MUNIR A. SHAIKH, J.--Muhammad Yaqub Butt, the petitioner who is at present holding the post of Additional Registrar, Lahore High Court, Lahore has raised the question of legality of the act of the respondents declining to grant him Basic Scale 19 on regular basis as personal to him with effect from 1-12-1986 as ordered by the learned Chief Justice of this Court and has sought a declaration that he had become entitled to the grant of Basic Scale 19 on regular basis, as personal to him with effect from 1-12-1986 and on that basis could move over to Basic Scale 20 with effect from 1-12-1987 and a direction to the respondents to issue formal notification to that effect.
2. The facts of the case shortly stated are that the petitioner is a member of High Court Establishment and was holding the post in BS-18 since 1977. In December 1983 he reached maximum of his grade. He was fit for promotion to B.S. 19. The petitioner has to his credit 36 years length of service and has held the jpzetted position for the last more than 26ears.e is a Law Graduate and has successfully completed "Advanced Course in Public Administration and Development" at NIPA, Lahore as also "Advanced Course in Management" atIPA, Karachi.
Considering that the petitioner had excellent service record and rendered meritorious service to the Institution i.e. The High Court the learned Chief Justice of this court passed an order for the grant of B.S.19 as personal to him with effect from 1-6-1984 on regular basis. This decision was conveyed by the Registrar of this Court to the Chief Secretary, Government of Punjab Lahore through letter No.573/Gaz/P.F.V.B.996 dated 5-1-1986. The Government of the Punjab on the advice of Finance Department intimated itsability to agree to the proposal. It appears that in spite of insistence by the learned Chief Justice that the petitioner should be promoted to B.S.19 on regular basis the Provincial Government did not agree to change the decision. In meantime the petitioner having reached maximum of grade 18 was allowed to move over to BSc 19. Which not being a promotion on regular basis , therefore he was not to derive any benefit for further promotion to higher grade. The decision of the learned chief justice having not been accepted by Punjab Government ,the petitioner has filed this constitutional petition seeking declaration and direction as aforementioned
3. In the written statement filed by respondent No.2 the stand taken was that under Article 208 of the Constitution of 1973, High Court has to make its own Rules for the appointment and conditions of service of their employees which have been framed and relying upon Rule 17 it has been urged that the case for revision of the terms and conditions of pay and allowances of a member of Establishment of the High Court is outside the purview of normal channel of Government and any action taken by the Finance Department in this direction would be unlawful and void of authority.
This stand appears to be in conflict with the stand taken by the Government in that it was on the advice of Finance Department that grant of B.S.19 to the petitioner on regular basis as ordered by the learned Chief Justice was declined. It has, however, been stated that the learned Chief Justice is required to take the approval of the Governor in all such cases.
4. The question which arises for determination in this case is as to the extent of powers vested in the learned Chief Justice in the matter of appointment and promotion of the staff of High Court Establishment, and whether the orders passed by him -regarding appointment or promotion of any member of such staff requires formal approval of the Provincial Government or the Governor of the Province before they are given effect to.
5. Article 208 of the Constitution provides that a High Court with the approval of the Governor concerned may make rules providing for the appointment by the Court of officers and servants of the Court-and for their terms and conditions of the employment. It is manifest from this provision of the Constitution that the terms and conditions of the officers and servants of the Court including their appointment and promotion are not to be governed by the law relating to the terms and conditions of a civil servant of the Province or the rules framed thereunder except those which have been expressly made applicable by those rules. One of such rules is Rule 22 which provides that in respect of salaries, allowance, leave or pension they shall be governed by the Civil Servants Rules (Punjab) as amended from time to time by virtue of which the servants and officers of this Court are entitled to the same benefits regarding salaries, allowances, leave or pension etc., which are payable to the similarly placed civil servants of the Province. It is manifest that the provincial service laws and rules framed thereunder relating to appointment and promotion of civil servants have not been made applicable to regulate and control the appointment and promotion of officers and servants of the Courtwhich are to be governed by these rules. There is also no doubt as it was frankly admitted by the learned Advocate-General that by virtue of this provision of the Constitution officers-and servants of this Court are not civil servants within the contemplation of Punjab Civil Servants Act, 1974. The same' was the position under 1956 Constitution under which the High Court Establishment (Appointment and Conditions of Service) Rules, were framed which are still in force and shall continue to remain in force under Article 208 A of the Constitution unless repealed, modified or amended. Rule 17 of the said ~' Rules on which reliance has been placed by respondent No.2 regulates the, fixation of the pay including special pay and allowances of the High Court Establishment from time to time and does not cover the cases of promotion of an officer to a higher grade. A close scrutiny of these rules reveals that they are comprehensive in all respects covering all matters relating to the officers and servants of the Court from the initial stage of their appointment up to the retirement including matters relating to promotion etc. And in all these ,matters the competent authority is the High Court. Rule 26 of the said Rules is the relevant rules under which power is vested in the learned Chief Justice regarding the appointment and promotion of officers and servants of the Court and since the decision of the writ petition centres around this rule the same is reproduced below for facility of reference:-- "Rule 26. Nothing in these rules shall be deemed to limit or abridge the powers of the Chief Justice to appoint or promote any person who has neither passed nor qualified at an examination held by the Public Service Commission or under these rules or to deal with the case of any person in such manner as may appear to him to be just and equitable."
