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Official Citation: 2025 IHC 217743
Court / Jurisdiction: Islamabad High Court
Parties: Abual Hasnat Muhammad Zulqarnain etc vs Muhammad Shabbir etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 217743. In this matter between Abual Hasnat Muhammad Zulqarnain etc and Muhammad Shabbir etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Arbab Muhammad Tahir) AUTHOR JUDGE: Honourable Mr. Justice Arbab Muhammad Tahir DECISION DATE: 30-MAY-2025 CASE NO: Writ Petition-1341-2025 CITATION: 2025 IHC 217743 PARTIES: Abual Hasnat Muhammad Zulqarnain etc VS Muhammad Shabbir etc LAW / SECTION: - SUBJECT: Miscelleneous, Other REMARKS: Petitioners are Judicial Officers, Serving on deputation. Impunged seeks declaration that order by Defunct Judicial Service Tribunal is void. Also Seeks stay over suspension of notification order. ============================================================ Form No: HCJD/C-121
ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)
W.P. No. 1341-2025
Abual Hasnat Muhammad Zulqarnain & 22 others
Versus
Muhammad Shabbir & 2 others
Arbab Muhammad Tahir, J.-
―Jurisdiction acts as a bulwark against arbitrariness. It ensures that power is exercised within the legal framework. Courts must remain vigilant not to transgress the boundaries assigned by statute. Any decision made without jurisdiction, howsoever just in outcome, is a betrayal of the rule of law.‖ (Anonymous)
The p etitioners are judicial officers serving in the Islamabad District Judiciary . Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the ―Constitution‖) they have impugned order, dated 21.03.2025, passed by the learned Petitioners by : Mr Muhammad Nazir Jawad, ASC Mr Zahid Asif Ch., ASC
Respondents by : Mr Ayyaz Shaukat, Advocate General, ICT Mr Rashid Hafeez, Additional Attorney General Mr Usman Rasool Ghu man, Assistant Attorney General Mr Asad Iqbal Siddiqui, Advocate for respondent No.1 Malik Abdul Rehman, Advocate for respondent No.2
Mr Abdul Rahim Bhatti, ASC – Amicus Curiae
Dates of Hearing : 02.05.2025
Page - 2 W.P. No.1341-2025 Islamabad Subordinate Judiciary Service Tribunal (hereinafter the ―Tribunal‖).
FACTS 2. Before delving into the facts and circumstances of the case and addressing the questions of law emerged therefrom, it is made clear that this Court is mindful of the alternate remedy of review available to petitioners under the relevant law, however, since the impugned order has resulted into a breakdown of the applicable legal system, leaving 2016- Act unworkable and petitioners without a forum for redressal of their grievances by way of filing a review , it is only for this reason that the matter is being examined under the extra ordinary constitutional jurisdiction of the High Court. Briefly, the relevant facts are as under.-
3. The respondent No.1 -Muhammad Shabbir, who is member of the Islamabad Judicial Service had filed a service appeal i.e. Judicial Service Appeal No. 03/2016 before the learned Tribunal established under the Islamabad Subordinate Judiciary Service Tribunal Act , 2016 (hereinafter ―2016-Act‖). The grievance of respondent No. 1 before the learned Tribunal was that the absorption of Mr Shah rukh Arjuman d in the Islamabad District Judiciary and his further promotion to the post of Additional District and Sessions Judge had adversely affected his seniority rights, hence the same be declared as illegal and that he be promoted as Additional District and Sessions Judge with all back benefits. On 13.03.2025, the said judicial service appeal was heard by the learned Tribunal comprised of Hon‟ble Mr Justice Tariq Mehmood Jehangiri, J. (Chairman), Hon‟ble Mr Justice Babar Sattar, J. (Member) and Hon‟ble Mr Justice Sardar Ejaz Ishaq Khan, J. (Member), which shall hereinafter be referred to as ―erstwhile Tribunal‖) and the judgment was reserved on the same day.
Page - 3 W.P. No.1341-2025 4. While the judgment was reserved; i n the meanwhile, the Ministry of Law and Justice , pursuant to recommendations of the Hon‟ble Chief Justice of this Court , with the approval of the President, issued notification dated 18.03.2025 in terms of section 3 of the 2016-Act, whereby the Tribunal was reconstituted with the composition (i) Hon‟ble Mr Justice Khadim Hussain Soomro, J. (Chairman), (ii) Hon‟ble Mr Justice Muhammad Azam Khan, J. (Member) and (iii) Hon‟ble Mr Justice Inaam Ameen Minhas, J. (Member), which shall hereinafter be referred to as ―reconstituted Tribunal‖.
