2016 P L C (C.S.) 1074

[Lahore High Court]

Before Ayesha A. Malik and Faisal Zaman Khan, JJ

GOVERNMENT OF THE PUNJAB through Chief Secretary,Civil Secretariat, Lahore and 2 others

Versus

Syed RIAZ ALI ZAIDI

I.C.A. No.565 of 2015 in Writ Petition No.5406 of2011, decided on 9th July, 2015.

(a) Constitution of Pakistan—

—-Arts. 199, 208, 120, 121 & 122—High Court(Lahore) Rules and Orders Vol. V, Chapter 10, Rr. 4, 17, 18 & 22—LawReforms Ordinance (XII of 1972), S. 3—Intra-court appeal—Employees of HighCourt (Lahore)—Grant of fifty percent increase in Judicial Allowance and Adhoc Allowance—Independence of judiciary—Scope—Constitutional petition wasfiled for grant of fifty percent increase in Judicial Allowance and Ad hocAllowance which was accepted holding that High Court had budgetary andfinancial control, that it could draw its own administrative expenses includingremuneration of its officers and servants; that administrative expenses did notrequire the approval of Governor or the consent of Provincial Assembly; thatexpenses proposed by the High Court could not be turned down, revised oraltered by the executive or legislature and that no provision existed thatcould allow the Provincial Executive to delay or reconsider, negate, alter orreduce the administrative expenses of the High Court—Validity—High Court(Lahore) Rules and Orders had provided for the appointment and conditions ofservice for the establishment of the High Court—Said Rules had been approvedby the Governor—Approval of Governor was required for making the High CourtRules but not for increase in pay and allowances—Chief Justice as a competentauthority could create posts, make appointments, fix seniority and grantpromotion—Chief Justice could determine pay and allowances of the members ofthe establishment of High Court—Terms and conditions of service, pay and anyincrease thereof along with grant of any allowance had to be decided by theChief Justice without any approval of the Governor—Once rules had beenapproved, the Governor had no role and could not interfere in the pay andallowances fixed by the Chief Justice—Government was bound to comply with theorders of Chief Justice and Administration Committee—Article 121 of theConstitution protects the administrative expenses and remunerations payable tothe officers and servants of the High Court—Judiciary should have absolutecontrol over its employees and it should have decide all the matters withregard to terms and conditions of its employees—Such decisions could not bemade subject to the approval of Governor—Employees of High Court did not fallunder the control and management of Provincial Government—Employees of theHigh Court would be governed by the provisions of Civil Service Rules (Punjab)with regard to salaries, allowances, leave or pension but they were not civilservants—Intra court appeal was dismissed in circumstances.

Governmentof Balochistan through Additional Chief Secretary v. Azizullah Memon and 16ethers PLD 1993 SC 341; Government of Sindh through Chief Secretary toGovernment of Sindh, Karachi and others v. Sharaf Faridi and others PLD 1994 SC105; Abdul Rasheed and others v. Province of Sindh and others 2011 PLC (C.S.)926 and Government of the Punjab through Secretary, Finance Department, Lahorev. Mubarik Ali Khan and 8 others PLD 1993 SC 375 rel.

(b) Constitution of Pakistan—

—-Art. 175-independence of judiciary—Constitutionprotects the independence of judiciary from the executive and the legislaturewhich includes financial independence from the other two pillar of the State.

(c) Words and Phrases—

—-“Separation of power”—Meaning.

MuhammadShan Gull, Additional Advocate General assisted by Naeem Yousaf along withAhmad Raza Sarwar, Special Secretary Finance Department, Muhammad Akhtar,Treasury Officer and Nadeem Riaz Malik, Section Officer, Finance Department forAppellant.

MianBilal Bashir assisted by Raja Tassawar Iqbal, Mohammad Azhar Siddique forApplicant (in C.M. Nos.5061 and 5062 of 2015 and for Petitioner in Crl. Org.No.1719-W of 2015).

Dateof hearing: 9th July, 2015.

JUDGMENT

AYESHAA. MALIK, J.— The Appellants are aggrieved by the impugned judgment dated10.2.2015 in WP No.5406/2011 as the learned Single Judge has granted fiftypercent increase in Judicial Allowance and fifty percent increase in Ad hocAllowance with effect from 1.7.2010 to the employees of the Lahore High Court.

