PLD2011 Karachi 451
Before Mushir Alam, C J and Tufail H. Ebrahim, J
AMANULLAH KHAN YOUSUFZAI and others—Petitioners
FEDERATION OF PAKISTAN through Law Secretary andothers—Respondents
C.Ps. Nos. D-1465, D-1930, D-2318, D-2433 of 2009,decided on 24th May, 2011.
(a) Constitutionof Pakistan—
—-Preamble & Art.175—Scheme of theConstitution—Judiciary—Constitution does not contemplate a batch ofunconnected courts but a judiciary composed of superior courts and subordinatecourts—Subordinate courts are therefore integral part of the judicial systemof Pakistan—Constitution does not draw any distinction between superior orsubordinate judiciary.
Masroor Ahsan v. Ardersher Cowasjee PLD 1998 SC 823;Registrar v. Wali Muhammad 1997 SCMR 141, 154; Liaquat Hussain v. Federation ofPakistan PLD 1999 SC 504; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445and Muhammad Mansha v. State PLD 1996 SC 229 ref.
(b) Constitutionof Pakistan—
—-Arts. 175& 4—Disparity in the terms and conditions including emoluments of membersof Judicial Service in the Province of Sindh—Right to be dealt with inaccordance with law—Failure of authorities, to extend equal remuneration inthe Province of Sindh gi4alitatively undermines the judicial independence tothe citizens of Pakistan residing in the Province of Sindh thus denying theirright to be treated alike as mandated in terms of Art.4 of the Constitution—Principles.
(c) Constitutionof Pakistan—
—Arts. 175, 25 & 27—Equal treatment to all persons similarlyplaced—Judiciary—Discrimination in service—Disparity in the terms andconditions including emoluments of the members of Judicial Service in theProvince of Sindh as compared to otherProvinces is clear negation to the recommendations of National Judicial (PolicyMaking) Committee—Low pay is one of themain reasons of corruption and malpractice.
(d) Constitutionof Pakistan—
—-Arts. 175& 73—Parochial and other similar prejudices—Any disparity in the termsand conditions of District Judiciary and other courts/Tribunals and staffattached thereto in various Provinces may form parochial and other negativesentiments among citizens of Pakistan residing in the Province of Sindh—Suchdisparity is also one of the causes of social injustice and other socialevils.
(e) Constitutionof Pakistan—
—-Arts. 175,25, 27, 37 & 38—Judiciary—Equality of citizens and safeguard againstdiscrimination—Social justice and eradication of social evils and socialwell-being of the people—Principles of Policy–Constitution, cast duty onState to promote social justice and eradicate the social evils—Disparity interms and conditions in Judicial Service is a social evil which could only bepossible if equality in terms and conditions in judicial service was broughtinto uniform terms and conditions with similar emoluments in services wereprovided to all the categories of the persons placed in similar position;namely, judicial officers, servants and employees of the establishment of theDistrict Judiciary in the Province of Sindh were provided similar terms and conditionsof service including facilities and salaries and retiring benefits as were provided to their counterparts inthe other provinces of the country—Judicial officers in District Judiciaryand courts and Tribunal and the staff attached thereto perform one and the samefunctions in all the Provinces of thecountry and it was not that the judiciary in one Province performed anydifferent functions; therefore, the judiciary anywhere in the country as awhole is a class in itself.
Attiyya Bibi v. Federation of Pakistan 2001 SCMR1161; Muhammad Akram v. Selection Committee 2003 CLC 18 and Secretary, Ministryof Finance v. Masdar Hossain (1999) DLR (AD) 82 ref.
(f) Interpretationof Constitution—
—-Constitution is a living and organicdocument—While interpreting the Constitution expansive and dynamic approachand interpretation is to be adopted.
(g) Constitutionof Pakistan—
—-Federal Legislative List, item No.55—Judicialservice—Judicial service is essentially and structurally distinct andseparate service from the civil, executive and administrative services of Pakistan and Judicial service cannot betreated at parity with such services on any account nor can judicial service becombined, abolished, replaced, mixed up and or tied together with the civilexecutive and or administrative services—Judiciary, as a whole is a separateand distinct class in itself—Principles.
Government of Sindh v. Sharaf Faridi PLD 1994 SC 105;Rashid A. Razvi v. Province of Sindh PLD 2010 Kar. 63; Sharaf Faridi and 3others v. The Federation of IslamicRepublic of Pakistan PLD 1989 Kar. 404 and Ranyal Testile v. Sindh Labour CourtNo.3 PLD 2010 Kar. 27 ref.
(h) Constitutionof Pakistan—
—-Arts. 203,175 & 208—Judiciary—High Court to superintend subordinatecourts—Scope—Supervision and control over the subordinate judiciary vestedin the High Court under Art.203 of the Constitution, keeping in view Art.175 ofthe Constitution, is exclusive in nature, comprehensive in extent and effectivein operation—Such supervision comprehends the administrative power as to theworking of the subordinate courts and disciplinary jurisdiction over thesubordinate judicial officers—Any provision in an Act or any rule or anotification empowering any executive functionary to have administrativesupervision and control over the subordinate judiciary will be violative ofArt.203 of the Constitution andmilitate against the concept of separation and independence of judiciary as envisaged by Art.175 of the Constitutionand the Objectives Resolution.
Government of Balochistan through Additional ChiefSecretary v. Azizullah Memon and 16 others PLD 1993 SC 341 and Sharaf Faridiand 3 others v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar.404 ref.
(i) Constitutionof Pakistan—
—-Arts. 175& 2A—Independence of judiciary—Concept—Separation of judiciary fromthe executive—Judiciary has been termed as custodian and sanctuary of therights of the people and that of the Constitution—Judiciary holding suchcontrol and exalted position must be independent and separate from executive inall respect—Independence of judiciary is grand norm in the constitutionalregime in almost all the modern time Constitutions including Constitutionof Pakistan which cast mandatory and constitutional obligation on Government toensure separation of judiciary from the executive—Independence of judiciaryand the impartial judicial practice are interrelated concepts, one cannotsustain without the other—No judiciary can claim neutrality and independenceunless it is insulated and detached from executive and administrative influencein all respect including in terms of appointment, tenure and security ofservice and in financial matters.
Azizullah Memon’s case PLD 1993 SC 341; Mehram Aliand others v. Federation of Pakistan and others PLD 1998 SC 1445; WalterValente v. Her Majesty the Queen (1985) 2 SCR 673; Access to Justice inPakistan 2003 Edn. by Fazal Karim; Zafar Ali Shah v. Pervaiz Musharaf PLD 2000 SC869; Accountant General v. Ahmed Ali U. Qureshi PLD 2008 SC 522; 2010 PLC(C.S.) 141 and Government of Punjab v. Mubarak Ali PLD 1993 SC 375 ref.
(j) Constitutionof Pakistan—
—-Arts. 175(3)& 199—Independence of judiciary—High Court is quite competent to directthe concerned quarters to implement Art. 175(3) of the Constitution in its truesense by eliminating the intervention of executive into the affairs ofjudiciary from each and every angle, so that Pakistan as nation rank and standout amongst comity of nations having independent, impartial and competentjudiciary for all times to come.
(k) Constitutionof Pakistan—
—-Preamble, Arts. 2A, 175(3), 25, 27, 37(d),38(b)(c)(d)(e) & 199—Implementation of concept of independence ofjudiciary and its separation from the executive—Constitutional jurisdictionof High Court under Art.199 of the Constitution—Scope—Disparity in theterms and conditions including emoluments of members of judicial service in theProvince of Sindh—High Court under Art.199(1)(c) of the Constitution canissue appropriate directions to treat judicial officers and staff attached tothe court in equal fashion and can also issue appropriate directions to anyperson, authority including Federal or Provincial Government to remove suchanomaly and disparity—High Court is competent to issue directions toGovernment both Federal and Provincial to take such steps and legislativemeasure to separate and insulate judiciary from other civil, executive and administrative service of Pakistan so as toensure independence of judiciary is fully secured including and not limited tofinancial independence within the contemplation of Preamble, Art. 2A read withObjectives Resolution and Art.175(3) of the Constitution and in fulfilment ofrights guaranteed under the Constitution and in compliance to the Principles of Policy.
(l) Constitutionof Pakistan—
—-Art. 187(2),199(1)(c) & 175—Constitutional jurisdiction of HighCourt—Scope—Issuance and execution of processes of SupremeCourt—Independence of judiciary andits separation from the executive—Disparity in the terms and conditionsincluding, emoluments of members of Judicial Service in Sindh—High Court, inaddition to jurisdiction under Art.199(1)(c) of the Constitution. to issuedirections to any person including Government, may also under Art.187(2) of theConstitution direct implementation of orders passed by the Supreme Courtwherein the apex court categorically directed for separation of judiciary andgiven financial independence—High Court treated the present constitutionalpetition as the one for seeking enforcement of the judgment rendered in thecase of Government of Balochistan v. Aziz Ullah Memon PLD 1993 SC 341 andMehram Ali v. Federation of Pakistan PLD 1998 SC 1445 and passed directions tothe Government of Sindh to immediately enhance the allowances and salariesstructure of members of judicial service in Sindh at par with the Province ofPunjab and frame appropriate legislation to provide for independent JudicialService Board within reasonable time frame.
Mehram Ali and others v. Federation of Pakistan andothers PLD 1998 SC 1445 and Government of Balochistan v. Azizullah Memon PLD1993 SC 341 fol.
(m) Constitutionof Pakistan—
—-Arts. 203,175 & 199—Constitutional petition- –Disparity in the terms andconditions including emoluments of members of judicial service in the Provinceof Sindh—High Court directed the concerned authorities to extend benefits tothe employees in the office of Advocate General of Sindh in similar terms asgranted to the office of Attorney General of Pakistan, but with effect from1-3-2010 when such benefits were extended to the employees and servants ofSindh High Court Establishment by the Chief Justice of Sindh throughNotification dated 2-4-2010—Such increase to be paid with effect from 1stJuly, 2011 and arrears with effect from 1-3-2010 be paid in monthly instalmentsalong with monthly salary with ‘effect from 1st January, 2012 till entirearrears are paid along with monthly salary for the month it is due.
