2015 P L C (C.S.) 831

[Lahore]

Before Syed Mansoor Ali Shah, J

Syed RIAZ ALI ZAIDI

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary,Lahore and 3 others

Writ Petition No.5406 of 2011, decided on 10thFebruary, 2015.

(a) Constitution of Pakistan—

—-Preamble & Arts. 175, 2A &208—Independence of judiciary—Separation of powers between organs of theState—Nature and scope of relation between organs of the State—Scope andnature of judicial self-governance—Constitutional protection of financialautonomy and budgetary independence of the Superior Judiciary—Purpose, andnecessity of institutional independence of the judicial branch—Conceptdescribed.

DelhiJudicial Service Association (Regd.) v. Government of Nct of Delhi and another2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi WaliMuhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary,Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375;Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government ofthe Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs NusratElahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations andPractical Challenges – Shimon Shetreet and Christopher Forsyth, P.480 (footnote #10); Government of Balochistan through Additional Chief Secretary v.Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through RaeesulMujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan andothers PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation ofPakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and122 of the Constitution. Also see Accounting Policies and Procedures Manual,Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. TheFederation of Islamic Republic of Pakistan through Prime Minister of Pakistanand another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary toGovernment of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry ofLaw and others PLD 2013 SC 501; Accountant-General, Sindh and others v. AhmedAli U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Provinceof Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standardsof Judicial Independence: The innovative concepts and the formulation of aconsensus in a legal culture of diversity by Shimon Shetreet. The Culture ofJudicial Independence-Conceptual Foundations and Practical Challenges, P.475;Judicial Independence: The Contemporary Debate Shimon Shetreet and JulesDeschense eds. 1985. (See P.76 Aharon Barak – The Judge in a Democracy); Whatis happening to Judicial Independence; Aharon Barak-The Judge in a Democracy)PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business ofJudging-Tom Bingham, P.57 and The Culture of Judicial Independence – conceptualfoundations and practical approaches – Shimon Shetreet & ChristopherForsyth, PP.20-21 rel.

(b) Constitution of Pakistan—

—-Preamble & Arts. 121, 175, 208, 122, 2A,& 199—High Court (Lahore) Rules and Orders, Vol. V, Chap. 10, Part C, R.17—Constitutional protection of the financial and budgetary autonomy of HighCourt—Terms and conditions of service of officers and employees of theSuperior Courts—Expenditure charged upon Provincial Consolidated Fund—Judicialindependence and separation of powers—Scope—Federal Government vide anorder of the Prime Minister had allowed an increase in the pay of staff ofSuperior Judiciary across the Country by granting an enhancement in thejudicial and ad hoc allowance, and the same was duly approved and sanctioned bythe Lahore High Court in terms of the High Court (Lahore) Rules and Orders,Volume-V—Provincial Government did not honour the said budgetary approval forenhancement of the said allowances—Question before High Court was whetheradministrative expenses of the High Court, which under the Constitution were anexpenditure charged on the Provincial Consolidated Fund under Arts. 121 &122 of the Constitution, once approved and claimed by the High Court, could beignored or turned down by the Provincial Legislature or the ProvincialGovernment—Held, that judicial independence was composed of at least fiveaspects: first non-political appointments to a court; second guaranteed tenureand salary; third executive and legislative interference with court proceedingsor office holders; fourth budgetary autonomy; and fifth; administrativeautonomy—Constitutionalism of financial autonomy of the judiciary found itsroots in the preambular constitutional values which stated that “theprinciples of democracy…shall be fully observed” and that”independence of judiciary shall be fully secured.”—Such valueswere echoed more substantively in the Objectives Resolution when read withArt.2A of the Constitution and Art.175 of the Constitution reaffirmedindependence of judiciary on the basis of separation of powers—Article 208 ofthe Constitution provided administrative independence and insularity to thejudicial branch by empowering the judiciary to appoint its officers andservants on their own terms and conditions of employment and this constituted aseparate cadre of judicial administrative staff, distinct from the staff andofficers of the Executive or the Legislative Branches of theState—Administrative expenses of High Court formed part of the chargedexpenditure, which for the purpose of the Province found explanation underArts.121 & 122 of the Constitution—Provincial charged expenditure was anexpenditure met from the Provincial Consolidated Fund, which may be discussedbut not submitted to vote in the Provincial Assembly—Financial and budgetarymanagement of the High Court in terms of administrative expenses if left to theExecutive or the Legislature would generate a public perception of dependence ofthe judiciary on the other two branches of the State, which would weaken publicconfidence reposed in the judicial system and cripple the embodiment ofdemocracy under the Constitution—While judicial independence meant that ajudge must decide individual cases free from any extraneous influence, it alsorequired that the judicial branch exercised control and influence overadministrative penumbra immediately surrounding the judicial process—Pivotalto independence of the judicial branch was its financial autonomy, not in thesense of constitutionally protected salary structure but also the financialautonomy to budget for the administrative costs for effectively running andmanaging the judicial branch—Articles 121, 122, 175 & 208 of the Constitutionprovided construct for self-judicial governance, which rested on foundationalpillars like separation of powers, administrative independence andautonomy—High Court (Lahore) Rules and Orders Volume-V regulated appointmentand conditions of service of the High Court Establishment and in terms ofArt.208 of the Constitution, the only constitutional requirement was that theGovernor must approve the said Rules, which was a one-off act—Rule 17 ofChap.10, Part C of the High Court (Lahore) Rules and Orders Volume-V providedthat the servants and officers of the High Court shall be entitled to pay andallowances as fixed by the Chief Justice from time to time; and said Rule didnot mean that the decision of the Chief Justice fixing pay and allowances of themembers of the High Court Establishment would be subjected to the approval ofthe Governor, which approval was only to the promulgation of the said Rules andnot to the decisions of the Chief Justice issued from time to time under thesaid Rules—Any interpretation of Art.208 of the Constitution and R.17 of theHigh Court (Lahore) Rules and Orders Vol.-V subjecting decision of the ChiefJustice to approval of the Governor would be constitutionally impermissible andwould shake the foundational assumption of judicial independence—Art.121(b)of the Constitution extended budgetary and financial control to High Court sothat the institution could draw up its own administrativeexpenses—Administrative expenses of the High Court did not require assent ofthe Provincial Assembly and expenditure proposed by the High Court therefore,could not be turned down, reduced, or altered by the Executive or theLegislature and no provision existed in the Constitution that authorized theProvincial Executive to delay, reconsider, negotiate, alter or reduce theadministrative expenses of High Court which passed as chargedexpenditure—Once High Court budged its administrative expenses includingremuneration (inclusive of any increase for a particular year) the same was tobe simply provided in the Annual Budget Statement by the Provincial Governmentand placed before the Provincial Assembly for discussion and informationonly—Constitution proceeded on an assumption that the judiciary whiledetermining its administrative expenses would act with the institutionalmaturity and sagacity it possesses—Financial independence of the judiciarymust rest on a professionally structured budgetary system within the judiciaryand required meticulous fiscal and budgetary controls with a consultative anddeliberative methodology for budget preparation—Consultation with the keystakeholders before finalizing the administrative expenses of the High Courtwas an unwritten constitutional assumption—Articles 121 & 122 of theConstitution required that the High Court while exercising its budgetarydiscretion would proceed with fiscal prudence and circumspection—Financialautonomy and budgetary independence in the hands of the High Court had to benurtured with highest sense of responsibility, level-headedness, judiciousness,transparency and financial foresight and the budgetary process of the HighCourt must be a collaborative exercise, where comments, suggestions and inputsare solicited from the provincial government, financial experts and otherrelevant institutions, in order to examine, appreciate and gauge the fiscal andeconomic conditions and realities of the Province before finalizing the chargedexpenditure—High Court directed the Provincial Government to release arrearsof the enhancement of the judicial and ad hoc allowance to the officers andservants of the High Court after completion of constitutional requirements witheffect from the date when such enhancement was made—Constitutional petitionwas allowed, in circumstances.