2. Thecase of the Appellants is that the Respondent is an employee of the Lahore HighCourt Establishment who sought a direction to the Provincial Government to actupon letter No.F.3(1)/2009-A-II dated 26.1.2011 issued by the Government ofPakistan, Law, Justice and Parliamentary Affairs Division, Islamabad whereinthe Prime Minister approved a fifty percent increase in judicial Allowance anda fifty percent increase at the uniform rate of the basic pay, known as Ad hocAllowance to the staff of all superior judiciary with effect from 1.7.2010. Thelearned Additional Advocate General, (“AAG”) Mr. Shan Gull arguedthat the Prime Minister does not have any executive or legislative authority todirect the Province to make any such payment out of the Provincial ConsolidatedFund. He argued that the Prime Minister cannot require the ProvincialGovernment to make any kind of payment from the Provincial Consolidated Fund.He further argued that any payment with respect to Judicial Allowance or Ad hocAllowance must be first approved by the Governor of the Province in terms ofRule 17 of Chapter 10, Part “C” of the High Court Rules and Orders(Volume-V), (“High Court Rules”). Further argued that the Respondenthas no legal right on the basis of the Prime Minister’s directive to agitate aclaim for fifty percent increase in the Judicial Allowance with effect from1.7.2010. He explained that the Administrative Committee (“AC”) ofthe Lahore High Court took a decision on 13.5.2013 whereby it approved thepayment of fifty percent increase in Judicial Allowance and Ad hoc Allowance toits employed with effect from 1.7.2010. He stated that the decision of the ACis premised on the directive issued by the Prime Minister dated 26.1.2011.Hence it cannot be followed. He further argued that Judicial Allowance has beengranted with retrospective effect which is patently illegal as a liability hasbeen imposed on the Provincial Government retrospectively. He argued that theAppellants are aggrieved by the interpretation given to Rule 17 of the HighCourt Rules in the impugned judgment as the same is contrary to the mandate ofthe Constitution of Islamic Republic of Pakistan, 1973(“Constitution”). With respect to Ad hoc Allowance the learned AAGargued that the name cannot be granted to the employees of the Lahore HighCourt because in terms of Notification dated 15,7.2010, issued by the FinanceDepartment of the Provincial Government, Ad hoc Allowance granted in the year2010 was not admissible to persons who were already getting allowance equal toone month’s basic pay. He stated that on the basis of the said Notification,many employees of the Provincial Government including members of the ArmedForces, National Highway and Motorway Police were denied Ad hoc Allowance forthe year 2010. For this reason since the employees of the High Court also fallin the category of persons who have received an allowance equal to one month’sbasic pay as provided in the Notification dated-15.7.2010 they are not entitledto this allowance. He clarified that with respect to Ad hoc Allowance thedispute pertains to the year 2010 only as Ad hoc Allowance for all other yearshas been paid.

3. Mr.Ahmad Raza Sarwar, Special Secretary, Finance Department appeared before us toexplain the rationale of the case of the Appellants and to assist the Courtwith reference to the manner in which the process for granting the allowanceswith respect to the employees of the High Court is carried out. He explainedthat the payment for the employees of the judiciary comes from the ProvincialConsolidated Fund which is a single and unified fund from which expenses aremet by the Provincial Government. It is his understanding that in terms of theConstitution and Punjab Government Rules of Business, 2011 and the High CourtRules, if the AC and the Chief Justice recommend an allowance for its employeesthen that recommendation must be approved by the Governor of the Province. Hestated that the Governor can modify the recommendation and send the matter backto the AC and the Chief Justice for reconsideration. He further stated that asper practice the AC has been submitting its recommendation to the Governorsince 2003 which has been processed under the law and approved by the Governor.In this regard, he has placed before us the record containing approvals soughtand granted for judicial allowance from the year 2003. He stated that if anyallowance is recommended by the AC without the approval of the Governor, thenas per his understanding the Provincial Government is under no obligation tomake the funds available. The Government of Punjab sanctioned fifty percentincrease of the existing basic pay known as Ad hoc Allowance in the year 2010to its employees with effect from 1.7.2010 subject to the condition that thoseemployees who were already in receipt of any special allowance equal to onemonth’s basic pay would not be allowed Ad hoc Allowance. He stated that theemployees of the High Court have been denied the grant of Ad hoc Allowance asthey were in receipt of different allowances equal to one month’s pay hencethey do not qualify for the Ad hoc Allowance. He stated that the Government ofPunjab is paying Judicial Allowance from 1.7.2014 which was duly approved bythe Governor. As to the Ad hoc Allowance, since there is a bar on the paymentof Ad hoc Allowance pursuant to Notification dated 15.7.2010, they are notwilling to pay the same. He clarified that the issue of Ad hoc Allowance isonly with respect to the year 2010 as the Ad hoc Allowances for the subsequentyears have been paid to the employees of Lahore High Court.