(n) Constitutionof Pakistan—
—-Arts. 203,175 & 199—Constitutional petitions—Disparity in the terms andconditions including emoluments of judicial service in the Province ofSindh—High Court disposed of theconstitutional petitions and directed the Government of Sindh to pay Special Judicial Allowance equal to three times of the initial of their substantive pay scale (as allowed in Province of Punjab through notification dated12-8-2008) with effect from 1-3-2010 when such allowances were extended toservants and employees of the HighCourt establishment (through Notification dated 2-4-2010 by the Chief Justice of High Court of Sindh) to all the Judicial Officers of the District Judiciary including those working on ex cadre posts, which shall include theDistrict & Sessions Judges, Additional District & Sessions Judges,Senior Civil Judges, all Civil Judges and JudicialMagistrates working under the control, superintendence, and within theterritorial jurisdiction of the HighCourt of Sindh per Article 203 of the Constitution; the employees andservants of establishment ofSubordinate Judiciary/District Judiciary (Sindh Judicial Service) and that ofCourts and Tribunal established under Federal or Provincial laws, which wereunder the control, superintendence, of HighCourt of Sindh and functioning and discharging duties within the territorialjurisdiction of the High Court of Sindh per Article 203 of the Constitution, were also granted the same relief as isallowed through the present order to the Judicial Officers referred to aboveand in the same manner; in view of financialconstraints of the ProvincialGovernment of Sindh, the arrears to the Judicial Officers of District Judiciary including JudicialOfficers discharging judicial function/duty in Courts/Tribunal establishedunder either Federal or Provincial law with effect from 1st March, 2010 to 30thJune, 2011 shall be paid in monthly instalments together with and in additionwith the monthly salary with effect from 1st January, 2012 till such timeentire arrears with effect from 1-3-2010 were totally set off; Government of Sindh and Government of Pakistanwere also directed to take steps and initiate such legislative measures as maybe necessary to empower High Court of Sindh and or the Chief Justice of HighCourt of Sindh to fix and determinethe pay scale of members of Sindh Judicial Service including judicial officersand servants and employees of SindhJudicial Service in consonance with Article 203 and other enabling Articles of the Constitution and as per directiongiven in the case of Government of Balochistanv. Azizullah Memon, PLD 1993 SC 341 to fully secure financial independence andseparation of judiciary from executive; Government of Sindh and Government of Pakistan were further directed to takesuch steps and legislative measures as may be necessary to empower High Courtof Sindh and or the Chief Justice of High Court of Sindh to appoint, determineterms and conditions of employment, emoluments, disciplinary proceedingsremoval from service and other incidental power and authority as regardPresiding Officers, servants and employees of Courts and Tribunals establishedunder the Provincial and Federal laws in consonance with Article 203 and inimplementation of Article 175(3) of theConstitution, which were under thecontrol and superintendence, of HighCourt of Sindh and were functioning and discharging duties within theterritorial jurisdiction of the High Court of Sindh as per Article 203 of theConstitution and as per directions given in the case of Mehram Ali and others v. Federation of Pakistan andothers PLD 1998 SC 1445 and in the case of Government of Balochistan v.Azizullah Memon, PLD 1993 SC 341; and Registrar High Court of Sindh was directed to intimate Governmentof Sindh and Government of Pakistan to take immediate steps for theimplementation and compliance of order/directive of the High Court.
Mehram Ali and others v. Federation of Pakistan andothers PLD 1998 SC 1445 and Government of Balochistan v. Azizullah Memon PLD1993 SC 341 fol.
Anwar Mansoor Khan for Petitioner (in C.P.No.D-2318of 2009).
Salahuddin Ahmad, Makhdoom Ejaz Ahmed, Muhammad AliHakro and Haider Imam Rizvi for Petitioners (in other petitions).
Ashraf Mughal and Umer Hayat Sindhu, D.A.-G. andMiran Muhammad Shah and Muhammad Ashraf Mughal, Adnan A. Karim A.A.-G. forRespondents (in all petitions).
Dates of hearing: 8th, 16th, 29th April, 6th, 21stMay and 28th March, 2011.
MUSHIR ALAM, C J.—All the above fourpetitions have been filed by different by and for categories of persons allassociated directly or indirectly with the administration of justice, whichincludes judicial officers of the Districts Judiciary, employees and servantsattached to the Districts Judiciary and employees/staff attached to SpecialCourts under the Federal Government. In all the petitions in essence enhancementof pay and judicial allowance at par with the judicial officer and officers andemployees of Districts Judiciary Establishment and employees of AttorneyGeneral and Advocate-General in the Provinces of Punjab, Khyber Pakhtunkhwa(KPK) [formerly N.-W.F.P.] and Balochistan is claimed.
2. Petitioners have sought following relief(s) intheir respective petition which read as follows:
C.P. No. D-1465of-2009:
(i) Direct the respondentsNos. 1 and 2 to ensure that all District Judges, Additional District Judges,Senior Civil Judges and Civil Judge in the Province of Sindh are provided equalsalaries, allowances, privileges and facilities as their counterparts in theProvince of Punjab;
(ii) Grant such further oradditional relief as this Hon’ble Court may deem appropriate in thecircumstances.
C.P. No.D-1930 of 2009:
(1) To declare thatthe petitioner and other employees of subordinate Courts in BPS-1 to BPS-16 areentitled to the facility of Judicial Allowance and Utility Allowance atenhanced rates as being availed by the employees of Honourable Lahore HighCourt, honourable Peshawar High Court, Honourable Balouchistan High Court andthe failure of the respondents to provide/allocate funds to the sub-ordinateCourts to meet the required expenses.
(2) To direct therespondents to grant and provide/allocate the required funds for the Judicialand Utility Allowances at the enhanced rates as mentioned in letterNo.F.15(12)/03/LJCP/NJPMC dated 18th December, 2007 (Annexure “A”) tobe paid to employees BPS-1 to BPS-16 w.e.f. January, 2008.
(3) To grant anyother/further relief(s) as deemed fit and proper in the circumstances of thecase.
(4) Todirect/implement the Term No.13 of National Judicial Policy, 2009 “in theProvince of Punjab, the judicial officers of the subordinate judiciary aredrawing additional judicial allowances equal to three times of their salaries,therefore, it is desirable, that the judicial officers of all the Provinces betreated alike and disparity in their salaries and allowances be removed.
Term No.14 of NationalJudicial Policy 2009: The salary/allowances of court staff should also besuitably increased, so that the corruption will minimize and Insaf Zaindabad.
C.P. No.D-2318 of 2009:
(1) Declare that thepetitioners and the Staff of the Advocate-General’s Office are liable to begranted 20% Judicial Allowance including 10% Utility Allowance w.e.f. 1-1-2008as granted by the Government of Punjab, Finance Department, Karachi (sic.) byimplementing the orders/judgment and consequently direct the respondents Nos.1and 2 to act and grant the above Allowances.
(2) Declare that thepetitioners and the Staff of the Office of the Advocate-General are liable tobe granted Medical Facility as granted to the employees of respondent No.2 as wellas Secretariat Staff by the Government of Sindh and consequently direct therespondent Nos.1 and 2 to act accordingly.
(3) To declare thatthe petitioners and the Staff of the Office of the Advocate-General are liableto be granted three Advance Basic Salaries as granted to the staff ofhonourable High Court of Sindh and direct the respondent No.1 and 2 to actaccordingly.
(4) Declare that theposts of Sr. Scale Stenographers and Jr. Scale Stenographers as well asAssistants and Assistant Librarians are liable to be upgraded and re-designatedin view the Annexure – ‘G’, “G/1” and “G/2” and direct therespondent Nos.1 and 2 to issue order regarding upgradation of the said posts.
(5) Any otherrelief(s), which this honourable Court may deem fit and proper under thecircumstances of the case.
C.P. No. D-2433 of2009:
Order that the petitionerand the employees/staff of all the Federal Courts may be granted 20% JudicialAllowance and 10% Utility Allowance w. e. f. 01/01/2008with arrears.
3. In a nutshell, the cases of the petitionersJudicial Officers of District Judiciary, Courts/Tribunal established underProvincial and Federal legislation working under the supervision and control ofSindh High Court including employees and servants of establishment of DistrictJudiciary and Courts/Tribunal working in the subordination of the High Court interms of Article 203 of the Constitution of Islamic Republic of Pakistan, 1973is that they are being discriminated with persons similarly placed in otherProvinces.
4. It is the case of the petitioners that in order tobring the uniformity in practice, National Judicial Policy Making Committee wasconstituted through National Judicial (Policy Making) Committee Ordinance 2002(hereinafter abbreviated as NJPMC). The NJPMC in terms of its mandate under theOrdinance, 2002 made recommendations for the uniformity of the terms andconditions of Judicial Officers and staff attached to the judiciary right fromthe District Judiciary to the apex Court.
5. It is the case of the petitioners that NJPMC in HRCase No.2122 of 2006 on 18-12-2007 recommended that High Courts of Sindh,Balochistan and the Peshawar may pay 30% of the pay to the staff of Judges and50% of the pay to the staff of a Senior Judge transferred along with the Judgeto a Bench out of Principal Seat of the High Court and under National JudicialPolicy 2009 directed all the honourable High Courts to remove/the disparity insalary and bring the salary of judicial service at par with that prevailing inthe Province of Punjab.
