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Petitioner: Sh. RIAZ-UL-HAQ VS Respondent: FEDERATION OF PAKISTAN through Ministry of LawHonorable Justice Iftikhar Muhammad ChaudhryM. Shoaib Shaheen
2013 P L C (C.S.) 1308
[Supreme Court of Pakistan]
Before Iftikhar Muhammad Chaudhry, C.J., Gulzar Ahmed and Sh. Azmat Saeed, JJ
Sh. RIAZ-UL-HAQ and another
Versus
FEDERATION OF PAKISTAN through Ministry of Law and others
Constitutional Petitions Nos.53 of 2007 and 83 of 2012, decided on 25th March, 2013.
(a) Constitution of Pakistan---
----Art. 9---Access to justice, right of---Scope---Right of access to justice was a well-recognized inviolable right enshrined in Art.9 of the Constitution and was equally found in the doctrine of "due process of law"---Such right included the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court or tribunal.
(b) Constitution of Pakistan---
----Arts. 9 & 175(3)---Access to justice and independent judiciary, right of---Scope---Right of access to justice and independent judiciary was one of the most important rights of the citizens and if there was any threat to the independence of judiciary, it would tantamount to denial of access to justice, which was a fundamental right under Art.9 of the Constitution.
Baz Muhammad Kakar v. Federation of Pakistan PLD 2012 SC 923 ref.
(c) Constitution of Pakistan---
----Art. 184(3)---Public interest litigation, nature of---Jurisdiction of Supreme Court---Scope---Public interest litigation was inquisitorial in nature and not adversarial---Supreme Court had the jurisdiction to adjudicate upon a case if it fell within the ambit of inquisitorial proceedings.
Wattan Party v. Federation of Pakistan PLD 2011 SC 997; All Pakistan Newspapers Society v. Federation of Pakistan PLD 2012 SC 1 and Workers' Party Pakistan v. Federation of Pakistan PLD 2012 SC 681 ref.
(d) Words and phrases---
----"Court"---Meaning.
Corpus Juris Secundum Vol 21; Halsbury's Laws of England, 4th Edn. Vol. 10; The Oxford Companion to Law by David M. Walker; Words and Phrases Legally Defined (1969 Edn. Vol 1, p.367); The Major Law Lexicon, 4th Edn. 2010; Black's Law Dictionary and Ballentine's Law Dictionary ref.
(e) Constitution of Pakistan---
----Arts. 175(3), 2A, Preamble & Part.II, Chap. 1 [Arts. 8 to 28]---Independence of judiciary---Scope and significance---Independence of judiciary was a basic principle of the constitutional system of governance---Constitution made it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances and this was a legal obligation assigned to the Judiciary---Judiciary was called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals, and to do so, it had to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances, and also had to be strong and independent enough to dispense justice fairly and impartially.
Zafar Ali Shah v. Pervez Musharraf PLD 2000 SC 869 ref.
(f) Constitution of Pakistan---
----Art. 8---Vires of legislation---Judiciary, duty of---Scope---Judiciary had the duty to examine vires of a legislation at the touchstone of the Constitution.
Shahid Nabi Malik v. Chief Election Commissioner PLD 1997 SC 32; Chenab Cement Products v. Banking Tribunal PLD 1996 Lah. 672 and Kilbourn v. Thompsons 103 US 168; 26 L ED 377 ref.
(g) Service Tribunals Act (LXX of 1973)---
----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Maintainability---Appointment of Chairman and Members of Federal and Provincial Service Tribunals---Procedure---Constitutionality---Plea that petitioners had no cause of action to file the present petition as the Chairman and the Members of Service Tribunals were appointed in accordance with law, and that the present matter was not one of great public importance and no Fundamental Rights of the petitioner had been infringed---Validity---Civil servants being citizens of Pakistan had Fundamental Rights including the right of access to justice as envisaged under Art.9 of the Constitution---Enforcement of terms and conditions of service of civil servants depended upon an impartial, independent and unbiased Tribunal---(Civil) services were the backbone of the State as the affairs of the Government were performed by the civil servants, therefore, ultimately, the general public got affected from the functioning of the Service Tribunals; as such, present case involved a question of public importance---Constitutional petition was maintainable accordingly.
