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Petitioner: REGISTRAR, PESHAWAR HIGH COURT & others VS Respondent: SHAFIQ AHMAD TANOLI and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Mian Saqib Nisar, Umar Ata Bandial, Ejaz Afzal Khan Title:REGISTRAR, PESHAWAR HIGH COURT & others vs SHAFIQ AHMAD TANOLI and
JUDGMENT
Reported As: P LD 2015 Supreme Court 360, PLJ 2015 SC 833 Result: Appeals dismissed Judgment JUDGMENT Ejaz Afzal Khan, J.--These appeals with leave of the Court have arisen out of the judgment dated 26.8.2013 of the KPK Subordinate Judiciary Service Tribunal Peshawar, whereby it partially allowed the appeals filed by the respondents. The points raised and noted at the time of grant of leave read as under:-- "2. It is, inter alia, contended by the learned counsel for the petitioners that the learned Tribunal has failed to appreciate the Order dated 13.8.2009 passed by the Honble Chief Justice of Peshawar High Court was not appealable, hence the learned Tribunal had no jurisdiction to entertain the appeals in question. It is further contended that the prescribed procedure was not complied with nor questions of law were formulated by the learned Tribunal. It is added that the learned Tribunal has failed to take into consideration its own order dated 18.12.2012, as a consequence whereof, the impugned judgment is invalid and liable to be set aside. The learned counsel further urged that the learned Tribunal has misapplied and misinterpreted Rule 10 of KPK Judicial Service Rules, 2001. Furthermore, by way of the impugned judgment, the learned Tribunal has presumed authority and jurisdiction of the Administrative Committee, which is not vested therein by law. 3. The contentions raised by the learned counsel require consideration, therefore, these petitions are accepted and leave to appeal is granted, inter alia, to' consider the aforesaid contentions." 2. Learned ASC appearing o behalf of the appellants contended that the appointing authority according to Section 5 of the Civil Servants Act, 1973 is the Governor or a person authorized, by he Governor in this behalf; that the Governor, conferred this pow on the Chief Justice vide Notification No. SOR-IV(E&AD)/3-1 2001 dated 28.8.2001 and that the Chief Justice being the appointing
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authority shall cause a seniority list of the members of such ervice, cadre or post, to be prepared, under Section 8 of the Act. e next contended, that though according to Rules 4 and 10 of the KPK Judicial Service Rules, 2001, the appointing authority and the authority determining seniority is the High Court but this being in conflict with the parent statute cannot override the latter. In case, the learned ASC maintained, the Rules are allowed to override the parent statute, no departmental authority would be left for appeal, or representation. 3. Learned ASC appearing on behalf of the respondents contended that the appointing authority to a post, according to Rule 4 of the Rules, is the High Court and not the Chief Justice; that such authority being executive and administrative is exercised, by the Administration Committee in view of Rule 1 Part A of Chapter 10 of the High Court Rules and Orders Volume V, therefore, the impugned judgment projecting such interpretation cannot be caviled at. 4. We have gone, through the record carefully and considered the submissions of the learned ASCs for the parties. 5. Before we appreciate the controversy canvassed before us, it would be imperative to refer to the relevant provisions of the Civil Servants Act and the Rules made thereunder. The relevant provision of the Act read as under:-- "5. Appointment: Appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorized by the Governor in that behalf. 8. Seniority:--(1) For proper administration of a service, cadre or {post}, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or {post} to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or {post} as the case may be. (2) Subject to the provisions of sub-section (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or [cadre] whether serving the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a. Service, [cadre] or post shall be determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post; Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to higher post, retain their inter-se seniority as in the lower post. (5) The seniority lists prepared, under sub-section (1), shall be revised and notified in the official Gazette at least once in a calendar year, preferably in the month of January." 