6. According to the learned counsel for thepetitioners, on the recommendation of NJPMC, the honourable Chief Justice ofthe respective Provinces have sanctioned the allowances to the officers andstaff attached to the respective High Court establishment and such order ofthis Court dated 13-2-2008 is available at page 37 of the court file in C.P.No.D-1756 of 2009 and similarly with the approval of honourable Chief Justiceof Punjab it was complied with on 22-11-2008 and the Peshawar High Court videNotification dated 4-5-2009 respectively.
7. Learned counsel for the petitioners contend thatthe judicial officers in all categories and so also the staff and the employeesattached to the District Judiciary or Federal/Provincial Courts/Tribunals are aseparate class burdened with onerous responsibility, perform their dutiesuntiringly from 8-00 a.m. to 5-00 p.m.officially and invariably they sit till late night to discharge their arduousduty. In essence it was contended that since Province of Punjab was firstamongst other High Courts to act swiftly to implement the recommendation ofNJPMC to revise the salaries. It is urged that on account of high inflationarycost even the increase made by the Punjab High Court has become meaningless, nevertheless the judiciary in Sindh isbeing meted out a discriminatory treatment.
8. It was urged that the then Advocate-General Sindh,had conceded such revision. Learned counsel for the petitioners have drawn ourattention to letter dated 21-12-2009 addressed by Principal Law Officer of theProvince of Sindh; namely, Advocate-General Sindh to the Chief Secretary andthe Secretary Finance Department, Government of Sindh. In the letter whilereferring to revision made by the other Provinces, it was opined as follows:–
“This disparity inpayment is discriminatory amounting to violation of fundamental rights guaranteed under the Constitution of 1973 assuch challenged before the honourable High Court of Sindh through the abovesubject petitions and being heard together. Upon notice the undersignedappeared before the honourable Court on 4-11-2009, 11-11-2009 and 26-11-2009and undertaken that the petitioner’s matter ofclaim at par with the employees of courtsof other Provinces to be resolved without any controversy very soon. ”
9. It was, therefore, urged that since Principal LawOfficer also supports the case of the petitioners. Contrary to the opinion ofthe Principal Law Officer, Secretary Finance Government of Sindh expressedapprehension that if such utility allowance and judicial allowance or any otherallowances are extended to judicial services who are civil servants working insubordinate courts then the Government will be faced with many such otherclaims from other civil servants. On 24-3-2010 Chief Secretary of the Provinceof Sindh appeared in Court and expressed concern of the Secretary. Finance thatother government servants will also claim similar benefits. It was observed bythe Court that such apprehensions are ill-founded as the establishment of theHigh Court and that of the District Judiciary formed altogether differentcategories of civil servants.
10. It was argued by the learned counsel for thepetitioners that various special allowances are allowed to the variouscategories of service which are not admissible to other categories. Toillustrate such arguments, it was contended that aviation service allowance,railway allowance, disturbance allowance to the armed force and hazardousallowance, shift allowance, Governor House staff allowance but are fewcategories of the allowances provided to the different categories of theservants and certainly one category cannot claim benefit extended to a categorythat perform special functions and duties having nexus to the respective job.
11. Learned counsel have drawn our attention tovarious authoritative pronouncement of the superior Courts reported as Governmentof Balochistan v. Azizullah Memon and others PLD 1993 SC 341 (370), Salman AdilSiddiqui v. Province of Sindh (2008 PLC (C.S.) 220) and Abdur Rashid v.Secretary Establishment Division (1991 SCMR 1288).
12. All the learned counsel for the petitionerscontended that honourable Chief Justice of the respective High Courts havepower and authority to fix the terms and conditions and remuneration of theservants and staff of the High Court establishment which powers have beenexercised by the honourable Chief Justice of the respective High Courts and assuch the petition filed by the staff of the High Court of Sindh establishmentbeing No.D-1756 of 2009 in respect of the employees of the High Court of Sindhwas disposed of and the same was filed by the petitioners working in BPS 1 to16 and another Petition being No.D-1912, of 2009 filed by the employees servingin BPS-17 in the Sindh High Court establishment in view of the Notificationdated 2-4-2010 whereby the honourable Chief Justice in exercise of powersconferred under Clause-15, Part-I of the Sindh High Court EstablishmentRules-2006 has been pleased to enhance utility and judicial allowances to thestaff/officials of the Sindh High Court and its Bench at Sukkur, Circuit Courtsat Hyderabad and Larkana w.e.f. 1-3-2010 and through another notification ofthe same date judicial and car allowances were also enhanced and both petitionswere disposed of in terms thereof.
13. Mr. Salahuddin Ahmed, learned counsel pleadingcase for the judicial Officers (C.P. No.D-1465 of 2009) also made elaboratearguments and has taken serious exceptions to the reservation expressed by theProvince of Sindh that resources of Sindh are not as compared to the Provinceof Punjab. Mr. Salahuddin has taken us to the various provisions of theConstitution to bring home his contention that discretion is being meted out bythe Government of Sindh and Government, Pakistan and this Court should takejudicial notice of the fact that it is the responsibility of the State toensure elimination of all forms of exploitation and the State as a Guardian ofall must act fairly, justly, equitably and the judiciary and staff Honourableor servant attached thereto are to be extended similar treatment throughoutPakistan. If emoluments and salaries of judicial officers and other staffattached to the judiciary are increased leaving other Province of Sindh wouldcertainly create a feeling of deprivation and disparity and would fan thefeeling of exploitation.
14. Learned counsel has taken us to Article 25,Article 27, Article 33 and Article 37 of the Constitution of Islamic Republicof Pakistan, 1973 to urge that it is the duty of State to promote socialjustice and eradicate the social evils, which is only possible if uniform termsare applied and that all persons placed in same classification are treatedalike. It was urged that District Judiciary of Sindh is being discriminated interms of employment and terms and conditions of service including emoluments.According to him, low pay is one of the main reasons of corruption andmalpractice. He urged that to avoid parochial, racial, tribal, sectarian andprovincial prejudices among the citizens, State it is obligated to treat allpersons similarly placed in like manner. To buttress his arguments he referredto the case of Government of Balochistan v. Azizullah Memon 1993 SCMR 1533;Attiyya Bibi v. Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v.Selection Committee 2003 CLC 18 to highlight such arguments.
15. Mr. Salahuddin Ahmed, learned counsel, also madea very interesting argument that failure of the respondents, including Provinceof Sindh, to extend equal remuneration in Sindh qualitatively undermines thejudicial independence to the citizens of Pakistan residing in the Province of Sindh.To elaborate such arguments, it was contended that access to justice and speedyjustice is undeniable right of every citizen and in case the judicial officersand other staff of judiciary in the Province of Punjab are paid betteremoluments their efficiency and performance is increased, whereas due todisparity in terms of employment of District Judiciary in Sindh the performanceof the officer and the quality of justice would not be at par with that of theProvinces who are being offered better service benefits and this is how theresident and citizen of Pakistan availing judicial dispensation are beingdeprived of impartial, independent and qualitative justice thus citizen ofSindh are also not treated alike as mandated in terms of Article 4 of the Constitutionof Pakistan.
16. Mr. Salahuddin Ahmed, learned counsel, furthercontends that judiciary is not a provincial subject and the Federation ofPakistan is equally responsible to shoulder its duty to provide all resourcesto the Province to share the burden as the judiciary an important pillar ofState and must be looked after well. According to him, High Court and DistrictJudiciary are given to the Province as a matter of convenience.
17. To a specific query by the Court whether thisCourt can direct executive to allocate the budgetary grant to meet thechallenge of increase in the emoluments and benefits, it was argued that whileinterpreting the Constitution expensive and dynamic interpretation to applyfundamental rights includes terms and conditions of the service and in terms ofArticles 3, 37(d) and 38(e) are to be read with Article 25 of the Constitution1973. It was urged that the judicial officers and the staff attached to thejudiciary perform one and the same function in all four Provinces and it is notthat the judicial officer in Punjab and other Provinces performs any differentfunctions; therefore, the judiciary as a whole is a class in itself and must betreated alike.
18. Mr. Salahuddin Ahmed, learned counsel, hasvehemently argued that the judicial officers in any Province do not dischargeor perform any function that is relatable to the Province alone. Elaboratinghis contention, it was urged that the duty of a judicial officer is tointerpret, execute and apply provincial as well as federal laws. It was urgedthat appointment in the province and post in connection with the affairs of theProvince is to be determined under the Act of the Parliament or the ProvincialAssembly, as the case may be Judicial Service is separate and distinct classseparate and distinct from executive.
19. Our attention was drawn to Item No.55 of theFederal Legislative List Part-1, which gives/empowers the Federation, conferjurisdiction and power to courts except Supreme Court, with respect to anymatter in the List. It was urged that Federation has promulgated various laws,which confers jurisdiction on a provincial judicial officer to adjudicate anddecide the matters relating to the federal law within the provincial domain.Like for instance Banking Court, Custom Court, Excise and Taxation Tribunal,Special Anti-Terrorist Court and numerous other Tribunals and Courtsestablished under the law are presided over by the judicial officers of theProvince. He has also relied upon the case-law of Northern Area of SupremeCourt reported in PLC 2010 (C.S.) 141. In the case reported as Government ofPunjab v. Mubarak Ali, PLD 1993 SC 375, secretariat allowance to the employeesof the Federal Shariat Court or Supreme Court was claimed by the establishmentof the Punjab High Court on the ground of equality, same was allowed. He hasalso drawn our attention to the unreported judgments, where theAdvocate-General Office was directed to be placed equally with theAttorney-General Office on the ground that the officers attached to thePrincipal Law Officer performs similar function as is being performed by theAttorney-General and the officers attached thereto.
20. It was urged that there is no justification totreat the citizen of Pakistan residing in the Sindh to be treated differentlyand, if that be the case; inevitable outcome will be fanning provincialism.While placing’ reliance on the case of Azizuullah Memon PLD 1993 SC 341 at page374 it was urged that the Court may direct enforcement of the appropriate legislationand likewise the Court may issue appropriate directions to treat judicialofficers and staff attached to the Court in equal fashion.
