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Official Citation: 2025 IHC 212925
Court / Jurisdiction: Islamabad High Court
Parties: Muhammad Shabbir vs The Registrar, Islamabad High Court, Islamabad etc
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2025 IHC 212925. In this matter between Muhammad Shabbir and The Registrar, Islamabad High Court, Islamabad 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 Babar Sattar) AUTHOR JUDGE: Honourable Mr. Justice Babar Sattar DECISION DATE: 13-MAR-2025 CASE NO: Judicial Service Appeal-3-2016 CITATION: 2025 IHC 212925 PARTIES: Muhammad Shabbir VS The Registrar, Islamabad High Court, Islamabad etc LAW / SECTION: - SUBJECT: , REMARKS: Absorption of respondent No.2 as Senior Civil Judge and further promotion as AD&SJ may be set aside. The appellant may be promoted as AD&SJ with all back benefits. ============================================================ HCJD/C-121 JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD Judicial Service Appeal No.03 of 2016
Muhammad Shabbir Versus Registrar, Islamabad High Court and another
Appellant by : Mr. Asad Iqbal Siddiqui, Advocate Mr. A. Ammar Sehri, Advocate
Respondents by : Malik Abdul Rehman, State Counsel. Mr. Rizwan Shabbir Kayani, Advocate and Hafiz Farman Ullah, Advocate for respondent No.2. Mr. Muhammad Asif Iqbal, Departmental Representative for respondent No.1
Date of Hearing : 13.03.2025 ____________________________________________ Babar Sattar, J: - Through this appeal, the appellant Mr. Muhammad Shabbir ( a member of Islamabad District Judiciary) challenged (i) the absorption of respondent No.2 (i.e. Mr. Shahrukh Arjum and, District & Sessions Judge Islamabad) pursuant to notification dated 14.0 3.2012 as Senior Civil Judge, (ii) notification dated 27.06.2012 pursuant to which the services of respondent No.2 were regularized by curtailing the perio d of his probation, and (iii) notification dated 27.06.2012 pursuant to which respondent No.2 was promoted as Additional District and Sessions Judge (“AD&SJ”). The appellant also sought back benefits from 27.06.2012 when respondent No.2 being his junior was promoted to the position of AD&SJ. 2. The facts o f the case are straightforward. Respondent No.2 was appointed by the Public Service Commission for the province of Khyber Pakhtunkhwa (“KP”) as a Civil Judge by Notification dated 25.06.2003. He was promoted to the post of
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Senior Civil Judge by Peshawar High Court, which was notified on 15.07. 2010. The Islamabad High Court (“IHC”) appointed him against the post of Senior Civil Judg e in Islamabad on deputation basis , and he assumed charge of his office on 01.02.2012 after being permitted by the Peshawar High Court on 25.01.2012 to serve on deputation in Islamabad High Court. By Notification dated 14. 03.2012, a total of 11 Judicial Officers from Khyber Pakhtunkhwa Judicial Service serving on deputation basis in Islamabad were per manently absorbed in Islamabad Judicial Service in exercise of authority under Rule 8 of the I slamabad Judicial Service Rules , 2011 (“Judicial Service Rules”) , purportedly pursuant to a decision rendered by the Chief Justice and Judges of the Islamabad High Court. It was notified on 27.06.2012 that the Chief Justice of IHC on the recommendation of the Administration Co mmittee of IHC has regularized the services of respondent No. 2 as Senior Civil Judge, by curtailing his probation period on account of his record and satisfactory performance. On the very sa me day i.e. 27.06.2012, the Chief Justice promoted respondent No.2 to the post of AD&SJ, on the recommendation s of the Administration Committee IHC. T he Appellant , being a first-time appointee inducted in Islamabad Judicial Service as Civil Judge in terms of Rule 6 of the Judicial Service Rules , impugned the notifications absorbing respondent No. 2 against the post of Senior Civil Judge and promoting him as AD&SJ after curtailing his probation period, all with in five months of his appointment in IHC on deputation basis. Arguments of the Appellant 3. Learned counsel for the appellant submitted that in terms of Section 6( 3) of the Islamabad High Court Act 2010 (“IHC Act”), IHC was under a statutory obligation to establish subordinate judiciary for Islamabad Capital Territory (“ICT”) within 6 months of entry into force of IHC Act, which was gazetted on 02.08.2010. Section 6( 3) explicitly provi ded that judges of subordinate j udiciary working on deputation were to be sent back to their respective High Courts after establishment of the subordinate judiciary for ICT. Islamabad High Court then enacted Judicial Service R ules, which were gazetted on 13.05.2011. These Rules were enacted pursuant to section 6 of
