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Petitioner: RASHEED A. RAZVI VS Respondent: PROVINCE OF SINDH through Chief SecretaryHonorable Justice Anwar Zaheer Jamali,Muhammad Yusuf Leghari
2009 P L C (C.S.) 841
[Karachi High Court]
Before Anwar Zaheer Jamali C. J., Khilji Arif Hussain, Sajjad Ali Shah, Nadeem Azhar Siddiqi and Muhammad Karim Khan Agha, JJ
RASHEED A. RAZVI and others
Versus
PROVINCE OF SINDH through Chief Secretary and others
Constitutional Petitions Nos.D-2404 of 2008 and D-38 of 2009, decided on 15th June, 2009.
Sindh Judicial Service Rules, 1994---
---Rr. 2 & 5---Sindh Government Notification No.S.O.R.-I (5GA&CD) 2-3/93, dated 4-12-2008---Constitution of Pakistan (1973), Arts.199, 4, 9; 14, 175 & 203---Constitutional petition---Grievance of the petitioners was that issuance of Notification No.S.O.R.-I(5GA&CD) 2-3493, dated 4-12-2008 was violative of Arts.4, 9, 14, 175 & 203 of the Constitution and also against the doctrine of separation of powers and independence of judiciary inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Pakistan (PLD 1989 Kar. 404), which was maintained by the Supreme Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) and following the directions contained in the said judgment, the Government of Sindh, in, exercise of its power under S.26, Sindh Civil Servants Act, 1973 framed Sindh Judicial Service Rules, 1994 for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto---In the terms of Sindh Judicial Service Rules, 1994 (before the issuance of impugned notification) the position was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under R.2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the "Provincial Selection Board"; however, after the issuance of Sindh Government Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 in this regard now the only authority left with .the High Court of Sindh was the formality of sending requisition to the "Commission" as defined under newly added R.2(aa) of the Sindh Judicial Service Rules, 1994---Moot question for consideration of the present five members Full Bench was, whether, despite clear and unambiguous directions of a Full Bench of Sindh High Court contained in Sharaf Faridi's case affirmed by the Supreme Court, Sindh Judicial Service Rules, 1994 framed in compliance of such directions, could be amended so as to negate the very spirit and directions in the said judgment and also to cause a serious blow to the sanctity of a separate and independent judiciary in the Province of Sindh---Held, result of impugned notification was that in a very arbitrary and crude manner the role of superior judiciary in the matter of recruitment and appointment of Civil Judges-cum-Judicial Magistrates had been completely eliminated, except to the extent of sending a requisition, which was nothing but a formality---Issuance of the impugned notification, amounted to negating the directions of Full Bench of the Sindh High Court contained in Sharaf Faridi's case---By issuing the impugned notification which amended the Sindh Judicial Service Rules, 1994, Government of Sindh took a step which was contrary to settled procedure and practice, unconventional and unilateral, which paralyzed the very basic structure of the recruitment process as earlier envisaged in the said Rules for appointment of Judicial Officers--Terms "recruitment" and "appointed" used in the Rules did not convey a symbolic authorization for the High Court to issue requisition to the Government for this purpose or to sign for or issue appointment letters of the Judicial Officers, leaving the other main crucial exercise of the selection of a transparent subordinate judiciary in the hands of the executive authorities, rather they provided for complete exercise of such selection process commencing from the stage of advertisement in the newspapers for inviting applications against the available vacancies, and culminating at the stage of issuance of appointment letters, after its formal procedural approval from the Provincial Government. and consequent notification to that effect---If amended Rules as per notification were implemented, their net result would be that the High Court of Sindh under whom the newly appointed Judicial Officers have to work would become only an authority, that has to make requisition to the Provincial Public Service Commission for such appointments with no further role or participation at any stage---Provincial Public Service Commission had no jurisdiction to play any role in the