21. Learned counsel for the petitioners furthercontended that the power to revise the benefits and emoluments of the judicialofficers and the other staff attached to the judiciary whether it be districtjudiciary or superior judiciary should vest with the judiciary and not with theexecutive functionaries. According to learned counsel trichotomy; in ourconstitutional dispensation is acknowledged. Object of Judiciary as anindependent organ cannot be achieved unless financial autonomy is given. Ourattention was drawn to the case of Government of Balochistan through AdditionalChief Secretary v. Azizullah Memon and 16 others, PLD 1993 SC 341 whichreaffirms the principles laid down in the case of Sharaf Faridi and 3 others v.The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404.
22. It was urged that this Court under Article 187(2)of the Constitution of Pakistan could order implementation of the directionsissued by the honourable Supreme Court in the cases referred to above wherebycategorical directions for separation of judiciary and giving financialindependence have already been passed by the apex court. Almost 20 years havepassed but the neither the Provincial nor the Federal Government has taken anystep to separate the judiciary from the executive and to provide financialindependence. It was, therefore, sought in the first instance this Court maypass directions to the Government of Sindh to immediately enhance theallowances and salaries structure at par with the Province of Punjab. It wasurged that this Court may strike down the terms and conditions prescribed bythe Government of Sindh and frame appropriate legislation to provide forIndependent Judicial Service Board vesting power in the judicial hierarchy todetermine terms and conditions including emoluments. It was urged thatreasonable timeframe may be given to the Province of Sindh to frame and takeabove legislative measures.
23. Mr. Omer Hayat Sindhu and Mr. Ashraf Mughallearned D.A.-Gs, have drawn our attention to the comments filed on behalf ofthe (sic.) through Mumtaz Ahmed, Section Officer, Law and Justice Division,Federation of Pakistan, in C.P. 1465 of 2009, stand taken by the respondentNo.1 is “grant of allowances and benefit Federation of Pakistan, toSubordinate Judiciary is solely the concern of the Finance Department ofProvincial Government.” It was by the learned D.A.-G. that the matterpertains to Province of Sindh and the Province of Sindh should bear theexpenditure within its resources and Federation of Pakistan has nothing to do.It was further stated that in view of the NFC award, Province of Sindh has beenallocated sufficient funds to meet the financial challenge.
24. Mr. Miran Muhammad Shah, learned AdditionalAdvocate-General Sindh, contends that there is no disparity in the serviceemoluments of different category of civil servants, according to him all thecategory of persons including the petitioners whether judicial officers orservants and employees of District Judiciary or other Courts and Tribunalsworking in the Province of Sindh, including employees of the Advocate-General,Sindh are Civil Servant and pay scale of all the civil servant in Province ofSindh are being treated equally and there is no discrimination or disparityaccording to him judiciary, in Sindh is better placed as compared to otherCivil servants in Sindh, as they are paid reasonable Judicial allowance whichis not admissible to other Civil Servants.
25. As regard three fold increases in the’ salary ofJudiciary in the Province of Punjab, it was contended that the salary in Punjabis being paid through overdraft and is artificial increase cannot be madeyardstick. It was urged that the financial position of. Province of Sindh isfar from weak, according to him, no sooner financial position is improvedsalaries and emoluments throughout Sindh would be revised and the judicialofficers and other staff of judicial establishment would also benefit.
26. Mr. Miran Muhammad Shah, learned A.A.-G. contendsthat Judicial Officers of the District Judiciary and staff attached thereto areall Civil Servants, their terms and conditions are governed under the SindhCivil Servants Act, according to him they do not form a separate classtherefore cannot claim different or for that matter better treatment from otherCivil Servant governed under Sindh Civil Servant Act, 1973 and emolument andsalary of all Civil Servants under Sindh Civil Servants are at par on thecontrary, judicial officers and employees of judiciary are being paid judicialallowance, which other Civil Servants in the Province of Sindh are not beingpaid.
27. Mr. Miran Muhammad Shah, learned A.A.-G.referring to the employees of Advocate-General Office submits that they arecivil servants and cannot be categorized with the judicial employees nor thesecretariat employees. According to him, they may be considered for the grantof judicial allowance and nothing more.
28. Mr. Miran Muhammad Shah, learned A.A.-G., hasseriously objected to the claim of financial independence to the judiciary asvehemently argued by Mr. Salahuddin Ahmed, learned counsel appearing for someof the petitioners. According to him, this aspect of the matter is not in issuein the instant petition, as it is not the case of financial independence of thejudiciary, if at all petitioners are desirous to seek such declaration orenforcement, separate petition may be filed.
29. Mr. Anwer Mansoor Khan, learned counsel for petitionersin C.P. No.D-2318 of 2009 while adopting the arguments of Mr. y1uhammad AliHakro and Mr. Salahuddin Ahmed, contends that the Advocate-General Offices inLahore available at page 35, N.-W.F.P. at page 47 and Balochistan at page 49revision has been made, therefore, they are entitled for equal treatment as arepayable to the employees of the Advocate-General Offices in other parts of thecountry.
30. Exercising theright of rebuttal, Messrs Muhammad Ali Hakro and Salahuddin Ahmed, learnedcounsel for the petitioners, contend that issue of financial independence ofthe judiciary has been raised in the petition and it is germane to overallindependence of judiciary. It was further contended that this is the relief,which this Court can grant under’ the facts and circumstances of the case andsuch relief is not beyond the purview of the petitions. It was further urgedthat the claim of petitioners was accepted by the Principal Law Officer whichis reflected in the various orders including dated 4-11-2009, 21-12-2009recorded in C.P. No.D-1756 of 2009 and such admission by the Counsel is bindingon the government. In support of their contentions, reliance is placed on thecase-law reported in PLD 1969 AJK 30(41).
31. We have heardthe arguments and perused the record. Adverting to moot controversy as towhether the District Judiciary comprised of Judicial Officers and servants andemployees of District Judiciary Establishment and Judges of Tribunal’ and staffattached thereto are all class different from Civil Servants and secondlywhether district judiciary in Sindh is being discriminated and is not meted outsimilar treatment as in otherProvinces in Pakistan. Likewise whether employees of Advocate-General Officeare being discriminated.
32. In order toaddress the controversy it would be beneficial to examine the scheme of theConstitution of Pakistan 1973. “Pakistan is a Federal System ofGovernment, based on trichotomy of power i.e. Executive, Legislature andJudiciary, each organ of the State is required to function and operate withinthe bounds specified in the Constitution. Though judiciary is the pivotal yetweakest of the three pillars as it has to look towards executive for financialresources, which the Legislature and Executive enjoy. Judiciary plays veryimportant and delicate roles, judiciary as a guardian of the Constitutionensures that none of the organs or Government functionary acts in violation ofany provisions of the Constitution or any other law and because of the abovenature of work entrusted to the judiciary, Constitution envisaged anindependent Judiciary.” (See Masroor Ahsan v. Ardersher Cowasjee PLD 1998SC 823, Registrar v. Wali Muhammad 1997 SCMR 141, 154, Liaquat Hussain v.Federation of Pakistan PLD 1999 SC 504). Chapter 3 Part-III provides for theFederal Government and the executive authority of the Federation vest in thePresident of Pakistan as per Article 90 of the Constitution of Pakistan, thisis exercised directly or through officers subordinate to him. Prime Minister 13with array of cabinet ministers aid and advice the President in discharge ofhis executive functions. Likewise Executive authority in the Province isexercised by the Governor, who is aided and assisted by the Chief Minister andhis cabinet of Ministers.
33. Chapter 1 ofPart-VII of the Constitution, 1973 comprises of two Articles. Article 175 dealswith establishment and Jurisdiction of Supreme Court of Pakistan, a High Courtfor each Province and a High Court for the Federal Capital Territory and “suchother Courts as may be established bylaw “. Article 175-A introduced through18th Constitutional Amendment deals with the appointment of Judges of SupremeCourt, High Courts and Federal Shariat Court. The expression “such otherCourts” as used in Article 175(1) is relatable to the subordinate Court orbefitting we may call it District Judiciary including Courts/Tribunalestablished under law as referred to in Articles 202 and 203 of theConstitution of Pakistan (one may gainfully see Mehram Ali v. Federation ofPakistan (PLD 1998 SC 1445 @ 1469). Constitution of Pakistan, 1973 does notdraw any distinction between superior or subordinate judiciary. It was, soobserved in the case of-Muhammad Mansha v. State (PLD 1996 SC 229 @ 233), “What the Constitution contemplates,therefore, is not a batch of unconnectedcourts but a judiciary composed of superior courts and subordinate courts.Subordinate Courts are therefore integral part of the judicial System ofPakistan”.
34. Contention ofMr. Salahuddin Ahmed, learned counsel, for the petitioner, is not withoutforce, that failure of the respondents, including Province of Sindh, to extendequal remuneration in Sindh qualitatively undermines the judicial independenceto the citizens of Pakistan residing in the Province of Sindh. Access tojustice and expedient justice is undeniable right of every citizen and in casethe judicial officers and other staff of judiciary in other Provinces are paidbetter emoluments they would be to attract more qualified, efficient andcompetent judicial officers to join judicial service and their efficiency andperformance would be better, whereas due to disparity in pay scale and otherbenefits the quality of judicial officers and staff of district judiciary inSindh would be seriously compromised thus seriously affecting their performanceand the quality of justice would not be at par with their counterparts in otherProvinces who are being paid better service benefits, which would also haveserious effect on persons availing judicial dispensation in the Province ofSindh who would be deprived of impartial, independent and qualitative justicethus citizen of Sindh in ultimate analysis would be denied their right to betreated alike as mandated in terms of Article 4 of the Constitution ofPakistan.