5. The learned Tribunal announced the short order on 21.03.2025, detailed reasons whereof have also been placed on record through CMA No.1594/2025 . The erstwhile Tribunal through the impugned order, partially allowed the appeal; set aside the notification of reconstitution of the Tribunal dated 18.03.2025; passed an order of repatriation of all judicial officers working on deputation in the Islamabad District Judiciary including respondent No. 1 (in the judicial service appeal) who stood absorbed in the year 2012 and rules 9 and 30 of the Islamabad Judicial Service Rules, 2011 (hereinafter ―2011-Rules‖) were declared to be read down being in conflict with the provisions of Islamabad High Court Act, 2010 (hereinafter “IHC Act”).
ARGUMENTS 6. Mr Muhammad Nazir Jawad , ASC for the petitioners has argued that; the impugned order has been passed without lawful authority and jurisdiction; that the authority of the learned Tribunal was questionable after issuance of the notification dated 18.03.2025; that the Tribunal should not have acted as judge in its own cause; that the Notification, dated 18.03.2025 issued by the President was not under challenge before the learned Tribunal; that the learned Tribunal cannot be deemed to be a Tribunal under
Page - 4 W.P. No.1341-2025 Article 212 of the Constitution; that the petitioners are not in the service of Pakistan within the meaning of Article 240 of the Constitution; that the learned Tribunal is not vested with power to hold the provisions of any law/rules as ultra vires; that the learned Tribunal is a quasi -judicial forum; that the petitioners have been rendered remediless; that the petitioners have no other option except to file the instant petition; reliance has been placed on the judgments titled ―Petrosin Corporation Pvt. Ltd. and others v. OGDC through Managing Director‖ (PLD 2011 SC 235), ―The State v. Asif Adil and others‖ (1997 SCMR 209 ), ―Mst. Fehmida Khatoon v. Additional Deputy Commissioner (Consoli Dation), Lahore and another‖ (PLD 1975 Lahore 942 ), ―Federal Government Employees Housing Authority through Director General, Islamabad v. Ednan Syed and others‖ (PLD 2025 SC 11 ), ―Syed Muhammad Ali Bokhari v. Federation of Pakistan through Secretary, Ministry of Law and Justice and 3 others‖ (PLD 2025 Islamabad 48 ), ―Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others‖ (2023 SCMR 1919); ―Pakistan Transport Company Ltd. v. Walayat Khan through Legal Heir s‖ (2002 SCMR 1470), ―Chief Secretary, Government of Punjab, Lahore and others v. Mrs Shamim Usman‖ (2021 PLC (CS) 1595 ), ―Hafsa Habib Qureshi and others v. Amir Hamza and others‖ (PLD 2024 SC 780 ), and ―Agha Inam -ur-Rehman Khan v. Registrar, Lahore High Court, Lahore‖ (2013 SCMR 109 ). In addition he has referred to the proceedings conducted by the Hon‟ble Supreme Court in Constitutional Petition No.40/2018 titled “Islamabad Bar Association through its President v. Federation of Pakistan through its President and others” and submitted that judicial officers from other Provinces were posted in Islamabad District Judiciary as a result of efforts made by the Bar.