(h) Service Tribunals Act (LXX of 1973)---
----S. 3---Punjab Service Tribunals Act (IX of 1974), S.3---Balochistan Service Tribunals Act (V of 1974), S.3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 175, 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals, judicial functions of---Scope---Separation of Service Tribunals from the Executive---Scope---Service Tribunals performed 'judicial functions' in exercise of 'judicial powers' conferred upon them by the Legislature and therefore, enjoyed status of a 'Court' and were required to be separated from the Executive in terms of Art.175(3) of the Constitution---Tribunal did not always function as a 'Court', nor its action was always judicial; however, the determining factor was the nature of the dispute to be resolved by the Tribunal---When the Tribunal had to determine a dispute relating to a right or liability, recognised by the Constitution or law and was under an obligation to discover the relevant facts, in the presence of the parties, in the light of the evidence produced by them, it acted judicially---Whenever judicial power was vested in a forum, be it called a Court or Tribunal, for all legal intents and purposes it was a court---Exercise of judicial power was considered to be an essential feature of a court, and it distinguished a court from an administrative tribunal---Under S.5(2) of the Service Tribunals Act, 1973, the Tribunal was deemed to be a civil Court having all the powers which were vested in the civil court---Section 5(1) of Service Tribunals Act, 1973 provided that the Tribunal could set aside, vary or modify the order in an appeal before it, after full and final hearing of the appeal, thus, the Tribunal performed judicial functions---Service Tribunals were not only deemed to be civil court(s) but also exercised judicial powers, therefore, they were included in the term 'Court' mentioned in Art.175 of the Constitution, as such, (Service) Tribunals were to be manned, controlled and regulated in accordance with the law relating to management, regulation and control of courts---Service Tribunals (Federal and Provincial) were bound to follow the principle of independence of judiciary for the purpose of ensuring enforcement of fundamental right of access to justice under Art.9 of the Constitution, thus, they were required to be separated from the Executive under Art.175(3) of the Constitution---Constitutional petition was disposed of accordingly.
Shell Co. of Australia Limited v. Federal Commissioner of Taxation (1930) All E R 671; United Engineering Workers' Union v. Uevanayaqam (1976) 2 All E R 367; Imran Raza Zaidi v. Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha Bhera Bus Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976 Quetta 59; Iftikhar Ahmad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 and Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 ref.
(i) Service Tribunals Act (LXX of 1973)---
----S. 3---Punjab Service Tribunals Act (IX of 1974), S. 3---Balochistan Service Tribunals Act (V of 1974), S. 3--- Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S. 3--- Sindh Service Tribunals Act (XV of 1973), S.3---Federal Service Tribunal Chairman and Members Service Rules, 1983, R.1---Service Tribunals (Qualifications of Members) Rules, 1974, R.2---Constitution of Pakistan, Arts.212(1)(a), 175, 2A, 9 & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Chairman and Members of Federal and Provincial Service Tribunals--- Procedure--- Constitutionality---Consultation with the Chief Justice of Pakistan/Chief Justice of the respective High Court---Scope---Although the Act(s) and the rules (regarding Service Tribunals) did not provide for consultation with the respective Chief Justice, but since (Service) Tribunals established under Art.212 of the Constitution fell within the contemplation of Art.175(3) of the Constitution, the requirements of said provision had to be adhered to while making appointment of the Chairman/Members of the (Service) Tribunals---Matters regarding appointment of the Chairman and Members of the Service Tribunals were as important as those of Judges of the High Courts---Whenever the appointment of a 'judicial officer' or the Chairman/Member of a Tribunal performing 'judicial functions' was made, consultation with the concerned Chief Justice was a prerequisite---For making the Chairman and the Members of the Service Tribunals independent, it was necessary to make their appointments with the meaningful consultation of the Chief