recruitment/appointment of Civil Judges and Judicial Magistrates, which exercise exclusively fell within the domain of the "Provincial Selection Board" formed under Sindh Judicial Service Rules, 1994, which was substantiated by the fact that Civil Judges-cum-Judicial Magistrates, after their recruitment, in judicial service, did not acquire the status of "civil servants"---All the members of the "Provincial Selection Board" established under Rule 2(e) of the Sindh Judicial Service Rules, 1994 were none else, but sitting Judges of the High Court of Sindh before whom most of the candidates who might have applied for such posts, must have been appearing frequently---Impact of the impugned notification over the Sindh Judicial Service Rules, 1994 was cutting at the very root of the concept of separation of power and independence of judiciary; on one hand by addition of sub-Rule (aa) to R.2, it introduced a new Institution (Sindh Public Service Commission) which was otherwise an alien to the Rules, and on the other hand, by amendment in R.5, it completely ousted the role of "Provincial Selection Board" and made the highest Court of the Province simply an Institution, that could only furnish requisition for new appointments/recruitment of Civil Judges and Judicial Magistrates to the Government, with no further role to play at any stage of such exercise---Doctrine of separation, of Judiciary from the Executive and independence was not only to be gauged on the yardstick of the relevant constitutional provisions and settled law by the superior Courts, but also from the public perspective---Under the doctrine of separation of powers there was no room for any adversarial stance between the pillars of the State viz. Legislature, Executive and Judiciary, rather said system could flourish and become strong when each of three organs of the State function strictly within their domain and jurisdiction, with respect of each other and spirit of harmonious working without any overlapping or sharing of powers---Independence of judiciary was something, which was to be jealously guarded and could not be compromised at any cost---Initial appointment/recruitment of Civil Judges/Judicial Magistrates was its integral part, forming its foundational stone, thus, the impugned notification negating said position and transgressing the limits of judicial independence was liable to be struck down being mala fide, without jurisdiction and ultra vires the Constitution---High Court, declared that amendments made in Rules 2 & 5 of the Sindh Judicial Service Rules, 1994 and the Notification No.S.O.R.-I(5GA&CD)2-3/93, dated 4-12-2008 were without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires the Constitution and that the amendments made in -Rr.2 & 5 of the Sindh Judicial Service Rules, 1994 were illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to, and in violation of Arts.4, 9, 14, 175 & 203 of the Constitution---Principles exhaustively recorded by High Court with comparative survey of the system of recruitment of Judicial Officers and independence of judiciary of other countries of the world and examined constitutional history of Pakistan and Reports submitted at different times in the past on the subjects.
Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Government of Sindh v. Sharaf Faridi PLD 1994 SC 105; Government of Balochistan through Additional Chief 'Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324; Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416; Chandra Mohan v. State of U.P. AIR 1966 SC 1987; State of Kerala v. A. Lakshimikutty AIR 1987 SC 331; State of Assam v. Kusseswar AIR 1970 SC 1617; Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595; Syed Imam Shah and others v. Government of N.-W.F.P. PLD 2004 SC 285; Federation of Pakistan v. Ammar Textile Mills, (Pvt.) Limited and others 2002 SCMR 51C;, Nawaz Ali Sher v. Province of Sindh 1988 PLC (C.S.) 337; Manthar Ali Jatoi Vs. The Government of Sindh 1988 PLC (C.S.) 344; "Constitutional & Administrative Law" by Hilaire Barnett (Fifth Edition published in the year 2004); De 1'Esprit des lois' (The Spirit of the Laws) (1748); Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445; Haji Hashmatullah v. K.M.C: PLD 1971 Kar 514; Ghulam Mustafa Khar v. Federation of Pakistan PLD 1988 Lah. 49; Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26; Manzoor Ahmed Wattoo v. Federation of Pakistan PLD 1997 Lah. 38 and Muhammad Mubinus Salam and others v. Federation of Pakistan and others PLD 2006 SC 602 ref.
