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Petitioner: Ch. MUHAMMAD AKRAM VS Respondent: REGISTRAR, ISLAMABAD HIGH COURT and others
Court Name: Supreme Court of Pakistan Judge(s): Mushir Alam, Amir Hani Muslim, Dost Muhammad Khan Title: Ch. MUHAMMAD AKRAM vs REGISTRAR, ISLAMABAD HIGH COURT and others Case No.: Constitutional Petition No,3 of 2014 and C.M.A. No,8540 of 2015 Date of Judgment:2016-09-26 Reported As: PLJ 2016 SC 833, 2016 P.S.C. 1405, PLD 2016 Supreme Court 961 Result: Petition allowed
JUDGMENT
JUDGMENT AMIR HANI MUSLIM, J.--These proceedings have been instituted by Ch. Muhammad Akram, a practicing Advocate and Human Rights Activist, challenging various appointments, absorptions and transfers in the Islamabad High Court, claimed to have been made in violation of the Services Rules of the Islamabad High Court. 2. The Petitioner has mainly relied on an Audit Report for the years 2010 to 2013 submitted in July 2013, by Nasim-ul-Ghani, Accounts Officer, Office of the Accountant General, Pakistan Revenues, Islamabad. The relevant portion of the Report is reprcduccd hereunder:- During scrutiny of personal files, it has been observed that after re-establishment of Islamabad High Court in 2010 not a single appointment of officers/officials has been made on merit and a number of appointments have been made in relaxation of rules including absorption of officer and officials (deputationists) in much higher scales than they were holding in their parent departments. Whereas, generally the absorption is made in the same scale or in some special case maximum one stage above only but in Islamabad High Court the deputationists have been absorbed in much higher scale without any plausible justification. Absorption is also a kind of appointment. The procedure of advertising the posts in newspapers for making appointments through open competition after conducting test/interview has totally been ignored in all the appointments made during the audit period. Appointments without open competition have been held illegal, by the superior courts. Rule 8 of the Islamabad High Court Establishment (Appointments and Conditions of Service) Rules, 2011 also provides that initial recruitment to all posts shall be made after proper advertisement of
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the vacancies in the newspapers and on the basis of test and interview. It is more alarming that even after advertising the posts of non-gazette cadres, the same were still filled by relaxing the rules and the applicants who had applied against the said posts were deprived of their fundamental right to compete for getting job on merit. Further observed that no justification and exigency existed as already a reasonable number of employees (more than 200) had been working in the Court and there was no hurdle in adopting proper procedure to fill up the vacant posts, but it appears that the intention was not there and nepotism/favoritism was allowed to prevail. Even in case of any exigency the post could have been filled temporarily (not more than for a period of six months) and then regular appointment could have been made by adopting the proper procedure in some cases of appointments, discretionary powers of relaxing of rules have been exercised more than one time. Whereas the power to relax any of the rules (rule 16 of the Islamabad High Court Establishment (Appointments and Conditions of Service) Rules, 2011) can only be exercised where a strict application of the rule would cause undue hardship, and it is also subject to recording of reason in writing". 3. It has been pleaded by the Petitioner that appointments/absorptions of the Respondents Nos.3 to 76 were made in complete departure of the Islamabad High Court (Appointment and Conditions of Service) Rules, 2011 [hereinafter referred to as 'the Islamabad High Court Rules], without adopting the procedure laid down in the Islamabad High court Rules. It has been pleaded that Rule 8 of the IslamabadHigh Court Rules, provides that initial recruitment to all posts shall be made after proper advertisement of the vacancies in the newspaper having wide circulation and in any other manner to be determined by the Chief Justice or subject to his approval by the Selection Committee or Selection Board, as the case may be, and the applications of the candidates received whereof shall be scrutinized accordingly. It has been further pleaded that as per Rule 4(1) of the Islamabad High Court Rules all appointments whether initial or by promotion or transfer or by deputation shall be made as prescribed by the Rules. 4. The Petitioner has stated that even after advertising the posts of the non-gazetted staff, the appointments were made by relaxing the Islamabad High Court Rules and the Applicants who had applied for the said posts were deprived of their fundamental rights to compete for the jobs on merit, thereby allowing nepotism/favoritism. He has pleaded that the selection of persons for Public office is a sacred trust, which is required to be discharged honestly, justly and fairly, so that each Applicant may get a fair chance to compete for the job, he has applied for. The Petitioner has prayed that the appointments/absorptions of the Respondents Nos.3 to 76 may be declared as illegal having been made without lawful authority. 