DelhiJudicial Service Association (Regd.) v. Government of Nct of Delhi and another2000(88)DLT 710; Registrar, Supreme Court of Pakistan, Islamabad v. Qazi WaliMuhammad 1997 PLC (C.S.) 137; Government of the Punjab through Secretary,Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375;Muhammad Yaqub Butt, Additional Registrar, Lahore High Court v. Government ofthe Punjab through Chief Secretary and another PLD 1992 Lah. 527; Messrs NusratElahi and 41 others v. The Registrar, Lahore High Court, Lahore and 68 others1991 MLD 2546; The Culture of Judicial Independence-Conceptual Foundations andPractical Challenges – Shimon Shetreet and Christopher Forsyth, P.480 (footnote #10); Government of Balochistan through Additional Chief Secretary v.Azizullah Memon and 16 others PLD 1993 SC 341; Al-Jehad Trust through RaeesulMujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan andothers PLD 1996 SC 324; Amanullah Khan Yousufzai and others v. Federation ofPakistan through Law Secretary and others PLD 2011 Kar 451; Articles 121 and122 of the Constitution. Also see Accounting Policies and Procedures Manual,Auditor General of Pakistan P.2.20; Sharaf Faridi and 3 others v. TheFederation of Islamic Republic of Pakistan through Prime Minister of Pakistanand another PLD 1989 Kar. 404; Government of Sindh through Chief Secretary toGovernment of Sindh Karachi and others v. Sharaf Faridi and others PLD 1994 SC105; Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry ofLaw and others PLD 2013 SC 501; Accountant-General, Sindh and others v. AhmedAli U. Qureshi and others PLD 2008 SC 522; Abdul Rasheed and others v. Provinceof Sindh and others 2011 PLC (C.S.) 926; The Mt. Scopus International Standardsof Judicial independence: The innovative concepts and the formulation of aconsensus in a legal culture of diversity by Shimon Shetreet. The Culture ofJudicial Independence-Conceptual Foundations and Practical Challenges, P.475;Judicial Independence: The Contemporary Debate Shimon Shetreet and JulesDeschense eds. 1985. (See P.76 Aharon Barak – The Judge in a Democracy); Whatis happening to Judicial Independence; Aharon Barak-The Judge in a Democracy)PP.77 and 80; New Law Journal 30-9-1994 at 1306 and 1308; The Business ofJudging-Tom Bingham, P.57; The Culture of Judicial Independence – conceptualfoundations and practical approaches – Shimon Shetreet Christopher Forsyth,PP.20-21 rel.

—-Arts. 208 & 175—High Court (Lahore) Rulesand Orders Vol.-V Chap.10, Part C, Rr. 17 & 22—Officers and Servants ofCourts—Rules providing for the appointment by the Court of officers andservants of the Court and for their terms and conditions ofemployment—Interpretation of Art.208 of the Constitution—Approval of theGovernor—Scope—Article 208 of the Constitution provided that the HighCourt, with the approval of the Governor concerned, may make rules providingfor the appointment by the Court of the officers and servants of the Court andfor their terms and conditions of employment—Rules that regulated theappointments and conditions of service of the establishment had been providedunder Chap.10, Part “C” of the High Court (Lahore) Rules and OrdersVol.V and R.17 of the said chapter provided that members of the High CourtEstablishment that were its officers and servants, shall be entitled to pay(including special pay) and allowances as fixed by the Chief Justice, from timeto time, provided the Rules are approved by the Governor as mandated by theConstitution under Art.208—Only constitutional requirement under the saidArt.208 was that the Governor must approve the said rules, which was a one-offact and in line with such constitutional dictate, R.17 of the High Court(Lahore) Rules and Orders Vol.V also required that the Rules must be approvedby the Governor—Said Rule does not mean that the decision of the ChiefJustice fixing the pay and allowances of the members of the High CourtEstablishment would be subjected to the approval of the Governor—Approval ofthe Governor was to the promulgation of the Rules (which was a one-off act) andnot to the decisions of the Chief Justice issued from time to time under thesaid Rules—Any interpretation subjecting the decision of the Chief Justice tothe approval of the Governor would be constitutionally impermissible and wouldshake the foundational assumption of judicial independence, on which rested thedemocratic architecture of the Constitution—High Court observed that R.22,Chap. 10, Part C of the High Court (Lahore) Rules and Orders Vol.V was simplyfor the efficient administrative governance of the High Court and the said Ruleadopted principles provided under the Civil Service Rules (Punjab) regardingsalaries, allowances, leave and pension and in no manner converted or changedthe status of the officers and servants of the High Court into that of civilservants or in any manner subordinated the authority of the High Court in suchmatters to that of the Executive Branch—Article 208 of the Constitution,therefore had no relevance in terms of grant of increase in judicial allowancein the context of the Governor—Governor was not the approving authorityregarding the terms and conditions of service of officers and servants of theHigh Court and in fact the Governor was to simply grant approval to thepromulgation of the Rules, which was once in the life time of the said Rules ,unless the same were amended—Financial control regarding administrativeexpenses including remuneration of staff of the High Court vested with the HighCourt—Grant of an increase in the judicial allowance of officers of the HighCourt could only be acknowledged as a partial payment of allowances approved bythe High Court under Art.208 of the Constitution read with R.17 of Chap.10,Part C of the High Court (Lahore) Rules and Orders Vol.V.

MuhammadYaqub Butt, Additional Registrar, Lahore High Court v. Government of the Punjabthrough Chief Secretary and another PLD 1992 Lah. 527 rel.

FORPETITIONER

MianBilal Bashir assisted by Raja Tasawer Iqbal.

FORRESPONDENTS

MianTariq Ahmed, Deputy Attorney General for Pakistan.

MuhammadHanif Khatana, Advocate-General, Punjab.

AnwaarHussain, Asstt. Advocate-General, Punjab.

TariqMirza, Dy. Secretary, Finance Department, Government of the Punjab, Lahore.

NadeemRiaz Malik, Section Officer, Finance Department, Government of the Punjab,Lahore.

AMICICURIAE.

TanvirAli Agha, former Auditor General of Pakistan and Waqqar Ahmad Mir:

ASSISTEDBY:

QaisarAbbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High CourtResearch Centre.

Datesof hearing: 20th, 21st, January, 9th and 10th February, 2015.

JUDGMENT

“Thejudiciary should not be left in a position of seeking financial andadministrative sanctions for either the provision of infrastructure, staff andfacilities for the judges from the executive and the State, which happens to beone of the largest litigants…..autonomy is required for an independent andvibrant judiciary, to strengthen and improve the justice delivery system, forenforcing the rule of law.”1

SYEDMANSOOR ALI SHAH, J.—This case explores the constitutionalism offinancial autonomy and budgetary independence of the superior judiciary on thetouchstone of the ageless constitutional values of independence of judiciaryand separation of powers.

