Judgment Sheet

IN THE KHYBER PAKHTUNKHWA

SUBORDINATE SERVICE TRIBUNAL

PESHAWAR

S.A No….19…of…2010 .

JUDGMENT

Date of hearing…………………26.08.2013………………...

Appellant/Petitioner (s)…………Shafiq Ahmad Tanoli ……………..

Respondent (s)……………Registrar Peshawar High Court……………..

YAHYA AFRIDI, J.- Through this single

judgment, the Tribunal proposes to dispose of the

twenty one Service Appeals, as they all arise from

a common order passed by the worthy Chief

Justice of Peshawar High Court, Peshawar dated

29.9.2007, whereby their order of seniority was

adversely effected. The particulars of the said

appeals are as follows:-

i) S.A. 2/09 Shafiq Ahmad Tanoli-Vs- Registrar Peshawar High Court, Peshawar. ii) SA 3/2010 Muhammad Hamid Mughal-

Vs-Registrar Peshawar High Court, Peshawar. iii) SA1/2010 Sardar Muhammad Irshad-Vs-

Registrar Peshawar High Court, Peshawar. iv) SA 4/2010 Muhammad Amin Kundi-Vs-

Registrar Peshawar High Court, Peshawar.

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v) SA 5/2010 Rajab Ali Khan-Vs- Registrar Peshawar High Court, Peshawar.

vi) SA 6/2010 Nasrullah Gandapur-Vs- Registrar Peshawar High Court, Peshawar.

vii) SA 7/2010 Muhammad Hussain-Vs- Registrar Peshawar High Court, Peshawar.

viii) SA 8/2010 Liaqat Ali Khan-Vs- Registrar Peshawar High Court, Peshawar.

ix) SA 9/2010 Madad Khan-Vs- Registrar Peshawar High Court, Peshawar.

x) SA 10/2010 Salahuddin-Vs- Registrar Peshawar High Court, Peshawar.

xi) SA 11/2010 Rafiullah Khan-Vs- Registrar Peshawar High Court, Peshawar.

xii) SA 13/2010 Jamaluddin Vs. Registrar Peshawar High Court, Peshawar.

xiii) SA 15/2010 Muhammad Iqbal Khan-Vs- Registrar Peshawar High Court, Peshawar.

xiv) SA 16/2010 Muhammad Zubair-Vs- Registrar Peshawar High Court, Peshawar.

xv) SA 17/2010 Muzamil Shah Khattak-Vs- Registrar Peshawar High Court, Peshawar.

xvi) SA 18/2010 Ikhtiar Khan-Vs- Registrar Peshawar High Court, Peshawar.

xvii) SA 19/2010 Ahmad Sultan Tareen-vs- Registrar Peshawar High Court, Peshawar.

xviii) SA 20/2010 Naveed Ahmad Khan-Vs- Registrar Peshawar High Court, Peshawar.

xix) SA 21/2010 Gohar Rehman-Vs- Registrar Peshawar High Court, Peshawar.

xx) SA 22/2010 Sajjad Ahmad-Vs- Registrar Peshawar High Court, Peshawar.

xxi) SA 27/2010 Mehmood-ul-Hassan-Vs- Registrar Peshawar High Court, Peshawar.

2. The brief and essential facts, which

have led to the present appeals, are as under in

chronological order;

25.3.2003 Twenty two Senior Civil Judges were promoted as Additional District and Sessions Judges.

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27.3.2003 Three worthy Additional District and Sessions Judges (B19) were appointed through initial recruitment.

(Direct Inductees - Batch I) 25.6.2003 Twenty two Senior Civil Judges

(B18) were promoted to the post of Additional District and Sessions Judges (B19).

(Promotees - Batch I) 11.8.2003 Twenty four Civil Judges (B17)

were promoted to the post of Senior Civil Judges (BPS-18).

8.10.2003 Twenty two Additional District and

Sessions Judges (B19) were appointed through initial recruitment.

(Direct Inductees - Batch II) 4.11.2004 Thirteen Senior Civil Judges (B18)

were promoted to the post of Additional District and Sessions Judge (B19).

(Promotees - Batch II) 16.11.2006 Twenty three Senior Civil Judges

(B18) were promoted to the post of Additional District and Sessions Judges (B19).

