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Petitioner: Sh. RIAZ-UL-HAQ, ASC and another VS Respondent: FEDERATION OF PAKISTAN through JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Gulzar Ahmed, Sh. Azmat Saeed Title:Sh. RIAZ-UL-HAQ, ASC and another vs FEDERATION OF PAKISTAN through
JUDGMENT
Reported As: PLD 2013 Supreme Court 501, PLJ 2013 SC 707 Result: Order accordingly Judgment JUDGMENT Iftikhar Muhammad Chaudhry, C.J.--Founder of Pakistan, Quad-e-Azam Muhammad Ali Jinnah while addressing the civil officers in Peshawar on 14-4-1948 advised them as follows:-- "The services are the backbone of the State. Governments are formed. Governments are defeated. Prime Ministers come and go, ministers come and go, but you stay on. Therefore, there is a very great responsibility placed on your shoulders. You should have no hand in supporting this political party or that political party, this political leader or that political leader. This is not your business. Whichever government is formed according to the Constitution, and who ever happens to be the prime minister or minister, coming into power in the ordinary course, your duty is only to serve that government loyally and morally but, at the same time, fearlessly, maintaining your high reputation, your prestige, your honour and the integrity of your service. If you start with that determination, you will make a great contribution to the building up of Pakistan of our conceptions and our dream a glorious State and one of the greatest nations in the world. While impressing this upon you, 1 wish also to take the opportunity of impressing upon our leaders and politicians in the same way, that if they ever try to interfere with you and bring political pressure to bear upon you, which leads to nothing but corruption, bribery and nepotism-which is a horrible disease and for which not only your province but others too are suffering-if they try to interfere with you in this way, I say they are doing nothing but disservice to Pakistan.......... 2. In recognition of the status of civil servants, and so that they may work fearlessly, maintaining their high reputation, prestige, honesty and the integrity of their service, as was the dream of our founding father, the Constitution of Islamic Republic of Pakistan, 1973 under Article 212(1)(a)
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provides for the establishment of Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters by means of appropriate legislation. Said Article is reproduced hereinbelow:-- 212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- (a) matters; relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b) ......................... (c) ...................... As a consequence of above constitutional provision, following Federal and Provincial Service Tribunals Acts were promulgated to establish Service Tribunals respectively:-- (1) The Service Tribunals, 1973 (STA, 1973) whereunder the Federal Service Tribunal (FST), was established; (2) The Sindh Service Tribunals Act, 1973 (SSTA, 1973) whereunder the Sindh Service Tribunal (SST) was established; (3) The Punjab Service Tribunals Act, 1974 (PSTA, 1974) whereunder the Punjab Service Tribunal (PST), was established; (4) The N.W.F.P. (Khyber Pakhtunkhwa) Service Tribunals Act, 1974 (NSTA, 1974) whereunder the N.- W.F.P. (Khyber Pakhtunkhwa) Service Tribunal (NST) was established; (5) The Balochistan Service Tribunals Act, 1974 (BSTA, 1973) whereunder the Balochistan Service Tribunal (BST) was established. For the sake of convenience, Sections 3 of STA, 1973 (Federal), is reproduced hereinbelow:-- 3. Tribunals.--(1) The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act. (2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. (3) A Tribunal shall consist of-- (a) a Chairman, being a person who is, or has been, or is qualified to be Judge of a High Court ; and (b) such number of members not exceeding three, each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint. (4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine. (5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President. (6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is thereby increased. (7) Notwithstanding anything contained in sub-section (3), sub section (4), sub-section (5) or sub- section (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President. Aforesaid section of STA, 1973 is pari materia with the provisions of the respective Provincial Service Tribunals Acts. Sub-section (3)(b) of Section 3 ibid specifies that the qualifications of a member of the Tribunal shall be prescribed by rules, as such, the Federal Government has framed rules
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namely the Service Tribunals (Qualification of Members) Rules, 1974, providing qualification for the appointment of Member of the Tribunal, which read as under:-- "2. A member of the Tribunal shall be a person who has for a period of or for periods aggregating not less than 20 years held an appointment or post in the Service of Pakistan, or in a Corporation or other body set up by Government or who, for the said period, has been an advocate or legal practitioner. Explanation.--In computing the period during which a person has held an appointment or post or has been an advocate or legal practitioner there shall be included any period during which he has held an appointment or post after he became an advocate or legal practitioner or, as the case may be, the period during which he has been an advocate or legal practitioner after having held the appointment or post." In exercise of powers conferred by Section 3(4) of STA, 1973, the terms and conditions of the Chairman and the Members of the Tribunals were prescribed by the President in the Federal Service Tribunal Chairman and Members Service Rules, 1983. Rules 1 (ibid) provides the tenure of the Chairman and the Members of the Tribunal in the following terms:-- "1. The Chairman and members shall hold office at the pleasure of the President, for such tenure, which may normally be for three years extendable by a further period not exceeding three years, as may be determined by the President." Similarly, in terms of Section 3(3)(b) of (PSTA, 1974) the Government of Punjab has framed the Punjab Service Tribunals (Qualifications of Members) Rules, 1978, which provides following qualification for the appointment of Member of the Tribunal: "A member of the Tribunal shall be a person who is not below the status of Secretary to Provincial Government and has at least 18 years service in Grade 17 or above." The qualifications of Members of the Tribunal have been prescribed in Section 3(3)(b) of provincial statutes of Sindh, N.