Page - 5 W.P. No.1341-2025
7. Mr Zahid Asif Chaudhry, ASC for petitioners further argued that the petitioners were condemned unheard; that nothing relating to the petitioners was impugned before the Tribunal; that the petitioners were not party to the proceedings before the learned Tribunal; that the petitioners‟ right under Article 4 and 10A of the Constitution have been violated; that the jurisdiction of the learned Tribunal was limited to confirming, setting aside, varying or modifying the order under appeal; that the learned Tribunal proceeded beyond the scope of section 6(1) of the Islamab ad Subordinate Judiciary Service Tribunal Act, 2016 (hereinafter ―2016-Act‖); that the learned Tribunal is not vested with power to proceed suo motu ; that the President vide Notification, dated 18.03.2025 had reconstituted the learned Tribunal; that the remedy of review provided under section 7 of the 2016 -Act is an independent remedy available to the petitioners; that the said remedy was rendered infructous by recording observations as to its efficacy by the learned Tribunal; that the learned Tribunal wh ile exercising powers under the 2016-Act does not act as a High Court ; reliance has been placed on the judgments titled ―Said Zaman Khan and others v. Federation of Pakistan through Secretary Ministry of Defence and others‖ ( 2017 SCMR 1249 ), ―District Bar Association, Rawalpindi and others v. Federation of Pakistan and others‖ (PLD 2015 SC 401 ), ―Chief Justice of Pakistan Iftikahr Muhammad Chaudhry v. President of Pakistan through Secretary and others‖ (PLD 2010 SC 61 ), ―Muhammad Safeer and others v. Muhammad Azam and others‖ ( PLD 2024 SC 838), ―Rana Muhammad Naveed and another v. Federation of Pakistan through Secretary M/o Defence‖ ( 2013 SCMR 596 ), ―Ex. Col. Muhammad Azad Minhas and another v. Federation of Pakistan through Secretary Ministry of Defence and others‖ (PLD 2024 SC 235 ), ―Commissioner Inland Revenue and others v. Jahangir Khan Tareen and others‖ ( 2022 SCMR 92 ),
Page - 6 W.P. No.1341-2025 ―Attaullah Khan v. Ali Azam Afridi and others‖ ( 2021 SCMR 1979), ―Faqir Muhammad v. Khursheed Bibi and others‖ (2024 SCMR 107 ), ―Nazar Muhammad v. The State‖ ( 2011 SCMR 1487), ―Justice Syed Mazahar Ali Akbar Naqvi, Judge Supreme Court of Pakistan and others v. Federation of Pakistan through Secretary Ministry of Law and Justice, Islamabad and others‖ (2024 SCMR 599), ―Mst. Sattan and others v. Group Captain Mansoor Hussain, Officer Commanding P.A.F. Station Sargodha Cantt‖ ( PLD 1962 (W.P.) Lahore 151 ), ―Messrs Fridsons Ltd. Karachi and another v. Government of Pakistan, through its Secretary and another‖ (PLD 1961 SC 537), ―Abdul Rehman Khan Kanju and others v. Election Commission of Pakistan through Secretary, Islamabad and others‖ ( 2024 SCMR 1902 ), ―Syed Muhammad Ali Bokhari v. Federation of Pakistan through Secretary, Ministry of Law and Justice and 3 others‖ (PLD 2025 Islamabad 48 ), ―Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others‖ (2023 SCMR 1919), ―Pakistan Transport Company Ltd. v. Walayat Khan th rough Legal Heirs‖ ( 2002 SCMR 1470 ), and ―Federal Government Employees Housing Authority through Director General, Islamabad v. Ednan Syed and others‖ (PLD 2025 SC 11).
8. On the other hand, Mr Ayyaz Shaukat , learned Advocate General, ICT also opposed the impugned order/judgment and has argued that; the reconstituted Tribunal was validly notified in accordance with law; the erstwhile Tribunal could not have exercised suo motu jurisdiction in matters which were not impugned before it; the necessary parties i.e. the borrowing and lending departments never passed any order for repatriation of the judicial officers serving on deputation nor were they afforded an opportunity of hearing; that the right of fair trial and due process of the petitioners have been violated; that the learned Tribunal was