6. The Rules relevant in this behalf read asunder: "2. Definitions In these rules, unless there is anything repugnant in the subject or context: (a) "Administration Committee of the High Court" means Committee constituted under High Court Rules and Orders, volume-V, Chapter 10-A. (b) "Appointment on contract basis" means appointment .Made for a specified period in accordance with the policy of Govt. Applicable, to appointment on contract basis. (c) "Chief Justice" means the Chief Justice of Peshawar High Court Peshawar. (d) "Commission" means the North West Frontier Province Public Service Commission. (a) "Departmental promotion committee" means the Committee constituted under High Court Rules And Orders Volume-V, chapter 10-A. (b) "Government" means the Government of North West Frontier Province.. (a) "High Court" means Peshawar High Court Peshawar. (h) "Initial appointment" means appointment made otherwise than by promotion or transfer from, another service, department or post;
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(i) "Provincial Judicial Selection Board" means a Board comprising the Administration committee or such number of Judges of the High Court as may be nominated by the Administration Committee; (j) "Recognized University" means the University established by or under a law in Pakistan or any other University which may be declared by Government to 14 a recognized University for the purpose of these rules; (k) "Selection Authority" means the Commission or, as the case may be, the Provincial Judicial Section Board; and (l) "Service" means the North West Frontier Province Judicial Service. 4. Appointing Authority:--Appointment to a post shall be made by the High Court. 10. Seniority: The seniority inter-se of the members of the service in the various pay scales thereof shall be determined by the High Court, subject to the following conditions: (a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the ' Selection Authority as mentioned in Rule-5; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection. (b) In the case of members appointed by promotion, seniority in a post, service or cadre to which a. Civil Servant promoted shall take effect from the date of regular appointment to that post; provided that Civil Servants who are selected for promotion to a higher post in one batch shall, an their promotion to higher post, retain their inter-se seniority as in the lower post. Explanation-I If a Jr. Officer in a lower grade is promoted temporarily to a higher grade in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the seniority in the interest of his/her senior officer in the fixation of his/her seniority in the higher grade. - Explanation-II If a Jr. Officer in a lower grade is promoted to' a higher grade by superseding a Sr. Officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently. 13. General Rules: In all matters not expressly provided for in these rules, members of the Service shall be governed by such rules as have been or may hereafter he prescribed, by Government and made applicable to their employees, with such modifications and changes as the High Court may prescribe." 7. According to Section 5 of the Civil Servants Act and Rule 4 of the KPK (Appointment, Promotion and Transfer) Rules, 1989, the appointing authority to a civil post in connection with the affairs of the Province is the Governor or a person authorized by him. In 2001 the Governor by amending Rule 4 of the KPK (Appointment and Promotion) Rules, 1989 vide Notification No. SOR-IV(E&D)/3-11/2001 authorized the Chief Justice, Peshawar High Court, to appoint Judicial Officers Sub-ordinate to the High Court with immediate effect. But this notification being a stopgap arrangement remained in force only till the enforcement of the KPK Judicial Service Rules, 2001. The Rules, so enacted and enforced, deal with qualification, eligibility, method of recruitment, appointment, seniority and matters ancillary thereto. According to Rules and 10 of the said Rules, the appointing authority for a civil post and the authority determining the inter seniority of the members of the service shall be the High Court and not the Chief Justice. The expressions 'High Court' and Chief Justice' being distinct from each other are not interchangeable from any angle of vision. The appointing authority and the authority determining seniority for the purposes of Sections 5 & 8 of the Act is therefore the High Court, and not the Chief Justice. 8. What does the expression "High Court" mean in the scheme of the relevant rule, enactments and Constitutions? Rule 2(g) of the Rules, 2001, defines the expression 'High Court' as Peshawar High Court Peshawar. However, according to the East India (High Court, of Judicature) Act, 1861, the Government of India Act, 1915, the Government of India Act, 1935, the Constitution of Islamic
