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Petitioner: RAJ MUHAMMAD KHAN VS Respondent: MUHAMMAD FAROOQ KHAN
1998 P L C (C
1998 P L C (C.S.) 560
[Supreme Court of Pakistan]
Present: Muhammad Afzal Zullah, CJ., Saad Saood Jan and Ajmal Mian, JJ
RAJ MUHAMMAD KHAN and others
Versus
MUHAMMAD FAROOQ KHAN and others
Civil Appeals Nos. 167 to 171 of 1990, decided on 14th July, 1991.
(From the judgments all dated 10-11-1988 of the N.-W.F.P. Service Tribunals, Peshawar, passed in Appeals Nos.106, 107, 108 and 109 of 1986).
(a) North-West Frontier Province Government Servants (Efficiency and Discipline) Rules, 1973---
----R. 4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.9---Constitution of Pakistan (1973), Art.212 (3)---Promotion with retrospective effect---Validity---Leave to appeal was granted to consider; whether or not Service Tribunal was legally justified in considering and allowing appeal of respondent on merits without recording any reason for condonation of delay, when preliminary objection to that effect was specifically taken by Government; whether seniority of respondent in cadre of Additional District and Sessions Judge; to which he was promoted on 24-1-1985, could take effect from retrospective earlier date as allowed by Service Tribunal over heads of other persons who had been promoted earlier and had superseded the respondent; whether decision of Service Tribunal did not amount to determination of fitness of respondent to hold particular post or to be promoted to higher post or grade in respect of which no appeal would lie before Service Tribunal; whether remission of penalty or stoppage of promotion imposed upon respondent under North-West Frontier Province (Efficiency and Discipline) Rules, 1973 entitled him to be considered for promotion retrospectively; whether or not Countersigning Authority was competent in law to disagree with Reporting Officer in matter of A.C.Rs. And whether Reporting Officer or Countersigning Authority were duty bound to justify adverse remarks by producing evidence before Service Tribunal; and whether or not Service Tribunal in granting retrospective seniority to respondent and in expunging adverse remarks passed in his A.C.Rs. for specific years had not mis-appreciated facts and erred in law.
(b) North-West Frontier Province Civil Servants Act (XVIII of 1973)---
----S. 8---Seniority---Promotion with retrospective effect by order of Service Tribunal---Validity---Counsel for parties agreed that judgment of Service Tribunal be set aside and case be sent to High Court for considering question of seniority of respondent with retrospective effect from specified date and also question of expunction of remarks in respect of specific years---Case was remanded to High Court with consent of parties for consideration of said questions.
(c) Constitution of Pakistan (1973)---
----Art. 212---Expunction of remarks---Derogatory remarks against ex-Chief Justice of High Court---Supreme Court expressed regret that Service Tribunal had used derogatory language in respect of ex-Chief Justice of High Court, which was unbecoming of Service Tribunal comprising of personnel whose rank was below to that of incumbent of the office of Chief Justice of High Court---Judgment in question clearly indicated that Service Tribunal had dealt with the appeals with biased mind---Derogatory remarks of Service Tribunal against ex-Chief Justice were expunged by Supreme Court in circumstances.
(d) Constitution of Pakistan (1973)---
----Arts. 203 & 175(3)---Adverse remarks in A.C.R. by High Court about subordinate Judicial Officer---Governor or any other Provincial Authority--?Competency to set aside or modify entries in A.C.Rs. Recorded by High Court---Neither the Governor nor any other Executive Provincial Functionary has any power to set aside or modify entries in A.C.Rs. recorded by High Court---Article 203 of the Constitution expressly provides that each High Court would supervise and control all Courts subordinate to it, whereas Art. 175(3) of the Constitution indicates that judiciary would be separated progressively from Executive within 14 years from commencing day, which period had already stood expired---Effect of Arts.203 &175(3) of the Constitution seems to be that High Court alone could supervise and control all Courts subordinate to it and not the Executive---Power to record A.C.Rs. to review adverse remarks if recorded against any subordinate Judicial Officer would vest in High Court and not in the Executive.
Qazi Atiqur Rehman, Advocate Supreme Court and Abdul Hamid Qureshi, Advocate-on-Record (absent) for Appellants (in C.A. No.167 of 1990) .
K.M.A. Samdani, Senior Advocate Supreme Court and Manzoor Ilahi, Ex-Advocate-on-Record for Respondent No. 1.
J.D. Akbarji, Advocate-General, N.-W.F.P. and Nur Ahmad Khan, Advocate-on-Record (absent) for Respondents Nos.2 and 3.
Nemo for the Remaining Respondents (in C.As. Nos. 167 and 168 of 1990).
J.D. Akbarji, Advocate-General, N.-W.F.P. and Nur Ahmad Khan, Advocate-on-Record (absent) for Appellants (in C.As. Nos.168 to 171 of 1990).
K.M.A. Samdani, Senior Advocate Supreme Court and Manzoor Ilahi, Ex-Advocate-on-Record for Respondent No.1 (in C.A. No.168 of l 990).
K.M.A. Samdani, Senior Advocate Supreme Court and Manzoor Ilahi, Ex-Advocate-on-Record for Respondent (in C.As. Nos. 169 to 171 of 1990).
Date of hearing: 14th July, 1991.