-W.F.P (Khyber Pakhtunkhwa) and Balochistan, therefore, rules were not required to be framed thereunder. For reference, same are reproduced hereinbelow:-- Sindh Service Tribunals Act. 1973: 3. Tribunals: (1) ....................... (2) .......................... (3) A Tribunal shall consist of: -- (a) a Chairman, being a person who has been, or is qualified to be, Judge of a High Court ; and (b) not more than two members each of whom is a person who has for a period of not less than seventeen years held a post in grade 16 or an equivalent or a higher post under the Federal Government or a Provincial Government. (4) ................... N.W.F.P. (Khyber Pakhtunkhwa) Service Tribunals Acts 1974: 3. Tribunals: (1) ........... (2).................. (3) A Tribunal shall consist of:-- (a) a Chairman, being a person who has been, or is qualified to be, Judge of High Court ; and (b) not less than two and not more than four members, each of whom is a person who has for a period of not less than fifteen years held a Class I or an equivalent post under the Federal Government or a Provincial Government. (4) ............................... Balochistan Service Tribunals Act 1974: 3. Tribunals: (1) (2)......................... (3) A Tribunal shall consist of:--
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(a) a Chairman, being a person who has been, is a or qualified to be, a Judge of High Court ; and (b) two members each of whom is a person who has for a period of not less than ten years held a Class I post under the Federal Government or a Provincial Government. (4) ....................... 3. Initially, the FST was under the administrative control of the Establishment Division. Subsequently its administrative control was transferred to the Law and Justice Division, As such, it has been enjoying the status of attached department of the Federal Government. The position of Provincial Service Tribunals is also not different from FST. 4. Petitioner in Constitutional Petition No, 53 of 2007 has submitted that the respondents may be directed to fulfil the Constitutional Obligations to ensure independence of judiciary from the Executive by suitably amending the Service Tribunal Acts and Rules framed thereunder. He further prayed that the amended Acts and Rules should ensure as under:-- (a) The appointment of Chairman and the Members of the Service Tribunals are made after meaningful consultation with the Chief Justice of Pakistan or, as the case may be, the Chief Justice of the respective Province; (b) The Tribunal should not be under the administrative or financial control of the Executive. For this, on the analogy of the judges of the High Courts and Federal Shariat Court, the terms and conditions of the Chairman and Members may be independently determined so as to make them outside the Executive influence and to ensure uniformity. (c) Appropriate legal and judicial experience may be prescribed for appointment as Member. Practicing lawyers, who are qualified to be appointed as Judge of the High Court, be given preference for induction as Members of the Service Tribunals. 5. Mr. M. Shoaib Shaheen, learned Advocate Supreme Court appearing for the petitioner formulated following propositions for consideration:-- "(1) Whether the Service Tribunals are judicial forums and are performing functions of a Court within the meaning of Article 175 of the Constitution of Islamic Republic of Pakistan, 1973; (2) Whether Section 3 of Service Tribunals Act, 1973 and the Service Tribunals (Qualification of Members) Rules, 1974 promulgated by the Federal Government including corresponding provisions applicable in the provinces relating to appointment of Chairman and Members of the tribunals are violative of Article 175 read with Articles 2A, 5, 8 and 25 of the Constitution; and (3) Whether appointments of the Chairman and Members of the Service Tribunals should be made with the meaningful consultation with the Chief Justice of Pakistan and concerned Provincial High Court, as the case may be." 6. He argued that the Service Tribunals are the judicial forums having exclusive jurisdiction for redressal of grievances of civil servants relating to terms and conditions of service, under which they are governed. 7. According to him, the Service Tribunals exercise judicial powers with a limited scope of challenge before this Court under Article 212(3) i,e, subject to satisfaction of the Court that the case involves a substantial question of law of public importance. Thus, the matters regarding appointment of the Chairman and Members of the Service Tribunals are as important as those of judges of the High Courts. Under these circumstances, the appointments of the Chairman and Members of the Service Tribunals must be made in consultation with the honourable Chief Justice of Pakistan, or as the case may be, the Chief Justice of the respective High Courts. Reliance is placed on S. P. Sampath Kumar v. Union of India (AIR 1987 Supreme Court 386). 8. In continuation of his above arguments he further submitted that appointment of serving or retired bureaucrats as Members with no legal and judicial background is against the principle of Independence of judiciary. Inasmuch, as the Federal Government had been appointing such persons as Chairman and Members, who are either retired judges or bureaucrats usually of 60 to