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Republic of Pakistan 1956, the Constitution of 1962 and the Constitution of 1973, the expression "High Court" means High Court consisting of Chief Justice and Judges. If we go by this definition then the appointing authority shall not be the Chief Justice but the High Court consisting of Chief Justice and other Judges. 9. What has been regulating the executive and administrative work of the High Court ever since its establishment? Such work of the High Court, if we see in the historical perspective, has been regulated by the Acts which have been enforced, from time to time and Rules and Orders made and issued thereunder. The first Act enforced in this behalf was the Punjab Courts Act, 1884. The High Court under the said Act was called the Chief Court. The relevant section of the Act reads as under:-- "8 (1) Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rides to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (ii)......... (iii)........ The relevant rule framed thereunder provides as follows:-- "I The powers of the Courts, as a Court of control, shall be exercisable by all the Judges, and shall be allotted in such manner as the Judges in monthly meeting may from time to time determine. II. (i) A meeting of the Judges shall be held monthly on such day as the Chief Judge may from time to time fix in that behalf, for the Disposal of' references relating to the Judicial administration or matters affecting the working of the Court, and all such business, not of a judicial character, as a Judge may refer to the meeting. (ii) The meeting shall ordinarily be held on the first Friday (not being a holiday) of every month. III. The Registrar shall convene the monthly meetings and, regulate the business to be considered thereat, in such manner as the Chief Judge may from time to time direct." 10. In 1914 Punjab Courts Act (III) of 1914 was promulgated. It also provided for exercise of any of the powers of the said Court by one or more of its Judges, The relevant section in this behalf merits a reference which reads as under:-- "SECTION 8 OF PUNJAB COURT ACT, 1914. 8 (1). Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (2) The Chief Court may make rules, declaring what number of Judges, not being less than three, shall constitute a Full Bench of the Court, and may by these rules prescribe mode of determining which Judges shall sit as a Full Bench, when a Full Bench sitting becomes necessary. (3) Subject to the provisions of sub-section (2), the Senior Judge may determine which Judge in each case shall sit alone, and which Judges of the Court shall constitute any Bench" 11. Rules framed pursuant to the said provision of the Act read as follows:-- "Part A--RULES FOR THE DISPOSAL OF EXECUTIVE AND ADMINISTRATIVE BUSINESS 1. Administrative Business.--The Administrative and executive-work of the High Court shall be controlled by a Committee of Judges to be known as the Administration Committee: Provided that the work of the Benches at Karachi and Peshawar shall be conducted in such manner as the Chief Justice may direct: Provided further that those matters which are the executive concern of the Chief Justice, namely, the constitution of Benches and the appointment and control of the High Court Establishment, shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice.]
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2. Constitution and appointment of Administration committe.--The Administration Committee shall consist of seven Judges. The Chief Justice and the Senior Puisne Judge shall be ex-officio members and the Chief Justice shall annually nominate the other five members of the Committee.] 3.- Quorum of Administration Committee.--At all meetings of the Administration Committee, three Judges shall form a quorum. 4. (a) Each member, of the Administration Committee shall act as an Administration Judge and the powers and duties of each Administration Judge shall be defined by the Chief Justice from time to time. (b) The following matters shall invariably be referred by an Administration Judge to the Administration Committee:-- (i) All cases which are to go before a meeting of all the Judges. (ii) All cases involving the amendment of the Rules and Orders of the Court other than purely routine amendments. (iii) The issue of circular letters and instructions to the Subordinate Courts in other than purely routine matters. (iv) All circulars issued by District and Sessions Judges and District Magistrates for the guidance of Courts subordinate to them. (v) All proposals for the confirmation or promotion of District and Sessions Judges and Subordinate Judges. (vi) The grant of permission to Subordinate Judges to cross efficiency bars. (vii) All pension cases of District and Sessions Judges and Subordinate Judges, (viii) All cases in