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Petitioner: MEHR REHMAN VS Respondent: PESHAWAR HIGH COURT, PESHAWARHonorable Justice Mian Fasih-Ul-MulkM. Ayub Shinwari,Ijaz Anwar
2013 PLC(C.S.)165
[Peshawar High Court]
Before Mian Fasih-ul-Mulk and Irshad Qaiser, JJ
MEHR REHMAN
Versus
PESHAWAR HIGH COURT, PESHAWAR through Registrar and another
Writ Petition No.604 of 2009, decided on 9th August, 2012.
Constitution of Pakistan---
----Art. 199(5)--- Constitutional petition--- Maintainability--- Civil service---Promotion---Petitioner an employee of High Court as Driver--Supersession of petitioner despite being senior than private respondent promoted as Garage Superintendent---Validity---Administration of High Court headed by Registrar was functioning under supervision of the Chief Justice---High Court under delegated powers of Governor could make Rules regarding appointment of its staff and their terms and conditions---Chief Justice under such Rules could exercise' in respect of officers and servants of High Court same powers as Governor could exercise in respect of employees of the Provincial Government---Object of entrusting such powers to Chief 'Justice would be to ensure independence of judiciary being one of vital organ of Government --Chief Justice had accorded sanction to up-gradation of one post of Driver (BPS-5) as Garage Superintendent (BPS-11)---Petitioner and respondent were considered for promotion, but preference was given to respondent due to his experience for such post and satisfactory performance---Registrar of High Court had passed impugned order on directions of competent authority (i.e. Chief Justice)---Petitioner's departmental appeal/representation had been dismissed---Petitioner could not challenge orders of Chief Justice made on administrative side---High Court dismissed constitutional petition for being non-maintainable in circumstances.
Muhammad Iqbal and others v. Lahore High Court' through Registrar and others 2010 SCMR 632 rel.
M. Ayub Shinwari for Petitioner.
Ijaz Anwar for Respondents.
Date of hearing: 9th August, 2012.
JUDGMENT
MIAN FASIH-UL-MULK, J.--- Mehar Rehman, petitioner, an employee of this Court as Driver is aggrieved of the order dated 2-2-2009 whereby respondent No.2 driver Raziq-ur-Rehman was promoted as Garage Superintendent in BPS-11 by superseding him in spite of his seniority over respondent No.2.
2. Petitioner through instant writ petition seeks cancellation of the impugned order dated 2-2-2009 and his promotion, as Garage Superintendent in BPS-11.
3. The Registrar (respondent No.1) has submitted his comments wherein it is stated that respondent No.2 was appointed Incharge of the transport vide order bearing Endst. No.9363-67 dated 20-8-2008 but petitioner raised no objection at that time and when subsequently the post was upgraded vide order dated 28-1-2009 and promotion order of respondent No.2 was made on the basis of his performance during the period, petitioner raised objection. He has further stated that promotion process, including consideration of petitioner, took place according to rules in a manner prescribed under the law.
4. Today, learned counsel for respondent No.2 raised a preliminary objection regarding maintainability of instant writ petition within the meaning of Article 199(5) of the Constitution where under writ cannot be issued against High Court. Learned counsel for petitioner stated that such immunity is only to the judicial acts of the Chief Justice and not to administrative acts, which are amenable to writ jurisdiction.
5. We have considered the arguments of learned counsel for the parties and have also perused the record.
6. Sub-Article (5) of Article 199 of the Constitution says that, "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan". The question as to whether an employee of the High Court can challenge the orders of the Chief Justice made on administrative side, we are fortified by the verdict of the august Supreme Court of Pakistan rendered in the case of Muhammad Iqbal and others v. Lahore High Court through Registrar and others (2010 SCMR 632). It may be mentioned here that against an advertisement issued by Lahore High Court for the post of Additional District and Sessions Judge, Muhammad Iqbal and others had qualified the competitive examination but were not selected for lack of required length of practice. They challenged their non-selection through writ petitions but the same were dismissed on the ground that orders passed by the High Court are protected under Article 199(5) of the Constitution and cannot be challenged before the High Court under Article 199. The matter went before the August Supreme Court where their lordships laid down as under:---????? -
"We perfectly agree with the view taken by Lahore High Court that all judicial orders passed by a High Court can be challenged in accordance with the Constitution or the law and are individually and specifically protected. For such purpose of protecting judicial orders, there was no need absolutely to enact the provisions of sub-Article (5) of Article 199 and that such provisions were given in the Constitution to protect, rather, the non judicial orders of the High Court. We are further of the view that if such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences."
It was, therefore, concluded by,their lordships that:---
"Article 199(5) of the Constitution protects all orders passed by the High Court, including the administrative one."
7. In this case, the then Honourable Chief Justice of this Court accorded sanction to the up-gradation of one post of Driver (BPS-5) as Garage Superintendent (BPS-11) w.e.f. 20-8-2008. Respondent No.2/ driver was already performing his duties as such, therefore, keeping in view his satisfactory performance, respondent No.1 under the directions of competent authority promoted respondent No.2 on the post vide impugned order. Petitioner submitted departmental appeal/representation which was filed.
8. The administration of the Court headed by the Registrar functions under the overall supervision of the Chief Justice. The Court, under the delegated powers of Governor, is empowered to make rules providing for appointment of its staff and determining the terms and conditions of their service. Such rules empower the Chief Justice to exercise, in respect of officers and servants of the Court, the same powers as the Governor exercises in respect of the Provincial Government employees. This power has been entrusted to the safe custody of the Chief Justice in order to ensure the independence of Judiciary which is one of the vital organs of a Government. The petitioner along with other drivers including respondent No.2 were duly considered for promotion and preference was , given to respondent No.2 for the reason that he was having such an experience from the past.
9. In view of the foregoing discussion, we are of the view that instant writ petition is not maintainable and thus is liable to be dismissed. Order accordingly.
SAK/289/P????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.