SC annuls illegal appointments in Islamabad HC

Also forms body to make fresh recruitment in 45 days; says IHC CJ/Administrative Committee made appointments in complete disregard of mandate; disagrees with LHC that judicial, administrative, consultative and executive powers indistinguishable and unassailable; president SCBA welcomes judgment, hopes all those involved would be held accountable

ISLAMABAD: The Supreme Court (SC) on Monday declared the appointments made in the establishment of Islamabad High Court (IHC) since 2011 as null and void, with the ruling that these appointments were made without following the codal formalities of competitive process.

The court observed if the competent authority itself started cherrypicking by deliberately ignoring and overlooking meritorious candidates in appointment exercising powers under Rule 26 of the Lahore High Court or Rule 16 of the IHC, the image of the institution would be tainted beyond repair.

The court held that such practice might lead to distrust of the public in the judicial institution of the country.A three-member bench of the apex court headed by Justice Ameer Hani Muslim and comprising Justice Mushir Alam and Justice Dost Muhammad Khan announced a judgment reserved in May 2016 on the petition filed by Chaudhry Muhammad Akram against 74 appointments in the IHC, made in phases from 2011 to the end of 2012.

He had challenged various appointments, absorptions and transfers in the IHC, claimed to have been made in violation of the Services Rules of the IHC. He had listed the IHC Registrar, Deputy Registrar Idrees Khan Kasi and 73 other officials as respondents.

The 51-page judgment, authored by Justice Ameer Hani Muslim, held that the appointments which had been made in the establishment of the IHC since 2011 without following the codal formalities of competitive process were a nullity.

“Such appointments cannot be sanctified by the Chief Justice or the Administration Committee by dispensing with the mandatory requirements including competitive process,” the court ruled.

The court observed that the IHC Chief Justice and/or the Administration Committee of IHC had made appointments in the establishment in complete disregard of the mandate given by the Rules framed under Article 208 of the Constitution.

The court ruled that it could not allow denial of justice to those candidates who merited appointment nor could it encourage anyone to bypass transparent process of recruitment provided under the Rules. “We have already cited certain instances showing the mode and manner in which the appointments were made by abusing the authority,” says the judgment.

In order to examine the cases of appointments other than the Respondents, the court constituted a three-member Committee comprising Senior Puisne Judge and two senior-most judges next to him, to examine the cases of all appointments made from 2011 onwards in violation of the rules and findings recorded by them in these proceedings, and order their de-notification accordingly.

The court directed that thethis exercise within a period of one month from the date of communication of this judgment and submit a detailed report to it.

The court directed that fresh recruitment in place of the de-notified employees shall be initiated simultaneously in accordance with the rules and preferably completed in 45 days. This competitive process should be undertaken through NTS as was being practiced in this court and Sindh High Court, the court directed.

The court directed that any person appointed on contract basis against a permanent vacancy or against a promotion post was violative of the spirit of the rule and untenable, and should be de-notified.

Referring to deputation, the court directed that any appointments made on the basis of deputation without observing the required codal formalities under the rules and absorption of the deputationist thereafter against a permanent post or promotion post, in complete disregard of the eligibility or qualification required for initial appointment should also be de-notified.

Similarly, the court directed that initial appointments made against a permanent post without following the required procedure as provided in the rules, particularly the provisions related to the advertisement of posts, eligibility and competitive examination, were also to be de-notified.

While referring to promotions/up-gradations, the court directed that appointments whether by way of initial appointment, deputation, contract or absorption in the grades/scales higher than the grades/scales in which such employees were serving before their induction in the establishment are to be de-notified, as such up-gradation is not envisaged under the rules and is contrary to the established principles of service laws.

The court directed that except those employees who had been recruited from the establishments of different High Courts of Pakistan, in the same scale in which they were serving or were given one-step promotion within the same cadre, all other appointments by way of absorptions are without lawful authority and hence to be de-notified.

The court however, clarified that the aforesaid directives will not be applicable to the low scale employees appointed in BS-1 to BS-07, provided they are otherwise eligible.

The court directed that the appointments of the Respondents and other such employees of the IHC are to be de-notified and they should be repatriated to their parent departments, including the private sector, within fifteen days from the date of their de-notification in line with the mode given by this Court in the case of Contempt proceedings against Chief Secretary Sindh and Others reported in (2013 SCMR 1752) and in the case of Ali Azhar Khan Baloch reported in (2015 SCMR 456). 

