of the High Court.
10. In the circumstances, we allow this appeal, set aside the judgment of the Service Tribunal and grant necessary declaration to the appellant that the promotions made otherwise departing from the recommendations of the High Court are against law and would not impair the rights of the appellant in any manner whatsoever. No order is made as to costs.