GUL DARAZ KHAN Versus GOVERNMENT OF KHYBER PAKHTUNKHWA

MUHAMMAD NAEEM ANWAR, J .----By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the vires of section 3 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974, hereinafter called as "(the Act, 1974)" and prayed that:- "on acceptance of the writ petition, this Hon'ble Court may graciously be pleased to issue declaration to the effect that appointment of the executive members amongst civil servants in BPS-20 and above in the Khyber Pakhtunkhwa Service Tribunal is illegal, without jurisdiction, without lawful authority, in violation of Article 175(3) of the Constitution of Pakistan and Article 2(A) of the Constitution."

2. Mr. Noor Alam Khan, learned counsel for the petitioner, contended that appointments of the members of Service Tribunal amongst the Civil Servants in BPS 20 and above is against the phenomenon of separation of judiciary from the executive as mandated by Article 175(3) of the Constitution read with Article 2A (the Objective Resolution), whereby it was provided that "independence of judiciary shall be fully secured". According to him, in the appointment of Civil Servant as member of Service Tribunal, the involvement of Administration's bias and interference of executive could not be ruled out, as such, the fundamental rights as enshrined by the Constitution of the Islamic Republic of Pakistan, 1973, are infringed. He continued that basic purpose of separation of judiciary from the Executive was to prevent and protect the abuse and misuse of powers by the two organs of the State and one was to check the other, but in the Service Tribunal, the appointments of executive members was against the basic sprit of the doctrine of "separation of powers" and "checks and balance".

3. As against that, Mr. Shumail Ahmad Butt, the learned Advocate General, Khyber Pakhtunkhwa, vociferated that "(the Act, 1974)", was amended in accordance with the verdict of the august Supreme Court of Pakistan, rendered in Constitutional Petitions Nos. 53 of 2007 and 83 of 2012, decided on the 9th January, 2013, in case titled Sh. Riaz ul Haq and another v. Federation of Pakistan through Ministry of Law and others reported in (2013 PLC (C.S.) 1308/PLD 2013 SC 501).

4. In continuation of his submission, he added that unless a law affected fundamental rights of an individual or violates a provisions of the Constitution, it could not be declared in conflict with the Constitution.

5. We have heard learned counsel for the parties and have perused the record.

6. As we have seen, the Administrative Courts and Tribunal were established within the parameters of Article 212(1) of the Constitution of 1973, which read as:

"212 Administrative Courts and Tribunals.

(1) Notwithstanding anything hereinbefore contained the appropriate legislature may by Act provided for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--

(a) matters relating to the terms and conditions of person who are, or have been in the service of Pakistan, including disciplinary matters".

Thus, consequently, the Khyber Pakhtunkhwa Service Tribunal was established wherein under section 3(3) of the Khyber Pakhtunkhwa Service Tribunal Act, 1974, it was provided that:--

"3. A Tribunal shall consist of;

(a) a chairman, being a person who has been, or is qualified to be, Judge of the High Court; and

(b) not less than two and not more than four members, each of whom is a person who has for a period not less than fifteen years held a class I or an equivalent post under the Federal Government or a Provincial Government."

7. The above mentioned section besides others of the "(the Act, 1974)" was challenged through Constitutional Petition No. 53 of 2007 before the Hon'ble apex Court of Pakistan, which was decided on 9th January, 2013, and reported in PLD 2013 SC 501. Before the apex Court, it was argued that respondents be directed to fulfill the constitutional obligations to ensure independence of judiciary from the executive, thus, the matters regarding appointments of Chairman and members of the Service Tribunal is as important as those of the Judges of the High Court. It was also argued before the Supreme Court that the matter regarding appointment of Chairman and Members of the Tribunal are processed through by Administrative Ministry, therefore, this state of affairs clearly violates Article 175 of the Constitution. Therefore, while considering the contentions of the then petitioners, the Hon'ble Supreme Court of Pakistan has held that:-

42. It is to be noted that independence of judiciary has been recognized as a universal human right. In terms of Article 10 of the Universal Declaration of Human Rights, G.A, 1948, everyone is entitled to full equality to a fair and public hearing by an independent and impartial Tribunal. In Pakistan, the independence of judiciary is a basic principle of the constitutional system of governance. The Preamble and Article 2A state that "the independence of judiciary shall be fully secured". This Court while interpreting Article 175 has further strengthened the principle of the independence of judiciary, by emphasizing the separation of Judiciary from the Executive. The Constitution makes it the exclusive power/responsibility of the Judiciary to ensure the sustenance of the system of "separation of powers" based on checks and balances. This is a legal obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the Judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. [see Zafar Ali Shah v. Pervez Musharraf (PLD 2000 SC 869)]. Our Constitution is based on separation of powers whereby Parliament makes the laws and the judiciary interprets them. However, it remains the duty of the Judiciary to examine vires of legislation at the touchstone of the Constitution. Reference may be made to the case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32). and, as such, in Para 45 of the judgment that:-

45. The Principle of separation and independence of judiciary as envisaged in Article 175 of the Constitution is also applicable to the lower judiciary as it is the part of the judicial hierarchy. Thus, its separation and independence has to be secured and preserved as that of superior judiciary. In terms of Article 175 read with Article 203 of the Constitution, the lower judiciary should be separated from the Executive and the High Court shall supervise and control all courts subordinate to it. Reference may be made to the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has been held that the Legislature is competent to legislate but such legislation would not be sustainable if it is contrary to the principle of independence of judiciary as mentioned in Article 2A of the Constitution, which provides that independence of judiciary shall be fully secured read with Article 175 of the Constitution, which lays down a scheme for the establishment of the Courts, including the superior Courts and such other Courts as may be established by law. As it has been held that Service Tribunal discharges judicial functions, thus falls within the definition of a "Court" in view of the above discussion, therefore, the Tribunals have to be separated from Executive following the principle of independence of judiciary in view of Article 175(3) of the Constitution.