2. AdditionalRegistrar of this High Court has knocked at the constitutional jurisdiction ofthis Court, raising the question of non-compliance of the executive authorityof the Federation by the Provincial Government, as the direction of the PrimeMinister to the Provincial Government to enhance the allowances of the staff ofthe superior judiciary goes unheeded. During the course of hearing, this legalquestion has snowballed into a far more significant constitutional issueregarding the constitutional protection of the financial and budgetary autonomyof the High Court.

3. Thefacts are that the Prime Minister in the year 2011 allowed an increase in thepay of the staff of the superior judiciary across the country, by granting theman enhancement of 50% Judicial Allowance and 50% Adhoc Allowance(“Allowances”) w.e.f. 1-7-2010. However, more importantly, the matterwas also taken up by the Lahore High Court and was duly approved andsanctioned. The inaction and the silent refusal on the part of the ProvincialGovernment to honour the budgetary approval of the Allowances by the High Courtis not only violative of the constitutional financial procedures provided underArticles 121 and 122 of the Constitution of the Islamic Republic of Pakistan,1973 (“Constitution”) but also corrodes the financial autonomy and asa result the independence of the judiciary which forms the bedrock of ourconstitutionalism.

4. Learnedcounsel for the petitioner goes on to submit that under Article 208 of theConstitution, read with Rule 17 of Chapter 10, Part “C” of the HighCourt Rules and Orders (Vol-V), it is the High Court that determines theremuneration of the staff of the High Court and the only constitutional role ofthe Provincial Government is to include this amount in the charged expenditureof the Annual Budget Statement and place the same before the ProvincialAssembly, where it may be discussed but cannot be put to vote.

5. Healso submitted that the officers and servants of the Judicial Branch of theState, in particular, the High Court belong to a separate judicialadministrative cadre as envisaged under Article 208 of the Constitution, andare distinct from a civil servant and other employees of the other two branchesof the State. This is also so because of the distinct job description, scope ofwork, working hours and professional responsibilities and cannot be consideredat par with the civil servants working in the executive branch of the Province.

6. LearnedAdvocate General, Punjab submits that the Prime Minister’s directive to grantAllowances to the staff of the Lahore High Court is not binding on theProvincial Government. He submitted that under Rule 17 of the High Court Rulesand Orders any increase in administrative expenses including increase inremuneration to the officers and servants of the High Court is subject to theapproval of the Governor. He referred to an earlier decision of the Governor,communicated to the Registrar of this Court vide letter dated 15-7-2010 issuedby the Finance Department, wherein 50% Adhoc Allowance 2010 was announced bythe Governor, but was not extended to certain departments and institutionsincluding the judiciary who had already been allowed a similar allowance. Hewent on to submit that matters pertaining to allocation of finance are policymatters and fall within the domain of the executive, therefore, increase in theadministrative expenses of the High Court including remuneration of theofficers and servants of the High Court is subject to the approval of theGovernor. He, without any supporting evidence, submits that special judicialallowance has already been given to the staff of the Lahore High Court in thepast and, therefore, the salaries of the staff of the Lahore High Court are farbetter than the salaries drawn by staff of the other High Courts.

7. Hesubmitted that, during the course of hearing of this case, ProvincialGovernment has voluntarily agreed to grant 50% Judicial Allowance to the staffof Lahore High Court w.e.f. 1-7-2014 vide Notification dated 4-9-2014 and addsthat the Governor has extended this relief under Article 208 of the Constitution.

8. Mr.Waqqas Ahmad Mir, Advocate/learned amicus curiae, submitted that the directionsissued in letters dated 26-1-2011 and 1-2-2011 by the Ministry of Law, Justiceand Parliamentary Affairs Division, Government of Pakistan are in exercise ofthe executive authority of the Federation and cannot be turned down by theProvincial Government. He submits that the requisition put up by the LahoreHigh Court for enhancement of 50% Judicial Allowance and 50% Adhoc Allowancevide letter dated 20-5-2013 to the Provincial Government has received noresponse and Government is sitting on it since then. He submits that underArticle 208 of the Constitution, the High Court Rules have to be approved onceby the Governor and thereafter the exercise of power under the said rules bythe Chief Justice of this Court is not subject to repeated approvals of theGovernor. Any such interpretation would mar the administrative independencevested in the judiciary under Article 208 of the Constitution.

Opinionof the Court

Facts:

9. TheFinance Minister, Government of Pakistan made the following recommendation on19-12-2010:-

“Thesuperior judiciary and its staff may be provided a general increase in Pay andJudicial Allowance at the uniform rate of 50% as made applicable to governmentservants in the Budget.”

Thereafter, the Ministry of Law, Justice andParliamentary Affairs, Government of Pakistan put up a summary before the PrimeMinister on 20-12-2010 titled “Increase in the pay and judicial allowanceof the Judges and staff of the superior judiciary.” The relevant extractsof the summary are as follows:–

“Whilereviewing the impact of the salary increase in the budget and to firm up theforecasts of pay and allowances for the full financial year (2010-11), it wasnoticed that the salary increases had not been applied to the SuperiorJudiciary.

2. An adhoc relief @ 50% and 100% of basic pay was given to all civil servants and themembers of Armed Forces respectively by the government w.e.f. Ist July, 2010.However, no relief has been allowed to the Judges and staff of the superiorjudiciary so far due to the reasons that they do not fall under the definitionof civil servants.

3. Ministryof Finance has agreed that the superior judiciary and its staff may be provideda general increase in pay and Judicial Allowance at the uniform rate of 50% asmade applicable to government servants in the budget 2010-11 (Annex-I).

4 ……………….

5 ……………….

6 ………………. …

7. ThePrime Minister is requested to approve 50% increase at the uniform rate of thebasic pay and Judicial Allowance to the staff of the Superior Judiciary w.e.f.Ist July, 2010.

9. Thissummary has the approval of the Minister for Law, Justice and ParliamentaryAffairs.

The same was approved and letter dated 26-1-2011 wasissued to all the respective Registrars of the superior judiciary by the Law,Justice and Parliamentary Affairs Division, Government of Pakistan. The letterstated:

“Iam directed to say that the Prime Minster has been pleased to approve 50%increase at the uniform rate of the basic pay and Judicial Allowance to thestaff of the Superior Judiciary with effect from 1st July, 2010.”

A similar letter dated 1-2-2011 was issued to all theSecretaries of the Finance Departments of the respective ProvincialGovernments.

10. Initially,Lahore High Court wrote to the Accountant General, Punjab for implementing thedecision of the Prime Minister vide letters dated 2-2-2011 and 3-2-12011.Thereafter, the matter was put up before the Administration Committee of thisCourt, to examine the merits of the said Allowances, in its meeting held on18-2-2012. The Administration Committee of this Court proposed that aSub-Committee may examine the matter. The Sub-Committee deliberated upon theissue and recommended that the Allowances be paid to the staff of the HighCourt w.e.f. 1-7-2010 in its meeting held on 2-2-2013. Thereafter, the matterwas put up before the Administration Committee, which approved the recommendationsof the Sub-Committee on 15-5-2013. The Registrar of this Court on 20-5-2013placed the decision of the High Court before the Governor. Since then there hasbeen no response in this regard.