4. MianBilal Bashir, learned counsel for the Respondent in support of the impugnedjudgment argued that fifty percent increase in Judicial Allowance and fiftypercent increase in Ad hoc Allowance have been given to all the employees ofthe other High Courts of the country and the august Supreme Court of Pakistanexcept for the employees of the Lahore High Court. He stated that Ad hocAllowance is granted every year to the employees of the Lahore High Court andcould not be refused for the year 2010. He stated that there is no basis todeny the employees the Ad hoc Allowance on the strength of the Notificationdated 15.7.2010 as they are not at par with the civil servants mentioned inNotification dated 15.7.2010. He stated that the employees of the Lahore HighCourt fall directly under the control of the Hon’ble Chief Justice. He statedthat the Hon’ble Chief Justice and the AC approved fifty percent increase inJudicial Allowance and in Ad hoc Allowance with effect from 1.7.2010 for itsemployees on 15.5.2013. He stated that the Appellants are obligated to complywith the decision of the AC and the Hon’ble Chief Justice in terms of Rule 17of the High Court Rules.

5. Mr.Mohammad Azhar Siddique, learned counsel for Applicant in CM Nos.5061 and 5062of 2015 and for the Petitioner in Criminal Original No.1719-W/2015 whilesupporting the impugned judgment argued that the Appellants have neverchallenged the directive of the Prime Minister dated 26.1.2011. They have alsonot challenged the decision of the AC dated 15.5.2013. Therefore they areobligated to comply with the same. Learned counsel further stated that thematter for grant of Judicial Allowance and Ad hoc Allowance falls exclusivelywithin the domain of the Hon’ble Chief Justice and the AC in terms of Rule 17of the High Court Rules and as such no approval is required from the Governor.

6. Heardand record perused.

7. Thefacts of the case are that on 26.1.2011, the Prime Minister through a directiveapproved a fifty percent increase at the uniform rate of basic pay, referred toas Ad hoc Allowance and fifty percent increase in Judicial Allowance to thestaff of the superior judiciary across the country with effect from 1.7.2010.No positive action was taken by the Appellants on the basis of the directivehence on 15.5.2013 the AC in its meeting approved a fifty percent increase inthe Judicial Allowance and in the Ad hoc Allowance with effect from 1.7.2010.The said allowances were not granted by the Provincial Government, hence theRespondent filed WP No.5406/2011 before this Court seeking implementation ofthe Prime Minister’s directive dated 26.1.2011. The impugned judgment whilerelying on Articles 121, 122, 175 and 208 of the Constitution essentially heldthat judicial independence means and includes financial independence whichmeans that the High Court has total budgetary and financial control and it candraw its own administrative expenses including remuneration of its officers andservants. The judgment further holds that administrative expenses do notrequire the approval of the Governor or the assent of the Provincial Assemblyin terms of Article 121 of the Constitution. The impugned judgment concludesthat the expenses proposed by the High Court cannot be turned down, revised oraltered by the executive or by the legislature and that there is no provisionunder the Constitution that allows the Provincial Executive to delay orreconsider, legate, alter, reduce the administrative expenses of the High Courtwhich is a charged expenditure under Article 121 of the Constitution.

8. Thebasic issue raised by the Appellants is that in terms of Rule 17 of the HighCourt Rules approval of the Governor is necessary before any allowance,Judicial or Ad hoc, can be increased. The said Rule is reproduced hereunder forconvenience:–

Members of the High CourtEstablishment shall be entitled to pay (including special pay) and allowancesas fixed by the Chief Justice, from time to time with the approval of theGovernor to these rules.

The learned AAG while relying on the stated Ruleargued that no other rule in the High Court Rules requires the approval of theGovernor except Rule 17. Since Rule 17 specifically makes mention of theapproval of the Governor it means that an approval was thought to be necessaryfor the purposes of pay and allowances.