Petitioner No.1 in person assisted by Tahmasp R. Razvi and Mrs. Umaimah A. Razvi (in C.P. No.D-2404 of 2008).
Petitioner No.2 Sindh High Court Bar Association (in C.P. No.D-2404 of 2008) through Petitioner No.1.
Petitioner No.1 in person in (C.P. No.D-38 of 2009). Petitioner No.2 Sindh Bar Council (in C.P. No.D-38 of 2009) through Petitioner No.1.
Muhammad Yusuf Leghari, Advocate-General Sindh along with Muhammad Sarwar Khan, Addl., A.-G. Sindh for Respondents Nos.1 and 2 (in both the petitions).
Ashraf Mughal, Deputy Attorney-General for Respondent No.3 (in both the petitions).
Dates of hearings: 10th and 15th June, 2009.
JUDGMENT
ANWAR ZAHEER JAMALI, C.J.--These two constitutional petitions; one filed by the Sindh High Court Bar Council and its President Mr. Rasheed A. Razvi, and the other filed by the Sindh Bar Council, and its Chairman Executive Committee Mr. Abdul Haleem Siddiqui, both challenging the legality of the Notification No.SOR-1 (5GA&CD)2-3/9 dated 04.12.2008 (hereinafter referred to as the impugned Notification), were heard together and vide our short order dated 15-6-2009 allowed to the extent of prayer clauses (a) and (c) to the petitions, which read as under:---
(a) That this Honourable Court be pleased to declare that the Amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994 and the Notification dated 4-12-2008 (Annexure "A") are without lawful authority, mala fide, of no legal effect and liable to be struck down as ultra vires of the Constitution, 1973.
(c) A further declaration that the amendments made in Rules 2 and 5 of the Sindh Judicial Service Rules, 1994, are illegal, violative of the concept of independent judiciary and inconsistent with, contradictory to and in violation of Articles 4, 9, 14, 175 & 203 of the Constitution, 1973.
2. Before we proceed to record common reasons for the above short order, for ease of reference impugned Notification is reproduced as under:--
"Government of Sindh Services Central Administration Co-ordination Department (Regulation) Wing
Notification.
No.S.O.R.-I(5GA&CD) 2-3/93. In exercise of the powers contained in section 26 of the Sindh Civil Servant Act, 1973. The Government of Sindh are pleased to make the following amendments in the Sindh Judicial Service Rules 1994.
Amendments
In rule 2, after clause (a) the following new clause shall be inserted: ---
"(aa) "Commission" means the "Sindh Public Service Commission"
In rule 5, in sub-rule (1), for the words "on the recommendations of the Provincial Selection Board" the words "through Commission on the requisition of the High Court of Sindh" shall be substituted.
Fazal-ur-Rehman. Chief Secretary Sindh"
No. S.O. R.-I(5GA&CD) 2-3/93,
Karachi dated the 4th December, 2008
3. In a nutshell, the common grievance of the petitioners is that issuance of impugned Notification is violative of Articles 4, 9, 14, 175 and 203 of the Constitution of Islamic Republic of Pakistan 1973 (hereinafter referred to as the "Constitution") and also against the doctrine of separation of powers and independence of judiciary, inter alia, as already laid down by a seven members Bench of Sindh High Court in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404, which was maintained by the Honourable Supreme Court of Pakistan in the case of Government of Sindh v. Sharaf Faridi PLD 1994 SC 105.
4. Some other relevant features of the case gathered from the record are that after the pronouncement of judgment in the case of Sharaf Faridi (supra), following the directions contained therein, the Government of Sindh, in exercise of its power under section 26 of the Sindh Civil Servants Act, 1973, framed Rules for regulating recruitment in the Sindh Judicial Service prescribing various conditions of service for the persons appointed thereto.