(Promotees - Batch III) 26.9.2007 Joint representation of Jehanzeb

Shinwari and Muhammad Shoaib Khan (“Joint representation”), both from Promotees Batch II and III, respectively, claimed to be senior to the Direct Inductees Batches I & II and thus sought their seniority in terms that;

“it is therefore, very humbly prayed that the promotion of cadre officers comprising the petitioners and proforma respondents Nos.1 to 49 notified vide Notification No.P (A)31-D-75-J dated 25.6.2003 vide

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Notification No.P (A) 31 (D) 145/5 dated 4.11.2004 and vide Notification No.P (A)31-5 dated 16.9.2006 be considered with effect form 27.3.2003, when the process of filling the available vacancies was started; in field and under the operation seniority list of Additional District and Sessions Judges may please be reviewed, seniority may be reckoned on the basis of existing quota against the vacancies available on 27.3.2003 ranked the cadre officers senior to the officers appointed from the bar against all the vacancies available on 27.3.2003 and all the financial benefits lapse may also be provided to the entitled cadre officers.”

29.9.2007 The Office with the approval of the Hon’ble Chief Justice directed that the Joint Representation be placed before the Administrative Committee.

2.4.2008 The Joint Representation was placed

before the Administrative Committee on 2.4.2008. The finding of the worthy Administrative Committee was as follows:-

“The representation of M/S Jehanzeb and Shoaih Khan dated 26.9.2007 both Addl: District & Sessions Judges, regarding seniority was taken up. It is decided that comments from all the respondents be asked for before placing it on the agenda.” (Emphasis provided)

17.7.2008 The worthy Chief Justice again

ordered that the Joint Representation “may be placed along with similar other cases for the decision by the Adm. Co.”

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13.8.2009 The Hon’ble the Chief Justice was

pleased to pass the following orders on the Joint Representation;

“The representations, for fixation of seniority/correction of seniority list of judges of subordinate judiciary, under consideration, are submitted by: a) Mr. Muhammad Azeem Khan Afridi, the then Addl: District and Sessions Judge. b) Mr. Ishtiaq Ahmad, Addl: District and Sessions Judge. c) Messrs. Jehanzeb & Shoaib Khan, Addl: District and Sessions Judges. Perusal of record show that office brief has been chalked out regarding the representation of Messrs. Jehanzeb & Shoaib Khan, Addl: District and Sessions Judges only as replies of almost all the contesting respondents were received. The other two are to be considered separately being on different grounds and not yet processed.

Keeping in view the facts and circumstances, convening a meeting of the “Administration Committee” will put the members at inconvenience and cause delay. While Rule 16 (ii) of C.S. No.120/11-D.4. dated the 22nd January 1956, under which Administration Committee has been envisaged, states that:-

“These Committees shall be Advisory Committees and final decision in all administrative matters shall rest with the Chief Justice, except matters

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which are the statutory responsibility of the High Court as a whole.” In the meanwhile Reference &

Research Officer of this Court was verbally directed for probe and para 2 of his informal note supports the representation of Messrs. Jehanzeb & Shoaib Khan, Addl: District and Sessions Judges.

When para 4 of the brief is analyzed in light of dicta formulated in case of Government of NWFP and others vs Buner Khan and others (1985 SCMR 1158) and 1994 P.L.R. coupled with common sense directive, though not applicable as law of Establishment Division, O.M.No.15/38/52-SE-II, dated the 22nd June, 1952, the promotees seniority is required to be fixed since the accrual of seats in their quota notwithstanding if the date of regular appointment of initial recruits is prior.

So it is directed that seniority be fixed accordingly in light of para 4 of “Brief about representation on seniority” of the Superintendent General (Admn) dated 27.1.2009 and corrected seniority list be circulated forthwith.

Sd/Chief Justice”

24.11.2009 The Registrar of the Peshawar High Court circulated the altered impugned seniority list.

3. The stance taken by the present appellants

was, inter alia, that the impugned order affecting

their seniority was devoid of legal force, as it was

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not passed by the competent authority under the

law; that Rule 16 of the High Court Rules and

Orders had been deleted and thus could not have

been applied or invoked by the worthy Chief

Justice; that the impugned order offended the

principle of natural justice; that the

respondents/promotees claiming seniority not only

lacked the essential experience but were not even

Senior Civil Judges on the date they claim their

promotion to the post of Additional District and

Sessions Judges, which was a condition precedent

for promotion to the said post; that the Office has

misinterpreted the decision rendered by the

worthy Chief Justice dated 13.8.2009; and that the

Joint Representation being barred by time ought

not to have been entertained; and that the

appellants have been put to a disadvantage, as the

respondents have been on position of influence in

the Office of the High Court and thus prevailed

upon crucial decisions affecting their valuable

rights and the proceedings in the present appeals.