9. Wehave considered the arguments made before us however, we find that the emphasison the approval of the Governor is totally misplaced. The High Court Rulesprovide for the appointment and conditions of service for the Establishment ofthe Lahore High Court. These Rules have admittedly been approved by theGovernor and essentially lay down the terms and conditions of service of theemployees of the High Court. The case of the Appellants is that the approvalunder Rule 17 is mandatory for the grant of increase in Judicial Allowance andAd hoc Allowance because when compared with the other rules, Rule 17 is theonly Rule which requires approval from the Governor. We have gone through theHigh Court Rules and find that Rule 4 provides for the establishment of as manyposts as may be fixed from time to time by the Chief Justice. As per the HighCourt Rules all appointments are made by the Chief Justice and increments aregranted under Rule 18 by the Chief Justice. In all these cases, the approval ofthe Governor is not required. Rule 17 however, provides that members of theHigh Court Establishment shall be entitled to pay, special pay and allowancesas fixed by the Chief Justice, from time to time, with the approval of theGovernor to these rules. We find that reference to ‘approval of the Governor’is specifically in relation to the approval sought for making the High CourtRules and not for approval each time pay or allowance has to be increased. Notonly does this understanding fit in well when reading the High Court Rules inits entirety but it is also in consonance with the principles of independenceof the judiciary as held by the august Supreme Court of Pakistan in the casetitled Government of Balochistan through Additional Chief Secretary v.Azizullah Memon and 16 ethers (PLD 1993 SC 341), Government of Sindh throughChief Secretary to Government of Sindh, Karachi and others v. Sharaf Faridi andothers (PLD 1994 SC 105) and Abdul Rasheed and others v. Province of Sindh andothers (2011 PLC C.S. 926). The Chief Justice as the competent authoritycreates the posts, makes the appointments, fixes the seniority and grantspromotion. He is also competent authority to determine pay and allowances ofthe members of the Establishment of Lahore High Court. The argument that onlyfor the purposes of pay and allowances the approval of the Governor is requiredbut for all other matters relating to terms and conditions of service the ChiefJustice is the competent authority does not find favour with the spirit of theHigh Court Rules. To our mind when reading the High Court Rules, it is evidentthat fixation of posts, appointment to the posts, grant of increment, seniorityand promotion are all subject to the decision of the Chief Justice without anyapproval from the Governor. On the basis of the same understanding, the termsand conditions of service, the pay and any increase thereof along with grant ofany allowance will also be decided by the Chief Justice without any approval ofthe Governor. It is only the rules themselves when promulgated that needapproval of the Governor in terms of Article 208 of the Constitution. It is theConstitution when mandates that the Governor approve the rules related to theterms and conditions of service. Once the rules are approved, the Governor hasno role and cannot interfere in the pay and allowances fixed by the ChiefJustice. Therefore the finding in the impugned judgment that the approval ofthe Governor under Rule 17 is a one off act is in accordance with the mandateof the Constitution and the spirit of the High Court Rules. In this regard, itis held in the case titled Government of the Punjab through Secretary, FinanceDepartment, Lahore v. Mubarik Ali Khan and 8 others (PLD 1993 SC 375) that Inthe context of the Constitutional provisions reproduced above, it is clear thatin the matter of the officers and servants employed in the establishment of theSupreme Court of Pakistan and the High Courts the legislature had not beengiven any role to determine the terms and conditions of the employees which ofcourse would include their remuneration also. Such an exclusionary role wasattributed to the requirement of maintaining the independence of judiciary. Itwas further held in this case that it is admitted that under Rule 17 noseparate dispensation with the approval of the Governor has taken place inrespect of pay and allowances. For this reason the residuary Rule 22 getsattracted.