5. In terms of these Rules, position as it stood before the impugned Notification was that the whole selection process for the recruitment of Civil Judges/Judicial Magistrates was to be undertaken by the "Provincial Selection Board" constituted under section 2(e) of the Sindh Judicial Service Rules, 1994, in a manner prescribed therein, whereafter appointments were to be made by the Provincial Government on the basis of such recommendation of the Provincial Selection Board. However, after the issuance of impugned Notification in this regard, now the only authority left with the High Court of Sindh is the formality of sending requisition to the "Commission" as defined under newly added Rule 2(aa) of the Sindh Judicial Service Rules, 1994 (in short Rules of 1994").
6. Notices of these petitions were issued to respondents as well as to the Attorney-General of Pakistan and Advocate-General Sindh, calling upon them to submit their parawise comments in terms of the order dated 16-12-2008. In response to it, on behalf of respondent No.3 (Federation of Pakistan), following statement was filed in Court on 13-1-2009:---
"It is submitted that the above titled petition mainly relates to respondents Nos.1 and 2 i.e. Government of Sindh. This Ministry is impleaded as pro forma respondent (No.3) and no relief whatsoever has been claimed/sought against it. Hence, no comments are offered on behalf of respondent No.3."
7. On behalf of respondent No.1 (Province of Sindh), precisely their case is that the impugned Notification is neither ultra wires, nor mala fide but has been issued to bring the policy of recruitment in the Sindh judiciary in consonance with the one followed in the other three Provinces of the country i.e. Punjab, N.-W.F.P. and Balochistan. Respondent No.1 also denied the allegations that the impugned Notification undermines the independence of judiciary or is violative of any judgment of the apex Court touching upon the issue of the independence of judiciary or appointment of Judges in the District judiciary.
8. The respondent No.2 (Sindh Public Service Commission) in their parawise comments have more or less, endorsed the case of respondent No.1 as regards the merits of the impugned Notification. They further stated that the office of "Sindh Public Service Commission" is an important institution of the Government under the Constitution. Thus, exercise for recruitment of Civil Judges .and Judicial Officers, if undertaken, through this office will cause no harm to the concept of independence of judiciary.
9. Mr. Rashid A. Razvi Advocate/petitioner in his arguments submitted that the legality or otherwise of the impugned Notification is to be examined by the Court, keeping in view the following four important aspects of this controversy:---
(a) Whether the impugned Notification is violative of Articles 2A, 4, 9, 14, 175 and 203 of the Constitution?
(b) Whether the impugned Notification is against the scope and spirit of independency(?) of judiciary as laid down in the Constitution?
(c) Whether the Sindh Government was competent to bring amendment in the Sindh Judicial Service Rules of 1994, despite directions contained in the case of Sharaf Faridi v. Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404?
(b) Whether the amendments brought through impugned Notification needed prior approval of the Sindh High Court?
10. Dilating upon the above aspects of the matter, Mr. Razvi vehemently contended that the Constitution of Pakistan has a basic structure, providing for a trichotomy of powers between the three organs of State i.e. Legislature, executive and judiciary. In this regard much law has been laid down by the superior Courts while analyzing the scope of Articles 2-A, 175 and 203 of the Constitution together with fundamental rights guaranteed under Chapter-II of the Constitution. These Articles envisage complete independence of judiciary in all respects, including financial matters. Unfortunately, contrary to the same, the executive is bent upon encroaching the independence of judiciary by creating financial constraints in its working and also by creating administrative hurdles in its smooth functioning. The impugned Notification is a glaring instance of such mindset of the executive to undermine the independence of judiciary. Learned counsel further contended that unless the judiciary is allowed to function independently in the matter of fresh appointments in judicial service, the very concept of its independence will be compromised and there will be a complete failure of this organ of the State in the performance of its duties and functions if for this purpose it has to seek assistance from the Executive and is left at the mercy of the executive authority of the Province.