These rules as already observed have the sanction of the Constitution and have been framed with the approval of the Governor of the Province. Rule 26 as reproduced above expressly confers powers on the learned Chief Justice to appoint or promote any person or to deal with the case of any person in such manner as appears to him to be just and equitable. We are in no manner in doubt that under this rule the learned Chief Justice of this Court is fully empowered to pass an order for the promotion of any officer of the Court which does not require any further approval by the Provincial Government or the Governor to give effect to lit as the conferment of this power has the approval of the Governor. This view is in line with the mandate of the Constitution and the provisions embodied in Objectives Resolution which has become substantive part of the Constitution which provides that the judiciary shall be separated from the executive. It was with a view to achieve that object that under the said rules framed by the High Court i.e. The learned Chief Justice has been constituted the competent authority in regard to matters relating to terms and conditions of servants and officers of the Court. It will be useful to examine the comparable provision in the Constitution regarding the matters relating to terms and conditions of officers of other Institutions created under the Constitution. Under Article 221, the Chief Election Commission has the power to make rules with the approval of the President providing the appointment by the Commissioner of officers and servants to be employ in connection with the functions of the Commissioner or an Election Commission and for their terms and conditions of employment. It is expressly provided that this power could be exercised only till such time Majlis-e-Shoora (Parliament) had not made a law. Similarly under Article 87 the Speaker of t National Assembly and the Chairman of the Senate have been empowered make rules with the approval of the President regulating recruitment a conditions of service, of persons appointed to the secretariat staff of t National Assembly or the Senate as the case may be but this power exercisable till such time Majlis-e-Shoora does not enact a law to regulate su matters. Identical is the provision regarding the appointment of the persons the Provincial Assembly Secretariat created under Article 127 of t Constitution. In case of recruitment etc. Of the persons in connection with Secretariat of Majlis-e- Shoora i.e. The National Assembly, the Senate, t Provincial Assembly and the Election Commission the Constitution h specifically provided that the same shall be regulated by the law and the power of the Speaker, the Senate or the Chief Election Commissioner to make ru with the approval of the President/Governor as the case may be is exercisable till the law was enacted. There is clear departure in the case of appointment promotion and other terms and conditions of officers and servants of a Hi Court which according to Article 208 are to be regulated by the rules from under the said Article with the approval of the Governor and any provinc law enacted for the regulation of the terms and conditions of civil servants not applicable to regulate the terms and conditions of the officers and servant of the Court and no law can be made to limit, control or abridge in any man the power vested in the, Court and for that matter the learned Chief Justice under the rules framed under the said Article. This departure in our view significant and has been intentionally made with a view to honour the mandate of the Constitution to separate the judiciary from executive and ensure independence in all respects.
6. After examining the rules framed under Article 208 of t Constitution and in particular Rule 26 as reproduced above we have hesitation in holding that the learned Chief Justice has the exclusive power pass any order in respect of appointment or promotion of any officer or servant of the Court and the orders passed by him in relation thereto do not require further approval by the Provincial Government or the Governor. The learn Chief Justice being the competent authority, therefore, his orders once pass are to be implemented and acted upon.
7. The act of the respondents in not giving effect to the orders passed the learned Chief Justice for the promotion of the petitioner to B.S.19 regular basis as personal to him is not sustainable and is hereby declared to without lawful authority and of no legal effect.
8. This writ petition is accepted. It is hereby declared that the petitioner stands promoted to B.S.19 on regular basis w.e.f. 1-12-1986 and entitled to move over to .20 w.e.f. 1-12-1997 and the respondents are hereby directed to issue formal notification forthwith and grant him all the benefits flowing therefrom. There will be no order as to costs.
