ABDUL MATIN KHAN and 2 others vs N.W.F.P. through Chief Secretary and 2

1. MUHAMMAD AFZAL ZULLAH, C.J.--These appeals through leave of the Court have arisen out of a service matter. The order for grant of leave to appeal reads as follows:-- "These are two connected petitions for special leave to appeal from the judgment dated 7-8-1988 of the N.-W.F.P. Service Tribunal.

2. The petitioner in Civil Petition No,166-P joined service as Civil Judge in 1977 in N.P.S.17. By the Pay Revision Rules of 1978 15% of the posts of Civil Judges were placed in N.P.S. 18.In December, 1983, the High Court recommended a panel of 13 Civil Judges for appointment to NPS-18. The panel did not include the petitioner as a departmental inquiry was pending against him. The Provincial Selection Board approved the panel sent by the High Court. In 1985 the High Court recommended another panel of Civil Judges for appointment to NPS-18. This panel included the name of the petitioner as well. However, the Provincial Selection Board deferred consideration of his case on account of the departmental inquiry which had not yet been concluded.

3. On 3-1-1987 under the orders of the Chief Justice the inquiry proceedings against the petitioner were dropped. At about the same time the High Court recommended him for appointment to NPS-

18. The Provincial Selection Board did not approve of the recommendation on the ground that the service record of the petitioner was unsatisfactory. The petitioner filed a departmental representation but that remained undisposed of. He then filed an appeal before the Provincial Service Tribunal.

4. The learned Tribunal accepted the appeal and directed that the petitioner should be appointed to NPS-18 from the date he was first recommended by the High Court, that is, with effect from 5-3- 1984. Both the petitioner as well as the Provincial Government being dissatisfied with the order of the learned Tribunal seek leave to appeal from this Court.

5. The case of the petitioner is that the Civil Judge immediately below him in the seniority list was appointed to NPS-18 with effect from 26-4-1982. At that time his case was not considered for appointment' to NPS-18 for the reason that a departmental inquiry was pending against him; once he had cleared in the departmental inquiry he should have also been appointed to NPS-18 with effect from 26-4-1982. On the other hand, the case of the Provincial Government is that the service record of the petitioner was found unsatisfactory by the Selection Board. The appointment to NPS- 18 was in the nature of promotion and it was not open to the learned Tribunal to sit in judgment upon the decision of the Selection Board in this regard.

6. The contentions raised in both petitions need examination. Leave to appeal is granted in both petitions. The appeals may be made ready for hearing on the present record with permission to the parties to file additional documents, if any."

7. We would take up the Government Appeal No,184-P of 1990 in the first place. The learned Addl.

8. Advocate-General relying on section 4(b)(i) of the N.-W.F.P. Service Tribunals Act, 1974 reiterated the argument that it was not open to the Tribunal to pass an order on promotion much less to make it effective retrospectively. The barring provision reads as follows:-- "4. Appeals to Tribunals.--Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter: Provided that:-- (a)

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining--

(i) the fitness or otherwise of a person to be appointed to a higher post or grade; or

(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement.

9. Explanation.--In this section 'departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of service of civil servants."

10. The learned counsel for the appellant in Appeal No,183-P of 1990 tried to argue that the change of grade to a higher pay scale does not amount to promotion. He wanted to rely on some circular in this behalf. However, when a recent judgment of this Court contrary to his submission was pointed out to him he could not pursue the point any further. It is Government of the Punjab v. Muhammad Awais Shahid 1991 SCM R 696. On this ground alone the appeal of the Government No,184-P of 1990 merits to be allowed and it is ordered accordingly. The other Appeal No,183-P of 1990 is dismissed.

11. There shall be no order as to costs.

12. But the matter does not end here. It is amply clear from the documents placed on the records of these appeals that the High Court had not only dropped the inquiry against Mr. Abdul Matin Khan but had also passed the following order:-- "In order to fill in the existing vacancies in Selection Grade i,e, BPS-18, the Administration Committee of this Court has been pleased to recommend the following Judicial Officers for grant of the Selection Grade from the dates mentioned against each: Sl.No,Name Date Description of vacancies

(1) --- --- ---

(2) Mr. Abdul Matin Khan5-3- 1984Vice Mr. Ziauddin Khan Khattak promoted on 5- 3-1984 as Additional District and Sessions Judge,

(3) --- - - - - - -

(4) - - - - - - - - -

(5) - - - - - - - - -

(6) - - - - - - - - -

(7) - - - - - - - - -

(8) - - - - - - - - - It is requested that the case for grant of Selection Grade to the above Senior Civil Judges from the dates as given above may please be placed before the Provincial Selection Board and approval of the Appointing Authority conveyed to this Court in the public interest.

13. (Sd.)

14. (MUHAMMAD AYUB KHAN), REGISTRAR."

15. The Provincial Selection Board not only disagreed with the opinion of fairly large number of Honourable Judges of the High Court but also in an attempt to show a better assessment contradicted the stand taken by the High Court in its overall assessment about the learned Civil Judge.

16. Although a case is pending before us from Sindh High Court on question of separation of judiciary and another regarding independence of judiciary, vis-a-vis the transfer of High Court Judges to the Federal Shariat Court, this case presents a third feature regarding both: the independence and separation of judiciary. If power of the Government and its functionaries to override the assessm ent, opinion and directions of the High Court with regard to its own subordinate judiciary in matter of their promotions is upheld, the very fabric of independence and separation of judiciary is considerably damaged. It is not necessary to spell out the detailed consequences in the context of our Constitutional set-up. It would suffice to say that besides the contravention of some of the commands in the specific Constitutional provisions including Article 175 thereof but also that contained in the Objectives Resolution; which, inter alia, provides that 'the independence of judiciary shall be fully secured', would be flouted. This question is of great public interest. Prima facie, it further amounts to violation of several human rights. We, accordingly, entertain this matter under Article 184(3) of the Constitution.

17. A case shall, accordingly, be registered in the category of Human Rights in the class of public interest litigation: Re: Abdul Matin Khan v. The Government of N.-W.F.P. Notices to the Attorney- General, the Advocate-General and all other necessary notices shall be issued. It shall be heard by a Bench of least five Hon. Judges.

18. The case shall come up with one already registered regarding the independence of Judiciary.