Page - 7 W.P. No.1341-2025 bereft of the jurisdiction to adjudi cate upon validity of notification dated 18.03.2025; the learned Tribunal is deemed as civil court within the section 6(2) of 2016 -Act; that even if it is assumed that the learned Tribunal had heard the matter, then before rendering the impugned judgment i t was required to put the affected parties on notice under rules 15 and 19 of the Islamabad Subordinate Judiciary Service Tribunal Rules, 2017 (hereinafter ―2017-Rules‖); that under rule 15 of the 2017-Rules, no additional ground could be urged in support of any ground or objections not set -forth in memorandum of appeal before the Tribunal, except with its leave; that learned Chairman and Members of the Tribunal were cognizant of the fact of reconstitution of the Tribunal and could have laid their hands off the matter; that instant petition is maintainable to the extent of examining the jurisdictional defects and illegalities committed in proceedings; that impugned order is void and coram non -judice; the learned Tribunal was not vested with power to adjudicate vires of law and the notification issued thereunder and this function should have been left for adjudication by a court of competent jurisdiction; vires of law cannot be adjudicated even in a refer ence or appeal by this Court, except under Article 199 of the Constitution; reliance has been placed on the judgments titled ―Dr Seema Irfan and others v. Federation of Pakistan and others‖ (PLD 2019 Sindh 516 ), ―Muhammad Swaleh v. United Grain Fodder Agencies‖ ( PLD 1964 SC 97 ), ―PESCO, WAPDA House through Chief Executive v. Ishfaq Khan and others‖ (2021 SCMR 637), ―Conforce Ltd. v. Syed Ali Shah‖ (PLD 1977 SC 599), ―Land Acquisition Collector, Nowshera and others v. Sarfraz Khan and others‖ ( PLD 2001 SC 514 ), ―Izhar Alam Farooqi v. Sheikh Abdul Sattar Lasi ( 2008 SCMR 240 ), ―Abdul Majeed Khan v. Maheen Begam‖ ( 2014 SCMR 1524 ), ―Abdul Bari v. Government of Pakistan and others‖ (PLD 1981 Karachi 290), ―Pakistan Telecommunication Aut hority v. Federation of
Page - 8 W.P. No.1341-2025 Pakistan‖ ( 2020 PTD 1683 ), ―Pakistan Oilfields Limited v. Federation of Pakistan‖ (2020 PTD 110), ―Commissioner Inland Revenue v. Jahangir Khan Tareen‖ ( 2020 SCMR 92), ―Pakistan Tobacco Company v. Federation of Pakistan‖ ( 2022 PTD 1574), ―Standard Printing Press v. Sind Employees Social Security Institution‖ (1988 SCMR 91).
9. Mr Rashid Hafeez , learned Additional Attorney General, while opposing the impugned order/judgment has argued that; the provisions of 2016 -Act empower the President to appoint Chairman and Members of the Tribunal upon recommendation of the Chief Justice of this Court ; that the Hon‟ble Chief Justice of this Court had initiated the process and duly forwarded names for reconstitution of the Tribunal; that the provisions of the 2016 -Act are unambiguous; the judgment relied upon by the learned Tribunal i.e. ―Chaudhary Muhammad Akram vs. Registrar Islamabad High Court‖ (PLD 2016 SC 961 ), has been overruled by the principles and law laid down by the Hon‟ble Supreme Court in ―Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court ‖ (PLD 2021 SC 391); the Tribunal was validly constituted vide notification dated 18.03.2025; adjudication upon the notification dated 18.03.2025 which was not the subject matter of the appeal amounted to judicial overreach; the power of the Tribunal under the 2016 -Act are not at par with those vested in this Court under Article 199 of the Constitution ; the learned Tribunal could not have rendered the provisions of section 7 of 2016-Act as redundant.
10. Mr Asad Iqbal Siddiqui , AHC for respondent No. 1 (Mr Muhammad Shabbi r who was appellant before the Tribunal), has submitted that respondent No.1 who was the appellant before the learned Tribunal, had withdrawn his claim in respect of the prayers clauses (i) and (ii) and had pressed his claim in clause (iii) i.e. promotion with back benefits; that
Page - 9 W.P. No.1341-2025 the impugned judgment does not speak of clause (iii) of the prayer sought by respondent No.1 ; that no relief has been granted to respondent No.1 in the impugned judgment.
11. Mr Abdul Rahim Bhatti, ASC, learned amicus curiae has argued that condemning the petitioners unheard is violation of the right of petitioners guaranteed under Article 10A of the Constitution; that the learned Tribunal was not vested with suo motu powers as the same amounts to overreach; that the jurisdiction of the learned Tribunal is limited to issues germane to the terms and conditions of service including the disciplinary matters . While responding to the question whether the Tribunal is deemed as tribunal under Article 212 of the Constitution and a remedy of appea l against any order passed by the Tribunal is available under Article 212(3) of the Constitution, he submitted that the Tribunal has been constituted under Article 212 of the Constitution barring the jurisdiction of this Court in relation to matter committ ed to the said forum as that judicial officers are deemed to be in the service of Pakistan, for the purposes of Article 212(1)(a) of the Constitution.
12. Heard. Record perused.
OPINION OF THE COURT
i. Jurisdiction.