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65 years. 9. He also submitted that the spirit of Service Tribunal (Procedure) Rules, 1974 is against the fundamental principles as contained in the Code of Civil Procedure, 1908. The administrative control of the Federal Service Tribunal had earlier been with Establishment Division (Respondents No, 2) and was then transferred to the Law and Justice Division (Respondents No, 3). The matter regarding appointment of Chairman and Members of the Federal Service Tribunal are processed through Respondents Nos, 2 and 3. The other matters regarding terms and conditions of Chairman and Members (such as leave, allotment of cars, housing and telephone facilities etc.) are also dealt with by the administrative Ministry. Further since its constitution the Federal Service Tribunal has been working as an attached department of the Federal Ministries. The position of the Provincial Tribunals too is not different. Therefore, this state of affairs is clearly violates Article 175 of the Constitution. 10. Learned Attorney General for Pakistan, despite notice, is not in attendance. 11. The learned Deputy Attorney-General, appearing on behalf of Federation of Pakistan, raised preliminary objections to the maintainability of the petitions on the ground that the petitioners have no cause'of action to file the petition as the Chairman and the Members of Federal Service Tribunal are appointed in accordance with law. The matter is pot of a great public importance and no Fundamental Right of the petitioner has been infringed as well. 12. He submitted that the Chairman/Members of the Tribunal are appointed in terms of Section 3(4) of the STA, 1973 and the Service Tribunals (Qualifications of. Members) Rules, 1974 and not in terms of Article 193 of the Constitution, which provides qualification for appointment of a Judge of the High Court, therefore, the role of these Tribunals in administration of justice is not equal to that of the High Court. 13. His next submission was that the Act and the rules do not provide consultation with respective Chief Justices as FST has been established to exercise jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, therefore, provision of Article 175 of the Constitution is not applicable in the context of separation of Judiciary from Executive. 14. He further submitted that the appointment of Chairman/Members of FST is made by the President of Pakistan, therefore, do not fall directly under the control of Law Ministry and the Chairman/Members are independent in making decisions with regard to the matters brought before it in respect of terms and conditions of service. He contended that there could not be a single instance where Ministry of Law and Justice ever interfered with or exercised influence in the functioning of Service Tribunal. 15. According to him the High Courts are judicial forums and are established under the Constitution presided over by a serving Judge, whereas, the Tribunal does not function as a Court, it has only one subject to deal with i,e, matters relating to the terms and conditions of civil servants. The FST is an administrative Tribunal, as such it is not equal to a High Court, thus no consultation with the Chief Justice is necessary. 16. Mr. Jawwad Hassan, .learned Additional Advocate General, Punjab has submitted that the Service Tribunals are administrative tribunals, meant to resolve disputes between the persons in the service of Pakistan and the State of Pakistan. These tribunals are protected as they function within the meaning of Article 175(3) read with Article 212 of the Constitution, and in Article 175, the word 'tribunal' has not been mentioned rather only term 'Court' has been used. He further contended that the provisions of Service Tribunals Acts and rules made thereunder are not violative of any provision of the Constitution as held by Full Bench of the Lahore High Court in the case of Muzaffar Hussain v. The Superintendent of Police (2002 PLC (C.S.) 442); rather they have the backing of Article 212 of the Constitution, Additionally the constitution of Anti-Terrorism Courts were upheld because these Courts had the backing of Article 175 but it had no concern with Article
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212 of the Constitution, therefore, whatever has been decided in the case of Aurangzeb Shafi Burki v. Province of Punjab (PLD 2011 Lahore 198) does not apply stricto sensu in the instant case. 17. He contended that the PSTA, 1974 was enacted by the Provincial Assembly, Punjab whereby the Governor was empowered to establish one or more Service Tribunals; the rules have been framed under the authority of Section 11 of PSTA, 1974 and the appointment of Chairman/Members of the Tribunal have been made strictly in accordance with law/rules. He further contended that neither the provisions of Article 212 of the Constitution nor the PSTA, 1974 or the rules framed thereunder envisage that the Chairman/Members of the Tribunal should be appointed after consultation with the Chief Justice. Therefore, such appointment made without consultation of Chief Justice cannot be construed as unconstitutional or impinging upon independence of judiciary. Reliance has been places on the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein it has been held that where the Constitution makers wanted to provide judicial forums other than what is envisaged by Articles 175, 202 and 203, they expressly provided for the same in the Constitution in shape of Article 212 of the Constitution. He further contended that in absence of term 'consultation' appearing in Article 212, it cannot be read into or introduce in the said Article. Even the law made under the authority of the said Article does not envisage any consultation with the concerned Chief Justice unlike the Indian approach where the same has been provided. He submitted that the judgments relied upon by the petitioner were rendered in the context of Articles 177 and 193 relating to the Supreme Court and the High Courts and not with reference to Article 212 of the Constitution. 