PHC moved against requirement of experience for judges’ appointment
Blog PHC moved against requirement of experience for judges’ appointment PESHAWAR: Several lawyers from different districts on Saturday challenged in the Peshawar High Court the requirement of two years’ experience for appointment of civil judges. A total of 13 lawyers have filed a joint petition requesting the high court to declare as illegal the requirement of experience, which was brought about in 2015 by the then governor by amending the Khyber Pakhtunkhwa Judicial Service Rules, 2001. They prayed that the aspirants, who lacked the requisite experience but were qualified otherwise as per rules, may be allowed to undertake the examination to be held for filling the posts. Nouman Muhib Kakakhel Advocate submitted the petition on behalf of the petitioners. The counsel pleaded that 120 posts of civil judges/judicial magistrates/Ilaaqa Qazi had been advertised recently. He stated that the rules as originally enacted were having no experience requirement, but they were amended in 2015, wherein two years’ experience was added. The counsel said in Sindh, there was no requirement of experience, but the people of KP were being discriminated against, and new graduates and lawyers were being deprived of it despite being fully prepared to undergo the examination. The counsel pleaded that the rules were made by the executive wherein no guidelines or guidance were provided by the legislature. Therefore, it amounted to excessive delegation of judicial powers, which negated the doctrine of separation of powers and the salient features of the Constitution. He prayed that the amendment brought in 2015 might kindly be declared ultra vires of the Constitution and the rules as enacted originally may kindly be restored. Published in Dawn, November 17th, 2024
2018 P L C (C.S.) Note 116
Reported Cases 2018 P L C (C.S.) Note 116 [Peshawar High Court] Before Waqar Ahmad Seth and Muhammad Younis Thaheem, JJDr. AKBAR SHAHVersusGOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Healthand 3 others W.Ps. Nos.1068-P of 2015, 252-P, 292-P, and 731-P of 2017, decided on 14thMarch, 2017. (a) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)— —-S. 16—Medical Teaching Institution—Repatriation of institution to Health Department—Scope—Employees of Khyber Teaching Hospital were directed to exercise their option to serve the instituion or the Health Department—Petitioners exercised their choice to opt to serve the institution—Medical Director had notbeen authorized to set aside the option exercised by the employees—Petitioners remained employees who exercised their option to continue to be employees of the institution within prescribed period of ninety days, were declared as employees of Medical Teaching Institution Khyber Teaching Hospital—Constitutional petition was allowed accordingly. [paras. 8, 9 and 10 of the judgment] (b) Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act (IV of 2015)— —-S. 16—Medical Teaching Institution—Option to employee to remain with the institution or to go to the Provincial Health Department—Transfer of employee ofthe instituion who had opted to stay with the institution to the Health Department— Validity—Medical Director had no authority to transfer the petitioner-employee, asafter promulgation of Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 he became employee of the institution by operation of law—Petitioneremployee was transferred without lawful authority and illegally from Medical Teaching Institution to the Provincial Government Department—Petitionerremained employee of the institution who exercised his option to continue with the institution within prescribed period of ninety days—Medical Director was notauthorized to set aside the option exercised by the employee of the institution— Transferring any employee after promulgation of Khyber Pakhtunkhwa MedicalTeaching Institutions Reforms Act, 2015 without first making offer to exercise option was without lawful authority—Impugned order was set aside— Constitutional petition was allowed accordingly. [para. 8, 9, 10 & 11 of thejudgment Mian Muhibullah Kaka Khel for Petitioner.Zartaj Anwar and Rabnawaz Khan, AAG for Respondents.Date of hearing: 14th March, 2017. JUDGMENT MUHAMMAD YOUNIS THAHEEM, J.