Briefly stated the facts of the case of the petitioners are that petitioners Nos. 1 to 7 are working as Readers in the Federal Shariat Court, Islamabad, and petitioners Nos. 8 and 9 as Assistant Registrars having been promoted from Readers of the Federal Shariat Court on 13-2-1990 and 1-11- 1992 respectively. Their terms and conditions of the service are governed by the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, duly approved by the President of Pakistan. These rules were promulgated on 27-7-1982. Rule 5 of the said Rules provides that subject to any special provisions as contained in these rules and the orders for the the being in force and applicable to civil servants of corresponding grades in the service of Federal Government shall regulate the terms and conditions of service of the staff personnel attached to the Federal Shariat Court. There being no corresponding post of Readers in the civil structure of Federal Government, the post of Readers in the Federal Shariat Court is an ex-Reader post. The said rule 5 further provides that the powers exercisable under the said Rules and Orders by the President or by any authority subordinate to him shall be exercisable by the Chief Justice of the Federal Shariat Court or by such other person as he may by general or special order so direct. Rule 6 provides that if any question arises as to which Rules or Orders are applicable to the case of any person serving as a staff member attached to the Federal Shariat Court, it shall be decided by the Chief Justice of the Federal Shariat Court.
2. The qualifications prescribed for direct appointment as Reader BPS-16 in the Federal Shariat Court, inter alia, are that he should be a law-- graduate from recognised University in Pakistan with three years legal practice and/or experience in a Government office. The qualifications for promotion are that he should be a law-graduate having three years' experience as Judgment Writer/Stenographer/Judicial Assistant/Court Assistant. As compared to the Readers, the qualification required for direct appointment as Private Secretary BPS-16 to the Judge of Federal Shariat Court is ' Graduate' and proficiency in short-hand and typing with to years' experience while qualification for promotion to the post of Private Secretary is intermediate plus three years' service.
3. On 18-3-1986, Establishment Division vide Office Memorandum of the even date upgraded the post of Private Secretaries to Federal Secretaries. Additional Secretaries and other officers in BPS-21 to 22 provided with the services of Private Secretary in Federal Government from BPS-16 to BPS- 17/18 retrospectively with effect from 1-7-1983 and also provided for their move-over to BPS-19. The Federal Shariat Court followed the suit and upgraded the post of Private Secretaries to Judges to BPS-17 vide Gazette Notification, dated June, 1986, and amended Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, accordingly. The Private Secretaries working with the Federal Government were further made eligible for being placed in BPS-18 after putting in seven years' service vide Establishment Division Notification No. 9/2/74-F-II/R.(6), dated 19-2-1992 and the Federal Shariat Court followed suit by amending its service Rules.
4. Aggrieved by the anomaly thus created by the said amendments in the Rules and also feeling that they have been discriminated against the petitioners, law-graduate Readers filed a petition before the Chief Justice of the Federal Shariat Court, Islamabad, inter alia, requesting that the post of law-graduate Readers be also upgraded from BPS-16 and brought at par with the Private Secretary BPS-17 with effect from 1-2-1984 and that those incumbents who have rendered seven years' service in BPS-17 be promoted to BPS-18. The matter was placed before the Chief Justice, Federal Shariat Court in the form of a summary proposing the upgradation of the post of Readers from BPS-16 to BPS-17 in order to bring them at par with the Private Secretaries. The summary was approved by the Chief Justice in exercise of his powers under Rules 5 and 6 of the aforesaid Rules vide his order dated 9-1-1993 in the capacity of being the competent Authority. The said approval of the competent Authority was duly conveyed to the Ministry of Law, Justice and Parliamentary Affairs (Law and Justice Division) Islamabad, by the Court vide letter dated 7-2-1993 so as to give effect to the said order and implement the order of upgradation of the post of Readers from BPS-16 to BPS-17 in order to bring them at par with the post of Private Secretaries. The Law and Justice Division forwarded the upgradation case of Readers with their approval/recommendations to respondent No. 1, the Finance Division vide No.F.10(7)/93/C.R., dated 15-2-1994. Despite lapse of nine months, no action in the matter is stated to have been taken by respondent No. 1 which amounts to refusal to implement the orders of the, Chief Justice of Federal Shariat Court. The petitioners have sought issuance of an appropriate writ in the matter by this Court taking cognizance of the whole matter.