11. It isan admitted fact that after the grant of Allowances to the staff of thesuperior judiciary, they are since being paid to the staff of the superiorjudiciary, across the country, including the august Supreme Court of Pakistan,Federal Shariat Court, as well as, all the other High Courts of Pakistan exceptthe Lahore High Court. In some cases the Provincial Government simplyimplemented the decision of the Prime Minister, and in other, independent andseparate decision of the respective judiciaries was implemented.

12. Thequestion before this Court is whether administrative expenses of the HighCourt, which under the Constitution is an expenditure charged on the ProvincialConsolidated Fund under Articles 121 and 122 of the Constitution, once approvedand claimed by the High Court, can be ignored or turned down by the ProvincialGovernment or the Provincial Legislature?

13. Judicialindependence is composed of at least five aspects: (1) Non-politicalappointments to a court, (2) guaranteed tenure and salary; (3) executive andlegislative interference with court proceedings or, office holders; (4)budgetary autonomy; (5) administrative autonomy.2 Constitutionalismof financial autonomy of the judiciary; finds its roots in the preambularconstitutional values which state that “the principles of democracy…shallbe fully observed” and that “independence of judiciary shall be fullysecured.” These values are echoed more substantively in the ObjectivesResolution when read with Article 2A of the Constitution. Article 175 reaffirmsindependence of judiciary on the basis of separation of powers. Article 208provides administrative independence and insularity to the judicial branch byempowering the judiciary to appoint its officers and servants on their ownterms and conditions of employment. This constitutes separate cadre of judicialadministrative staff, distinct from the staff and officers of the Executive orthe Legislative Branches of the State. This thought has been echoed earlier inRegistrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 PLC(C.S.) 137), Government of the Punjab through Secretary, Finance Department,Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375), Muhammad Yaqub ButtAdditional Registrar, Lahore High Court v. Government of the Punjab throughChief Secretary and another (PLD 1992 Lahore 527) and Messrs Nusrat Elahi and41 others v. The Registrar, Lahore High Court, Lahore and 68 others (1991 MLD2546).

14. Protectionof financial independence of the judiciary is carved out by Articles 121 and122 of the Constitution. Article 121 provides that the administrative expensesof the High Court shall be a charged expenditure on the Provincial ConsolidatedFund, which may be discussed but shall not be submitted to vote of theProvincial Assembly. The High Court in determining its administrative expenses,including remuneration payable to its officers and servants, enjoysconstitutional autonomy, which cannot be interfered with by the executive orthe legislative branches of the State. The administrative expenses of the HighCourt form part of the Charged Expenditure, which for the purposes of theProvince finds its explanation under Articles 121 and 122 of the Constitution.Provincial Charged Expenditure is an expenditure met from the ProvincialConsolidated Fund, which may be discussed but not submitted to the vote of theProvincial Assembly.3

15. Ourjurisprudential journey from Sharaf Faridi4 down to Sh. Riaz ul Haq5including Government of Balochistan through Additional Chief Secretary v.Azizullah Memon and 16 others (PLD 1993 SC 341), Al-Jehad Trust through RaeesulMujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan andothers (PLD 1996 SC 324), Amanullah Khan Yousufzai and others v. Federation ofPakistan through Law Secretary and others (PLD 2011 Kar. 451) andAccountant-General, Sindh and others v. Ahmed Ali U. Qureshi and others (PLD2008 SC 522), repeatedly underscores the integrality of judicial independenceto rule of law and democracy. In Government of Balochistan through AdditionalChief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341), SaleemAkhtar, J. speaking for the Court held:–

“Thisobservation in effect finds support from Articles 81, 82, 121 and 122. Thefirst two Articles relate to remuneration payable to the Judges of the SupremeCourt and the administrative expenses including the remuneration payable toofficers or servants of the Supreme Court. The expenditures are charged on theFederal Consolidated Fund which under Article 82 “may be discussed in, butshall not be submitted to the vote of, the National Assembly”. The sameprovisions have been made in respect of High Court Judges and administrativeexpenses of the High Court. The financial requirements of the Supreme Court andthe High Courts should be assessed by the Courts and after meaningfulconsultation with such Courts annual funds as per requirement be allocated andplaced at the disposal of the Courts. All remunerations, expenses anddisbursements relating to the judiciary should be made without any interferenceby any department which are usually technical in nature requiring compliancewith certain rules and practice of other departments of the Government. In caseof any objection, if approval of the Chief Justice concerned is given, itshould stand waived and set aside.” (emphasis supplied)

In Government of Sindh through Chief Secretary toGovernment of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994SC 105), Nasim Hasan Shah, J. wrote:–

“Inour opinion, financial independence of the judiciary can be secured if thefunds allocated to the Supreme Court and High Courts (by the Parliament and theProvincial Assemblies in their respective annual budgets) are allowed to bedisbursed within the limits of the sanctioned budget by the respective ChiefJustices of these Courts without any interference by the Executive (inpractical terms without reference and seeking the approval of the Ministry ofFinance/the Provincial Finance Department). Thus, the Chief Justice would becompetent to make re-appropriation of the amounts from one head to another,create new posts, abolish old posts or change their nomenclature and to upgradeor downgrade etc. as per requirements of their respective Courts and thisshould be possible, as has been observed earlier, without being obliged to seekthe approval of the Ministry of Finance or the Provincial Finance Departmentsas the case may be, provided of course the expenditure that is incurred by themfalls within the limits of the budget allocation for their Courts. To ensurefinancial discipline, an Accounts Officer of the Accountant-General may sit inall Courts for pre-audit and issue of cheques. In this way, the control of theexecutive over the judiciary in this important sphere will be eliminated and thejudiciary enabled to function independently.”

In Abdul Rasheed and others v. Province of Sindh andothers (2011 PLC (C.S.) 926), Shahid Anwar Bajwa, J. speaking for the courtheld:–

“16.Therefore, in our view once approval has been granted by the AdministrativeCommittee of the High Court the Provincial Executive could at best approach theHigh Court and point out the financial constraint and thereafter leave thematter for the High Court to decide. However, once High Court had decidedFinance Department has no option, if amount provided in the budgetary provisionis not adequate to meet such requirement to convey such budgetary position tothe High Court and to ensure that in the next budget proposals are made to theProvincial Assembly and appropriate provision is made in this regard. IfProvincial Assembly does not approve such budget any provision it would ofcourse be another matter. We have not reached that bridge and therefore weleave this aspect of question for consideration in an appropriate case.”(emphasis supplied)

The constitutional significance of financialautonomy, especially in the context of administrative expenses of the superiorjudiciary, has not been fully actualized. Therefore, the concept of financialautonomy of the judiciary needs further unpacking.