Justice i.e. for the purpose of Federal Service Tribunal, with the Chief Justice of Pakistan and for Provincial Service Tribunals, with the Chief Justice of the respective High Court---All appointments made without such consultation were void---Where a retired Judge of the High Court was to be appointed as Chairman of the (Service) Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal---Tenure of such incumbent should not be for a period of more than three years for one time only---Although there were civil servants who were quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members (of Service Tribunals) had to be made in consultation with the Chief Justice, on having gone through the credentials of nominees (civil servants) and by also giving preference to those, who had a legal background and had not reached the age of superannuation in respect to their tenure, which was to be restricted to a one time tenure of not more than a period of three years or till the date of superannuation, whichever was earlier---Where District Judges or incumbent civil servants were not available for appointment, the Executive with the consultation of the respective Chief Justice might appoint Advocates qualified for appointment as a Judge of the High Court, either as a Member or the Chairman(of Service Tribunals), as the case might be---Supreme Court declared that S.3(1), (3), (3)(b), (4) & (7) of the Service Tribunals Act, 1973; S.3(3)(b) of the Sindh Service Tribunals Act, 1973; S.3(3)(b) of the Khyber Pakhtunkhwa Service Tribunals Act, 1974; S.3(3)(b) of the Balochistan Service Tribunals Act, 1974; R.1 of Federal Service Tribunal Chairman and Members Service Rules, 1983, and R.2 of Service Tribunals (Qualifications of Members) Rules, 1974 were void, ultra vires to the Constitution and unconstitutional being in derogation of Arts.2A, 9 and 175 of the Constitution---Supreme Court directed that Federal and Provincial Governments were allowed 30 days' time to make fresh appointments of Chairmen/Members of the (Service) Tribunals, following the conclusions and findings of the present petition; that if no steps were taken within the stipulated time, either through temporary or permanent legislation, the provisions of the legislation which had been declared void (and unconstitutional) would seize to have effect, as a consequence whereof, the incumbent Chairmen/Members of the(Service) Tribunals, whose cases were not covered under the proposed provisions, would seize to hold their positions---Constitutional petition was disposed of accordingly.
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Imran v. Presiding Officer, Punjab Special Court PLD 1996 Lah. 542; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Hazrat Baz v. Political Agent/District Magistrate Khyber Agency PLD 2010 Pesh. 7; Messrs Ranyal Textiles v. Sindh Labour Court PLD 2010 Kar. 27 and S.P. Sampath Kumar v. Union of India AIR 1987 SC 386 ref.
(j) Service Tribunals Act (LXX of 1973)---
----S. 3(3)(b)---Punjab Service Tribunals Act (IX of 1974), S.3(3)(b)---Balochistan Service Tribunals Act (V of 1974), S.3(3)(b)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3(3)(b)---Sindh Service Tribunals Act (XV of 1973), S.3(3)(b)---Constitution of Pakistan, Arts.212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of Members of Federal and Provincial Service Tribunals---Legal/judicial experience of such Members---Scope---Law prescribed that the Chairman of the (Service) Tribunal must be a person who was or had been qualified to be a Judge of the High Court, which had an inbuilt mechanism of having legal/judicial experience, however, there was no requirement of having legal or judicial experience for the Members of the (Service) Tribunal---Where the Members, who belonged to the Executive, constituted a Bench, there was likelihood that they might not be able to decide the judicial question in an appropriate manner, having no judicial experience and if the case was against the orders of the President/Governor or senior officers they might not be able to act fairly, justly and independently being under pressure, thereby eroding the concept of fair administration of justice--- Supreme Court observed that it was necessary that not only the Chairman but the Members of the (Service) Tribunals also had legal/judicial experience, therefore, a person who was or had been qualified to be a District Judge, might be appointed as Member of the (Service) Tribunal--- Constitutional petition was disposed of accordingly.
