Full Judgment Text & Judicial Ruling

2026 P L C (C.S.) 253 [Subordinate Judiciary Service Tribunal, Islamabad] Before Tariq Mehmood Jahangiri, Chairman/Judge, Babar Sattar and Sardar Ejaz Ishaq Khan, Members/Judges MUHAMMAD SHABBIR Versus REGISTRAR, ISLAMABAD HIGH COURT and another Judicial Service Appeal No.03 of 2016, decided on 29th April, 2025. (a) Interpretation of statutes--- ----Delegation of authority---Scope---Where the Constitution or the law does not itself provide for further delegation of authority, discretionary authority cannot be further delegated and must be exercised by the person or authority on which such power is conferred. (b) Interpretation of statutes--- ----Subordinate legislation---Delegation of powers---Scope---Any act or subordinate legislation in contravention of the Constitution is ultra vires the fundamental law---Similarly, where the power to enact sub-statutory legislation is vested in any authority, the same can only be exercised within the four corners of the statute, in a manner consistent with the provisions of the statute. (c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973--- ----Rr.7 & 9---Islamabad High Court Act (XVII of 2010), Ss. 3 & 9---Islamabad Judicial Service Rules, 2011, Rr. 10(1)(b) & 13(1)---Judicial Officer of a Province appointed against posts in Islamabad Judicial Service on deputation basis---Deputationists---Absorption---Principle---Appellant challenged the absorption of respondent No. 2 in District Judiciary Islamabad; his regularization in service by curtailing the period of his probation and his promotion---Held: Nothing was on record about any decision of Islamabad High Court in terms of Rule 9 of the Judicial Service Rules explaining the extraordinary circumstances in which it was decided by the High Court (i.e. all Judges of the High Court) that Judicial Officers from the Khyber Pakhtunkhwa Judicial Service were to be appointed against posts in Islamabad Judicial Service on deputation basis---Only thing produced was an order of the Peshawar High Court dated 25.01.2012 revealing that 11 Judicial Officers belonging to Khyber Pakhtunkhwa Judicial Service were allowed to join their new assignments---There was nothing to establish that it was the Islamabad High Court which, in its collegiate capacity, passed an order to fill posts in Islamabad Judicial Service on deputation by borrowing officers from the High Courts of other provinces in January or February of 2012 when respondent No.2 was appointed on deputation basis and assumed charge of the office of Senior Civil Judge on 01.02.2012---Even if any such order was passed, nothing had been produced where the High Court documented its reasons to fill such posts on a deputation basis while noting that the relevant expertise and ability was not available amongst members of Islamabad Judicial Service, as was required in view of the principles regulating appointments by deputation---It was no one's case that the officers belonging to Khyber Pakhtunkhwa Judicial Service underwent a selection process before being appointed by Islamabad High Court on deputation basis---There was therefore nothing to conclude that such appointments on deputation basis were made in accordance with law---Respondent No.2 was appointed against the post of Senior Civil Judge, whereas the post of Senior Civil Judge was reserved to be filled on promotion made on seniority-cum-fitness basis from amongst the civil judges serving in Islamabad District Judicial, in terms of Rr. 10 & 13 of the Judicial Service Rules---As the method of appointment by promotion was prescribed for such post, it could not have been filled through transfer on deputation basis---Therefore, the appointment of respondent No.2 against the post of Senior Civil Judge on deputation basis was in breach of requirements of Rr. 10 & 13 of the Judicial Service Rules and was, thus, illegal---There was no provision in the Islamabad High Court Act or the Judicial Service Rules that vested any authority in the High Court to fill posts in Islamabad Judicial Service on deputation basis and affording such deputationists the option to be absorbed in Islamabad Judicial Service making the two-step process of posting on deputation and subsequent absorption an alternative method of recruitment and appointment within Islamabad Judicial Service---As there was no power vested in the High Court to afford the option of absorption to deputationists