— Through this single judgment, we propose to decide instant petition along with W.P. No.252-P/2017 titled Dr. Shazia Hussain v. Government of Khyber Pakhtunkhwa and others, W.P. No.292-P/2017 titled Dr. Akbar Shah v. Medical Director, MTI, KTH, Peshawar and others and W.P. No.731-P/2017 titled Dr. Shoaib Jan v. Government of Khyber Pakhtunkhwa and others, as common question of law and facts are involved therein. Moreover, in all these petitions the question for determination is one and the same. 2. Petitions wise brief facts are as below:- (i) W.P No.1068 of 2015:- Petitioner is performing his duty as an institutional employee as Director (BPS-19) at Khyber Teaching Hospital (KTH), Peshawar as Trauma consultant in A&E Department. During his service he was transferred as MS to Mian Rasheed Hussain Hospital, Pabbi, District Nowshera, vide transfer order dated 16.03.2015 (impugned herein). Who challenged the same order through instant petition and the operation of impugned transfer notification dated 16.03.2015 was suspended vide order of this Court dated 14.04.2015 which remain intact till date. (ii) W.P No.252-P12017:- Petitioner Dr. Shazia Hussain was working as Woman Medical Officer, Khyber Teaching Hospital (KTH), Peshawar. She given option to join the institution under section 16 of the Medical teaching Institutions Reforms Act, 2015, but despite that her services she was directed to report Health Department of the Province on the ground that she has not opted for institutional absorption. The same impugned order dated 31.12.2016 was challenged, so this petition and the operation of the same impugned order has been suspended vide interim order of this Court dated 26.1.2017. (iii) W.P No.292-P/2017:- Petitioner Dr. Akbar Shah through this petition had also challenged the order dated 20.01.2017 vide which the petitioner services were repatriated to Health Department and was relieved from the institution. The operation of the same impugned order was suspended vide order of this Court dated 26.01.2017. (iv) W.P No.731-P-2017:- Petitioner Dr. Shoaib Jan working as Medical Officer (BPS-17) in Khyber Teaching Hospital, Peshawar and under new medical services system under section 16 of MTI Act, 2015, he exercised his option to continue his services as institutional employee in the K.T.H, Peshawar but vide impugned notification dated 07.02.2017. he was directed to report back toHealth Department of the Province with immediate effect. 3. As common question of law and facts are involved and all the petitioners were institutional employees and had opted under section 16 of MTI Act to remain employee of K.T.H. and to be dealt with under section MTI Act and whether the respondents have authority under the MTI Act to pass any order for transfer of the institutional employees to report to Health Department were questions which needed explanation from the respondents, so the respondents were called to submit their comments, who submitted the same and prayed to consider sufficient in all petitions. 4. Learned counsel for petitioners argued that after promulgation of MTI Act, 2015, the petitioners were given right to exercise option to remain institutional employees in view of section 16 of MTI Act, 2015. So they filled option proformas well within prescribe time under section 16(3) of Khyber Pakhtunkhwa Medical Teaching Institutional Reforms Act, 2015 within 90 days from the date of commencement of the Act. Similarly counsel for petitioner Mian Mohibullah Kaka Khel argued that the transfer order of the petitioner dated 20.01.2016 has been challenged in the instant writ petition is against law, without lawful authority as being institutional employee, the respondents has no authority to transfer an institutional employee to direct him to report in the Health Department. Similar are the arguments in other connected writ petitions. The leaned counsel for petitioners argued that they have exercised the option under section 16 of the MTI Reform Act, so are institutional employees could not be sent to surplus pool or transfer from the Medical Institutional Hospital to report at Health Department. Learned counsel for petitioners placed reliance on the judgment of this Court in W.P. No.2980-P/2014 titled Dr. Muhammad Ali Johan v.