16. “Forcourts to resolve disputes without bias there needs to be judicialindependence: the judiciary must be both independent and impartial. Bothconditions are necessary in order to avoid the opposing risks of infirmity andtyranny. The risk of infirmity exists when the judiciary is dependent on otherbranches of government or on public opinion. The risk of tyranny is associatedwith a biased judiciary and a lack of judicial accountability.”6Professor Barak has argued that “substantive aspect of democracy” ischaracterized by values such as ‘separation of powers, the rule of law,judicial independence, human rights,…” Separation of powers and judicialindependence, being two sides of the same coin, are foundational to the constitutionalconstruct of democracy. “Judicial Independence is a central component ofany democracy7” and is composed of two foundations and only thecombination of the two guarantee the independence of the judiciary. “Thesetwo foundations are the independence of the individual judge and theindependence of the judicial branch…Institutional independence is designed tobuild a protective wall around the judicial branch that prevents thelegislative and executive branches from influencing the way judges realizetheir roles as protectors of the Constitution and its values. The judicialbranch must therefore be run, on the organizational level in an independentmanner. It should not be part of the executive branch and should not be subjectto the administrative decisions of the executive branch. 8”

17. Whilejudicial independence means that a judge must decide individual cases free fromany extraneous influence, it also requires that the judicial branch exercisescontrol and influence over the administrative penumbra immediately surroundingthe judicial process. Pivotal to the independence of the judicial branch is itsfinancial autonomy, not in the sense of constitutionally protected salarystructure but also the financial autonomy to budget for the administrativecosts for effectively running and managing the judicial branch. The highwatermark of this principle is elaborated by Sir Francis Purchas in his Article’What is happening to Judicial Independence9’: “Constitutionalindependence will not be achieved if the funding of the administration ofjustice remains subject to the influences of the political market place.Subject to the ultimate supervision of Parliament, the Judiciary should beallowed to advise what is and what is not necessary expense to ensure thatadequate justice is available to the citizen and to protect him fromunwarranted intrusion into his liberty by the executive.10”

18. “Cultureof judicial independence must ensure institutional and administrativefunctioning of the judiciary as an institution, as well as, the substantive andadministrative functioning of the individual judge. Independence of judiciary,in effect means self-judicial governance, which in turn means control of thejudiciary over the judicial system. This control includes budgeting, financialmanaging, managing human resources and managing of a large system. It alsoincludes the professional management, such as managing case assignment,engaging in rulemaking of the procedures of the courts and enforcing theseprocedural rules. Likewise, judicial self- governance includes the developmentand the enforcement of judicial ethics and a code of conduct. In order for theJudiciary to engage in self-governance, it should have a wide diversity ofabilities. Administrative abilities are required for managing the system ofjustice. Self-governance also requires the judiciary to act in coordinationwith the other branches of government. In addition to these abilities,self-judicial governance requires a Judiciary which has financial qualifications.Another area of responsibility in the administration of courts is the securityand safety.”11

19. Our Constitution promotes and encourages theculture of judicial independence. Articles 121, 122, 175 and 208 of theConstitution provide the construct for self-judicial governance which rests onfoundational pillars like; separation of powers, administrative independenceand financial autonomy. Article 208 of the Constitution provides that the”High Court, with the approval of the Governor concerned, may make rulesproviding for the appointment by the Court of the officers and servants of theCourt and for their terms and conditions of employment.” The Rules thatregulate the appointments and conditions of service of the establishment12have been provided under Chapter-10, Part “C” of the High Court Rulesand Orders (Volume-V). Rule 17 of these Rules provides that members of the HighCourt Establishment i.e., its officers and servants, shall be entitled to pay(including special pay) and allowances as fixed by the Chief Justice, from timeto time, provided the Rules are approved by the Governor as mandated by theConstitution under Article 208. The only constitutional requirement is that theGovernor must approve the said rules, which is a one-off act. In line with thisconstitutional dictate, Rule 17 of the High Court Rules and Orders alsorequires that the Rules must be approved by the Governor in the followingmanner:–

Conditionsof Service

Rule17. Members of the High Court Establishment shall be entitled to pay (includingspecial pay) and allowances as fixed by the Chief Justice, from time to timewith the approval of the Governor to these rules.

The said Rule does not mean that the decision of theHon’ble Chief Justice fixing the pay and allowances of the members of the HighCourt Establishment will be subjected to the approval of the Governor. Theapproval of the Governor is to the promulgation of the Rules (which is aone-off act) and not to the decisions of the Chief Justice issued from time totime under the said Rules. Any interpretation subjecting the decision of theChief Justice to the approval of the Governor would be constitutionallyimpermissible and would shake the foundational assumption of judicialindependence, on which rests the democratic architecture of our Constitution.Reliance is also placed on Muhammad Yaqub Butt, Additional Registrar, LahoreHigh Court v. Government of the Punjab through Chief Secretary and another (PLD1992 Lahore 527).

20. It isalso pointed out for completeness and clarification that Rule 22 of the sameChapter of the High Court Rules and Orders is simply for the efficientadministrative governance of the High Court. This Rule adopts the principles providedunder the Civil Service Rules (Punjab) regarding salaries, allowances, leaveand pension and in no manner converts or changes the status of the officers andservants of the High Court into that of Civil servants or in any mannersubordinates the authority of the High Court in these matters to that of theExecutive Branch.

21. Inthe present case, without prejudice to the grant of Allowances by the PrimeMinister, the Lahore High Court, independently, approved and sanctioned theincrease of 50% Judicial allowance and 50% Adhoc Allowance to the officers andservants of the High Court. The said Allowances have been duly approved andsanctioned by the Lahore High Court through its Administration Committee.Article 121(b), inter alia, provides that the administrative expenses of theHigh Court including the remuneration payable to its officers and servantsshall be expenditure charged upon the Provincial Consolidated Fund. Article122(1) provides that so much of the Annual Budget Statement as relates to theexpenditure charged upon the Provincial Consolidated Fund may be discussed in,but shall not be submitted to the vote, of the Provincial Assembly. While theother expenditure of the judiciary in the form of demand for grants shall bemade on the recommendations of the Provincial Government and subject to assentby the Provincial Assembly.

22. Otherconstitutional bodies whose remuneration is also an expenditure charged uponthe Provincial Consolidated Fund are the Governor (including other expenditurerelating to his office), Judges of the High Court, Speaker and Deputy Speakerof the Provincial Assembly, and the administrative expenses of the Secretariatof the Provincial Assembly,

23. Article121(b) extends budgetary and financial control to the High Court so that theinstitution can draw up its own administrative expenses (including remunerationof its officers and servants). This expenditure falls under the headexpenditure charged upon the Provincial Consolidated Fund, which can bediscussed but is not submitted to vote by the Provincial Assembly. Therefore,administrative expenses of the High Court do not require the assent of theProvincial Assembly. The expenditure proposed by the High Court cannot,therefore, be turned down, reduced or altered by the executive or thelegislature. There is no provision under the Constitution that authorizes theProvincial Executive to delay, reconsider, negotiate, alter or reduce theadministrative expenses of the High Court which pass as charged expenditure. Therefore,once the High Court budgets its administrative expenses including theremuneration (inclusive of any increase for a particular year), the same is tobe simply provided in the Annual Budget Statement by the Provincial Governmentand placed before the Provincial Assembly for discussion and information.

24. Financialand budgetary management of the High Court in terms of its administrativeexpenses if left to the Executive or the Legislature, would generate a publicperception of dependence of the judiciary on the other two branches of theState. This would weaken public confidence reposed in the judicial system andcripple the embodiment of democracy under our Constitution.

25. Higherthe responsibility, higher is the need for transparency and accountability. Theconstitution proceeds on an assumption that the judiciary while determining itsadministrative expenses will act with the ‘institutional maturity and sagacityit possesses. Financial independence of the judiciary must rest on aprofessionally structured budgetary System within the judiciary. It requiresmeticulous fiscal and budgetary controls with a consultative and deliberativemethodology for budget preparation. Consultation with the key Stakeholdersbefore finalizing the administrative expenses of the High Court is an unwrittenconstitutional assumption. Articles 121 and 122 require that the High Courtwhile exercising its budgetary discretion will proceed with fiscal prudence andcircumspection. Financial autonomy and budgetary independence in the hands ofthe High Court has to be nurtured with highest sense of responsibility,level-headedness, judioiousness, transparency and financial foresight. Thebudgetary process of the High Court must be a collaborative exercise, wherecomments, suggestions and inputs are solicited from the provincial government,financial experts and other relevant institutions, in order to examine,appreciate and gauge the fiscal and economic conditions and realities of theProvince before finalizing the charged expenditure. This is in line with thedemocratic spirit of co-operation, coordination, responsibility andaccountability. Working relationship between different organs of the State is apath that enriched and strengthens democracy. Mr. Tanvir Ali Agha, former AuditorGeneral of Pakistan, acting as an amicus curiae supported the above view.