who were posted on deputation in January and February of 2012 and were not already serving on deputation at the time of creation of Islamabad High Court and the subsequent enactment of Judicial Service Rules, it was found that notification dated 14.3.2012, pursuant to which 11 Judicial Officers were absorbed in Islamabad Judicial Service, was in breach of Rr. 8, 9, 10 & 13 of the Judicial Service Rules and devoid of legal authority---Therefore, it was declared that the absorption of respondent No. 2 in terms of notification dated 14.03.2012 in Islamabad Judicial Service against the post of Senior Civil Judge, which post could only be filled by promotion on seniority-cum-fitness basis from amongst the civil judges serving in Islamabad Judicial Service, was illegal---Under the third proviso to R.20(2) of the Judicial Service Rules, it was the High Court (i.e. all Judges of the High Court) who as a collegiate capacity were vested with authority to reduce the period of probation of a member of the Islamabad Judicial Service---As it was on the recommendation of the Administration Committee that Chief Justice curtailed respondent's probation period, where neither the Chief Justice nor the Administration Committee were vested with authority for such purpose under Judicial Service Rules, such curtailment of probation was devoid of jurisdiction---Procedure of appointment by promotion was described in R. 13 of the Judicial Service Rules---Rule 13(4) provided that it was the Departmental Promotion Committee that was to consider a panel of three members of Islamabad Judicial Service against each post to be filled by promotion---Recommendations made by the Departmental Promotion Committee were then to be forwarded to the Chief Justice in terms of R.13(5) and the Chief Justice was to appoint a successful candidate on promotion basis in terms of R. 13(6) of the Judicial Service Rules---Notification of promotion of respondent No. 2 to the post of AD & SJ stated that the Chief Justice had been pleased to promote him on the recommendation of the Administration Committee---Rule 2(a) defined the Administration Committee and Rule 2(g) defined the Departmental Promotion Committee---Respondent No.1 failed to provide the composition of the two committees at the relevant time---On the face of it, given that the promotion was ordered on the basis of R. 13(4) of the Judicial Service Rules to recommend Judicial Officers for promotion, the said notification was coram non judice and devoid of legal authority---Thus, the promotion order was found to be not in accordance with the requirements of Rule 13 of the Judicial Service Rules---Respondent No.2 was appointed on deputation basis without being subjected to any selection process (i.e. temporarily against the post of Senior Civil Judge otherwise reserved to be filled by promotion alone---No reasons were recorded as to why extraordinary power to fill a post on deputation basis, contrary to the prescribed method of appointment, was exercised---Respondent No.2 took charge of the post of Senior Civil Judge on 01.02.2012---On 14.03.2012, in less than a month and a half, he along with 10 other judges from Khyber Pakhtunkhwa Judicial Service were absorbed in Islamabad Judicial Service on a permanent basis---After absorption, respondent No.2 was to serve on probation for a period of one year in terms of R.20(2)---Probation period was curtailed and his service as Senior Civil Judge was regularized on 27.06.2012 (i.e. within three and a half months of him being absorbed)---No reasons were recorded as to the exceptional circumstances that informed the decision to curtail the probation period---Decision to curtail such period was also not taken by the High Court, which was the authority competent for such purpose---On the very same day when service of respondent No. 2 as Senior Civil Judge was regularized, he was promoted to the post of Additional District and Sessions Judge---Thus, the notifications that had been impugned in the instant appeal were liable to be set aside and as consequence, respondent No.2's appointment on deputation basis, his absorption in Islamabad Judicial Service, the regularization of his service upon curtailment of his probation period, and his promotion to the post of Additional District and Sessions Judge were illegal and he was liable to be repatriated to his parent judicial service---Petition was allowed, accordingly. Case law referred.