2019 P L C (C.S.) 238
by kakakhel | Nov 12, 2020 | publications, Synopsis of Articles 2019 P L C (C.S.) 238 [Sindh High Court] Before Syed Hassan Azhar Rizvi and Khadim Hussain Tunio, JJ ABDUL HALEEM SIDDIQUI and others Versus FEDERATION OF PAKISTAN through the Law Secretary, Ministry of Law andJustice, Pakistan Secretariat, Islamabad and others C.Ps. Nos. D-3460, D-3366 of 2011, D-1053, D-1524, D-1657, D-3644 of 2013and D-1268 of 2016, decided on 4th September, 2018. (a) Constitution of Pakistan— —-Arts. 212 & 199—-Constitutional jurisdiction of HighCourt—Civil Service—Constitutional petition seeking relief for framing ofservice rules and seniority list—-Relief seeking framing of rules andseniority list, prima facie, cannot be legally entertained by High Court beinga matter relating to service structure and applicable rules. (b) Constitution of Pakistan— —-Arts. 25 & 4—-Fundamental rights of equality of citizens andright to be dealt in accordance with law—-Scope—-Expression “equalitybefore law” or “equal protection of law” did not secure to allpersons the benefit of Art. 25 of the Constitution, which required thatpersons, similarly situated or circumstanced shall be treated alike and if oneintended to seek exception to the application of Art. 25 of the Constitution,then such person would be required to establish that things were different andonly then discrimination could be made which too much be based on someintelligible differential, bearing a reasonable and just relation to theobject, sought to be achieved. PakcomLimited v. Federation of Pakistan PLD 2011 SC 44 rel. (c) Constitution of Pakistan— —-Arts. 25, 4, 38(e) & 37(d)—Interpretation of theConstitution—Fundamental Rights—Principles of Policy—Equality ofcitizens—Right to be dealt in accordance with law—Obligation of state toensure inexpensive and expeditious justice—Application of such rights topublic servants/civil servants—Terms and conditions of PublicService—Scope—Constitution was a living and organic document, and whileinterpreting the same, expensive and dynamic approach was to beadopted—Fundamental Rights included equality in terms and conditions ofservice and Arts. 25, 37(d) & 38(e) of the Constitution were to be readwith Arts. 4 & 25 of the Constitution. (d) Constitution of Pakistan— —-Arts. 25, 4, 37(d), 38(e) & 199—Sindh Criminal ProsecutionService (Constitution, Functions and Powers) Act (IX of 2009),S.9(1)—Judicial Officers—Remuneration and benefits of judicialofficers—Special Judicial Allowance—Entitlement of Offices of StateRepresentation to Special Judicial Allowance—Roles and Functions of the SindhCriminal Prosecution Service—Employees of Provincial Criminal ProsecutionService entitled to same benefit(s) as employees of the Offices of theAdvocate-General and Attorney-General—Scope—Question before the High Courtwas whether petitioners, who were working for the Provincial CriminalProsecution Service, were entitled to grant of Special Judicial Allowance, aswas being provided to offices of the Advocate-General andAttorney-General—Contention of petitioners, inter alia, was that functionsand duties of the office of the petitioners was similar to that of the officesof the Advocate-General and Attorney-General, and thus they were beingdiscriminated against—Validity—Barriers of names and classification ofoffice(s)/court(s) were of no significance when question of Special JudicialAllowance was involved—Judiciary, anywhere in the country, was to be as aclass in itself and barriers of names, classification and Provinces could nottherefore stand—Special Judicial Allowance was not limited to the Judiciaryalone, but also to its counterpart, which was “StateRepresentation”—Prima facie, purpose and object of both Advocate-GeneralOffice and the Provincial Criminal Prosecution Service was one and the same,which was representation of the Government and mere difference of “civilmatters”, which was dealt with by Advocate General Office and”criminal prosecution”, dealt with by Provincial Criminal ProsecutionService, could not be a factor in the present case—High Court observed thatOffice of Advocate-General performed the same functions in the Province as theProvincial Criminal Prosecution Service, and therefore petitioners wereentitled for equal treatment under Art. 25 of the Constitution, and thus wereentitled to avail the same benefits as employees of the Advocate-GeneralOffice—High Court declared refusal of grant of Special Judicial Allowance topetitioners being violative of Art. 25 of the Constitution and directed paymentof the same to the petitioners—High Court further directed the Staterespondents to take steps and initiate legislative measures as may be necessaryto frame service structure of employees/non-gazetted staff of the ProvincialCriminal Prosecution Service—Constitutional petitions were allowed,accordingly. Governmentof Punjab v. Mubarak Ali Khan PLD 1993 SC 375; Pakcom Limited v. Federation ofPakistan PLD 2011 SC 44; Secretary, Ministry of Finance v. Masdar Hossain(1999) DLR (AD) 82; Pir Imran Sajid and others v. Managing Director/GeneralManager and others 2015 SCMR 1257; WP Sadaqat Ali v. Government of Punjab andMuhammad Akram v. Selection Committee 2003 CLC 18 rel. Dateof hearing: 11th August, 2018. JUDGMENT KHADIMHUSSAIN TUNIO, J.