35. Article 25 ofthe Constitution of Islamic Republic of Pakistan, 1973 guarantees equaltreatment to all persons similarly placed. In terms of Article 27 of theConstitution, no citizen in the service of Pa Stan or the other persons shall bediscriminated in any manner. Artic 27 of the Constitution does not onlysafeguard against the discrimination at the time of appointment of service butsubsequent to the appointment as well. Disparity in the pay scale allowances inthe Province of Sindh as compared to other Provinces is in clear negation tothe recommendation of NJPMC and low pay is one of the main reasons ofcorruption and malpractice.
36. Indeed in terms of Article 33 of theConstitution, it is the responsibility of the State to discourage parochial,racial, tribal, sectarian and provincial prejudices among the citizens, anydisparity in the terms and conditions of District Judiciary and otherCourts/Tribunal and staff attached thereto in various provinces it may fanparochial and other negative sentiments among citizens of Pakistan residing inSindh and it would be dangerous to the integrity and solidarity of Pakistan.Such disparity is also one of the causes of social injustice and other socialevils.
37. In terms of Articles 25, 27 and as per Principlesof Policy (Articles 37 and 38) of the Constitution, cast duty on State topromote social justice and eradicate the social evils, which could only bepossible if equality in terms and conditions in judicial service and unlesssame uniform terms and conditions with similar emoluments in services areprovided to all the categories of the persons placed in similar position;namely, Judicial officers, servants and employees of the establishment of theDistrict Judiciary in Sindh are provided similar terms and conditions ofservice including facility and salary and retiring benefits as are provided totheir counterparts in the Province of Punjab, KPK and Balochistan.
38. To provide inexpensive and expeditious justice interms of Article 37(d) of the Constitution, 1973 is the responsibility of theState and the Federation cannot shed its responsibility on the premise that itis responsibility of the Province of Sindh. Inexpensive and expedient justicecould only be achieved by efficient, competent and independent judicialapparatus, which all attributes have direct nexus with better reward in termsand condition of service and financial independence of the Judiciary. To removedisparity and ensure wellbeing of the people is responsibility of the State,which in turn would eliminate inequality in the income and earning ofindividual including persons of various classes similarly placed. (See AttiyyaBibi v. Federation of Pakistan 2001 SCMR 1161 and Muhammad Akram v. selectionCommittee 2003 CLC 18).
39. Constitution is living and organic document,while interpreting the Constitution expansive and dynamic approach andinterpretation is to be adopted. Fundamental rights include equality in termsand conditions of the service Articles 27, 37(d) and 38(e) are to be read withArticles 4 and 25 of the Constitution 1973. Judicial Officers in DistrictJudiciary and Courts and Tribunal and the staff attached thereto perform one inthe same function in all four. Provinces and it is not that the Judiciary inPunjab performs any different functions; therefore, the judiciary anywhere inPakistan as a whole is a class in itself, this was also ruled by the apex courtin Bangladesh in a landmark judgment reported as Secretary, Ministry of Financev. Masdax Hussain (1999) DLR (AD) 82 as discussed in later part.
40. Supreme Court, High Courts, District Judiciary orCourts/ Tribunal established by law do not discharge or perform any function thatcould be specifically attributed or that may be solely relatable to Federation,Province or Districts respectively. Item No.55 of the Federal Legislative Listencompasses authority of the Federation to create courts and the Federation haspromulgated various laws which confers’ jurisdiction on a provincial judicialofficer to adjudicate and decide the matters relating to the federal law withinthe provincial domain. Thus the judiciary whereever it may be, right from theSupreme Court, High Court, District Court and or Tribunal/Court establishedunder Federal or provincial law like for instance Banking Court, Custom Court,Excise and Taxation Tribunal, Special Anti-Terrorist Court, Drug Court, NABCourts and numerous other Tribunals and Courts established under the law aremostly presided over by the judicial officers of the Province. Responsibilityof Judiciary as one of the three pivotal pillars of State is to interpretConstitution and law may it be federal or provincial, though as a matter ofconvenience it is described as Supreme Court, High Court established under theConstitution and Subordinate judiciary, Court/Tribunal established under thelaw. Thus ‘Judicial Service’ is essentially and structurally distinct andseparate service from the civil, executiveand administrative services of the Pakistan and judicial service cannot betreated at parity with such services on any account nor can judicial servicecan be combined, abolished, replaced, mixed up and or tied together with thecivil, executive and or administrative services. Judiciary as a whole is aseparate and distinct class in itself. After the Sharf Faridi case it has beenso recognized in Various Statute and Rules framed pursuant to judgment renderedin the case Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 rendered on31-3-1993. Full Bench of Sindh High Court in a case reported as “Rashid ARazvi v. Province of Sindh PLD 2010 Karachi 63 in paragraphs 29 and 24(sic.) atpages 83 and 84 has elaborately dilated in detail the manner in which SindhJudicial Services Rules 1994, were framed. The Sindh Judicial Staff ServiceRules, 1992 were promulgated on 24-3-1994, wherein “Service” has beendefined to “mean the Sindh Judicial Staff Service”. Sindh SubordinateJudiciary Service Tribunal (Procedure) Rules 1993 were notified on 10th March,1994. Through another Notification S.R.O.-1(S&GAD)2/3-93 dated 24 November,1994, Sindh Judicial Service Rules, 1994 were promulgated defining”Service” per Rule 2(g) to “mean the Sindh JudicialService”. An attempt by the Government of Sindh to take away theinitiative of appointment of Judicial officers by the Chief Justice of HighCourt of Sindh on the recommendation of Provincial Selection Board (Comprise ofthree High Court Judges) by amending Sindh Judicial Service Rules, 1994 wherebySindh Public Service Commission was to make initial appointment to the post ofCivil Judge and Judicial Magistrate on the requisition of the High Court.Amendment was challenged in the High Court of Sindh and Full Bench comprised offive Judges struck down such amendments. Judgment is reported as “Rashid ARazvi v. Province of Sindh PLD 2010. Karachi 63, in paragraphs 93, 94 and 96 atpages 109 and 110 it was held as follows;
93. At the cost of repetition, when we again look at theimpact of the impugned notificationover the Sindh Judicial Service Rules, 1994, wefind that in crude manner, it is cutting at the very root of the concept ofseparation of power and independence of judiciary. On one hand, by addition ofsub-rule (aa) to Rule 2, it introduces a new institution “Commission(SPSC), which is otherwise an alien to the Rules and on the other hand byamendment in Rule 5, it completely oust the role of Provincial Selection Boardand makes the highest court of theProvince simply an institution, that can only furnish requisition for newappointment/recruitment of Civil Judgesand Judicial Magistrate to the Government, with no further role to play at anystage of such exercise.
94. The doctrine of separation of Judiciary from executive and its independence is not only to begauged on the yardstick of therelevant constitutional provisions and the case law laid down by the superiorcourts, but also from public perspective that places genuine’ expectation uponus in this regard. Judiciary to be independent and appear to be independent is of utmost importance so that people havefaith and confidence in Judges and for that matter also in the institution thathas been entrusted the task of their appointment. If the recruitment/appointmentof judicial officer is entrusted tothe executive or to a body alien to the judiciary than a hug question mark isplaced on the whole process.
96. Summing up the above discussion, we hold that the independenceof the judiciary is something whichhas to be jealously guarded and cannot be compromised at any cost. The initialappointment/recruitment of Civil Judges/Magistrate is integral part forming its foundation stone, thus the impugnednotification negating this position and transgressing limit of judicialindependence is liable to be struck down being Maki fide, without jurisdictionand ultra vires the Constitution
41. On 30-8-2000 the Removal from Service (SpecialPowers) Sindh Ordinance, 2000 was promulgated, which inter alia provided measuresfor the dismissal and removal of certain persons from government andcorporation service. Definition clause (e) of section 2 excludes Judges ofSupreme Court, High Court and Federal Shariat Court and members and employeesof Subordinate Court. Above fact clearly demonstrate that since after theannouncement of judgment case Government of Sindh v. Sharaf Faridi PLD 1994 SC105 rendered on 31-3-1993, judiciary has been treated as separate and distinctfrom executive and any attempt to undermine its authority or independence asguaranteed in the Constitution of Pakistan has been seriously and jealouslyguarded and protected by the superior courts right from the case Sharaf Faridiand 3 others v. The Federation of Islamic Republic of Pakistan, PLD 1989 Karachi404 as upheld in Government of Sindh v. Sharaf Faridi PLD 1994 SC 105 tillrecent pronouncement in “Rashid A Razvi v. Province of Sindh PLD 2010Karachi.63 and Ranyal Testile v. Sindh Labour Court No.3 PLD 2010 Karachi 27.
42. No doubt better emoluments and remuneration wouldattract persons of integrity and high qualification to join judicial serviceand it is the right of all citizens to access equally qualitative dispensationof justice and different standards of judiciary one underpaid, less competentand more prone to corruption and their counterpart in other provinces highlypaid, more competent and less prone to corruption would certainly createdisparity amongst the judicial officers in other provinces. Resultantly, thecitizens of Pakistan in Sindh and all those who invoke jurisdiction of courtsor tribunals in Sindh would be deprived of qualitative dispensation of justiceand fair trial which is only be possible by providing equal emoluments andbetter terms’ and condition of service.
43. Article 208 of the Constitution, 1973 empowersthe Supreme Court, Federal Shariat Court with the approval of the President andHigh Court with the approval of the Governor concern, to frame Rules providingfor appointment by the Court of officers and servants of the Court and theirterms and condition of employment. Sindh High Court in exercise of such powershas made “High Court Establishment (Appointment and Condition of Service)Rules, 2006, Gazetted on 18-11-2006. In terms of Rule 15 thereof, the Administration Committee either itself or maydelegate such authority upon any other Judge to exercise power of ProvincialGovernment. Chief Justice is furtherempowered to grant special allowance to any officer or employee of High CourtEstablishment. On 2-4-2010 Chief Justice of High Court of Sindh in exercise ofsuch power read with power conferred by the Finance Department Notification No.81/2(18)/1996 dated 26-11-1996 through two different notifications one forstaff/official in B-1 to 16 and other for staff/officers in B-17 enhanced theUtility and Judicial Allowance and Car Allowance with effect from 1-3-2010payable with effect from the month of March, 2010 and arrears were directed tobe paid on availability funds by the Finance Department, which has since beenallowed. Likewise respective High Courts have revised the emoluments inconsonance with the decision of NJPMC and respective authorities have alsoincreased ‘the emoluments of District Judiciary and employees of districtjudiciary. In KPK, the increase was effected pursuant to judgment of, hePeshawer High Court in Writ Petition No. 1098 of 2010 dated 6-7-2010.