The court further ruled that on repatriation the Respondents and/or other such employees should be allowed to join their parent departments and the question of termination of lien of their service will not come in their way as their deputation or appointment by way of absorption was nullity in the eyes of law.

“They will also be entitled to their seniority with their batch mates in their parent departments, says the judgment. The court ruled that for the purpose of these proceedings, the principles laid down by this Court in the case of Contempt proceedings against Chief Secretary Sindh and others reported in (2013 SCMR 1752) and in the case of Ali Azhar Khan Baloch and others vs. Province of Sindh and others reported in (2015 SCMR 456) would be applicable to the employees of IHC Establishment.

The court observed that it goes without saying, that if appointments in the IHC are made in colourful exercise of power or by bypassing the transparent process of recruitment provided under the Rules, it will have far reaching undulate effects on the public at large.

“If the torch bearers of justice are permitted to make appointments overlooking merits, the sanctity of the judicial system will be in peril”, the court held adding that the exercise of power in a manner that results in depriving meritorious citizens from the opportunity of competing for public offices, therefore, is beyond a shadow of doubt and is a matter of public importance.

The court further ruled that such an unlawful exercise of power is also an abrogation of the fundamental rights guaranteed under Article 18 of the Constitution, which protects an individual’s right to enter upon a lawful profession or occupation.

“The right conferred under Article 18 has to be read with Article 4 of the Constitution which provides every citizen the right to be dealt with in accordance with the law”, says the judgment.

The court noticed that numerous infirmities were made in the appointments made by the Chief Justice/Administration Committee, and these infirmities are incurable by the Chief Justice under the powers conferred on him under Rule 26 of the Lahore High Court Rules and Rule 16 of the IHC.

These appointments included Muhammad Idrees Kasi, who was appointed directly without advertisement on the post of Deputy Registrar on 17.04.2012, which is meant for promotion. Since he was appointed after the promulgation of the IHC Rules, appointment to this post could only be made on promotion basis from the cadres of Assistant Registrars, Readers and Private Secretaries on seniority-cum-fitness basis or by transfer of a Senior Civil Judge serving under the High Court. It is impossible that even a year after the establishment of the IHC, there was no other deserving candidate who could be appointed on this post on promotion or transfer basis, that too without advertisement and treating him as the sole candidate for this post.

Faiz Rasool who was working as Deputy Registrar in the High Court of Baluchistan and after his retirement, on 10.05.2013, he was appointed on contract basis in BS-19 as Deputy Registrar.

Shakil Ahmed Qazi was previously a Programmer in BS-18 in the Sindh High Court. On 02.06.2012, he was appointed as Additional Registrar (IT) in BS-20 in the IHC on deputation basis for a period of three years and was later absorbed.

Shehzada Aslam was previously a Private Secretary in BS-18 in the Lahore High Court. On 01.02.2011, his services were requisitioned on deputation basis for a period of three years to work as Secretary to the Chief Justice of the IHC (BS-20). He was absorbed on 09.05.2011 as Additional Registrar (BS-20) under Section 11 of the Act.

Muhammad Kashif was previously a practicing lawyer in the Subordinate Courts of Punjab. On 27.04.2011, he was appointed as Assistant Registrar (BS-18) in the IHC. He was placed on probation for a period of two years and on 10.05.2013 his probation was further extended.

Usman Mir was previously a Credit Analyst in Allied Bank Limited. On 30.05.2013, he was appointed on deputation basis as Assistant Registrar (BS-18) in the IHC. On 27.05.2016, concurrence was obtained from Allied Bank Limited for extension of his deputation which was not available in the bank’s policy. He was appointed on deputation after the promulgation of the IHC Rules.

Umar Daraz was previously a Reader (BS-18) in the Lahore High Court and. On 01.02.2011, he was appointed as Deputy Registrar (BS-19) on deputation basis in the IHC. On 09.05.2011, he was absorbed against the post of Additional MIT (BS-20) on permanent basis. His absorption was made during the interim period and therefore as per Rule 7 read with Rule 6 (i) of the Lahore High Court Rules, the absorption could only be made either (a) with the concurrence of the Governor or in consultation with the Public Service Commission. This procedure was not followed.

Imtiaz Ahmed was previously a Private Secretary (BS-18) in the Lahore High Court. On 01.02.2011 he was appointed on deputation basis as Deputy Registrar (BS-19) in the IHC. On 09.05.2011 he was absorbed on permanent basis in the Establishment.