26. Withoutprejudice to the concept of judicial financial Autonomy, even if the Allowancesare gauged on the touchstone of financial prudence and equity, thereasonability and rationality of the Allowances is evident from the fact thatthey have been allowed and granted across the country to all the officers andstaff of the superior judiciary. A comparative chart shows that theremuneration of the officers and servants of the Lahore High Court is less thanthe officers and staff in other Courts:

Comparative Statement of Salaries drawn by Employees ofLahore High Court and their counterparts in other High Courts as well asSupreme Court and Federal Shariat Court in Pakistan for the Financial year,2013-14

Court/ Employees of

Pay Scale

Basic Pay (at initial stage)

House Rent

Conveyance Allow

Judicial Allow

Utility Allow

Spl. Judl. Allow

Sr. Post Allow

Medical Allow

50% Adhoc Allow 2010 (w.e.f. 1-7-10)

Adhjoc Relief 2011 (at initial level)

Adhoc Relief 2012 (at initial level)

Adhoc Relief 2013 (at initial level)

Grand Total (Gross Pay and Allow-ances

Sindh High Court

4800

1,337

1700

6000

3000

8910

1000

1485

446

960

720

30358

Balochistan High Court

4800

1,337

1700

6000

3000

8910

1000

1485

446

960

720

30358

Peshawar High Court

4800

1,337

1700

6000

3000

8250

1000

1485

446

960

720

29698

Islamabad High Court

4800

1,337

1700

6000

3000

8910

1000

1485

446

960

480

30118

Federal Shariat Court

4800

1,337

1700

6000

3000

8910

1000

1485

446

960

480

30118

Supreme Court of Pakistan

4800

1,337

1700

6000

3000

8910

1000

1485

446

960

480

30118

Lahore High Court

4800

1,337

1700

4000

3000

8910

1000

446

960

480

26633

Sindh High Court

4900

1,366

1700

6000

3000

9105

1000

1518

455

980

735

30759

Balochistan High Court

4900

1,366

1700

6000

3000

91505

1000

1518

455

980

735

30759

Peshawar High Court

4900

1,366

1700

6000

3000

8540

1000

1518

455

980

735

30194

Islamabad High Court

4900

1,366

1700

6000

3000

9105

1000

1518

455

980

490

30514

Federal Shariat Court

4900

1,366

1700

6000

3000

9105

1000

1518

455

980

490

30514

Supreme Court of Pakistan

4900

1,366

1700

6000

3000

9105

1000

1518

455

980

490

30514

Lahore High Court

4900

1,366

1700

4000

3000

9105

1000

455

980

490

26996

Sindh High Court

5050

1,413

1700

6000

3000

9420

1000

1570

471

1010

757.5

31392

Balochistan High Court

5050

1,413

1700

6000

3000

9420

1000

1570

471

1010

757.5

31392

Peshawar High Court

5050

1,413

1700

6000

3000

8975

1000

1570

471

1010

757.5

30947

Islamabad High Court

5050

1,413

1700

6000

3000

9420

1000

1570

471

1010

505

31139

Federal Shariat Court

5050

1,413

1700

6000

3000

9420

1000

1570

471

1010

505

31139

Supreme Court of Pakistan

5050

1,413

1700

6000

3000

9420

1000

1570

471

1010

505

31139

Lahore High Court

5050

1,413

1700

4000

3000

9420

1000

471

1010

505

27569

Sindh High Court

5200

1,458

1700

6000

3000

9720

1000

1620

486

1040

780

32004

Balochistan High Court

5200

1,458

1700

6000

3000

9720

1000

1620

486

1040

780

32004

Peshawar High Court

5200

1,458

1700

6000

3000

9410

1000

1620

486

1040

780

31694

Islamabad High Court

5200

1,458

1700

6000

3000

9720

1000

1620

486

1040

520

31744

Federal Shariat Court

5200

1,458

1700

6000

3000

9720

1000

1620

486

1040

520

31744

Supreme Court of Pakistan

5200

1,458

1700

6000

3000

9720

1000

1620

486

1040

520

31744

Lahore High Court

5200

1,458

1700

4000

3000

9720

1000

486

1040

520

28124

Sindh High Court

5400

1,503

1840

6000

3000

10020

1000

1670

501

1080

810

32824

Balochistan High Court

5400

1,503

1840

6000

3000

10020

1000

1670

501

1080

810

32824

Peshawar High Court

5400

1,503

1840

6000

3000

9920

1000

1670

501

1080

810

32724

Islamabad High Court

5400

1,503

1840

6000

3000

10020

1000

1670

501

1080

540

32554

Federal Shariat Court

5400

1,503

1840

6000

3000

10020

1000

1670

501

1080

540

32554

Supreme Court of Pakistan

5400

1,503

1840

6000

3000

10020

1000

1670

501

1080

540

32554

Lahore High Court

5400

1,503

1840

4000

3000

10020

1000

501

1080

540

28884

Sindh High Court

5600

1,544

1840

6000

3000

10290

1000

1715

515

1120

840

33464

Balochistan High Court

5600

1,544

1840

6000

3000

10290

1000

1715

515

1120

840

33464

Peshawar High Court

5600

1,544

1840

6000

3000

10430

1000

1715

515

1120

840

33604

Islamabad High Court

5600

1,544

1840

6000

3000

10290

1000

1715

515

1120

560

33184

Federal Shariat Court

5600

1,544

1840

6000

3000

10290

1000

1715

515

1120

560

33184

Supreme Court of Pakistan

5600

1,544

1840

6000

3000

10290

1000

1715

515

1120

560

33184

Lahore High Court

5600

1,544

1840

4000

3000

10290

1000

515

1120

560

29469

Sindh High Court

5800

1,589

1840

9000

4000

10590

1000

1765

530

1160

870

38144

Balochistan High Court

5800

1,589

1840

9000

4000

10590

1000

1765

530

1160

870

38144

Peshawar High Court

5800

1,589

1840

9000

4000

10940

1000

1765

530

1160

870

38494

Islamabad High Court

5800

1,589

1840

9000

4000

10590

1000

1765

530

1160

580

37854

Federal Shariat Court

5800

1589

1840

9000

4000

10590

1000

1765

530

1160

580

37854

Supreme Court of Pakistan

5800

1589

1840

9000

4000

10590

1000

1765

530

1160

580

37854

Lahore High Court

5800

1589

1840

6000

4000

10590

1000

530

1160

580

33089

Sindh High Court

6000

1,649

1840

9000

4000

10995

1000

1833

550

1200

900

38967

Balochistan High Court

6000

1,649

1840

9000

4000

10995

1000

1833

550

1200

900

38967

Peshawar High Court

6000

1,649

1840

9000

4000

11450

1000

1833

550

1200

900

39422

Islamabad High Court

6000

1,649

1840

9000

4000

10995

1000

1833

550

1200

600

38667

Federal Shariat Court

6000

1,649

1840

9000

4000

10995

1000

1833

550

1200

600

38667

Supreme Court of Pakistan

6000

1,649

1840

9000

4000

10995

1000

1833

550

1200

600

38667

Lahore High Court

6000

1,649

1840

6000

4000

10995

1000

550

1200

600

33834

Sindh High Court

6200

1,719

1840

9000

4000

11460

1000

1910

573

1240

930

39872

Balochistan High Court

6200

1,719

1840

9000

4000

11460

1000

1910

573

1240

930

39872

Peshawar High Court

6200

1,719

1840

9000

4000

11960

1000

1910

573

1240

930

40372

Islamabad High Court

6200