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the IHC Act read with Article 203 of the Constitution. Rule 6 of the Judicial Service Rules provided for first time appointments, which were to be made through a competitive process that was run by the Judicial Selection Board of I HC. The Judicial Officers of a ll Provincial Judicial Services were eligible to apply. The appellant applied in terms of the Rules 6 and 7 of the Judicial Service Rules and scored the highest score in the interview with the Judicial Selection Board amongst Civil Judges appointed on first time appointment basis by notification dated 15.10.2011. 4. He submitted that respondent No.2 was posted as a Senior Civil Judge in Islamabad Judicial Service on the basis of deputation and he joined his post on 01.02.2012. The notification of his permane nt absorption in Islamabad Judicial Service as Senior Civil Judg e dated 14. 03.2012, was illegal as pursuant to Rule 8 of the Judicial Service Rules only such members of Judicial Services of p rovinces could be absorbed permanently in Islamabad Judicial Service who we re already posted on deputation and serving under the juri sdiction of IHC on the date of enactment of the Judicia l Service Rules (i.e. 13.05.2011). As the petitioner was not serving on deputation in Islamabad Judicial Service at the time of enact ment of the Judicial Service Rules and was posted to Islamabad Judicial Service on deputation with effect from 01.02.2012, he could not have been absorbed in Islamabad Judicial Service in exercise of authority under Rule 8 of the Judicial Service Rules. He submitted that even his posting on deputation basis was in conflict with Rule 10 (b) of the Judicial Service Rules, which provided that appointment to the po st of Senior Civil Judge could only be made from amongst civil judges serving in Islamabad Judicial Service on seniority -cum-merit basis on the recommendation of IHC Departmental Promotion Committee. To the extent that the post of Senior Civil Judge was vacant , the appellant was entitled to be considered for such post in terms of rule 13( 1) of the Judic ial Service Rules, as he had pr eviously served in Balochistan Judicial Service before being appointed in Islamabad Judicial Service on 04.11.2008. After joining the Islamabad Judicial Service on first time appointment basis, he stood confirmed with ef fect from the date of his appointment (i.e. 15.10. 2011) in terms of Rule 20 of the Judicial Service
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Rules on a permanent basi s. He submitted that while respondent No.2 could not have been absorbed in Islamabad Judicial Service pursuant to Rule 8, even if he cou ld be deemed to have been absorbed while serving on deputa tion, he was to remain on probation for a period of one year in terms of r ule 20(2) of the Judicial Service Rules. In terms of the third provis o to rule 20(2), the High Court in exceptional circumstances could reduce the period of probation. Respondent No. 2's probation was curtailed by notificati on dated 27. 06.2012, merely three and a half mo nths after his absorption on 14. 03.2012 against the post of Senior Civil Judge. This notification was illegal as the curtailment had been ordered by the Chief Justice of IHC on the recommendations of the Administration Committee IHC, e ven though the third proviso to r ule 20(2) provided that it was the High Court that could reduce the period of probation. The notification was there fore coram non judice as the instances where authority was to be exercised by the Chief Justice or the Administration Committee were explicitly specified in the Judicial Service Rules. Further, probation could only be reduced in exceptional circumstances. But the reason mentioned in the impugned notification dated 27. 06.2012 curtailing the probation of respondent No.2 was his record of satisfactory performance. Such reason did not constitute any exceptional circumstance. The said notification suffered from malice in law as it also curtailed the probation of Mr. Abdul Ghafo or and Mr. Mohammad Suhail, who were Civil Judges being first time appointees. In terms of Rule 20(1) of the Judicial Service Rules they stood confirmed from the date of t heir appointments (i.e. 15.10.2011) and were not on probation on 27.06.2012. Learned counsel for the appellant then submitted that on the very same day when respondent No. 2's probation was cur tailed, he was appointed to the post of AD&SJ on promotion basis . Such appointment by promotion was to be made on a seniority -cum- merit basis, but no seniority list was issued prior to ordering the promotion of r espondent No. 2. The said promotion notification was also coram non judice, as it stated that the promotion had been approved by t he Chief Justice on the recommendations of the Administration Committee of IHC, even though Rule 13( 4) clearly provided that it was for the Departmental Promotion
