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June 20, 2019

Notices issued: Court moved against civil servants’ appointment as KP Service Tribunal members


June 20, 2019

PESHAWAR: The Peshawar High Court (PHC) on Wednesday issued a notice to Khyber Pakhtunkhwa government in a writ petition challenging the appointment of two civil servants from the executive as members of the Khyber Pakhtunkhwa Service Tribunal, which is a violation of Article 175 of Constitution and independence of the judiciary.

A division bench comprising Justice Roohul Amin Khan and Justice Syed Afsar Shah also put on notice Advocate General, Khyber Pakhtunkhwa, to assist the court on the law points raised in the writ petition.

The petition was filed by a senior lawyer Gul Daraz Khan. The Khyber Pakhtunkhwa government through the chief secretary, secretaries Law, Establishment, provincial assembly and governor through the principal secretary were made parties to the writ petition.

During the arguments, the petitioner s lawyer Noor Alam Khan submitted that Article 212 of Constitution provides for the establishment of administrative courts having exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the Services of Pakistan. In order to have a court for the civil servants as per the requirement of Article 212 of Constitution, the KP government passed Service Tribunal Act, 1974 which will have exclusive jurisdiction in matters of terms and conditions of service of civil servants. The lawyer argued that Section 3 of the Service Tribunal Act 1974 constitutes the tribunal.

It said the tribunal shall consist of a chairman being a person, who is or has been or is qualified to be a judge of the high court and four members. Two of whom shall be from amongst district and sessions judges and two from among civil servants in BPS-20 and above.

The constitution of Service Tribunal to the extent of appointment of members amongst civil servants in BPS-20 and above is illegal and not in accordance with the requirements of Article 175 of the Constitution, the petitioner stated.

He said the Article 175 (3) of the Constitution stresses the separation of the judiciary from the executive progressively within 14 years after commencement of the Constitution, but the structure and constitution of the Service Tribunal is an amalgamation of judicial officers and civil service officers. The petitioner pointed out that the provision of Article 175 (3) is mandatory but the respondents failed to implement the said article and separate the judiciary progressively from the executive in Servicer Tribunal.

The judiciary cannot claim neutrality and independence unless it is insulated and detached from executive and administrative influence in all respect including in terms of appointment, tenure and security of service as well, the petitioner explained.

He was pointed out before the court that the judiciary has been termed as custodian and sanctuary for the rights of the people and that of the Constitution. The petitioner said the judiciary having an exalted position must be independent and separate from the executive in all respect. He submitted that it was the constitutional obligation of the government to ensure separation of the judiciary from the executive, but in the KP Service Tribunal, the respondents failed to separate the executive from the judiciary.

He said the basic purpose of the separation of the executive from the judiciary was to prevent the misuse of powers by the two organs of the state and one was to check the other, but in Service Tribunal the appointment of executive members was against the basic spirit of the doctrine of separation of powers and checks and balances.

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