5. Mr. Arif Chaudhry, learned ASC for the Petitioner has contented that after the creation of the establishment of the Islamabad High Court, many appointments were made in its Establishment, which are inconsistent with the law, i,e, (1) appointments were made without any advertisement (2) direct appointments were made on posts where recruitment was supposed to be made on promotion basis (3) these appointments had not been made on thebasis of merit (4) ineligible candidates were appointed against the Islamabad High Court Rules. 6. He states that 'The Islamabad High Court Establishment (Appointment and Conditions of Service) Rules 2011were framed by the Administration Committee of the Islamabad High Court in exercise of the powers conferred by Article 208 of the Constitution and with the approval of the President. He submits that the Islamabad High Court Rules were published in the Official Gazette on 20th of May 2011. The learned ASC further states that four of the allegedly illegal appointments were made prior to the promulgation of these Rules and the remaining 57 were made after framing of the Islamabad High Court Rules. 7. It is contended by the learned Counsel for the Petitioner that the appointments were made without advertisement and bypassing the Islamabad High Court Rules. Before framing of the
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Islamabad High Court Rules, in terms of Section 5 of the Islamabad High Court Act, 2010, the appointments to the establishment were governed by the Lahore High Court Service Rules. Instead of appointing the Respondents Nos.3 to 76 under the Lahore High Court Rules, the Chief Justice has made all the appointments in relaxation of the Rules. He submitted that the mode adopted by the Islamabad High Court for making appointments is violative of the Rules besides it deprived meritorious and deserving candidates from participating in the competitive process for appointment to different public offices which is inherent right of every citizen under the Constitution. In support of his contentions, the learned Counsel has relied upon the case of Abdul Jabbar Memon and others (1996 SCMR 1349), wherein it was held by this Court that all appointments made to the public offices without requisite advertisement, are violative of the fundamental rights of the citizens. The learned Counsel has also relied upon the case of Mushtaq Ahmad Mohal v. Honourable Lahore High Court, Lahore (1997 SCMR 1043), wherein paragraph 7 of the aforesaid judgment, it has been held that inviting applications from the pubic for appointments without advertisement in the press is violative of Article 18 read with Article 2-A of the Constitution. He, in support of his contention, has also relied on the cases of Muhammad Naseem Hijazi v. Province of Punjab (2000 SCMR 1720), Dr. Naveeda Tufail v. Government of Punjab (2003 SCMR 291) and Chief Secretary Punjab and others v. Abdul Raoof Dasti (2006 SCMR 1876). He further relied on the cases of Muhammad Ali v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar (2012 SCMR 673), Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice (PLD 2012 SC 923), Registrar, High Court of Balochistan v. Abdul Majeed (PLD 2013 Balochistan 26) and Syed Mubashir Raza Jaffri v. Employees Old-Age Benefits Institutions (EOBI) (2014 SCMR 949). 8. The learned Counsel for the Petitioner then turned towards the facts of the present case which he believed held pivotal importance in advancing his contention. He informed the Court that Respondent No,35 Omer Daraz had been appointed to the post of Registrar. The basic pay scale for this post was 21 and 22 and the appointment under the Rules rests at the discretion of the Chief Justice of the Islamabad High Court when he decides to appoint (a) by transfer of District and Sessions Judge serving in the High Court or by borrowing District and Sessions Judge form Provincial High Courts (b) by promotion of an officer serving in BS-20 or (c) by initial appointment on contract basis of a suitable person with reasonable experience of administration and financial matters. The learned ASC Arif Chaudhry, contended that Respondent No,35 was a Reader (BS-18) who was illegally promoted to the said post in blatant contravention of the Rules. 9. The learned Counsel for the Petitioner has contended that on 17.04.2012, Idrees Kasi, Respondent No,3, was directly appointed against a promotion post of Deputy Registrar (BS-19). In terms of the Rules, promotion to the said post could only be made through (a) promotion amongst cadres of Assistant Registrars, Readers and Private Secretaries on seniority-cum-fitness basis on rotation basis or (b) transfer of Senior Civil Judge of Islamabad High Court or other High Courts by borrowing their services on deputation basis. Hence the direct appointment of Respondent No,3 was illegal and against the Rules. 