Muhammad Naveed Qaisar, was previously a Personal Assistant (BS-17) in the Lahore High Court. On 01.02.2011, he was appointed on deputation basis for a period of three years as Private Secretary (BS-18) in the IHC. On 09.05.2011 he was absorbed as Private Secretary on permanent basis in the Establishment. His appointment was made during the interim period and therefore as per Rule 7-A of the Lahore High Court Rules, his credentials did not match the eligibility criteria and yet he was selected at the cost of other deserving candidates.

Waheed Nawaz was directly appointed to the post of Assistant Accounts Officer (BS-17) on 18.02.2011. He was previously an Income tax Practitioner and was enrolled as Advocate of the subordinate courts in Sindh Bar Council, Karachi, since April, 2009.

Usman Qudoos, was previously a practicing lawyer with an LL.M degree, who was directly appointed on 02.05.2011 as a Research and Reference Officer (BS-19) in the IHC. He was appointed during the interim period and since there are no rules applicable to the appointment of a Research and Reference Officer in the Lahore High Court Rules, applicable customary practices of recruitment shall apply. This post was not advertised and he was appointed by the Chief Justice under the garb of relaxation of Rules.

Sabir Hussain was a fresh appointee who was appointed as Personal Assistant (BS-17) in 2008 after the advertisement of the post in the Daily Azkaar newspaper on 20.11.2008. Under Section 11 of the Act, he was appointed in the establishment in 2011. He was previously working as Stenographer (BS-16) in the Lahore High Court. Selection of a Stenographer with a B.A for the post of Personal Assistant from a pool of deserving candidates, on the face of the record does not make sense to the discerning eye. Lack of transparency is clearly reflected. 

Saqib Sheraz, who was previously working as Assistant Accountant (SPS-04) in Pakistan Broadcasting Corporation (Islamabad), was appointed on deputation basis on 17.02.2011 as Assistant Accounts Officer (BS-17) and later absorbed. His appointment was made after the promulgation of the IHC Rules according to which, initial recruitment could be made from amongst the holders of B.Com or equivalent degree. No advertisement had been published whereby other eligible candidates could be permitted to compete.

Shakeel Raza, was previously working as Coordination Assistant (BS-15) in the Provincial Assembly of Balochistan. On 24.03.2011, he was appointed as Computer Operator (BS-15) on deputation basis (before the promulgation of the Rules) for a period of three years.

Amir Abdul Majeed, was previously working as a Stenographer (BS-12) in the University of Punjab. On 27.05.2011 he was appointed on deputation basis as Personal Assistant (BS-17) in the IHC. Although his credentials match the eligibility criteria applicable under the IHC Rules no advertisement had been published whereby other eligible candidates could be permitted to compete and therefore, his application was the only one considered for the said post. The Chief Justice’s power to relax the rules under Rule 16 of the IHC Rules only permits for such leniency where undue hardship exists.

Hafiz Muhammad Sufyan, was directly appointed to the post of Assistant Registrar (BS-18), without advertisement of the post in the press. Although he had a Master’s Degree in Journalism, the required qualifications under the eligibility criteria for initial recruitment to this post was BA, BSc or BCom and hence the required field may not have been journalism for a post of this nature.

Zaid Ahmed was directly appointed to the post of Assistant Registrar (BS-18), after the promulgation of the IHC Rules. He was previously working as data Processing Officer for Official Assignee in the High Court of Sindh. Although with a BA, he fulfilled the required qualifications under the eligibility criteria for initial recruitment to this post which is BA, BSc or BCom, the procedure of initial recruitment in terms of advertisement and transparency was not followed. Furthermore, the chief justice’s power to relax the rules under Rule 16 of the IHC Rules only permits for such leniency where undue hardship exists. No such hardship is apparent on the face of the record.

On 25.09.2012, Ghawas Gul Mastoi, was directly appointed to the post of Assistant Registrar (BS-18), after the promulgation of the IHC Rules. Although he had a Master’s Degree in International Relations, the required qualification under the eligibility criteria for initial recruitment to this post was BA, BSc or BCom and hence the required field may not have been International Relations for a post of this nature.

On 01.06.2011, Respondent No.6, Ms. Faiza Mir, was directly appointed as Personal Assistant (BS-17), after the promulgation of the IHC Rules. She was previously working as a Teacher at Beacon House School System since March 2003, and although the record shows that she was computer literate, there is no record of her possessing the required skills for the post under the IHC Rules which are shorthand speed of 100 w.p.m. and typing speed of 40 w.p.m.