Muzaffar Hussain v. The Superintendent of Police 2002 PLC (C.S.) 442 ref.
(k) Service Tribunals Act (LXX of 1973)---
----S. 3(3)(a)--- Punjab Service Tribunals Act (IX of 1974), S. 3(3)(a)---Balochistan Service Tribunals Act (V of 1974), S.3(3)(a)---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3(3)(a)---Sindh Service Tribunals Act (XV of 1973), S.3(3)(a)---Constitution of Pakistan, Arts.212(1)(a) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Appointment of a sitting Judge of the High Court as Chairman of Federal/Provincial Service Tribunal---Propriety---Supreme Court observed that preferably, it would be appropriate and in the interest of the institution if a sitting Judge (of the High Court) was not asked to perform his duties as Chairman of a Federal or Provincial Service Tribunal, however, appointments for the position of Chairman could conveniently be made from amongst the Judges who had been Judges of the High Court--- Constitutional petition was disposed of accordingly.
(l) Service Tribunals Act (LXX of 1973)---
----S. 3-A---Punjab Service Tribunals Act (IX of 1974), S.3-A---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.5---Balochistan Service Tribunals Act (V of 1974), S. 3(3)---Sindh Service Tribunals (Procedure) Rules, 1974, Rr.23 & 24---Constitution of Pakistan, Arts.212(1)(a), 9 & 184(3)--- Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Composition of Benches---Guidelines---Supreme Court observed that the Chairman should preferably constitute each bench comprising of one judicial/legal Member and one Member from civil service; that in such a situation, with reference to the disputes of civil servants, both (Members) could give their input on the judicial and executive sides, which would improve the quality of decision making and the judgments pronounced and strengthen the independence of judiciary in its role of enforcing the Fundamental Right of access to justice, and that where a single Member Bench was to be constituted, preference should be given to the judicial Member to hold the hearing.
(m) Service Tribunals Act (LXX of 1973)---
----S. 3---Punjab Service Tribunals Act (IX of 1974), S.3---Balochistan Service Tribunals Act (V of 1974), S.3---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.3---Sindh Service Tribunals Act (XV of 1973), S.3---Constitution of Pakistan, Arts.212(1)(a), 175(3) & 184(3)---Constitutional petition under Art.184(3) of the Constitution---Federal and Provincial Service Tribunals---Financial autonomy---Allocation of independent budget---Scope---(Service) Tribunals, as judicial fora, should enjoy financial autonomy as had been given to the High Courts and the Supreme Court, otherwise they cannot discharge their functions independently---(Service) Tribunals must be duly empowered to disburse their annual funds, allocated by the Parliament and the Provincial Assemblies, in their respective annual budgets, within the prescribed limit by the Chairman of the respective Tribunals, without the need to seek approval of the Finance Ministry or Provincial Finance Department---Supreme Court directed that independent budgetary allocation for annual expenditures of the Service Tribunals should be provided for in accordance with the Constitution, enabling the Tribunals to function independently---Constitutional petition was disposed of accordingly.
Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 ref.
M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in Constitutional Petition No.53 of 2007).
Nemo for Petitioners (in Constitutional Petition No.83 of 2012).
Attorney General for Pakistan (absent) on Court's Notice.
Muhammad Azam Khattak, Addl. A.-G. for Government of Balochistan.
Syed Arshad Hussain Shah, Addl. A.-G. for Government of Khyber Pakhtunkhwa.
Jawwad Hassan, Addl. A.-G. for Government of Punjab.
Muhammad Qasim Mirjat, Addl.A.-G. for Government of Sindh.
Raja Faisal Iftikhar, Deputy Secretary for Law Commission.
Date of hearing: 9th January, 2013.
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, I 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) 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 Act, 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 subsections (3), sub-section (4), subsection (5) or subsection (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. Subsection (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 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…
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