10. Mr. Arif Chaudhry learned ASC for the Petitioner then argued that Respondent No, 30 Usman Qudoos was appointed as Research and Reference Officer. He submitted that the mode for appointment to the said post is by promotion from amongst the Librarians on seniority-cumfitness basis provided that the said person is a law graduate and has rendered seven yearsservice in BS- 17 and above. The Rules further provided that in absence of the above qualifications, a person with a Master's degree in Library and Information can be appointed, preferably a law graduate, with seven yearsexperience in management and maintenance of Court Libraries in BS-17 and above. The learned Counsel contended that appointment of Usman Qudoos to this post was made over
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looking the required qualification of a Librarian having 12 yearsexperience, who was not eligible for the aforesaid post. 11. It was next contended by the learned Counsel for the Petitioner that Respondent No,7 Kashif was directly appointed to the post of Additional Registrar which is a promotion post and the said Respondent was neither eligible nor qualified to hold the said post under the Rules. 12. Ijaz Ahmed, former Additional Registrar of the Islamabad High Court, has made an Application for impleadment (C.M.A.No,8540/2015) as party in these proceedings. The said Application was dismissed with the observation that he will have a right of audience. He has contended that out of 64 appointments made in the establishment of Islamabad High Court, 42 persons were eligible but were appointed without following the mandatory requirement of advertisement in the press. According to him, the remaining 22 persons, who were appointed, were neither eligible nor qualified and the process of appointments was not transparent. He contended that Respondents Nos.40, 41, 42 and 43 were originally employees of different corporations, who were inducted in the Islamabad High Court without advertising the said posts. According to Ijaz Ahmed, these Respondents did not possess the qualifications for the posts against which they were appointed and thereafter unauthorizedly absorbed. 13. He further contended that Usman Mir, Respondent No,40, was serving in Allied Bank Ltd. As Credit Analysis Officer and was appointed and absorbed as Assistant Registrar (BS-18) in the Islamabad High Court. Saqib Sheraz, Respondent No,41, was in Pay Scale 4 in the Pakistan Broadcasting Corporation and was appointed and absorbed as Assistant Accounts Officer (BS-17). Aamir Abdul Majeed, Respondent No,42, who was serving as Stenographer in Punjab University was appointed and absorbed as Personal Assistant (BS-17). Shakeel Raza, Respondent No,43, was serving as Assistant in Balochistan Assembly and was appointed and absorbed as Data Processing Officer in BS-17. He submits that all these appointments were violative of the judgments of this Court titled as Contempt Proceedings Against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456). He next contended that this Court in the case of Muhammad Naseem Hijazi v. Province of Punjab (2000 SCMR 1720), while interpreting the scope of writ of quo warranto has held that any party can challenge the appointment of a person, who is not legally qualified to hold the office by way of a writ of quo warranto. He has further contended that the appointments of the Respondents were not only violative of the Rules of the Court, but also violative of Articles 27 and 189 of the Constitution. 14. Mr. Shehzad Shoukat, learned ASC appearing for the Islamabad High Court has contended that the Registrar, Islamabad High Court has filed a concise statement by way of C.M.A.No,369 of 2015 on behalf of the Respondents Nos.1 and 2. He has contended that Respondents No, 3 to 76 were appointed by the Islamabad High Court, which fact is incorrect. According to him, 11 Respondents have been named twice in the array of the Respondents. He contended that in all, 61 Respondents were appointed out of which 29 were appointed on lower posts e.g. Naib Qasids, Chowkidars and Sweepers. He contended that these employees could not be said to hold Public Office and, therefore, the Petition against them in the nature of quo warranto does not lie. In support of his contention, he has relied on the judgment in the case of Sohrab v. The State reported in (PLD 1975 SC 248). He next contended that the Respondents Nos.48 and 56 are no more in the employment of the Islamabad High Court. 15. The learned Counsel has further contended that out of the remaining 32 Respondents, 10 were appointed prior to the promulgation of the Islamabad High Court Rules and from the remaining 22, 06 were initially appointed on deputation and subsequently absorbed by the Competent Authority in terms of Rule 4(5) of the Rules. He contended that 14 fresh appointments were made; one was appointed on contract basis and the other on deputation. According to him, these appointments were made in relaxation of Rule 16 of the Rules, which confers power on the Chief Justice to relax