1,719

1840

9000

4000

11460

1000

1910

573

1240

620

39562

Federal Shariat Court

6200

1,719

1840

9000

4000

11460

1000

1910

573

1240

620

39562

Supreme Court of Pakistan

6200

1,719

1840

9000

4000

11460

1000

1910

573

1240

620

39562

Lahore High Court

6200

1,719

1840

6000

4000

11460

1000

573

1240

620

34652

Sindh High Court

6400

1,780

1840

9000

4000

11865

1000

1978

593

1280

960

40696

Balochistan High Court

6400

1,780

1840

9000

4000

11865

1000

1978

593

1280

960

40696

Peshawar High Court

6400

1,780

1840

9000

4000

12540

1000

1978

593

1280

960

41371

Islamabad High Court

6400

1,780

1840

9000

4000

11865

1000

1978

593

1280

640

40376

Federal Shariat Court

6400

1,780

1840

9000

4000

11865

1000

1978

593

1280

640

40376

Supreme Court of Pakistan

6400

1,780

1840

9000

4000

11865

1000

1978

593

1280

640

40376

Lahore High Court

6400

1,780

1840

6000

4000

11865

1000

593

1280

640

35398

Sindh High Court

6600

1,854

2720

9000

4000

12345

1000

2058

617

1320

990

42504

Balochistan High Court

6600

1,854

2720

9000

4000

12345

1000

2058

617

1320

990

42504

Peshawar High Court

6600

1,854

2720

9000

4000

13120

1000

2058

617

1320

990

43279

Islamabad High Court

6600

1,854

2720

9000

4000

12345

1000

2058

617

1320

660

42174

Federal Shariat Court

6600

1,854

2720

9000

4000

12345

1000

2058

617

1320

660

42174

Supreme Court of Pakistan

6600

1,854

2720

9000

4000

12345

1000

2058

617

1320

660

42174

Lahore High Court

6600

1,854

2720

6000

4000

12345

1000

617

1320

660

37116

Sindh High Court

7000

1,960

2720

9000

4000

13065

1000

2178

653

1400

1050

44026

Balochistan High Court

7000

1,960

2720

9000

4000

13065

1000

2178

653

1400

1050

44026

Peshawar High Court

7000

1,960

2720

9000

4000

14000

1000

2178

653

1400

1050

44961

Islamabad High Court

7000

1,960

2720

9000

4000

13065

1000

2178

653

1400

700

43676

Federal Shariat Court

7000

1,960

2720

9000

4000

13065

1000

2178

653

1400

700

43676

Supreme Court of Pakistan

7000

1,960

2720

9000

4000

13065

1000

2178

653

1400

700

43676

Lahore High Court

7000

1,960

2720

6000

4000

13065

1000

653

1400

700

38498

Sindh High Court

7500

2,090

2720

9000

4000

13935

1000

2323

697

1500

1125

45890

Balochistan High Court

7500

2,090

2720

9000

4000

13935

1000

2323

697

1500

1125

45890

Peshawar High Court

7500

2,090

2720

9000

4000

15100

1000

2323

697

1500

1125

47055

Islamabad High Court

7500

2,090

2720

9000

4000

13935

1000

2323

697

1500

750

45515

Federal Shariat Court

7500

2,090

2720

9000

4000

13935

1000

2323

697

1500

750

45515

Supreme Court of Pakistan

7500

2,090

2720

9000

4000

13935

1000

2323

697

1500

750

45515

Lahore High Court

7500

2,090

2720

6000

4000

13935

1000

697

1500

750

40192

Sindh High Court

8000

2,214

2720

9000

4000

14760

1000

2460

738

1600

1200

47692

Balochistan High Court

8000

2,214

2720

9000

4000

14760

1000

2460

738

1600

1200

47692

Peshawar High Court

8000

2,214

2720

9000

4000

16270

1000

2460

738

1600

1200

49202

Islamabad High Court

8000

2,214

2720

9000

4000

14760

1000

2460

738

1600

800

47292

Federal Shariat Court

8000

2,214

2720

9000

4000

14760

1000

2460

738

1600

800

47292

Supreme Court of Pakistan

8000

2,214

2720

9000

4000

14760

1000

2460

738

1600

800

47292

Lahore High Court

8000

2,214

2720

6000

4000

14760

1000

738

1600

800

41832

Sindh High Court

8500

2,349

2720

9000

4000

15660

1000

2610

783

1700

1275

49597

Balochistan High Court

8500

2,349

2720

9000

4000

15660

1000

2610

783

1700

1275

49597

Peshawar High Court

8500

2,349

2720

9000

4000

17650

1000

2610

783

1700

1275

51587

Islamabad High Court

8500

2,349

2720

9000

4000

15660

1000

2610

783

1700

850

49172

Federal Shariat Court

8500

2,349

2720

9000

4000

15660

1000

2610

783

1700

850

49172

Supreme Court of Pakistan

8500

2,349

2720

9000

4000

15660

1000

2610

783

1700

850

49172

Lahore High Court

8500

2,349

2720

6000

4000

15660

1000

783

1700

850

43562

Sindh High Court

10000

2,727

5000

9000

4000

18180

1000

3030

909

2000

1000

56846

Balochistan High Court

10000

2,727

5000

9000

4000

18180

1000

3030

909

2000

1000

56846

Peshawar High Court

10000

2,727

5000

9000

4000

20600

1000

3030

909

2000

1500

59766

Islamabad High Court

10000

2,727

5000

9000

4000

18180

1000

3030

909

2000

1000

56846

Federal Shariat Court

10000

2,727

5000

9000

4000

18180

1000

3030

909

2000

1000

56846

Supreme Court of Pakistan

10000

2,727

5000

9000

4000

18180

1000

3030

909

2000

1000

56846

Lahore High Court

10000

2,727

5000

9000

4000

18180

1000

909

2000

1000

50816

Sindh High Court

16000

4,433

5000

15000

5000

29550

1478

4925

1478

3200

1600

87664

Balochistan High Court

16000

4,433

5000

15000

5000

29550

1478

4925

1478

3200

1600

87664

Peshawar High Court

16000

4,433

5000

15000

5000

32400

1478

4925

1478

3200

2400

91314

Islamabad High Court

16000

4,433

5000

15000

5000

29550

1478

4925

1478

3200

1600

87664

Federal Shariat Court

16000

4,433

5000

15000

5000

29550

1478

4925

1478

3200

1600

87664

Supreme Court of Pakistan

16000

4,433

5000

15000

5000

29550

1478

4925

1478

3200

1600

87664

Lahore High Court

16000

4,433

5000

15000

5000

29550

1478

3200

1600

77739

Sindh High Court

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

108869

Balochistan High Court

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

108869

Peshawar High Court

20000

5,810

5000

18000

5000

40500

1937

6455

1937

4000

3000

111639

Islamabad High Court

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

108869

Federal Shariat Court

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

108869

Supreme Court of Pakistan

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

108869

Lahore High Court

20000

5,810

5000

18000

5000

38730

1937

6455

1937

4000

2000

96414

Sindh High Court

31000

8,856

6000

21000

8000

59040

2952

9840

2952

6200

3100

158940

Balochistan High Court

31000

8,856

6000

21000

8000

59040

2952

9840

2952

6200

3100

158940

Peshawar High Court

31000

8,856

6000

21000

8000

57700

2952

9840

2952

6200

4650

159150

Islamabad High Court