5. Learned counsel for the petitioners has submitted that prior to the introduction of National Pay Scale, the Readers of the High Court were enjoying a higher grade than the, Judgment-Writers. The Judgment--/Writers/Stenograghers of the Hon'ble Chief Justice and Judges of High Court were enjoying the Pay Scale of 225--500 whereas the Readers of the same Court at that the were receiving their salaries in the Pay Scale of 275--600. However, on the introduction of the National Pay Scale, both the aforesaid categories were placed in NPS-11. Subsequently, they were upgraded to NPS-14 and on 15-1-1975, they were further upgraded to NPS-16. On 4-3-1979, the designation of Judgment-Writers was changed to that of Private Secretary. This re-designation was approved by the Governor of the Punjab on 4-3-1979. However, the qualification for appointment of Judgment- Writers henceforth re-designated as Private Secretaries and their functions and duties remained the same. He further submits that the Readers of the High Court felt aggrieved by the anomalous situation that a category of staff which until recently was in a scale lower than them not only came in level with them but was placed in a scale for higher than theirs and thus feeling unjustly left far behind discriminated against, challenged the treatment meted out to them and after protracted litigation, the Supreme Court of Pakistan was pleased to uphold the judgment of Punjab Service Tribunal which had granted the Readers NPS-16 i.e. At par with the Private Secretaries. Learned counsel for the petitioners further submits that the pos: of Readers of Peshawar High Court and Sind High Court have been up-graded to BPS-17, hence the petitioners are also entitled to the same treatment/benefit.
6. Learned counsel for respondent No.1 has opposed the petition and has contended that Rule 5 of the Establishment of Federal Shariat Court makes the Rules and Orders applicable to the civil servants equally applicable to the employees of the Federal Shariat Court and that the powers of upgradation of a post rests with the Finance Division and that upgradation of all posts of civil servants in BPS-1 to BPS-22 have since been banned under the orders of the President of Pakistan and according to the Establishment Division's O.M. No.8/130/91-R.I., dated 12-5-1992 upgradation of any post in relaxation of the ban can only be made with the prior approval of the Prime Minister.
7. The upgradation of a post is an Administrative or Executive power and such power of the Federal Shariat Court is not subject to approval of the Finance Division.
8. The next objection of the learned counsel for respondent No. 1 is that Rule 6 ibid allows power of interpretation to the Chief Justice within the provision of Rule 5 and not in deviation or relaxation thereof. Rules 5 and 6 of the Federal Shariat Court (Terms and Conditions of Service of Staff) Rules, 1982, reads as under:-- "Rule 5.---Subject to any special provisions contained in these rules, the rules and orders for the the being in force and applicable to civil servants of corresponding grades in the service of the Federal Government shall regulate the terms and conditions of service of persons on the staff attached to the Federal Shariat Court: Provided that the powers exercisable under the said rules and orders by the President, or by any authority subordinate to the President, shall be exercisable by the Chief Justice of the Federal Shariat Court or by such person as he may, by general or special order, direct.
Rule.6.---Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the Federal Shariat Court shall be decided by the Chief Justice."
9. A joint reading of the above Rules 5 and 6 shows that the rules and orders for the the being in force and applicable to civil servants of corresponding grades in the service of the Federal Government are subject to any special provisions contained in the Federal Court (Terms and Conditions of Service of Staff) Rules, 1982. Secondly, the proviso to Rule 5 has given all the powers exercisable by the President to the Chief Justice of the Federal Shariat Court and not only to the Chief Justice but to such person as the Chief Justice may by general or special order, direct.