On 15.04.2011, Mirza Abid Baig, was directly appointed as Assistant (BS-14), after the promulgation of the IHC Rules. The eligibility criteria for this post was fulfilled by the Respondent as he possessed a MS (CS) while the requirement was BA, B.Sc or B.Com, however the procedure of initial recruitment in terms of advertisement and transparency was not followed. On 19.05.2011, he was appointed as Personal Assistant (BS-17), without complying with the codal formalities. It is not known whether he possessed the required skills of typing speed of 50 w.p.m. On 25.09.2012, he was appointed as Assistant Registrar (BS-18).

Imtiaz Ahmed was appointed directly on the post of Deputy Registrar (BS-19) on 10.03.2008, after an advertisement was published in the Daily Nawa-i-Waqt. He possessed a BA and LL.B. It is not known whether the appointment of Respondent No.38 was made in a transparent manner or if all required procedures for initial recruitment were followed. Eligibility criteria under Lahore High Court Rules for this post were not followed.

It is pertinent to mention here that the petitioner has mainly relied on an Audit Report for the years 2010 to 2013 submitted in July 2013, by Nasim-ul-Ghani, Accounts Officer, Office of the Accountant General, Pakistan Revenues, Islamabad.

It was revealed in the report that during scrutiny of personal files, it has been observed that after re-establishment of IHC in 2010 not a single appointment of officers/officials has been made on merit and a number of appointments have been made in relaxation of rules including absorption of officer and officials (deputationists) in much higher scales than they were holding in their parent departments.

Whereas, generally the absorption is made in the same scale or in some special case maximum one stage above only, but in IHC the deputationists have been absorbed in much higher scale without any plausible justification. Absorption is also a kind of appointment.

It was further revealed that the procedure of advertising the posts in newspapers for making appointments through open competition after conducting test/interview has totally been ignored in all the appointments made during the audit period. Appointments without open competition have been held illegal by the superior courts.

Rule 8 of the IHC Establishment (Appointments and Conditions of Service) Rules, 2011 also provides that initial recruitment to all posts shall be made after proper advertisement of the vacancies in the newspapers and on the basis of test and interview. It is more alarming that even after advertising the posts of non-gazetted cadres, the same were still filled by relaxing the rules and the applicants who had applied against the said posts were deprived of their fundamental right to compete for getting job on merit. Further observed that no justification and exigency existed as already a reasonable number of employees (more than 200) had been working in the Court and there was no hurdle in adopting proper procedure to fill up the vacant posts but it appears that the intention was not there and nepotism/favouritism was allowed to prevail. Even in case of any exigency the post could have been filled temporarily (not more than for a period of six months) and then regular appointment could have been made by adopting the proper procedure. In some cases of appointments, discretionary powers of relaxing of rules have been exercised more than one time. Whereas the power to relax any of the rules (rule 16 of the IHC Establishment (Appointments and Conditions of Service) Rules, 2011) can only be exercised where a strict application of the rule would cause undue hardship and it is also subject to recording of reason in writing”.

  Some excerpts of the SC judgement are as follows  

 42. We have gone through aforementioned judgments and have examined the case law cited by the Counsel in support of their contentions. We, with great respect, are not in agreement with the conclusion reached by the learned Lahore High Court that the judicial, administrative, consultative and executive powers are indistinguishable within the meaning of Article 199(5), and hence, unassailable through a writ petition. It is our considered view that the Constitution confers judicial powers (jurisdiction) on the High Court only under Article 199 and the administrative, consultative or executive powers are conferred on the High Court by virtue of the rules framed under Article 208.

Rules framed by the High Court or Supreme Court further require approval of the Governor or President as the case may be. It needs to be highlighted that Article 199(5) excludes a High Court and Supreme

Court from the definition of ‘person’. High Court is defined under

Article 192, the relevant part of which is reproduced as under:

“192. Constitution of High Court. (1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President.”

This definition does not include the Registrar or any other officer of a High Court Establishment, who is appointed by the Chief Justice or the Administration Committee under the Rules. The executive/administrative/ consultative powers conferred on the Chief Justice or an Administration Committee are drawn from the Rules; whereas the judicial powers (jurisdiction) conferred upon the High Court and exercised by the judges are embedded in Article 199 itself; hence, both the powers are different and unparalleled.