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the Rules. He submits that in exercise of powers conferred on the Chief Justice, he has appointed these persons, assigning good reasons for their appointment and, therefore, no illegality, if any, has been committed by the Chief Justice/Competent Authority. 16. He next contended that the grievance of the Petitioner cannot be entertained by this Court in exercise of its jurisdiction under Article 184(3) of the Constitution, which according to the learned Counsel, has limited scope. He contended that the Counsel for the Petitioner has pleaded that the appointments of the Respondents were made in violation of the Rules, therefore, they be declared illegal. The learned Counsel while advancing his arguments has contended that this Court in exercise of jurisdiction under Article 184(3) of the Constitution will seek guidance from the provisions of Article 199(5) of the Constitution. He contended that even otherwise, a writ cannot be issued against a High Court or Supreme Court and in support of his contention, he has relied on the judgment reported as Jamal Shah v. The Member, Election Commission, Govt. Of Pakistan, Lahore (PLD 1966 SC 1). In substance, the contention of the learned Counsel was that the powers of appointment exercised by the Chief Justice were in his administrative capacity and cannot be examined under Articles 199 (5) and or 184 (3) of the Constitution. He submits that in order to exercise jurisdiction under Article 184(3) of the Constitution, the Petitioner has to establish that the Competent Authority has not followed the Rules or exercised jurisdiction not vested in him under the law or did not have the requisite authority at all. According to the learned Counsel, unless any of the aforesaid ingredients are established, the Petitioner cannot seek relief in a writ of quo warranto. He submits that the Chief Justice/ Competent Authority has the powers under Rules 16, 17 and 18 of the Islamabad High Court Rules to relax the conditions for appointment in the establishment and such appointments cannot be challenged. He submits that no rule can restrict the powers of the Chief Justice with regard to the appointments made under Rules 16, 17 and 18 to appoint any one, as these Rules have overriding effect on the other Rules. It is next contended by the learned Counsel that the scope of Article 184(3) of the Constitution is limited. According to him, in order to entertain a Petition under Article 184(3) of the Constitution, a party has to establish that the issue involved relates to a question of public importance having nexus with fundamental rights. He submits that in the absence of any of these ingredients, a Petition is not entertainable. The learned Counsel contends that in the case in hand, the Petitioner has failed to place any material which could justify invoking the jurisdiction of this Court under Article 184(3) of the Constitution. 17. Syed Iftikhar Hussain Gillani, learned Sr.ASC, for the Respondents Nos.3 to 76, has submitted that the appointments were challenged by the Petitioner three times i,e, the Petitioners challenged the appointments in Writ Petition No,2997 of 2011 which was dismissed by the Islamabad High Court on 26.10.2011 against which they filed I.C.A.No,562 of 2012, which was also dismissed on 18.09.2012. They again challenged the appointments through another Writ Petition No,10100 of 2013, which was returned by the Registrar of the Islamabad on grounds of maintainability, against which order the Petitioners filed an Appeal and the learned High Court maintained the objections of the Registrar. 18. He next contended that the Petitioner has not approached this Court with clean hands. According to the learned Counsel, most of these appointments were made prior to the promulgation of the Rules. He contended that the Islamabad High Court has appointed 150 persons in the establishment, out of which appointments of only 10 persons have been challenged which clearly shows malice on the part of the Petitioner. 19. He contended that the Islamabad High Court was initially established under the Presidential Order No 7 of 2007. By judgment dated 31st July 2009 in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879), the Islamabad High Court was declared unconstitutional. Through the 18th Amendment in the Constitution, Act No,XVII of 2010 was introduced and the Islamabad High Court was created. The learned Counsel has referred to Sections 5, 8 and 11 of the Islamabad High Court Act 2010, in order to show that prior to the