which disciplinary action is to be taken against District and Sessions Judges and Subordinate Judges, and all cases in which there is a question of the recovery from an officer of any loss suffered by Government. (ix) The selection of officers for deputation, and magisterial commercial or special training. (x) Recommendation for the direct appointment of Government servants as Extra Assistant Commissioners. (xi) The fitness of officers for appointment as District and Sessions Judges. (xii) The monthly returns of work done by District and Sessions Judges. (xiii) All cases in which lawyers seek relaxation of the High Court Rules applicable to them, other than those in which the Judges or the Administration Committee have laid down a policy to be followed. (xiv) All proposals for the execution of Civil Major works in the Judicial Department. (xv) All cases in which the opinion of all the Judges is sought by Government. [(xvi) Recording of annual confidential report on the work and conduct of a Civil Judge or Magistrate where:-- (a) it is intended to comment unfavorably on his conduct and work; or (b) another reporting authority has recorded adverse remarks. (xvii) All cases of conferment of civil and criminal powers on Subordinate Judges and Magistrates except: -- (a) Powers under the Provincial Small Cause Courts Act. (b) Powers under the Guardians and Wards Act. (c) Permission to exercise powers under the Provincial Insolvency Act already conferred by Punjab Government Notification No. 780, dated the 15th July 1914. (d) First class powers on stipendiary magistrates after the exercise of second class powers for six months.
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(xviii) All cases not specifically provided for which, in the opinion of the Administration Judge, involve questions of principle of policy. (c) All administrative work for which there is no explicit provision in the Rules and Orders of the Court or in the rules made by the Administration Committee, shall be disposed of under the orders of the Administration Judge who may refer to the Committee any matter on which he could pass orders. The Administration Judge shall pass orders on the postings and transfers of judicial officers serving under the High Court, and after orders have issued they shall be circulated to all members of the Administration Committee." 12. In 1918 the Punjab Courts Act was re-enacted while that of 1914 was repealed. Section 3 of this Act is relevant which reads as under:- "3. (1) Enactment of provisions relating to Courts in the Punjab.--(a) the provision contained in Part-II of this Act are hereby enacted, and shall be deemed to have had effect on and from the first day of August, 1914. (b) The Punjab Courts Act, 1914, and Punjab Act N of 1914, or so much of them as may be valid are repealed on and from the first day of August, 1914. (2) Validation of acts done.--All things done under the Punjab Courts Act, 1914, as amending by Punjab Act, 'IV of 1914, shall be deemed to be in every way as valid as if the Punjab Courts Act, 1914, as amended by Punjab Act TV of 1914, had been of full force and effect on and from the first day of August, 1914: Provided firstly, that any appeal which may have been decided by the Chief Court in the exercise of jurisdiction purporting to be exercised under Section 39(1)(b) of the Punjab Courts Act, 1914, shall be deemed to have been validly decided, and, shall not be called in question by reason of anything contained in this Apt; And, secondly that any appeal which before the commencement of this Act has been presented to the Chief Court under Section 39(1)(b) of the Punjab Courts Act, 1914, and which should not have been so presented if the said sub- section had run as set out in Section 39 of Part II of this Act shall if it has not been decided be transferred by the said Court for disposal to the District Court having jurisdiction; And thirdly, that any appeal which would have laid to the Chief Court under Section 39(1)(b) of the Punjab Courts Act, 1914 but which lies to the District Court under the provisions of this Act Etnd when if presented to the Chief Court at the commencement of this Act would be within time, shall be deemed to be presented within time if presented to the District Court within sixty days from the commencement of this Act." Another relevant provision is Section 8 of the Act which reads as under: -- "SECTIONS 8 OF PUNJAB COURT ACT, 1918. 8 (1). Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (2) The Chief Court may make rules, declaring what number of Judges, not being less than three, shall constitute a Full Bench of the Court, and may by these rules prescribe mode of determining which Judges shall sit as'a Full Bench, when a Full Bench sitting becomes necessary. (3) Subject to the provisions of sub-section (2), the Senior Judge may determine which Judge in each case shall sit alone, and which Judges of the Court shall constitute any Bench." 13. In 1955, the High Court of West Pakistan (Establishment) Order GGO XIX of 1955 was promulgated. High Court, Lahore, the Chief Court of Sindh, the Judicial Commissioners Court of NWFP and Balochistan and any other Court functioning as High Court in relation to the territories