10. Thenext issue is with respect to the implementation of the decision dated15.5.2013 of the Chief Justice and the AC wherein the increase in JudicialAllowance and Ad hoc Allowance was allowed. A lot of emphasis was placed on thefact that the decision of the AC was based on the Prime Minister’s directivedated 26.1.2011 which directive is not binding on the Provincial Government.Although the Appellants have argued that they are not bound by the saiddirective, we are of the opinion tat this argument is not relevant to thecontroversy at hand because the Chief Justice and the AC took a decision on15.5.2013 that it will give all its employees fifty percent increase inJudicial Allowance and Ad hoc Allowance with effect from 1.7.2010. Given that adecision was taken by the AC and the Chief Justice, the Appellants wereobligated to follow the same and ensure its compliance irrespective of the factthat the decision may have been based on the Prime Minister’s directive dated26.1.2011. The only answer to the question as to why the decision of the AC wasnot followed is that Rule 17 of the High Court Rules requires the approval ofthe Governor. Therefore there is no merit in this argument as the Appellantsare bound to comply with the decision of the Chief Justice through the AC. Theissue that the decision of the AC required Judicial Allowance and Ad hocAllowance to be paid with effect from 1.7.2010, being retrospective in natureis also misconceived as the Appellants are bound to comply with the orders ofthe Chief Justice and the AC. The Constitution protects the independence of thejudiciary from the executive and the legislature which includes financialindependence from the other two pillars of the state. The doctrine ofseparation of power means that each pillar of the State shall take care ofitself. Hence the Constitution specifically provides under Article 120 that anAnnual Budget Statement be submitted in respect of every financial year beforethe Provincial Assembly. The Annual Budget Statement and its explanatorymemorandums include the expenses related to the Lahore High Court. Article 121of the Constitution protects the administrative expenses and remunerationspayable to the officers and servants of the High Court by declaring it to be anexpenditure charged upon the Provincial Consolidated Fund. Article 122 of theConstitution provides that charged expenditures as detailed in the AnnualBudget Statement may be discussed in the Assembly, but shall not be submittedto the vote. Therefore the Constitution specifically provides that nointerference shall be made with respect to the administrative expenses andremuneration payable to the employees of the High Court. The strength andeffectiveness of an independent judicial system means that it has absolutecontrol over its employees and in this context that it decides on all mattersrelated to the terms and conditions of their service. As an independent branchit is presumed that the judiciary will regulate and monitor its finances in themost prudent manner possible and take reasonable decisions. Such decisionscannot be made subject to the approval of the Governor and any matter relatedto pay and allowances cannot be turned down, modified or sent back by theGovernor to the AC and the Chief Justice for reconsideration. In the instantcase the Minutes of the Meeting of the AC dated 15.5.2013 show that thedecision to grant Judicial Allowance and Ad hoc Allowance with effect from1.7.2010 was subjected to a process of deliberation by the AC and the ChiefJustice, who in their wisdom concluded that the allowances should be grantedwith effect from 1.7.2010. The Appellants before us accept that the JudicialAllowance should be given to the employees of the High Court and they havestated that they are paying it with effect from 1.7.2014. Therefore withrespect to Judicial Allowance they essentially dispute the effective date of1.7.2010 and the amount due from 1.7.2010 to 30.6.2014. As to Ad hoc Allowancethey have expressed their inability to accept the decision of the AC and theChief Justice on the strength of Notification dated 15.7.2010. However we areof the opinion that the Appellants are obligated to comply with the decision ofthe Chief Justice and the AC dated 15.5.2013. Since this obligation is themandate of the Constitution the question of retrospectivity and reliance onNotification dated 15.7.2010 does not arise. Furthermore reference to pastpractice when the increase in Judicial Allowance was sent to the Governor willalso not change the mandate of the Constitution. In this regard, we find thatthe impugned judgment has aptly dealt with the matter by finding that 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 cooperation, coordination, responsibility andaccountability. Working relationship between different organs of the State is apath that enriches and strengthens democracy.

11. Withrespect to the Ad hoc Allowance, the issue raised by the Appellants is on thebasis of Notification dated 15.7.2010 where certain departments of theProvincial Governments have been denied Ad hoc Allowance. They argue that thesame will be made applicable to the employees of the Lahore High Court. Thebasic concern as explained by Mr. Ahmad Raza Sarwar, Special Secretary, FinanceDepartment and the learned AAG is that if the employees of the High Court aregranted the Ad hoc Allowance for the year 2010, it will prompt claims fromother Departments who have been specifically ousted on the basis of theNotification dated 15.7.2010, to agitate their right to Ad hoc Allowance forthe year 2010. However we find that there is no justification in denying Ad hocAllowance for the year 2010 on the basis of Notification dated 15.7.2010. Theemployees of the Lahore High Court do not fall under the control and managementof the Appellants/Provincial Government hence the question of discriminationwould not arise. As per Rule 22 of the High Court Rules they have only adoptedto be governed by the provisions of the Civil Service Rules (Punjab) in mattersof salaries, allowance, leave or pension. However, since they are not civilservants the said Notification cannot be made binding on them and the questionof discrimination, in our opinion will not arise as they do not fall under thecontrol of the Provincial Government.

12. Inview of the aforesaid, impugned judgment dated 10.2.2015 passed by the learnedSingle Judge is upheld and this appeal is dismissed.

ZC/G-16/L Appealdismissed.