JUDGMENT
AJMAL MIAN, J.---By this common judgment, we intend to dispose of above five appeals which have been filed with the leave of this Court against the judgments all dated 10-11-1988 passed by the N.-W.F.P. Service Tribunal, Peshawar, hereinafter referred to as the Tribunal, in Appeals Nos.106, 107, 108 and 109 of 1986, filed by respondent No.1, claiming seniority as an Additional District Judge retrospectively with effect from 10-4-1982 and expunging of adverse remarks in the A.C.Rs. for the years 1980, 1981 and 1985, which have been allowed. Civil Petition for Leave to Appeal No.221-P of 1988 was filed by eleven appellants against the order of granting seniority to present respondent No. l retrospectively, whereas Civil Petitions for Leave to Appeals Nos. l-P, 2-P, 3-P and 5-P of 1989 were filed by the Government of N.-W.F.P. Leave was granted in the above petitions by a common order, dated 22-2-1990 to consider the following questions:--
(i) Whether or not the Service Tribunal was legally justified in considering and allowing the appeal of Muhammad Farooq Khan, respondent No.l, on merits without recording any reason for condonation of delay, when a preliminary objection to this effect was specifically taken by the respondent-Government;
(ii) Whether under the law seniority of Muhammad Farooq Khan, respondent No.l, in the cadre of Additional District and Sessions Judge, to which he was promoted on 24-1-1985, could take effect from a retrospective earlier date as allowed by the Tribunal over the heads of other persons who had been promoted earlier and had superceded the said respondent;
(iii) Whether the decision of the Service Tribunal does not amount to the determination of fitness of Muhammad Farooq Khan, respondent No. 1, to hold a particular post or to be promoted to a higher post or grade in respect of which no appeal lay before the Tribunal;
(iv) Whether remission of penalty or stoppage of promotion imposed upon Muhammad Farooq Khan, respondent No. 1, under the Efficiency and Discipline Rules, 1973 entitled him to be considered for promotion retrospectively;
(v) Whether or not the Countersigning Authority is competent under the law to disagree with the Reporting Officer in the matter of A.C.Rs. and whether the Reporting Officer or the Countersigning Authority were duty bound to justify the adverse remarks by producing evidence before the Tribunal; and
(vi) Whether or not the Service Tribunal in granting retrospectively seniority to Muhammad Farooq Khan, respondent No. 1, and in expunging adverse remarks passed in his A.C.Rs. for the years 1980, 1981 and 1985, has not mis-appreciated the facts and erred in law.
2. The facts to be noted are that respondent No. l was appointed as a Civil Judge by a Notification dated 15-4-1975, whereas the appellants in the above first appeal took over charge on 10-5-1975. It seems that respondent No. l was not promoted before the appellants in the above first appeal. According to the averment of respondent No. l in the memo of service appeal, the High Court recommended him for promotion at the first instance and then recommended for retrospective promotion, but the same was not accepted by the Authority. It appears that adverse entries were recorded in respondent No.1's A.C.Rs. for the aforesaid years 1980, 1981 and 1985. Respondent No.l filed aforementioned service appeals for the above reliefs, which were allowed in the above terms by the Tribunal. Thereupon, the appellants in Civil Appeal No. 167 of 1990 and the Government of N.-W.F.P., being aggrieved by the above judgment of the Tribunal, filed aforesaid petitions for leave to appeal, which were granted to consider the above questions.
3. Learned counsel for the parties have agreed that the judgments of the Tribunal be set aside and the case be sent to the Peshawar High Court for considering the question of seniority of respondent No. l with retrospective effect from 10-4-1982 and also the question of expungement of remarks in respect of the above three years.
4. We regret to note that the Tribunal has used derogatory language in respect of an ex-Chief Justice of the Peshawar High Court, which is unbecoming of a Tribunal comprising of personnel whose rank is below to that of an incumbent of the office of the Chief Justice of the High Court. It is C evident from the judgment under appeal that the Tribunal has dealt with the appeals with biased mind. The above derogatory remarks are expunged.
5. During the course of the arguments the question arose, whether the Governor or any other Provincial Authority can set aside or modify the entries in the A.C.Rs. recorded by the High Court. We asked the learned counsel for the parties including the learned Advocate-General, Government of N.-W.F.P., to submit their views on the above question keeping in view Article 203 read with clause (3) of Article 175 of the Constitution. All of them submitted that neither the Governor nor any other executive Provincial functionary has any such power.
6. We are inclined to agree with the above submission as Article 203 expressly provides that each High Court shall supervise and control all Courts subordinate to it, whereas above clause (3) of Article 175 lays down that the judiciary shall be separated progressively from the Executive within 14 Nears from the commencing day, which period has already stood expired. The effect of above Article 203 read with above clause (3) of Article 175 of the Constitution seems to be that it is the High Court alone which can supervise and control all the Courts subordinate to it and not the Executive. It must, therefore, follow that the power to record A.C.Rs. or to review the adverse remarks if recorded against any subordinate Judicial Officer vests in the High Court and not in the Executive.
7. We may observe that we have not examined the question whether a service appeal would be competent against adverse remarks recorded against a Judicial Officer as it was not necessary in the present case,
8. The above appeals are partly allowed in the above terms and with the consent of all the parties, the impugned judgment is set aside and the case is remanded in the above terms.
A.A./M-88/S ????????????????????????????????????????????????????????????????????????????????????? Case remanded.