—By this commonjudgment, we intend to dispose of captioned petitions as the same have beenfiled by different persons, from which all are associated directly orindirectly with the administration of justice, which includes judicial officersof the District Judiciary, employees and servants attached to the DistrictJudiciary and employees/staff attached to Special Courts under the FederalGovernments. The sole purpose behind all the petitions is enhancement of payand judicial allowance at par with the judicial officer and officers andemployees of District Judiciary Establishment. 2. Thepetitioners, in the respective petitions have sought for the following relief:- C.P No.D-3460 of 2011 i. Directthe Respondents Nos. 1 and 2 to frame appropriate rules/legislation to ensurethe financial and budgetary independence of the Sindh Criminal ProsecutionService. ii. Directthe Respondent No. 2 to frame appropriate rules to ensure that the prosecutor’ssupervisory role over the police investigation as contemplated under sections 9and 10 of the Sindh Criminal Prosecution Service (Constitution Functions andPowers) Act 2009 is truly effective and meaningful. iii. Directthe Respondents Nos. 1 and 2 to ensure that all prosecutors within the SindhCriminal Prosecution Service are provided equal salaries, allowances,privileges and facilities as their similarly placed counterparts in theAttorney General Officer and – at any rate – to ensure that the former areconferred the same remunerative enhancements as have been conferred on thelatter; iv. Grantsuch further or additional relief as this Hon’ble Court may deem appropriate inthe circumstances. C.P.No. D-3366 of 2011 i. Tohold/declare that the Judicial allowance as well as utility allowance ofPetitioners/Prosecutors and their sub-ordinate staff of Sindh CriminalProsecution Service Department working under the supervision of ProsecutorGeneral Sindh (Respondent No. 5) i.e. Prosecutor General Sindh, AdditionalProsecutor Generals, Deputy Prosecutor Generals, Assistant Prosecutor Generals,District Public Prosecutors, Deputy District Public Prosecutors and Assistant DeputyPublic Prosecutors and their sub-ordinate staff is discriminatory especially inview of the
2004 S C M R 553
by kakakhel | Nov 12, 2020 | publications, Synopsis of Articles 2004 S C M R 553 [Supreme Court of Pakistan] Present: Rana Bhagwandas and Javed Iqbal, JJ MUHAMMAD ASHFAQ‑‑‑Petitioner versus MUHAMMAD SHER KHAN and 11 others‑‑‑Respondents Civil Petition No.408‑P of2002, decided on 7th October, 2003. (On appeal from the judgmentdated 20‑6‑2002 of the Peshawar High Court, Peshawar, passed inWrit Petition No.923 of 2001). North‑West Frontier Province LocalGovernment Elections Rules, 2000‑‑‑ ‑‑‑‑Rr.71& 73(3)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑ Constitutionof Pakistan (1973), Art.185 (3)‑‑‑Corrupt practices,allegations of‑‑‑Presentation of election petition‑‑‑ElectionTribunal dismissed the election petition on the ground that the same was notproperly filed but High Court in exercise of its Constitutional jurisdictionset aside the order passed by the Election Tribunal‑‑‑Plearaised by the returned candidate was that the petition was not filed inaccordance with the provisions of O.VI, R.15, C.P.C.‑‑‑Validity‑‑Electionpetition and annexes were got signed and verified properly in accordance withthe relevant Rules read with Order VI, R.15, C.P.C. which was made applicableby virtue of R.73(3) of North‑West Frontier Province Elections Rules,2000‑‑‑Allegation of corrupt practices asserted in an unambiguousmanner in the election petition could’ not be resolved without affording properopportunity of hearing to the petitioners which aspect of the matter had beendealt with in a casual and cursory manner by the Election Tribunal and the sameamounted to flagrant violation of the principles of natural justice, fair playand equity‑‑‑High Court in exercise of Constitutionaljurisdiction had rightly rectified the illegality‑‑‑Nojurisdictional error, illegality or infirmity was pointed out by the returnedcandidates in the judgment passed by the High Court‑‑ No questionof law of public importance was involved in the matter‑‑ Leave toappeal was refused. Syed Asif Shah, Advocate SupremeCourt and Syed Safdar Hussain, Advocate‑on‑Record (absent) forPetitioner. Mian Mohibuliah Kakakhel,Advocate Supreme Court and Mir Adam Khan, Advocate‑on‑Record(absent) for Respondents. Date of hearing: 7th October,2003. ORDER JAVED IQBAL, J.