31000

8,856

6000

21000

8000

59040

2952

9840

2952

6200

3100

158940

Federal Shariat Court

31000

8,856

6000

21000

8000

59040

2952

9840

2952

6200

3100

158940

Supreme Court of Pakistan

31000

8,856

6000

21000

8000

59040

2952

9840

2952

6200

3100

158940

Lahore High Court

31000

8,856

6000

14000

8000

59040

2952

6200

3100

142100

Sindh High Court

36000

10,505

21000

8000

70035

1275

3502

11673

3502

7200

3600

176292

Balochistan High Court

36000

10,505

21000

8000

70035

1275

3502

11673

3502

7200

3600

176292

Peshawar High Court

36000

10,505

21000

8000

70450

1275

3502

11673

3502

7200

5400

178507

Islamabad High Court

36000

10,505

21000

8000

70035

1275

3502

11673

3502

7200

3600

176292

Federal Shariat Court

36000

10,505

21000

8000

70035

1275

3502

11673

3502

7200

3600

176292

Supreme Court of Pakistan

36000

10,505

21000

8000

70035

1275

3502

11673

3502

7200

3600

176292

Lahore High Court

36000

10,505

14000

8000

70035

1275

3502

7200

3600

157619

Sindh High Court

40000

11,646

21000

8000

77640

1350

3882

12940

3882

8000

4000

192340

Balochistan High Court

40000

11,646

21000

8000

77640

1350

3882

12940

3882

8000

4000

192340

Peshawar High Court

40000

11,646

21000

8000

78200

1350

3882

12940

3882

8000

6000

194900

Islamabad High Court

40000

11,646

21000

8000

77640

1350

3882

12940

3882

8000

4000

192340

Federal Shariat Court

40000

11,646

21000

8000

77640

1350

3882

12940

3882

8000

4000

192340

Supreme Court of Pakistan

40000

11,646

21000

8000

77640

1350

3882

12940

3882

8000

4000

192340

Lahore High Court

40000

11,646

14000

8000

77640

1350

3882

8000

4000

172400

Sindh High Court

43000

12,456

21000

8000

83040

1750

4152

13840

4152

8600

4300

204290

Balochistan High Court

43000

12,456

21000

8000

83040

1750

4152

13840

4152

8600

4300

204290

Peshawar High Court

43000

12,456

21000

8000

85850

1750

4152

13840

4152

8600

6450

209250

Islamabad High Court

43000

12,456

21000

8000

83040

1750

4152

13840

4152

8600

4300

204290

Federal Shariat Court

43000

12,456

21000

8000

83040

1750

4152

13840

4152

8600

4300

204290

Supreme Court of Pakistan

43000

12,456

21000

8000

83040

1750

4152

13840

4152

8600

4300

204290

Lahore High Court

43000

12,456

14000

8000

83040

1750

4152

13840

4152

8600

4300

183450

27. It is interesting to point out that theaugust Supreme Court of Pakistan vide Notification dated 20-10-2014 andPeshawar High Court, Peshawar vide order dated 14-11-2014 have granted afurther enhancement of 50% Utility Allowance to its officers and servants. TheAdvocate General Punjab was repeatedly asked to establish before the Court thatthe Allowances were in any manner financially irrational or fiscally notviable. He was asked to establish this by going through the current budget ofthe Provincial Government, but he failed to do so. His submission that theAllowances will be a huge financial burden on the provincial exchequer, withoutsupporting evidence, carried no weight. On the other hand, examination of thecurrent Annual Provincial Budget reveals that the financial impact of theAllowances with effect from 1-7-2010 is only 0.14% of the Annual ProvincialBudget, as explained hereunder, hence the portrayal of an alarming andunnerving financial impact on the Provincial exchequer by the Advocate GeneralPunjab, is to say the least, hopelessly unfounded. Had the Allowances been paidon time by the Provincial Government, these arrears would not have accumulated.

ApproximateFinancial Implications involved for payment of arrears

ofJudicial Allowance and 50% Adhoc Allowance-2010 w.e.f.

1-7-2010to 30-6-2015, to the Employees of Lahore High Court

Year-wise Breakup

Judicial Allowance

Adhoc Allowance-2010

2010-11

69888000

114960000

2011-12

75312000

116580000

2012-13

80326000

124795000

2013-14

82723000

127532000

2014-15

129649000

Total

308249000

613516000

Grand total

921,765,000 (Rs.921 million)

Ratioof Total Current Revenue Estimates of Expenditure of the Punjab Govt. and Lahore High Court for the current fiscal year2014-15 (Net)

Particulars

Budget statistics

Ratio

Percentage

Total Current (Revenue) Estimates of Expenditure of the Punjab Government (Rs. In million)

677166.083

—

—-

Total Current (Revenue) Estimates of Expenditure High Court (Charged) (Rs. In million).

2419.653

0.0036

0.36

Total Estimates involved on account of Arrears of Judicial and Adhoc `Allowances (Charged) (Rs. In million)

921.765

0.0014

0.14

28. 50% of the Judicial Allowance has beenpaid to the Officers and servants of the High Court since 1-7-2014. It iscontended by the Advocate General, Punjab that this Allowance has been paidafter the approval of the Governor under Article 208. Earlier order dated10-11-2014 passed in this case alluded to this point. The Court was of the viewthat Article 208 has no relevance in the grant of 50% Judicial Allowance witheffect from 1-7-2014 in the context of the Governor. The Governor is not theapproving authority regarding the terms and conditions of service of theofficers and servants of the High Court. In fact the Governor is to simplygrant approval to the promulgation of the Rules, which is once in the lifetimeof the Rules, unless the Rules are amended. As discussed above, the financialcontrol regarding administrative expenses including remuneration of the staffof the High Court vests with the High Court. Therefore, the grant of 50%judicial allowance with effect from 1-7-2014 can only be acknowledged as apartial payment of the Allowances approved by the High Court under Article 208Of the Constitution read with Rule 17 of Chapter 10, Part “C” of theHigh Court Rules and Orders (Vol-V).

29. For the above reasons, this petition isallowed and the Provincial Government is directed to release the arrears of 50%Judicial Allowance, as well as, pay 50% Adhoc Allowance along with arrears witheffect from 1-7-2010 to the officers and servants of the High Court, aftercompleting all the constitutional requirements in this regard, at the earliest.

30. Office shall dispatch a copy of thisjudgment to the Finance Department, Government of the Punjab for immediatecompliance and to the Speaker of the Provincial Assembly for information.

31. Before parting with the judgment Igratefully acknowledge the material assistance rendered by the talentedResearch Officers at the LHCRC and the learned amici curiae.

KMZ/R-19/L Petitionallowed.