13. This Court will first advert to the question of jurisdiction and its extent in relation to the instant petition. Mr Abdul Rahim Bhatti , ASC – learned amicus curiae has argued that the petitioners are in the service of Pakistan within the meaning of Article 212(1)(a) of the Cons titution and the bar contained under sub article (2) thereof is attracted to the instant proceedings. To address the argument of the learned amicus curiae, it is highlighted that the Islamabad Judicial
Page - 10 W.P. No.1341-2025 Service has been constituted under Rule 3 of the 2011 -Rules. The 2011-Rules have been framed by this Court under Article 203 of the Constitution read with section 6 of the IHC Act. It is not an Occupational Group or Service constituted by the Federal Government under the Civil Servants Act, 1973 or the rules framed thereunder. The question whether the petitioners shall be deemed to be in the „service of Pakistan‟ f or the purposes of Article 212 read with Article 240 as defined in Article 260(1) of the Constitution so as to attract the bar contained under Article 212(2) of the Constitution in relation to the instant petition , is required to be addressed at the first instance. For the sake of convenience it would be advantageous to reproduce the relevant provisions of the Constitution.-
―175(3). The Judiciary shall be separated progressively from the Executive within fourteen years from the commencing day.‖
―203. Each High Court shall supervise and control all courts subordinate to it.‖
Relevant provisions of the Constitution defining the expression ―service of Pakistan‖.-
―212. (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;‖
―240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined– (a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All -Pakistan Services, by or under Act of Majlis -e- Shoora (Parliament); and
Page - 11 W.P. No.1341-2025 (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation.–In this Article, ‗‗All -Pakistan Service‘‘ means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Majlis-e-Shoora (Parliament).‖
“260. (1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them, that is to say,–
―service of Pakistan‖ means any service, post or office in connection with the affairs of the Federation or of a Province , and includes an All - Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e- Shoora (Parliament) or of a Provincial Assembly , but does not include service as Speaker, Deputy Spe aker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney -General, Advocate - General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Coun cil of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly;‖
(underlined and highlighted to add emphasis)
It would also be advantageous to reproduce section 2(b) of the Civil Servants Act, 1973 (hereinafter the “1973-Act”)
2(b) ―civil servant‖ means a person who is a member of an All -Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include— (i) a person who is on deputation to the Federation from any Province or other authority; (ii) a person who is employed on contract, or on work-charged basis or who is paid from contingencies; or
Page - 12 W.P. No.1341-2025 (iii) a person who is a ―worker‖ or ―workman‖ as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);
14. In the case titled ―Muhammad Mubeen -us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others‖ (PLD 2006 SC 602 ) the Hon‟ble Supreme Court had examined the expression “service of Pakistan” used in Articles 212 and 240 as defined in Article 260(1) of the Constitution in the context of section 2 -A of the Service Tribunals Act, 1973 (hereinafter “STA 1973” ). It is worth-mentioning here that section 2 -A was inserted in the STA 1973 through Service Tribunals (Amendment) Act, 1997, whereby the service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controll ed by the Federal Government or in which the Federal Government has a controlling share or interest was declared to be the service of Pakistan and every person holding a post under such authority, corporation, body or organization was deemed to be a civil servant for the purposes of STA 1973. The Hon‟ble Supreme Court in Muhammad Mubeen-us-Salam case, supra, examined in the precedent law, relevant provisions of the Constitution and the law and held as follow.-
―68. The ratio decidendi of the judgments, discussed above, lays down following two basic propositions, for the purpose of ascertaining as to whether a person is in the service of Pakistan:--
(a) A declaration must exist that he shall be deemed to be in the in service of Pakistan.
(b) Such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service.‖
(emphasis supplied)
Page - 13 W.P. No.1341-2025 15. It was also observed with clarity that the expressions “civil servant” and “service of Pakistan” were not synonymous as the expression “service of Pakistan” would include civil servants, but the vice versa is not true. In the referred case, the Hon‟ble Supreme Court held s ection 2-A of the STA, 1973 as partially ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature as by a deeming clause they cannot be treated civil servants as defined under section 2(1)(b) of the CSA , 1973 and they are not engaged i n the affairs of the Federation.
16. It may be noted that the expression “service of Pakistan” ostensibly gives an impression that every person drawing salary from public exchequer is included in its ambit and this Court would also have assumed the same meaning, however, it is significant that the framers of the Constitution have restricted its application to a predefined class/category of persons/service and have left it to the Majlis -e-Shoora (Parliament) to extend its application through an Act of Parliament, to any other class/category of persons/service. Even the Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Atto rney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a…
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