44. Power to revise salaries as regards SupremeCourt, Federal Shariat Court and High Court Establishment vests with therespective Chief Justice of the Supreme Court, Federal Shariat Court and HighCourt in terms of Article 208 of the Constitution, which is in consonance withArticle 175 read with Article 203 of the Constitution and it is a step towardsindependence of judiciary. Effective supervision and control of the judiciaryas envisaged under Article 203 could only be obtained once financialindependence is secured. Since Constitution speaks of the judiciary as a wholeand division into superior and subordinate judiciary has been created artificiallyby the executive in an attempt to wield control and exercise control over thejudiciary and to make the judiciary subservient to the executive. In the caseof Government of Balochistan through Additional Chief Secretary v. AzizullahMemon and 16 others, PLD 1993 SC 341 which reaffirms the principles laid downin the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republicof Pakistan, PLD 1989 Karachi 404: In the said case at page 438, it was held asfollows:–
“I am inclined to holdthat the supervision and control over the subordinate judiciary vested in theHigh Court under Article 203 of theConstitution keeping in view Article 175, is exclusive in nature, comprehensivein’ extent and effective in operation. It comprehends the administrative poweras to the working of the subordinate Cowls and disciplinary jurisdiction overthe subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or anotification empowering any executive functionary to have administrativesupervision and control over the subordinate, judiciary will be violative ofabove Article 203 of the Constitution. Besides, it will militate against theconcept of separation and independence of judiciary as envisaged by Article 175of the Constitution and the Objectives Resolution. ”
45. Case of Azizullah Mernon (PLD 1993 SC 341),carried forward the principle of independence of Judiciary linking it withfinancial independence at page 370, it was held as follows:–
“This observation ineffect finds support from Articles 81, 82, 121 and 122. The first two Articlesrelate to remuneration payable to the Judges of the Supreme Court and theadministrative expenses, including the remuneration payable to officers orservants of the 5 Supreme Court. The expenditures are charged on the FederalConsolidated Fund which under Article 82 “may be discussed in, but shallnot be submitted to the vote of, theNational Assembly”. The same provisions have been made in respect of HighCourt Judges and administrative expenses of the High Court. The financialrequirements of the Supreme Court and the High Courts should be’ assessed bythe Courts and after meaningful consultation with such Courts annual funds asper requirement be allocated-and placed at the disposal of the Courts. Allremunerations, expenses and disbursements relating to the judiciary should bemade without any interference by any department, which are usually technical innature requiring compliance with certain rules and practice of other departmentsof the Government. In case of anyobjection, if approval of the Chief Justice concerned is given, it should standwaived and set aside. Such steps should be taken to avoid financial dependenceof judiciary on the executive. Article 175 envisages separation andindependence of judiciary which includes the lower judiciary as well. The lowerjudiciary is a part of the judicial hierarchy in Pakistan. Its separation andindependence is to be equally secured and preserved as that of the superiorjudiciary. The lower judiciary is more dependent and prone to financialdependence and harassment at the hands of the executive. In practice and effectthe separation of judiciary is the main problem of the lower judiciary whichunder several enactments and rules is practically under the control andsupervision of the executive. Articles 175 and 203 lay down that the judiciaryincluding lower judiciary shall be separate from the executive and “HighCourt shall supervise and control all Courts subordinate to it “. Suchcontrol and supervision can be achieved only when the judiciary isadministratively and financially separate from the executive. Separation ofMagistracy is the first step towards separation and independence. The nextstep should be taken to devise proper scheme and frame rules dealing withfinancial problems within the framework of the Constitution. So long financialindependence is not achieved, it will difficult to improve the workingconditions, accommodation, building and expansion to meet the growing needs ofthe people. ” (underlined to add emphasis)
46. In the case of Mehram Ali and others v.Federation of Pakistan and others, PLD 1998 SC 1445, the apex Court summarizedthe legal position obtaining in Pakistan, which is as follows:
(a) That Articles 175, 202 and 203of the Constitution provide a framework of Judiciary i.e. the Supreme Court,a High Court for each Province and such other Courts as may be established bylaw,
(b) That the words “such otherCourts as may be established by law” employed in clause (1) of Article 175of the Constitution are relatable to the subordinate Courts referred to inArticle 203 thereof
(c) That our Constitutionrecognizes only such specific Tribunal to share judicial powers with the aboveCourts, which have been specifically provided by the Constitution itselfFederal Shariat Court (Chapter 3-A of the. Constitution), Tribunals underArticle 212, Election Tribunals (Article 225). It must follow as a corollarythat any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully sharejudicial power with the Court referred to in Articles 175 and 203 of the Constitution.
(d) That in view of Article 203 ofthe Constitution read with Article.] 75 thereof the supervision, and controlover the subordinate judiciary vests in High Courts, which is exclusive innature, comprehensive in extent and effective in operation.
(e) That the hallmark of ourConstitution is that it envisages separation of the Judiciary from the Executive(which is founded on the Islamic Judicial System) in order to ensureindependence of Judiciary and, therefore, any Court or Tribunal which is notsubject to judicial review and administrative control of the High Court and/orthe p Supreme Court does not fit in within the judicial framework of theConstitution.
(f) That right of “access tojustice to all” is a fundamental right, which right cannot be exercised inthe absence of an independent judiciary providing impartial, fair and justadjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which aremanned and run by executive authorities without being under the control andsupervision of the High Court in terms of Article 203 of the Constitution canhardly meet the mandatory requirement of the Constitution.
(g) That the independence ofjudiciary’ is inextricably linked and connected with the process of appointmentof Judges and the security of their tenure and other terms and conditions.
47. While judiciary in Pakistan was making stride throughvarious judicial pronouncement as noted above, enforcing mandate of theConstitution in securing independence from executive, Bangladesh did not lagbehind. In a landmark judgment reported as Secretary, Ministry of Finance v.Masdar Hossain (1999) DLR (AD) 82 highlighted to what extent the Constitutionof Republic of Bangladesh has actually ensured the separation of judiciary fromexecutive organs of the State. In essence, the case was decided on the issue ofhow the independence of judiciary is guaranteed by the Constitution ofBangladesh and whether provisions of the Constitution have been followed inpractice. Case was initiated in 1995 by Masdar Hussain along with 441 judicialofficers who were Judges in different civil court impugning inter alia that:
(i) Inclusion of judicialservice in the name of BCS (Judicial)under the Bangladesh Services (Re-organization) Order, 1980 is ultra vices theConstitution;
(ii) Subordinate Judiciaryforms Chapter-II of the Part-VI (THE JUDICIARY) Constitution and thereby theSubordinate Judiciary has already been separated by the Constitution. Only therules under Article 115 of the Constitution and/or enactment necessary, arerequired to be made for giving full effect to this separation of judiciary;
(iii) Judges of thesubordinate Judiciary being the Presiding Judges of the courts can besubordinate to any tribunal and as such. The judicial officers are not subjectto jurisdiction of the Administrative Tribunal:
48. High Court Division of Bangladesh delivered itshistoric judgment with 12 directive points reported in 18 BLD 558. TheGovernment preferred an appeal by leave (Civil Appeal No.79 of 1999 popularlycited as Masdar Hossain case (1999) DLR (AD) 82) and the Appellate Divisionpartly reversed the decision of the High Court Division by its judgmentdelivered on 2nd December, 1999 in landmark ruling. The Appellate Divisiondirected the Government to implement its 12 points direction including forformation of separate Judicial Service Commission to serve appointment,promotion and transfer of members of the judiciary in consultation with SupremeCourt, amendment of the criminal procedure and the new rules for the selectionand discipline members of the Judiciary.
49. Court extensively Examined constitutionalprovisions relating to subordinate courts (Articles 114-116A Constitution ofBangladesh) and services of Bangladesh (Articles 133-136), Appellate Divisionin paragraph 76, held that ‘judicial service. is fundamentally and.structurally distinct and separate service from the civil, executive andadministrative services of the Republic with which the judicial service cannothe placed on par on any account and that it can be amalgamated abolished,replaced mixed up and tied together with the executive mud administrativeservices.”
50. It also directed the government for makingseparate rules relating to posting, promotion, grant of leave, discipline, pay, allowance pension and other terms andcondition of service consistent with Articles 116 and 116A of the Constitution.
51. However, in delivering judgment, the BangladeshCourt of Appeal, made an attempt to differentiate between terms ‘independence’and impartiality’ and subscribed to opinion of Supreme Court of Canada inWalter Valente v. Her. Majesty the Queen (1985) 2 SCR 671, on protection of judicial independence under Canadian Charterof Rights and Freedoms, wherein it was held that “the concepts of’independence’ and ‘impartiality’ although obviously related, are separatedistinct values or requirements. ‘Impartiality’ refers state of mind orattitude of the tribunal in relation to the issues and the parties’ particularcase. Independence’ reflects or embodies the traditional constitutional valueof judicial independence and connotes not only a state of mind but also astatus relationship to others particularly to the executive branch of government .”