MALIK MUHAMMAD QAYYUM, J.---l have had the advantage of reading the judgment proposed to be delivered by my learned brother Munir A. Shaikh, J. And respectfully agree that this petition is liable to be accepted for the various reasons so ably stated by him. However, in view of the importance of questions involved I would like to highlight certain aspects.
2 Article 208 of the Constitution of the Islamic Republic of Pakistan, 19,73, which may be noted at the very outset reads as under:-- "208. Officers and servants of Courts.--The Supreme Court, (and the Federal Shariat Court), with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment.", 3' It is clear from the above that the officers and servants of the High Court cannot be equated with the civil servants, otherwise employed by the Government. While construing this provision, the mandate of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 and the command in the Objectives Resolution which is now a substantive part of the Constitution, regarding independence of judiciary must be kept in mind. This aspect of the matter need not be dilated upon any further but reference may be made to a judgment of the Full Bench of the Sindh High Court in Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404.
4. The underlying object for provisions like i.e. Article 208 is that as far as possible the Judiciary should be free from interference in its affairs by the Executive. In M/s. Nusrat Elahi etc. v. Registrar, Lahore High Court, Lahore etc. 1991 M LD 2546 a Division Bench of this Court while construing the effect' of Article 208 of the Constitution observed that:-- "The reason as to why the officers and servants of the Superior Courts are to be treated differently than the civil servants employed by the Government is not far to see. The object in making special dispensation for the officers and servants of the Court as provided by Article 208 of the Constitution is to secure the independence of the Superior Courts which is essential for the working of any democratic form of Government. The Constitution ensures that as far as possible, the High Court should remain independent and free from interference in its affairs by the executive authorities.
5. In exercise of powers conferred by para. 6 of Part 11 of the 3rd Schedule read with Article 221(5) of the Constitution of the Islamic Republic of Pakistan, 1956, the learned Chief Justice of the High Court of West Pakistan was pleased to make the rules for regulating terms and conditions of service of the establishment attached to the High Court which are known as High Court Establishment (Appointment and Conditions of Service) Rules. There is no dispute that these rules were duly approved by the Governor and continue to remain in force by virtue of Article 260 of the Constitution of the Islamic Republic of Pakistan, 1973.
6. - These rules having been framed in the exercise of Constitutional power stand on a much higher footing than ordinary rules and are binding on all concerned. The rules arc comprehensive in nature 'and provide for all matters relating to terms and conditions of service of the High Court Establishment. Rule 1 clearly allows the Chief Justice of the High Court to fix ,the pay and allowances of the employees of the High Court from time to time while rule 26 empowers the learned Chief Justice to pass any order as he may deem fit, if the justice of a particular case so requires.
7. As these rules had been approved by the Governor there is no necessity of seeking the approval of the Governor to the proposals made by the High Court regarding the terms and conditions of its employees.
8. It is interesting to notice that in the written statement riled by the respondents themselves they have accepted the binding nature not only of the rules but also the orders passed by the Hon'ble Chief Justice in regard to the members of the High Court Establishment as would be obvious from the preliminary objections Nos.1 and 2. Unfortunately, however, during the course of argument a different position was adopted by the respondents for which there appears to be no valid basis.
9. Even if it be assumed that the High, Court can only make recommendations and the orders are to be passed by the Government yet these recommendations coming from the Chief Justice of the High Court are not only entitled to highest respect but are also binding upon the Government. The following observations of the Supreme Court in Abdur Rauf Khan v. Government of N.-W.F.P.
Through Chief Secretary and 3 others PLD 1991 SC 236 while dealing with the terms and conditions of judicial officers in service of Provincial Government are instructive and may be reproduced with advantage:-- "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 recommendations. 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."
10. It may also be observed that the learned Advocate-General has relied upon certain judgments from the Indian jurisdiction to show that the Government is the final authority in respect of terms and conditions of the employees of the Lahore High Court. However, the precedents cited by the learned Advocate-General have no relevancy for two reasons; firstly that the provisions ~ of Article 228 of the Indian Constitution which are the relevant provisions are different from Article 208 of the Constitution of the Islamic Republic of Pakistan, 1973 and secondly, the High Court Establishment (Appointment and Conditions of Service) Rules which were duly approved by the Governor vest the absolute power in the Chief Justice to determine the terms and conditions of the persons in employment of the High Court.
I AA./M-588/L