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Committee to consider a panel of three Judicial Officers for each post to be filled by promotion, on the basis of seniority. And the recommendations of the Departmental Promotion Committee were to be submitted for the consideration of the Chief Justice IHC for appointment by promotion. 5. He contended that the sequence of e vents starting from posting of respondent No.2 on deputation against a post of Senior Civil Judge to his absorption , when no provision existed for absorption of deputationists posted to Islamabad Judicial Service after 13.05.2011 , to the curtailment of his probation without assigning any exceptional circumstances and his promotion to the post of AD&SJ on the same date reflect ed that there was a pre -conceived plan to bring respondent No.2 from the KP Judicial Service to Islamabad Judicial Service for purposes of appointment to the post of AD&SJ, which post could only be filled on promotion basis or through initial appointment. He further submitted that it was only where certain vacancies remained unfulfilled after absorption of already serving deputationists at the time of enactment of Judicial Service Rules and after making first time appointments , that a member of the Judicial Service of a province could be posted to Islamabad Judicial Service on deputation basis under Rule 9 of the Judicial Service Rules. Even though the provision was against rule 6(3) of IHC Act, t he principles regulating appointment on deputation basis applied and such appointments being temporary in nature, the deputationists so appointed were required to be repatriated to their respective Judicial Services after serving the deputation period. The deputatio nists, such as respondent No. 2, could not be absorbed in the permanent estab lishment of Islamabad Judicial service as no provision of law existed that permitted the same. Similarly, rule 30(3) of the Judicial Service R ules also created some room for the Chief Justice to borrow services of Judicial Officers from provincial High Courts. But such authority while being contrary to Section 6(3) of the IHC Act was provided for ap pointments on a temporary basis as evident from Rule 30(4) of the Judicial S ervice Rules. He submitted t hat the Supreme Court in Ch. Muhammad Akram v. Registrar, Islamabad High Court (PLD 2016 SC 961) had declared that appointments made in IHC against the pr inciples of
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transparency where absorptions , and promotions hav ing been made against provisions of the IHC Act read with the relevant Rules were to be set aside. And the officials serving in the IHC establishment were to be repatriated back to their parent departments. Learned counsel for the appellant submitted that he had placed all these legal objections in the form of a representation before the Registrar, which had not been decided through a reasoned order, hence the appeal. He submitted in the alternative to the principal prayers in the appeal that in the event that the Tribunal found the appointment of Respondent No. 2 to be legal, he be promoted as AD&SJ with back benefits with effect fro m 27.06. 2012 when respondent No. 2 was appointed against the post of AD&SJ. Arguments of the State Counsel 6. Learned State Counsel representing the Registrar IHC also took the Court through the factual background of the matter. He submitted that the Judicial Service Rules made allowance for appointments on deputation basis in term s of Rule 9 of the Judicial Service Rules. It was in exercise of the authority under Rule 9 that respondent No.2 was posted as Senior Civil Judge on deputation basis in Islamabad Judicial Service . He submitted that a deputationist could apply for absorptio n in terms of Rule 8 of the Judicial Service Rules and t he Chief Justice could approve such absorptio n on the recommendation s of the Administration Committee . And in the instant case t he notification stated that the decision for absorption had been taken b y the Chief Justice and Judges of the IHC . He then submitted that third proviso to Rule 20(2) of the Judicial Service Rules vested authority in the High Court to reduce t he period of probation. This authority was used by the Chief Justice on the recommendation of t he Administration C ommittee and the probation period of respondent No. 2 was cur tailed by notification dated 27. 06.2012. The notification itself stated that the satisfactory performance of respondent No.2 was the reason why his probation had been c urtailed. Respondent No.2 was the only Senior Ci vil Judge eligible to b e promoted to the post of AD&SJ upon curtailment of his pro bation and was consequently promoted to the post of AD&SJ in terms of Rule 13 of the Judicial Service Rules. The learned State Counsel further