52. Pursuant to direction in the case of MasdarHossain (supra) Government of Bangladesh though with some reluctance andprolonged struggle of the bar associations enacted four of essentiallegislative measures installing independent judiciary namely; 1) BangladeshJudicial Service (Formation of Service, Appointment in Service and TemporaryDismissal, Dismissal and Removal) Rules 2007, 2) Bangladesh Judicial ServiceCommission Rule, 2007, (BJSC). Members of BJSC are drawn from amongst highjudicial offices, which are less likely to be allured or influenced byexecutive or political forces. BJSC is responsible for the selection ofcompetent candidate for the judicial service, another enactment titled as 3)Bangladesh Judicial Service (Pay Commission) Rules, 2007, which ensures thatfinancial aspect of judicial officers are no more entangled with officers orservants of other category and 4. The Bangladesh Judicial Service(Determination of Posting, Promotion, Grant of Leave, Regulation, Disciplineand other Conditions of Service) Rules 2007. Code of Criminal Procedure(Amendment) Act, separating judicial magistracy from executive.
53. Thus it could be seen that struggle for theindependence of Judiciary is not a phenomenon unique and particular toPakistan, it has received equal importance in India, Bangladesh and the Westalike, every where Bar associations and members of legal fraternity have madestruggle and valuable contribution, in Pakistan in addition to legalfraternity, deposed members of judiciary, Civil Society and independent mediaalso played remarkable and historic role unique and unprecedented in thejudicial history of the world. Whatever independence is presently enjoyed orexercised by the judiciary is the result of joint struggle as noted above andresultant judicial pronouncement. Though independence of Judiciary is groundnorm in constitutional regime in all most all the modern time Constitutionsincluding Constitution of Pakistan, which cast mandatory and constitutionalobligation on Government to ensure separation of judiciary from the executivecontrol progressively but not later than 14 years which term expired on1-3-1999 but irony of the matter is that whatever independence earned was notconceded voluntarily either by the executive or legislature. (one can also seeChapter 5 on Judicial Power page 18 in celebrated treatise of Justice (R) FazalKarim titled as “Access to Justice in Pakistan” 2003 edition, printedby Pakistan Law House).
54. Independence of judiciary and the impartialjudicial practice are interrelated concepts, one cannot sustain without theother. No judiciary could claim neutrality and independence unless it isinsulated and detached from executive and administrative influence in allrespect including in terms of appointment, tenure and security of service andin financial matters. To a great extent Supreme Court and High Court areprovided constitutional protection in terms of appointment, tenure and securityof service as well as financially. It is not true as far as Subordinate Courtsestablished under law and its staff and employees are concerned. As could beseen that the Subordinate Judiciary or more befittingly called DistrictJudiciary is concerned in Sindh, appointments, of Judicial officers and Staffand employee of District Judiciary is in the hands of Judiciary, removal fromservice and disciplinary proceedings are taken by the Tribunal comprised ofmembers of Judiciary. However as far as emoluments and for other financial needdependency is still on the executive. Independent judiciary was envisioned byour founding fathers and the framers of 1973 Constitution, such vision ismanifest from the preamble and Article 2A of the Constitution pronounces”Independence of Judiciary shall be fully secured”. To achieve theobjective of independent judiciary Article 175(3) of the Constitution providedfor separation of Judiciary from the Executive progressively within 3 years,which period was increased to five years and then 14 years with effect fromcommencing day which per Article 265 was 14th day of August, 1973 such periodhas not been extended any further and has lapsed on 14th August, 1987 and evenunder, 18th Constitutional Amendment, Act, 2010 period for separation ofjudiciary from executive has not been extended and despite judgment in the caseof Azizullah Memon (PLD 1993 SC 341) apex Court advised the authorities”The next step should be taken to devise proper scheme and frame rulesdealing with financial problems within the framework of the Constitution. Solong financial independence is not achieved, it will be difficult to improvethe working conditions, accommodation, building and expansion to meet thegrowing needs of the people” almost 24 years have lapsed from the datefixed in Article 175(3) of the Constitution, 1973 and 18 years since judgmentin Azizullah Memon case (supra) several military and political regime had lostthe golden opportunity to take the credit of separation of Judiciary fromExecutive, though each and every political party when not in power commit andassure the nation to sovereignty or independence to the judiciary and suchclaim only proved to be slogan to gain political mileage. Credit goes topresent regime that came into through democratic process with equalparticipation of opposition parties, which displayed commitment to implementsuch mandate of the Constitution in letter and spirit. Which was manifested bythe establishment of Islamabad High Court, it is breath of fresh air and hasshown ray of hope translating dream into reality; a true and independentjudiciary in all respect including in terms of appointment, term and tenure ofservice and financial autonomy. Establishment of Court /for Islamabad CapitalTerritory was ornamented in Article 175 of the Constitution 1973 through 18thConstitutional Amendment Act 2010. Islamabad High Court owes its existencethrough Islamabad High Court Act, 2010 (IHC Act, 2010), which was promulgatedon 2nd August, 2010, IHC Act, 2010 is the first legislative measure that couldbe said to be in fulfilment of constitutional obligation in term of Article175(3) of Constitution of Pakistan, 1973 credit must be given to Parliamentarysetup of the day. In terms of section 6 ibid all Civil, Criminal, RevenueCourts and other Courts and Tribunal working and functioning within thejurisdiction of Islamabad Capitol Territory came under the superintendence andadministrative Control of Islamabad High Court. Islamabad High Court was alsoempowered to establish subordinate judiciary. In terms of power conferred undersection 6 ibid, full court has already approved “Islamabad JudicialService Rules, 2011, where by all the appointment to the subordinate judiciaryis to he made by the Chief Justice on the recommendation of the AdministrativeCommittee. Most importantly power to prescribe scale of pay admissible topersons appointed under the rules whether in substantive, officiating ortemporary basis is conferred on the Islamabad High Court itself. And for thetime being Judicial officers are entitled to the scale of pay package and otherfacility admissible to the corresponding officers of the Province which is atthe highest side, rules have been approved by the competent authority and areawaiting publication in the official Gazette any time.
55. In the case of Zafar Ali Shah v. Pervaiz MusharafPLD 2000 SC 869 it was held at pages 1120-1121 a system of constitutionalgovernance, guaranteeing fundamental rights and based on the principle oftrichotomy of powers, such as ours the judiciary plays a crucial role ofinterpreting and applying the law and adjudicating upon disputes arising amonggovernments or between State and citizens or citizens inter se, the judiciaryis entrusted with the responsibility for enforcement of fundamental rights.This calls for an independent and vigilant system of judicial administration sothat all acts and actions leading to infringement of fundamental right arenullified and the rule of law upheld in the society the Constitution makes itthe exclusive power/responsibility of the judiciary to ensure the sustenance ofsystem of “separation of powers” based on checks and balances. Thisis legal obligation assigned to judiciary . judiciary has to be properlyorganized and effective and efficient….and has also to be strong andindependent enough to dispense justice fairly and impartially. It is such anindependent judiciary, which can foster an appropriate legal and judicialenvironment where there is peace and security in the society ..”
56. In the case of Accountant General v. Ahmed AliQureshi PLD 2008 SC 522, it was observed that judiciary though separate andindependent organ of State is treated by the executive as its subordinatedepartment. It is true that without financial autonomy independence ofjudiciary will always be illusory and the executive always consideredindependent judiciary as a threat. The Judges whether of superior court orDistrict Judiciary perform and discharge their duties according to theirconscience, Constitution and law, it is executive and extraneous forces thatalways over awed the judiciary to achieve their own covert objective to claimlegitimacy to their extra constitutional measure. Judicial history of Pakistanright from Iskandar Mirrza till General Pervaiz Musharaf is replete with suchincidents. Executive and extraneous adventures missed no opportunity toinfluence, subdue, control and derail the judiciary, which has seriously impededjudiciary in fair, impartial independent administration and dispensation ofjustice. The judiciary is a central column of the State edifice and withoutstrong and independent judiciary at all levels in all its affairs, includingthe financial matters, the right to access justice would only be illusory andin negation of constitutional mandate. Therefore, independent, impartial,competent and strong judiciary is sine qua non not only for good governance,survival of democracy, building and strengthening institutions and for welfareof the people of Pakistan. Independent judiciary is guardian of rights of .people as guaranteed under the Constitution. To secure independent Judiciarythan matter from selection and appointment of’ Judicial officers and employeesof judicial services, guaranteeing tenure, fixing terms and conditions,emoluments, retiring benefit, are all interdependent matters and should be inthe hands of judiciary and not in the hands of executive. The perception thatjudiciary is not capable to shoulder such – financial independence is no. moretrue since after enforcement of National Judicial Policy Making CommitteeOrdinance, 2002 and since it has been activated and is sphere headed’ byhonourable Chief Justice of Pakistan Ifthikhar Muhammad Chaudhry, severaljudicial reforms in real sense have been being made. NJPMC is now a higheststatutory judicial policy making body, which consists of the honourable ChiefJustices of all High Courts and Chief Justice of Pakistan a7 its Chairman.NJPMC attend all matters concerning with the judiciary’ and in recent time hastaken bold initiative to bring reform in justice delivery mechanism and forframing coherent policy to combat delays, promote automation, and bring outadministrative reforms indeed an arduous responsibility that ensure free, fair,independent and conscious judiciary and in shortest time achieved enviableresults.
57. National Judicial Policy, 2009 was framed by theNJPMC in consultation with all the stake-holders including Judges from JudicialMagistrate to Chief Justices of Supreme Court and High Courts, litigants,law-enforcing agencies, prosecutors, law officers and public functionaries fromall across Pakistan. NJPMC, the apex judicial forum is working day and night,with an aim to consolidate and strengthen the independence of judiciary,thereby enabling the judicial organ of the ,State to exercise institutional,administrative and decisional independence. In addition to other importantfar-reaching decision to regulate affairs of judiciary and streamliningexpedient dispensation of justice at all level, various measures andrecommendations were made in National Judicial Policy, 2009 which are yieldingfruitful results. In National Judicial Policy, 2009 special focus was made onIndependent judiciary. Innumerable decisions were taken to insulate judiciaryfrom the executive, serving Judges were withdrawn from executive offices evenretired Judges were also disciplined. One of the recommendations in the chapterLong Term Measure at page 41 is
“In the Province ofPunjab, the Judicial Officers of the subordinate Judiciary are drawingadditional judicial allowances equal to three times of their salaries,therefore it is desirable that the Judicial Officers of all the provinces be treated alike’ and disparity in theirsalaries and allowances be removed.