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Islamabad High Court (Appointment and Conditions of Service) Rules, 2011, the appointment of officers and staff of the Court was regulated by the Rules and procedures of the Lahore High Court and even the Administration Committee of the Islamabad High Court had adopted the aforesaid Rules of appointment, therefore, the appointments made prior to the promulgation of the Islamabad High. Court Rules were on the basis of Rules of the Lahore High Court. 20. He next contended that the details of the Petitions filed by the present Petitioner are incorporated in the concise statement filed by the Respondents, by way of C.M.A.No,6198 of 2014, which clearly reflects that the Petitioner with ulterior motives, has repeatedly challenged the appointments of the Respondents, therefore, the present proceedings are tainted with malice and the Petitioner has not approached this Court with clean hands. It was contended by the learned Counsel for the Respondents that the provisions of Article 184(3) of the Constitution which confers jurisdiction on this Court has to be read as a whole. According to him, in exercise of the jurisdiction under Article 184(3), this Court cannot pass any order other than the order which the High Court can pass under Article 199 of the Constitution and that too, with the exception that before exercising the jurisdiction, this Court has to satisfy that the Petition raises question of public importance having nexus with fundamental rights. 21. It is further contended by the learned Counsel that even if one of the ingredients as stated hereinabove is missing, this Court could not entertain the Petition on the ground of maintainability. He next contended that the Petitioner has sought declaration in regard to the appointments on the ground that the said appointments were illegal and made without lawful authority. Such a prayer, according to the learned Counsel, is not covered under the writ of quo warranto. According to the learned Counsel, a writ of quo warranto is discretionary in nature. He submits that the appointments of the Respondents have not been challenged on the ground of their qualifications nor on the basis of encroachment on the fundamental rights of the public at large, therefore, the Petition merits dismissal. 22. The learned Counsel next contended that Article 199 (5) of the Constitution provides protection to the administrative orders of the High Courts. He, while arguing the matter contended that orders passed by the Administration Committee of the High Court could not be challenged under Article 199(5) or 184 (3) of the Constitution. (In support of his contention, he has relied upon the case of Wukala Mohaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263). He submits that in paragraph 3 at page 1301 of the said judgment, this Court has provided protection to the superior judiciary and has placed the same on a higher pedestal providing a shield from challenging its orders passed on the administrative side). He next contended that this issue was dealt with by a Full Bench of the Lahore High Court in the case of Asif Saeed v. Registrar, Lahore High Court and others (PLD 1999 Lahore 350). He, however, contended that the bar contained in Article 199 (5) is not absolute and is subject to exceptions like if the order passed is mala fide, coram non judice and/or without jurisdiction. The learned Counsel states that these exceptions have been accepted as settled principles irrespective of the language of the ouster clause. While developing his arguments, he has referred to Article 199(3) which bars the jurisdiction of the High Court in relation to the matters of Armed Forces, but this bar does not extend if the order challenged before the High Court lacks jurisdiction, is tainted with malice or is coram non judice. 23. The learned Sr. ASC, Iftikhar Hussain Gillani, representing Respondents Nos.3 to 76, has contended that the Islamabad High Court had adopted the Lahore High Court Establishment Rules (Volume-V) 1981, during the interim period, for appointments in the establishment of the Islamabad High Court. He submitted that the Lahore High Court Rules referred to hereinabove were adopted by the Administration Committee of the Islamabad High Court, in terms of the provisions provided in the Islamabad High Court Act, 2010, as an interim arrangement. According to the learned Counsel, the Rules of the Lahore High Court conferred powers on the Chief Justice to appoint any
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person in the establishment of the Islamabad High Court in. Relaxation of the Rules, He submitted that different appointments in the establishment of the Islamabad High Court by the Chief Justice were made in exercise of powers conferred on him under Rule 26 of the LahoreHigh Court Rules 1981, and could not be challenged by any person and/or employee, in view of the bar contained in Article 199(5) of the Constitution. He, however, contended that the bar of Article 199(5) is not absolute and is subject to three exceptions laid down in the case of Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26). He submitted that if an impugned order is (1) without jurisdiction or (2) coram non judice or (3) mala fide,…
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