Asad Iqbhal Siddiqui and A. Ammar Sehri for Appellant. Malik Abdul Rehman, State Counsel. Rizwan Shabbir Kayani and Hafiz Farman Ullah for Respondent No.2. Muhammad Asif Iqbal, Departmental Representative for Respondent No.1. Date of hearing: 13th March, 2025. JUDGMENT 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 Arjumand, District and Sessions Judge Islamabad) pursuant to notification dated 14.03.2012 as Senior Civil Judge, (ii) notification dated 27.06.2012 pursuant to which the services of respondent No.2 were regularized by curtailing the period 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 of 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 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 Judge 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 permanently absorbed in Islamabad Judicial Service in exercise of authority under Rule 8 of the Islamabad 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 Committee 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 same day i.e. 27.06.2012, the Chief Justice promoted respondent No.2 to the post of AD&SJ, on the recommendations of the Administration Committee IHC. The 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 within 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 provided that judges of subordinate judiciary 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 Rules, which were gazetted on 13.05.2011. These Rules were enacted pursuant to section 6 of 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 IHC. The Judicial Officers of all 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 permanent absorption in Islamabad Judicial Service as Senior Civil Judge dated 14.03.2012, was illegal as pursuant to Rule 8 of the Judicial Service Rules only such members of Judicial Services of provinces could be absorbed permanently in Islamabad Judicial Service who were already posted on deputation and serving under the jurisdiction of IHC on the date of enactment of the Judicial Service Rules (i.e. 13.05.2011). As the petitioner was not serving on deputation in Islamabad Judicial Service at the time of enactment 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 post 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 Judicial Service Rules, as he had previously 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 effect from the date of his appointment (i.e. 15.10.2011) in terms of Rule 20 of the Judicial Service Rules on a permanent basis. He submitted that while respondent No.2 could not have been absorbed in Islamabad Judicial Service pursuant to Rule 8, even if he could be deemed to have been absorbed while serving on deputation, he was to remain on probation for a period of one year in terms of rule 20(2) of the Judicial Service Rules. In terms of the third proviso to rule 20(2), the High Court in exceptional circumstances could reduce the period of probation. Respondent No.2's probation was curtailed by notification dated 27.06.2012, merely three and a half months 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, even though the third proviso to rule 20(2) provided that it was the High Court that could reduce the period of probation. The notification was therefore 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 Ghafoor 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 their 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 curtailed, 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 respondent No. 2. The said promotion notification was also coram non judice, as it stated that the promotion had been approved by the 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 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 events 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 reflected 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, the 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 deputationists, such as respondent No.2, could not be absorbed in the permanent establishment of Islamabad Judicial service as no provision of law existed that permitted the same. Similarly, rule 30(3) of the Judicial Service Rules 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 appointments on a temporary basis as evident from Rule 30(4) of the Judicial Service Rules. He submitted that 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 principles of transparency where absorptions, and promotions having 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 from 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 terms 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 absorption in terms of Rule 8 of the Judicial Service Rules and the Chief Justice could approve such absorption on the recommendations of the Administration Committee. And in the instant case the notification stated that the decision for absorption had been taken by 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 the period of probation. This authority was used by the Chief Justice on the recommendation of the Administration Committee and the probation period of respondent No.2 was curtailed 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 curtailed. Respondent No.2 was the only Senior Civil Judge eligible to be promoted to the post of AD&SJ upon curtailment of his probation 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 submitted that, both, Rules 9 and 30(3) provided for appointments to Islamabad Judicial Service on deputation basis, which is why not just respondent No.2 but till date Islamabad High Court was continuing to appoint Judicial Officers within Islamabad Judicial Service on deputation basis by borrowing their services from the Judicial Services of the provinces. 7. By order dated 05.12.2024, the Registrar as respondent 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 decisions 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 the Chief Justice, while rendering the decisions notified through the impugned notifications. When asked to show the Court the orders of IHC directing that respondent No.2 be appointed in Islamabad Judicial Service on deputation basis, he was unable to do so and relied on an order of Peshawar High Court dated 25.01.2012 permitting respondents Nos.2 and 10 other Judicial Officers of the KP Judicial Service to join Islamabad Judicial Service 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 Administration 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 vested 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 Registrar, 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) 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 Court through the factual details of respondent 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 the Peshawar High Court, dated 25.01.2012. He was then permanently absorbed in Islamabad Judicial Service on 14.03.2012. As he was serving against the post of Senior Civil Judge at the time of his absorption and was on probation, in terms of the third proviso to Rule 20(2) of the Judicial Service Rules his probation was curtailed by…

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