10. There is a wisdom behind the drafting of these Rules in those words and that wisdom is to maintain the independence of judiciary in every, possible manner, in every sphere and this is also in line with the intention and spirit of the Constitution of Islamic Republic of Pakistan. The powers, vesting in the President of Pakistan in respect of the rules and orders' enforced and applicable to civil servants in the service of the Federal Government are available to the Chief Justice of the Federal Shariat Court. With due respect, I am of the opinion that the delay by the Finance Department is not just and proper. In the spirit of cooperation and coordination, it was appropriate for the Finance Department to have respectfully returned the recommendation with the submission that the powers lie with the Chief Justice of the Federal Shariat Court under Rule 5. Rule 6 ibid is not subject to Rule 5 and is an independent power given to the Chief Justice to decide himself any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the Federal Shariat Court. Rule 13 is an omnibus rule, which gives the Chief Justice power to relax any of the prescribed conditions of appointment in case where he considers it desirable to do so in the interest of public service to my opinion, the Finance Division not only disagree with the opinion of the Hon'ble Chief Justice of the Federal Shariat Court but also has made an attempt to show a better assessment by way of contradicting the stand taken by the Hon'ble Chief Justice in the matter of exercise of his powers in accordance with the Rules. This is a glaring example of overriding the assessment and opinion of the Hon'ble Chief Justice of the Federal Shariat Court. Similarly, question regarding overriding the assessment of the opinion and direction of the High Court with regard to its own judiciary in the matter of their promotion was contradicted by the Government and very serious note was taken by the Hon'ble Chief Justice, Supreme Court of Pakistan, in the case of "Abdul Matin Khan and 2 others v. N.-W.F.P. Through Chief Secretary and 2 others PLD 1993 SC 187) in which their Lordships of the Supreme Court observed as under:-- "The Provincial Selection Board not only disagreed with the opinion of fairly large number of Honourable Judges of the High Court but also made an attempt to show a better assessment about the learned Civil Judge.
Although a case is pending before us from Sind High Court on question of separation of judiciary and another regarding independence of judiciary, vis-a-vis the transfer of High Court Judges to the Federal Shariat Court, this case presents a third feature regarding both: the independence and separation of judiciary. If power of the Government and its functionaries to override the assessm ent, opinion and directions of the High Court with regard to its own subordinate judiciary in matter of their promotions is upheld, the very fabric of independence and separation of judiciary is considerably damaged. It is not necessary to spell out the detailed consequences in the context of our Constitutional set-up. It would suffice to say that besides the contravention of some of the commands in the specific Constitutional provisions including Article 175 thereof but also that contained in the Objectives Resolution; which inter alia, provides that 'the independence of judiciary shall be fully secured', would be flouted. This question is of great public interest. Prima facie, it further amounts to violation of several human rights. We, accordingly entertain this matter under Article 184(3) of the Constitution.
A case shall, accordingly, be registered in the category of Human Rights in the class of public interest litigation: Re: Abdul Matin Khan v. The Government of N.-W.F.P. Notices to the Attorney -- General, the Advocate-General and all other necessary notices shall be issued. It shall be heard by a Bench of at least five Hon'ble Judges. "
11. The learned counsel for the respondents further contended that the judgment of Peshawar High Court in Writ Petition No. 535 of 1992 has only recommended the upgradation of the post of Readers to the Government of N.-W.F.P. Proves that no powers of upgradation flow from the rules of the Courts. I am afraid, the contention is ill-founded. The perusal of the order-dated 15-7-1996 passed in Writ Petition No. 535 of 1992 is not recommendatory but is a directory in nature. It reads as under:-- "In the circumstances, this writ petition is accepted. The petitioners are allowed BPS-17 from the date it was allowed to the Private Secretaries. However, they will be entitled to the arrears with effect from the date from which these were allowed to the Private Secretaries. "
12. Learned counsel for the respondents has further contended that the Ministry of Finance has examined the case from the point of view of its role in the light of the Estt. Div.'s O.M. No. 8/130/91-R.I., dated 12-5-1992 and from this angle, the Finance Division have not agreed to the proposal on the following grounds:-- (i). The post of 'Reader' has not relevance to 'Private Secretary' which is a totally different post. The Government has taken cognizance of the duties and responsibility of Private Secretary in the Federal Government and not only upgraded it but allowed special pay as well. .