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ceased to exist and all said powers were conferred on the West Pakistan High Court. The relevant provision reads as under: "Article 3. Establishment of the High Court of West Pakistan. (1) As from the commencement of this Order there shall be established a, High Court of Judicature for the Province of West Pakistan, to be called the High Court of West Pakistan (hereinafter referred to as the High Court), and the Lahore High Court, Lahore, the Chief Court of Sindh, the Judicial Commissioner's Court in the North-West Frontier Province and Balochistan, and any other Court functioning as High Court in relation to the territories or are as now included in the Province, of West Pakistan shall cases to exist. (2) The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the Lahore High Court Lahore, had immediately before the commencement of this Order in respect of the territories in relation to which it exercised appellate jurisdiction. (3) The High Court and the Judges and Divisional. Courts thereof shall sit at Lahore, but the High Court shall have Benches at Karachi and Peshawar and Circuit; Courts at other places within the Province of West Pakistan, consisting of such of the Judges as may from time to time be nominated by the Chief Justice." 14. In 1956 through Correction Slip NO. 120/1I.D.4 dated 2nd January, 1956, the following rule was inserted:-- "CHAPTER 10 Miscellaneous PART A--RULES FOR THE ISPOSAL OF. EXECUTIVE AND ADMINISTRATIVE BUSINESS [1. The administrative and executive work of the High Court shall be controlled by a Committee of Judges to be luiown as the Administration Committee: Provided that those matters which are the exclusive concern, of the Chief Justice, namely, the constitution of Benches and the appointment and control of the High Court Establishment shall be dealt with in accordance with such instruction as may from time to time be issued by the Chief Justice. 2. Constitution and appointment of administration Committee.--The Administration Committee shall consist of seven Judges. The Chief Justice and the Senior Puisne Judge shall be ex-officio members and the Chief Justice shall annually, nominate the other five members of the. Committee]. 3. Quorum of Administration Committee.--At all meetings of the Administration Committee, three Judges shall form a quorum. 4. (a) Each member of the "Administration Committee ' shall act an Administration Judge and the powers and duties of each .Administration ' Judge to the Administration Committee:- (b) The following matters shall iivariably be referred by an Administration Judge to the Administration committee:-- (i) All cases which are to go before a meeting of the Judge. (ii) All cases involving the amendment of the Rules and Orders of the Court other than purely routine amendments. (iii) The issue of circular letters and. Instructions to the Subordinate Courts in other than purely routine matters. (iv) All circulars issued by District and Sessions Judge and District Magistrates for the guidance of Courts subordinate to them. (v) All proposals for the confirmation or promotion of District and Sessions Judge and [Civil Judges]. (vi) The case of move-over and grant of selection grade of Judicial Officers]. (vii) All pension cases of District and Sessions Judges and [Civil Judges].
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(viii) All cases in which disciplinary action is to be taken against District and Sessions Judges and Subordinate Judges, and all cases in which there is a question of the recovery from an officer of any loss suffered by Government. (ix) The selection of officers for deputation, magisterial commercial or special training. 15. Another rule was inserted through Correction Slip No 141/IV.Z.8, dated 30th May, 1958 which reads as under:- "16. (i) 'Notwithstanding anything contained in the Chapter, the administrative and executive work of High Court shall be controlled, by three Committees of Judges to be known as the Administration Committees functioning at Lahore, Karachi and Peshawar. (ii) These Committees shall be Advisory Committees and final decision in all administrative matters shall rest with the Chief Justice, except matters which are…
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