11. Making reference to the earlier notified Rules dated 24th November 1994, he submitted that these Rules were framed after their approval from the Full Court of High Court of Sindh, therefore, even if for argument's sake, any amendment was needed in it; as a pre-condition for that, a reference should have been made to the High Court for seeking its approval or otherwise from the Full Court, instead of permitting the executive for unilaterally exercising its authority and circumventing the role of the provincial High Court. Thus, thrusting its decision upon the highest judicial forum of the Province.
12. Mr. Rasheed A. Razvi also made reference to the process of recruitment undertaken by the High Court from time to time through the Provincial Selection Board after the enforcement of the Sindh Judicial Service Rules, 1994 in the Province of Sindh, to show the level of its transparency and "merit criteria", due to which, on several occasions even the available vacancies of the judicial officers could not be filled up by the Provincial Selection Board despite much higher number of applicants/candidates for these posts. In support of his submissions learned counsel made reference to the following cases:
(1) Sharaf Faridi and 3 others v. the Federation of Islamic Republic of Pakistan through Prime Pakistan Balochistan another PLD 1989 Kar. 404, (2) Government through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341, (3) Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others PLD 2000 SC 869, (4) Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan PLD 1996 SC 324, (5) Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504, (6) Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, (7) Benazir Bhutto v. Federation of Pakistan PLD 1998 SC 416. 13. Before we proceed further, it will be useful to, reproduce herein under, the relevant extracts from the above cited cases as referred to and relied upon by Mr. Rasheed Razvi.
Sharaf Faridi and 3 others v. the Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another.
"Reference may also be made to the Ballentine's Law Dictionary, Third Edition and Black's Law Dictionary, Fifth Edition for the meaning of the words "control" and "supervise".
Ballentine's Law Dictionary.
`Control': Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb 98 Ala 426, 432 Noun: A position of authority in direction and management.
`Supervise'. To exercise oversight. To keep under inspection.
See Superintendence.
'Superintendence': Oversight, inspection, supervision, Moffitt v. Asheville, 103 NC 237, 9 SE 695. Care and oversight for the purpose of direction, and with authority to direct. The act of superintending.
"The word seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight." Dantzler v. De Bardeleben Coal and Iron Co. 101 Ala 309, 14 So 10.
Black's Law Dictionary.
`Control': v. To exercise, restraining or directing influence over. To regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.
`Control': n. power or authority to manage, direct, superintend, restrict, regulate,-govern, administer, or oversee. The "control" involved in determining whether "principal and agent relationship" or "master and servant relationship" is involved must be accompanied' by power or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2 d 972."
'Supervise'. To have general oversight over, to superintend or to inspect. See Supervisor, "Supervisor". A surveyor or overseer. Also in some states, the chief officer of a town; one of a board of country officers.
In a broad sense, one having authority over others, to superintend and direct.
The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment. National Labour Relations Act S.2(11)."
I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in extent and effective in operation. It comprehends the administrative power as to the working of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or a notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of the Constitution. Besides it: will militate against the concept of separation and independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives Resolution.
The Constitution should not be interpreted in a narrow and broad pedantic manner. It should be given interpretation but any enactment which transgresses the limitations placed by Constitution would be declared void. If there is a conflict in the provisions of the Constitution they should be interpreted harmoniously so that without violating the other both can be practised and coexist. In such a situation a construction which ensures smooth working of the Constitution in consonance with its other provisions should be adopted. No provision of the Constitution unless so provided by the Constitution itself is supreme to the other nor can it override the other provisions. Such interpretation should be adopted which promotes harmony, consistency and keeps the Constitution alive and progressive.
A mandatory duty has been cast upon the Executive and Legislature to separate the Judiciary from Executive, but they have remained completely silent, dormant and unconcerned. Such omission to exercise jurisdiction not only violates Article 175 but infringes Fundamental Right as well. In such circumstances necessary orders can be passed and direction in mandatory form can be issued to ensure enforcement of the provisions of the Constitution and to…
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