18. He further contended that Articles 175, 202 and 203 of the Constitution provide the basic framework of the judiciary i,e, the Supreme Court, a High Court for each Province as well as Islamabad and such other Courts as may be established by law, i,e,, the subordinate Courts. However, . Constitution also stipulates other specified Courts/tribunals to share judicial powers with the Courts mentioned in Article 175 of the Constitution, which include Federal Shariat Court, Administrative Courts and Tribunals established under Article 212 as well as Election Tribunals constituted in terms of Article 225 of the Constitution. According to him, the Court or tribunal which is not founded by any of the Articles of the Constitution cannot lawfully share the judicial powers with the Courts referred to in Article 175 of the Constitution, however, the above referred tribunals including the Service Tribunals have been envisaged by the Constitution itself, therefore, sharing of judicial powers by them with the Court cannot be conceived as creating a parallel judicial system. He added that in discharge of judicial function. The Tribunal works subject to judicial supervision of the Supreme Court. 19. He further contended that the appointment of the Chairman and Members of Tribunal after superannuation cannot be termed as unconstitutional or in derogation of independence of judiciary, inter alia because the Constitution nowhere prohibits appointment of a superannuated person whereas the PSTA, 1974 and the rules provide a specific provision to that effect. He submitted that the Tribunal and the High Courts are two separate entities performing assorted functions under separate dispensations and should not be construed as equal or comparable. 20. His last contentions was that as per 1st Schedule to the Punjab Government Rules of Business, 2011, PST has not been shown as an attached department rather it is reflected as special institution associated for administrative linkages with Services and General Administration Department like Lahore High Court, Provincial Ombudsman and Punjab Public Service Commission. In fact PST has been assigned an independent and autonomous status. 21. He informed that the Chief Minister, Punjab has constituted a Cabinet Sub-Committee for review of Service Laws and following recommendations have been made:-- (a) The existing Punjab Service Tribunals Act, 1974 stipulates that the Chairman of the Punjab Service Tribunal shall be a person who is or has been qualified to be a Judge of the High Court Thus, judicial experience is inbuilt in the existing provision and no further amendment was required.
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(b) The qualification for the members of Tribunal and method of recruitment may, however, be revised as under in the light of the observations of the Hon'ble Court: "(2) A member of the Tribunal shall be a person who has been serving as Secretary to the Government and has been performing quasi-judicial functions or functions relating to service matters. (3) A member shall be appointed on the recommendations of the Selection Committee consisting of the Chief Secretary (Convener), Senior Member Board of Revenue, Chairman P&D Board, Secretary-Law and Secretary Services (S&GAD)." It was further informed that the Cabinet has already approved the following recommendations:-- (a) Serving civil servants shell not be appointed as members of the Tribunal; (b) The terms of office of a member and Chairman shall be fixed for a,minimum period of 3 years or till attaining the age of 65 years, for the members and 67 years for the Chairman, whichever is earlier; and (c) The term of office of a member, including the Chairman shall not be extended and a sitting incumbent shall not be appointed for another term. 22. Mr. Muhammad Kassim Mir Jat, learned Additional Advocate General, Sindh has submitted that the concept of Administrative Tribunals was introduced by the framers of the Constitution which was regularized through Legislation at the Federal and the Provincial level. He stated that in the United States the Court systems exercise the power of judicial review. However, the adjudication of dispute is also done by Tribunals and Federal Agencies including the Security and Exchange Commission, the inter State Commerce Commission, the National Labour Relations Board, etc., with a large measure of independence from Executive. In Britain, Special Tribunals ensure that public agencies carry out the instructions of Parliament. In France, the Courts are forbidden to oversee the public agencies; this job is done by a council of State. The French system has been adopted by other countries including Belgium, Italy, Portugal, Greece, Egypt and Turkey. Germany has also Administrative Court System and a Federal Administrative Court acts as a Court of Appeal. In Pakistan, separate Administrative Tribunals have been established under Article 212 of the Constitution which-deals with the matter relating to terms and conditions of service. The Tribunals not only provide speedy remedy to the civil servants but also share the burden of Courts. 23. He further submitted that it is not a parallel judicial system as it has the backing of the Articles, 175, 203 or 212 of the Constitution. As the appeal against the judgments of Tribunal lies before the Supreme Court under Article 212(3) of the Constitution, therefore, the Tribunals fall under the judicial hierarchy. He has relied upon the case of Muzaffar Hussain v. The Superintendent of Police (2002 PLC (C.S.) 442], which view was also endorsed by this Court in the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1455), Khan Asfandyar Wali…
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