Likewise, with regard to the Members of Service Tribunal it was observed by their lordships that:-

"63. We are conscious of the fact that there are civil servants who are quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members has to be made in consultation with the Chief Justice, on having gone through the credentials of nominees and by also giving preference to those, who have a legal background and had not reached the age of superannuation with their tenure, which is to be restricted to a one time tenure not more than a period of three years or till the date of a superannuation, whichever is earlier."

Thus, section 3(3) of "(the Act, 1974)" was declared to as ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973, and the Provincial Government through Secretary Law was allowed 30 days' time to give effect to the above conclusion/findings and implement the ibid judgment by making fresh appointment of Chairman/Members of the Tribunals. It was also held that if no steps were taken within the stipulated time, either through temporary or permanent legislation, the provisions of the Legislation which have been declared void under Article 8 of the Constitution were held seized to have effect.

8. As a consequence of the judgment of the apex Court, "(the Act, 1974)" was amended and through Act No. XL of 2014 Section 3(3) (b) was substituted which is reproduced as under:-

"3(3) (b)" four members, two of whom shall be from amongst District and Sessions Judges and two from amongst Civil Servant in BPS-20 and above." and, vide Khyber Pakhtunkhwa Act No. XXII of 2013, section 4 was substituted as such:-

"4. The Chairman and members of a Tribunal shall be appointed by the Governor in consultation with the Chief Justice of Peshawar High Court."

Similarly, vide Act No. XXII of 2013, section 3-B was inserted as such:-

"3-B Tenure, Terms and conditions of service of Chairman and members._(1) The Chairman and a member shall hold office for a period of three years or until he attains the age of sixty years, whichever is earlier, and shall not be eligible for re-appointment:

Provided that if a judge of the High Court is appointed as Chairman, he shall hold office for a period of three years or until he attains the age of superannuation as judge of the High Court whichever is earlier."

The above mentioned amendments of the Act No. XXII of 2013 were made after the judgment of the august apex Court and Act XXII was promulgated on 11th of July, 2013, and, thus, made part of the Statute.

9. In addition to the above, now dilating upon the contention of the learned counsel for the petitioner that on the touch stone of Article 2A of the Constitution, the respondents have failed to implement Article 175(3) of the Constitution for separation of judiciary from the Executive, therefore, section 3 of "(the Act, 1974)" be declared as ultra vires. The question as to whether Article 2A (Objective Resolution) could be made basis for striking down the Statute or declaring the same as ultra vies. The august Supreme Court of Pakistan has held that Article 2A of the Constitution cannot be used to strike down the Statutes. Reference may be made to the cases, infra:-

(i) Kaniz Fatima v. Wali Muhammad (PLD 1993 SC 901) at Para No.9)

(ii) Tank Steel and Re-Rolling Mills (Pvt.) Ltd. v. Federation of Pakistan (PLD 1996 SC 77) at 84 (E)

(iii) Zulfiqar Ali Babu v. Government of Punjab PLD 1997 SC 11 at 22 (c).

(iv) The Province of Punjab v. National Industrial Cooperative Credit Corporation 2000 SCMR 567 at 606(f).

10. At the same time, the Hon'ble apex Court in its judgment rendered in case titled Lahore Development Authority v. Imran Tiwana (2015 SCMR 1739) has enunciated the following principles which must be applied and considered by the Court when striking down or declaring a legislative enactment as void or unconstitutional.

"(i) There was a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute was placed next to the Constitution and no way could be found in reconciling the two;

(ii) Where more than one interpretation was possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favoured validity;

(iii) A statute must never be declared unconstitutional unless its invalidity was beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid;

(iv) Court should abstain from deciding a Constitutional question, if a case could be decided on other or narrower grounds;

(v) Court should not decide a larger Constitutional question than was necessary for the determination of the case;

(vi) Court should not declare a statute unconstitutional on the ground that it violated the spirit of the Constitution unless it also violated the letter of the Constitution;

(vii) Court was not concerned with the wisdom or prudence of the legislation but only with its Constitutionality;

(viii) Court should not strike down statutes on principles of republican or democratic government unless those principles were placed beyond legislative encroachment by the Constitution; and

(ix) Mala fides should not be attributed to the Legislature."

11. Now while considering the main grievance of the petitioner and focusing on section 3 of (the Act, 1974), within the parameters formulated by the apex Court, as mentioned above, in juxtaposition with the judgment rendered in the Constitutional Petition No. 53 (PLD 2013 SC 501) read with the amendment of "(the Act, 1974)", as mentioned in Para No. 8 of this judgment, we are of the considered view that the instant petition has no substance for declaring section 3 of "(the Act, 1974)", as ultra vires, as by now it has no conflict with the fundamental rights enshrined in "Part II" of the Constitution of the Islamic Republic of Pakistan, 1973, thus, the same is hereby dismissed.

ZC/66/P Petition dismissed.