(ii). The upgradation of P.S. In the Federal Shariat Court does not constitute a separate decision of Honourable Chief Justice of P.S.C., but only the decision of the Government in respect of P.S. As civil servant has been followed in terms of Rule 5 (ibid).
(i.e). Educational qualification alone does not determine the proper pay scale of a post.
(iv). The post of Reader in the High Court has not been upgraded.
(v) The proposal is repercussion-oriented.
13. The learned counsel for the petitioners has submitted that the Readers of the Federal Shariat Court are to be well-conversant with the following Laws/Rules/Subjects/Procedures before they are inducted into the said posts:--
(a) English Essay/Noting and Drafting.
(b) Translation from English to Urdu and vice versa.
(c) Federal Shariat Court Rules and Orders.
(d) Court Fees Act.
(e) Stamp Act.
(f) Registration Act.
(g) Civil Procedure Code.
(h) Evidence Act/Qanun-e-Shahadat.
(i) Pakistan Penal Code.
(j) Criminal Procedure Code.
(k) Hudood Laws/Constitutional Provisions.
The Readers have to perform the following work:--
(i) To collect files and arrange the same; find out if the case is otherwise complete in so far as the service of process of the Court on the parties is concerned.
(ii) To study the cases and find out under what enactment/ status the case hinges.
(i.e) To assist the Court during hearing with attentive vigilance and also prepare brief resume of facts so as to compare orders/judgments and law reports to obviate the possibility of any factual mistake occurring and also to verify the Judgments with reference to the law reports referred therein.
(iv) To arrange and collect law reports and textbooks likely to be cited, discussed and referred during the course of arguments.
(v) To assist the Hon'ble Judges during the course of inspection of record of subordinate Courts, besides being present in Court one hour earlier than the arrival of the Judges and leave late till in the evening. .
(vi) To attach the certificate for judgments whether the judgment is approved for reporting.
(vii)Readers have the experience of judicial/Islamisation work.
(viii) Most of the Readers are working since last 16 years and they are in the same grade and post since then.
(ix) Readers have supervising control being incharge of Chamber/Court room and its articles.
(x) Readers perform three-fold duties, to the Hon'ble Judges, to the lawyers and to the concerned litigant parties.
(xi) Readers have to supervise and control over the staff working/attached to the Hon'ble Judges during working hours.
(xii) Most important and sensitive duty is the proof reading of Court orders and judgments.
The learned counsel for respondents could not deny these submissions.
14. The Hon'ble Chief Justice of the Federal Shariat Court is the better person to judge the equivalent of the person to work in the Federal Shariat Court and his assessment must weigh as against the Finance Mission. The upgradation of the post of Readers by the Hon'ble Peshawar High Court and Sind High Court further supports this view that they are performing such duties, which are in no way less onerous and responsible than the Private Secretaries.
15. For the above reasons, the objections raised by the respondents are rejected and tug writ petition filed by the petitioners is accepted as fully maintainable in law and the respondents are directed to implement the order dated 9-1-1993 of the Hon'ble Chief Justice of the Federal Shariat Court who is the competent Authority. The post of Readers of the Federal Shariat Court shall stand upgraded from BS-16 to BS-17 with effect from 1-2-1984 as has been done in the case of Private Secretaries. It is further ordered that the petitioners Nos. 1, 2, 3, 4, 8 and 9, who have rendered seven years' service shall be granted BS-18.