The salary/allowances of Court staff should also be suitablyincreased
58. It may be observed that all the Provinces haveresponded to the decision of the NJPMC except in the Province of Sindh salaryin Judicial Service has’ not been revised. It may be observed that sufficienttime was given by this Court to the Province of Sindh and despite the fact thatprincipal law office of the Province had expressed that judicial service inSindh is being prejudiced, but to no avail. Contention of Mr. Miran Shah, thatProvince of Sindh is seriously effected by flood, ,it may be observed that KPKand Balochistan are not only war stricken, met devastating earthquake, but werealso more seriously effected by shocking flood yet were able to revise the payscale in Judicial Service unhesitatingly. As held above in para 38 that”judicial service” is separate and distinct class from civil, administrative,executive service and functionary, therefore judiciary any where in Pakistan isto be treated alike, as noted above all the Provinces have responded to thecall of NJPMC decision and have revised the emoluments of Subordinate Judiciarybefittingly called District Judiciary except in Province of Sindh, which isnothing but discrimination with the Judicial Service in Sindh, suchdiscriminatory treatment is adversely affecting judicial dispensation ofqualitative justice, which itself is injustice with the people of Pakistanavailing redressal of their dispute and conflict by approaching Judiciary inthe Province of Sindh.
59. Matter relating to staff and employees ofAdvocate-General of Sindh office is on the same footing. Office ofAdvocate-General perform same function in the Province as is performed by theoffice of the ‘Attorney General, therefore are entitled for equal treatment. Inthe case of Northern Area of Supreme Court reported in the matter ofupgradation of Judicial Officers/Staff Allowance and others reported in PLC2010 (C.S.) 141 and in the case reported as Government of Punjab v. MubarakAli, PLD 1993 SC 375, Secretariat Allowance to the employees of the FederalShariat Court or Supreme Court was claimed by the establishment of the PunjabHigh Court on the ground of equality, same was allowed. In unreported judgmentin WP Sadaqat Ali v. Government of Punjab, where the Advocate-General Officewas directed to be placed equally with the Attorney-General Office on theground that the officers attached to the Principal Law Officer performs similarfunction as is being performed by the Attorney-General and the officersattached thereto. Therefore employees of Advocate General office at Sindh arebeing discriminated.
60. Judiciary has been termed as a .custodian andsanctuary of the rights of the people and is the custodian of the Constitution.The judiciary holding such central and exalted position must be independent andseparate from executive in all respect as envisioned by our founding fathersand framers of the Constitution. After Post November 3, 2007 scenario,expectations of entire nation in focused on judiciary, bold and independentdecision by the superior courts have given high hope, build confidence andtrust of all and sundry alike in the judiciary, though there appears to beresistance from the executive who were earlier not used to or prone to bedisciplined by Constitution and rule of law. Now the Judiciary has come of ageand matured into a responsible and organ of the State. This Court is quitecompetent to direct the concerned quarters to implement Article 175(3) in itstrue sense by eliminating the intervention of executive into the affairs ofjudiciary from each and every angle, so’ Pakistan as a nation rank and stand outamongst comity of nations having independent, impartial and competent Judiciaryfor all times to come.
61. In the case of Government of Balochistan v.Azizullah Memon, PLD 1993 SC 341 apex court directed Federal Government to takecertain measure for separation of judiciary from executive but the directive asto financial independence is still unfulfilled. This Court in exercise ofjurisdiction conferred under Article 199(1)(c) as a custodian of Constitutionand guardian of fundamental rights read with Preamble, Article 2A, Article175(3), Articles 25, 27, Articles 37 (d), 38 (b), (c), (d) and (e) of theConstitution of Pakistan, 1973 the Court may issue appropriate directions totreat Judicial Officers and staff attached to the Court in equal fashion and canalso issue appropriate direction to any person, authority including Federal orProvincial Government to remove anomaly and disparity in the terms andconditions including emoluments of members of Judicial service in Sindh. Thiscourt is competent to issue necessary direction to Government both Federal andProvincial to take such steps and legislative measure to separate and insulateJudiciary from other civil, executive and administrative service of Pakistan soas to ensure independence of judiciary is fully secured including and notlimited to financial independence within the contemplation of Preamble, Article2A read with objectives Resolution and Article 175(3) of Constitution ofPakistan and in fulfilment of rights guaranteed under the Constitution ofPakistan and in compliance to Principles of Policy.
62. It may be further observed that in addition tojurisdiction under Article 199 (1)(c) to issue directions to any personincluding Government, this court may also under Article 187(2) of the Constitution,1973 direct implementation of orders passed by the honourable Supreme Court inthe cases referred to above, wherein apex Court categorically directed forseparation of judiciary and given financial independence, this petition couldbe treated as petition for seeking enforcement of the judgment rendered in theabove cases. Almost 28 years have passed since the commencing date of theConstitution and 28 years from the date of judgment rendered in the case ofAzizullah Memon, PLD 1993 SC 341, but the Provincial as well as FederalGovernments have neglected to take any step to completely separate thejudiciary from the executive and to provide financial independence. It U was,therefore, sought in the first instance; this Court may pass directions to the Governmentof Sindh to immediately enhance theallowances and salaries structure at par with the Province of Punjab. It wasurged that this Court may strike down the terms and conditions prescribed bythe Government of Sindh and frame appropriate legislation to provide forIndependent Judicial Service Board and reasonable timeframe may be given to theProvince of Sindh to frame and take above legislative measures.
63. In view of the foregoing discussion ConstitutionPetitions No.D-2318/2009 is granted in following terms:
Respondents Nos. 1 to 3 inthe said petition’ are directed to extend benefits to the employees in theoffice of Advocate-General of Sindh in similar terms as granted to the officeof Attorney-General of Pakistan, but with effect from 1-3-2010 when suchbenefits was N extended to the employees and servants of Sindh High CourtEstablishment by the honourable Chief of Sindh through Notification dated2-4-2010, such increase to be paid with effect from 1st July, 2011 and arrearswith effect from 1-3-2010 be paid in monthly instalments along with monthlysalary with effect from 1st January, 2012 till entire arrears are paid alongwith monthly salary for the month it is due.
64. And in view of the discussion made above,Constitution Petitions No. D-1930/09, C.P No. D-1465/09 and C.P D-2433/09 aredisposed of in following terms:
1. The Government of Sindhis directed to pay Special JudicialAllowance equal to three times of the initial of their substantive pay scale(as allowed in Province of Punjab through notification dated 12-8-2008) witheffect from 1-3-2010 when such allowances were extended to Servants andEmployees of the High Court Establishment, (through Notification dated 2-4-2010by the then honourable Chief Justice of High Court of Sindh) .to all theJudicial Officers of the District Judiciary including those working on ex-cadreposts, which shall include the District and Sessions Judges, AdditionalDistrict and Sessions Judges, Senior Civil Judges, all Civil Judges andJudicial Magistrates working under the control, superintendence, and within theterritorial jurisdiction of the High Court of Sindh per Article 203 of theConstitution, 1973.
2. Similarly, theemployees and servants of establishment of Subordinate Judiciary/District Judiciary(Sindh Judicial Service) and that of Courts and Tribunal established underFederal or Provincial law, which are under the control, superintendence, ofHigh Court of Sindh and functioning and discharging duties within theterritorial jurisdiction of the High Court of Sindh per Article 203 of theConstitution, 1973 are also granted the same relief as is allowed through thisorder to the Judicial Officers referred to in para 1 above and in the samemanner.
3. In view of financialconstraints of the Provincial Government of Sindh, we would direct that thearrears to the Judicial officers of District Judiciary including JudicialOfficers discharging judicial function/duty in Courts/Tribunal establishedunder either Federal or Provincial law with effect from 1st March, 2010 to 30thJune, 2011 shall be paid in monthly instalment together with and in additionwith the monthly salary with effect from 1st January, 2012 till such timeentire arrears with effect from 1-3-2010 are totally set off.
4. Government of Sindh andGovernment of Pakistan are also directed to take steps and initiate suchlegislative measures as may be necessary to empower High Court of Sindh and orthe Chief Justice of High Court of Sindh to fix and determine the pay scale ofmembers of Sindh dicial Service including judicial officers and servants andemployees of Sindh Judicial Service in consonance with Article 203 and otherenabling Articles of the Constitution of Pakistan and as per direction given inthe case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341 tofully secure financial independence and separation of judiciary from executive.
5. Government of Sindh andGovernment of Pakistan are further directed to take such steps and legislativemeasures as may be necessary to empower High Court of Sindh and or the ChiefJustice of High Court of Sindh to appoint, determine terms and conditions ofemployment, emolument, disciplinary proceedings removal from service and otherincidental power and authority as regard Presiding Officers, servants andemployees of Courts and Tribunals established under the Provincial and Federallaws in consonance with Article 203 and in implementationof Article 175(3) of the Constitution of Pakistan, which are under fly’ controland superintendence, of High Court of Sindh and are functioning and dischargingduties within the territorial jurisdiction of the High Court of Sindh as perArticle 203 of the Constitution, 1973 and as per direction given in the case ofMehram Ali and others v. Federation of Pakistan and others, PLD 1998 SC 1445and in case of Government of Balochistan v. Azizullah Memon, PLD 1993 SC 341.
6. Registrar High Court ofSindh is directed to intimate Government of Sindh and Government of Pakistan totake immediate steps for theimplementation and compliance of above order/directive.