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submitted that , both, Rules 9 and 30(3) provided for appointments to Islamabad Judici al Service on deputation basis, which is why not just respondent No. 2 but till d ate Islamabad High Court was continuing to appoint Judicial Officers within Islamabad Judicial Serv ice on deputation basis by borrowing their services fro m the Judicial Services of the provinces. 7. By order dated 05.12.2024, the Registrar as r espondent No.1 was directed to provide all relevant documents to the State Counsel and such directions were repeated on 19.12.2024 when the State Counsel appearing for respondent No. 1 was asked to take this Tribunal through the relevant record and the minutes of meeting of the Administration Committee and the Full Court that rendered the d ecisions notified in the impugned notifications. He was unable to do so. He submitted that he had not been provided with copies of the minutes of the meetings and was not privy to any reasoning recorded by the Administration Committee and/or t he Chief Just ice, while rendering the decisions notified through the i mpugned notifications. When asked to show the Court the orders o f IHC directing that r espondent No.2 be appointed in Islamabad Judicial Service on deputation basis, he was unable to do so and relied on a n order of Peshawar Hi gh Court dated 25.01. 2012 permitting respondent No.2 and 10 other Judicial Officers of the KP Judicial Service to join Islamabad Judicial Servi ce on deputation basis, and stated that he had not been provided the relevant record of the IHC's decision in terms of Rule 9 of the Judicial Service Rules. When asked as to how the Administratio n Committee of IHC recommended respondent No.2 for promotion in terms of Rule 13 of the Judicial Service Rules when authority for such purpose was v ested in the Departmental Promotion Committee, he was unable to provide a reason and ventured a guess that at the relevant time perhaps the composition of the Departmental Promotion Committee and the Administration Committee was identical. The Deputy Regis trar, who appeared on behalf of the Registrar IHC, was also asked the same questions and was directed to produce the relevant record , including minutes of meeting of (i) judges of the High Court rendering decisions on behalf of the High Court, (ii)
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Administration Committee, and (iii) Departmental Promotion Committee. But he too expressed his inability to do so and produced no such record. Arguments of Respondent No.2 8. Learned counsel for respondent No.2 also took the C ourt through the factual details of r espondent No.2's service in the KP Judicial Service (which has already been detailed above ). He submitted that respondent No. 2 was transferred to Islamabad Judicial Service on deputation basis in terms of the order of th e Peshawar High Court, dated 25.01. 2012. He was then permanently absorbed in I slamabad Judicial Service on 14.03.2012. As he was serving against the post of Senior C ivil Judge at the time of his abs orption and was o n probation , in terms of the third proviso to Rule 20(2) of the Judicial Serv ice Rules his probation was curtailed by noti fication dated 27.06.2012. This was because he had already served against the post of Senior Civil Judge in KP Judic ial Service . He was considered for the post of AD&SJ in terms of Rule 13 of the Judicial Servic e R ules and promoted to such post on 27.06.2012. 9. He submitted that , at the relev ant time no seniority list for Civil Judges or Senior Civil J udges had been issued and consequently the appellant cou ld not take the position that respondent No.2 had been promoted in breach of seniority. He submitted that the appellant had previously filed representations for grant of seniority even against his peers and while deciding his appeal Muhammad Shabbir v. Registrar, Islamabad High Court (JSA No.1 of 2016 ), this Tribunal by judgment dated 11.07.2023 had held that the appellant was not the senior most Civil Judge appointed on a first-time appointment basis b y notification dated 15.10.2011 . And consequently, even though seniority list ought to ha ve been issued as he ld by this T ribunal in its decision in JSA No.1 of 2016, the appe llant could not claim to be aggrieved by the promotion of respondent No.2, as it had been held that other first-time appointees, including Mr. Abdul Ghafoor Kakar and Mr. Mohammad Sohail, were senior to the appellant as Civil Judges.