43. We, for the aforesaid reason, are of the considered view that the view of learned Lahore High Court and maintained by this

Court in the cases of Asif Saeed (Supra) and Muhammad Iqbal is against the language of Article 192 and Article 199 of the Constitution.

Moreover, the provisions of Article 208 which empowers the High

Court or Supreme Court to frame Rules for their establishments have been completely overlooked. As a result, the judicial powers and the powers which are administrative/consultative/executive in nature have been mixed up leading to denial of remedy to an aggrieved person even in a case where codal formalities or eligibility or other mandatory requirements have been blatantly disregarded.

44. Even the plain reading of Article 199(5) leads to the conclusion that by excluding a High Court and Supreme Court from the definition of ‘person’, the framers of Constitution envisaged judicial jurisdiction and not the extraneous administrative/ executive/ consultative matters pertaining to the Establishment of the Courts. The reason obviously lies in the conferment of powers through the rules which are subject to the approval of the executive. Hence, in our view, a Judge acts in two different domains, when he performs judicial functions under Article 199 and when he performs administrative/ executive/ consultative functions under the Rules which cannot be mixed with each other. In other words, there is a grading of power: the parameters of judicial powers exercised by a judge under the provisions of the Constitution are distinct from the non-judicial powers he exercises under the Rules framed under the provision of the Constitution. The judgment rendered in the case of Mohammad Iqbal (supra) approving the case of Asif Saeed (supra) being against the provisions of the Constitution is per incuriam and is not a good law.

45. We for the aforesaid reasons conclude that the provisions of Article 199(5) would bar a writ against a High Court if the issue is relatable to judicial order or judgment; whereas a writ may lie against an administrative/consultative/executive order passed by the Chief

Justice or the Administration Committee, involving any violation of the

Rules framed under Article 208, causing infringement of the fundamental rights of a citizen.                         

51. From the perusal of the above definitions in conjunction with the above-quoted Rules of Lahore High Court and Islamabad High Court, it can safely be held that absolute power to relax a certain service Rule has not been conferred on the Chief Justices of both the High Courts and this power is limited only to be exercised where it does not encroach upon the statutory rights of the other persons or employees. These two Rules cannot be interpreted in such a manner as to bestow an absolute power upon the Chief Justices to deal with the case of a person/employee in a manner they like. The Chief Justices can exercise powers under these Rules only in a manner that may not cause injustice or prejudice to any individual/employee. In the case in hand, the learned Chief Justice of Islamabad High Court has exercised a power beyond the scope of the Rules and relaxed them under the garb of “relaxation of Rules” which cannot be permitted in any circumstances, especially when it impinges upon the statutory rights of the citizens and other employees of the High Court. Rules can only be relaxed if the rules permit their relaxation, and the conditions stipulated for relaxation are strictly met. Admittedly, the conditions for relaxation of the Rules which are “just and equitable” and “undue hardship” have not been met in relaxing the Rules for making appointments and absorptions in the Islamabad High Court.                         

85. Before parting with the judgment, we may observe that the

Chief Justice Islamabad High Court and/or the Administration

Committee of Islamabad High Court have made appointments in the

Establishment in complete disregard of the mandate given by the Rules framed under Article 208 of the Constitution. If the competent authority itself starts cherry picking by deliberately ignoring and overlooking meritorious candidates in appointment exercising powers under Rule

26 of the Lahore High Court or Rule 16 of the Islamabad High Court, then the image of the institution will be tainted beyond repair. Such practice may lead to distrust of the public in the judicial institution of the country. We could not allow denial of justice to those candidates who merit appointment nor could we encourage anyone to bypass transparent process of recruitment provided under the Rules. We have already cited certain instances showing the mode and manner in which the appointments were made by abusing the authority.

86. We, for the aforesaid reasons, allow this Petition in the above terms. Copy of this judgment be immediately remitted through fax to the Registrar, Islamabad High Court, for placing it before the Chief Justice and all the Judges for their information and compliance.

Meanwhile commenting on the judgment, President Supreme Court Bar Association (SCBA) Barrister Ali Zafar said that these are very serious allegations and it is likely that appropriate action shall be taken against all those who are involved.

In a statement issued here, the SCBA President said that in this case the judgment has not gone so far as to state that any investigation be ordered and as such the matter of accountability is still left open.

He said that it remains to be seen whether there could be any voluntary resignations as a result of this judgment or if some action will be initiated under the appropriate laws.