‑‑‑Thispetition for leave to appeal is directed against the judgment dated 20‑6‑2002passed by learned Peshawar High Court, Peshawar, whereby the writ petitionpreferred on behalf of respondents has been accepted and judgment dated 9‑7‑2001passed by the Election Tribunal has been set aside. 2. Precisely stated the facts ofthe case are that petitioner and respondents Nos.1 and 2 contested election forthe posts of Nazim and Naib Nazim from Union Council Kalu Khan District Swabi.The petitioner and Muhammad Rashid (respondent No.3) were declared as returnedcandidates for the posts of Nazim and Naib Nazim. As a result of unofficialcounting respondents Nos.1 and 2 had obtained 1617 votes but number of voteswas increased by two votes after official counting held on 26‑3‑2001.On 26‑3‑2001 respondent No.1 preferred an application to theDistrict Returning Officer for counting of all the valid as well as invalidvotes but with no avail in spite of the fact that direction of recounting wasalso given by the District Returning Officer. The Returning Officer, Kalu Khancounted only invalid votes. Being aggrieved an election petition was preferredbefore the Election Tribunal which was rejected vide judgment dated 9‑7‑2001.Being dissatisfied the petitioner filed a writ petition which has beendismissed vide judgment impugned, hence this petition. 3. Syed Asif Shah, learnedAdvocate Supreme Court entered appearance on behalf of petitioner and urgedwith vehemence that the legal and factual aspect of the controversy have notbeen appreciated in its true perspective which resulted in serious miscarriageof justice. It is next contended that the evidence which has come on record hasnot been evaluated vigilantly but on the contrary the controversy has beenresolved on conjectural presumptions having no nexus whatsoever with theevidence. It is further contended that the election petition filed byrespondents Nos. l and 2 was neither signed nor properly verified which aspectof the matter has been ignored resulting in serious prejudice against thepetitioner. It is pointed out that the election petition was presented on 25‑4‑2001by Mr. Muhammad Irfan Khan, Advocate who was not properly engaged by respondentNo.2 as Wakalatnama was not signed by him. It is urged emphatically that thelearned Tribunal had rightly rejected the plea of respondent for re‑countingin the absence of any lawful justification and the learned Division Bench hadno jurisdiction to substitute the findings of learned Election Tribunal withtheir own as no interference could have been made in arena of factualcontroversy while exercising Constitutional jurisdiction. 4. Syed Asif Shah, learnedAdvocate Supreme Court appeared for caveators and supported the judgmentimpugned for the reasons enumerated therein with submission that no illegalitywhatsoever has been committed by the learned Division Bench of Peshawar HighCourt and the conclusion arrived at by means of judgment impugned beingunexceptionable does not warrant interference. 5. We have carefully examined therespective contentions as agitated on behalf of the parties in the light ofrelevant provisions of the N.‑W.F.P. Local Government Elections Rules,2000 (hereinafter referred to as the Rules), scanned the entire record with theeminent assistance of learned counsel and gone through the judgment dated 9‑7‑2001passed by the Election Tribunal as well as the judgment impugned. After havinggone through the entire record we are not persuaded to agree with the primecontention of learned Advocate Supreme Court that the mandatory provisions ascontained in rule 71 of the Rules were not adhered to strictly because thepresentation of election petition was not proper as Mr. Muhammad Irfan Khan,Advocate had no locus standi to do the needful without getting his Wakalatnamasinged for the simple reason that it has been agitated in oblivion of theprovisions as contained in rule 71(3) of the Rules whereby the electionpetition could have been filed by the respondent himself. It is not the case ofpetitioner that respondent teas not accompanying Mr. Muhammad Irfan Khan,Advocate at the time of presentation of the election petition. We have alsoadverted to the contention of learned Advocate Supreme Court that the petitionwas not verified and Wakalatnama was not signed as per requirement of law andon this score alone it should have been dismissed. A careful scrutiny of recordwould reveal that the election petition was signed by both the respondents withsolemn affirmation that the contents of election petition were correct to thebest to their knowledge and belief. The affidavit was also got signed by theOath Commissioner. The provisions as contained in rule 73(3) of the Rules havenot been violated. The learned