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10. He also submitted that in terms of the judgment of the Supreme Court in Ch. Muhammad Akram , the High Court officials who had been serving in th e establishments of other High Courts and had been absorbed in I slamabad High Court were not repatriated to their parent organizations. Thus, even if the C ourt were to find that there was any irregularity in the absorption or promotion of respondent No.2, the finding in Ch. Muhammad Akram would be applicable to respondent No.2, who had been serving within KP Judicial Service prior to being posted to Islamabad Judicial Service on deputation basis and being subsequently absorbed on a permanent basis. 11. We will start with the constitutional and statutory scheme within w hich appointments are to be made within Islamabad Judicial Service , followed by considering the principles for making appointments to public office s that have been enumerated and affirmed by the Supreme Court. We will then consider the scope of authority v ested in the Chief Justice and the Administration C ommittee of IHC in terms of the IH C Act and the Judicial Service Rules. We will consider the principles that regulate appointments to public office s on deputation basis as well as principles regu lating abs orption of deputationists . Such analysis will follow consideration of the scope of power and jurisdiction of this Tribunal and its placement within the judicial hierarchy in terms of provisions of the C onstitution as enumerated by the Supreme Court. We wil l then consider the scope of authority of the Chief Justice in terms of the Constitution, the Islamabad Subordinate Judiciary Service Tribunal Act 2016, and the Islamabad Sub -ordinate Judiciary Service Tribunal Rules 2017 , in order to e xplain the manner in which the T ribunal is to be constituted and reconst ituted. W e will finally dwell briefly on the notification issued by the President dat ed 18.03. 2025, purportedly reconstituting this Tribunal, which notification was issued after the appeal had been heard and reserved for judgment . As we have suspended our judgment, by virtue of short order released on 21 .03.2025 to enable the respondents to avail the remedy of appeal before the Supreme Court , we will state our reasoning for such suspension.
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The Constitutional and Statutory Scheme re Islamabad Judicial Service 12. In terms of background, the Islamabad High Court was first created by the Islamabad High Court (Establishment) Order, 2007 (President‟s Order No. 7 of 2007) issued by General Pervez Musharraf . Such statutory High Court continued to function from 15.12.2007 to 31.07.2009 when it was disbanded pursuant to the judgment of the Supreme Court in Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 789). The Constitution was amended thr ough the Constitution ( Eighteenth Amendment) Act, 2010, and the provisions in Part 7 of the Constitution related to the Judicature were amended to provide for a High Court for the Islamabad Capital Territory (“ICT”). In the aftermath of such amendment, Parliament enacted the IHC Act , which entered into force on 02.08.2010 when it was gazetted. Section 6(3) of the IHC Act provided the following: “(3) The Islamabad High Court shall take necessary steps for establishing sub -ordinate judiciary for the Islamaba d Capital territory within six month of the commencement of this Act. The judges of the sub -ordinate judiciary working on deputation shall be sent back to the respective High Courts after establishment of the sub -ordinate judiciary for the Islamabad Capital Territory” (Underlined for emphasis) 13. It was pursuant to section 6(3) of the IHC Act that the legislature conferred, on Islamabad High Court , the authority to take all necessary ste ps to establish an independent Judicial Service for ICT within six mon ths of the enactment of the IHC Act. The said section mandated th at judges working in Islamabad District Judiciary on deputation “shall be sent back to the respective High Courts after e stablishment of the sub - ordinate judiciary for the Islamabad Capital T erritory”. In other words, section 6(3) of the IHC Act conferred on Islamabad High Court a power to establish a Judicial Service for ICT, comprising civil, criminal, revenue and special courts and trib unals referred to in section 6( 1) and 6(2) of the IH C A ct. Such courts were previously under the superintendence and control of the Lahore
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High Court in terms of Article 203 of the C onstitution and fell within the supervision and control of Islamabad High Court since its establishment. This power to take neces sary steps for the establishment of Islamabad Judicial S ervice within a period of six months was accompanied with a duty to repatriate j udicial officers working on deputation that belonged to judicial services of the provinces . Article 175 th at provided fo r an independent High C ourt for ICT together with provisions of the IH C Act manifested the legislative intent that Islamabad High Court was to be an independent High C ourt mandated to assemble and invigorate a Judicial Service comprising judicial off icers to serve the subordinate courts in ICT and to exercise supervision and control over such courts in terms of Article 203 of the Constitution. 14. It is essential to take note of the fact that the judges of Islamabad High Court were to be appointed from all territories comprising Pakistan through the appointment process described in Article 175A of the Constitution. N either the Islamabad High Court nor the Islamabad Judicial Service were envisag ed to be representative of the P rovincial High Courts and Provin cial Judicial Services . For purposes of Islamabad High Court, the Constitution and…
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