4. In rebuttal, inter alia, the

respondents/promotees took the preliminary

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objections; firstly, that the jurisdiction of this

Tribunal to entertain the present matter, as the

Impugned decision of the worthy Chief Justice

dated 29.9.2009 was an administrative order,

which was not justiciable and beyond the scope

of authority vested in the present Tribunal; and

secondly, that The NWFP Judicial Services Rules,

2001(“Rules of 2001”) was not published in the

Official Gazette and hence was of no legal value;

that some of the appellants were appointed on

contract basis and that too on a “Project” and

their services were yet to be regularized; that as

the service of the said appellants were not

regularized, they could not claim seniority against

the respondents/promotees, who were regular

judicial officers; and finally that anti-date

promotion was permissible and applicable to the

case of the respondents, especially when the

vacancies for the promotees were available on the

dates they claimed their seniority, while the

promotion of the appellants was blatantly beyond

their prescribed quota.

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5. Valuable arguments of the learned counsel

for the parties heard and record perused.

6. Before this Tribunal proceeds to adjudicate

the appeals on merit, it would be appropriate to

first address the preliminary objections taken by

the respondents.

In regard to the jurisdiction of this

Tribunal to entertain the instant appeals, the

worthy counsel representing the respondents/

promotees forcefully argued that the impugned

decision before this Tribunal emanates from an

administrative order passed by the worthy Chief

Justice of the Peshawar High Court dated

17.8.2009, which was not justiciable. In support of

his submission, the learned counsel sought

reliance upon the judgments of the superior Courts

of our jurisdiction in CA NO.338 of 2006

Muhammad Iqhal etc. Vs. Lahore High Court,

etc. ;W.P. No.3934/2010 Mohammad Imran Vs.

Peshawar High Court; WP NO.332/1996 Gulab

Khan Vs. Abdul Matin etc. ; and C.P. No.195 of

2002 Gulab Khan Vs. Abdul Matin etc.

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The Tribunal is in complete consonance

with the “ratio decidendi” laid down in the

aforementioned judgments; that the order of the

worthy Chief Justice of a High Court is not

“justiciable” by a bench of a High Court in

exercise of its constitutional jurisdiction under

Article 199 of the Constitution of Islamic

Republic of Pakistan, 1973 (“Constitution”).

However, the present objection raised by the

learned counsel does not apply to the facts and

circumstances of the present appeals, as the

present Tribunal is not adjudicating the appeals as

a High Court in its Constitutional jurisdiction. In

fact, what is crucial and important to note is the

command of Article 212 of the Constitution,

which expressly bars the jurisdiction of any Court,

including the worthy High Court to entertain any

matter relating to terms and conditions of service

of persons, who are in the “service” of Pakistan

and for which an administrative Tribunal has been

established under the law. In the present appeals,

the parties before the Tribunal are in the “service”

of Pakistan, as worthy Judicial officers and the

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present Tribunal has been established under The

NWFP Subordinate Judiciary Service Tribunal

Act, 1991 (“Act of 1991”). In fact, under

subsection 2 of section 3, ibid, exclusive

jurisdiction is vested in the present Tribunal to

adjudicate appeals filed in respect of matters

relating to terms and conditions of service of

members of the Subordinate Judiciary of the

province, as is the case in the present appeals.

Moreover, any doubt or confusion regarding the

justiciability of the orders of the worthy Chief

Justice before the Tribunal constituted under the

Act of 1991 are set to rest on reading the proviso

to Rule 6 of The NWFP Subordinate Judiciary

Service Tribunal Rules, 1992 (“Rules”), which

provides that:-.

6. Procedure to prefer Appeal:- (1) An appeal to the Tribunal may be sent by Registered post or presented to the Registrar personally or through an advocate, during working hours. (2) ……………………………….. (3)……………………………… (4) In every memorandum of appeal, the competent authority whose order is challenged shall be shown as Respondent No.1 and every civil servant who may be affected by the relief claimed, shall also be shown as respondent;

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Provided that if the competent authority whose order is challenged is the Chief Justice or a Judge of the Peshawar High Court through the Registrar, Peshawar High Court shall be shown as respondent No.1.” (Emphasis provided)

Thus, it would be safe to hold that this

Tribunal is competent to hear the instant appeals

and in fact has exclusive jurisdiction to entertain

and adjudicate the same. Accordingly, the

preliminary objection regarding the jurisdiction of

the present Tribunal raised by the learned counsel

for the respondents is repelled.

Moving on to the other objection raised by

some of the respondents regarding the validity of

Rules of 2001 on the ground that the same has not

been published in the official gazette, it is noted

that the Rules of 2001 derives its source from

section 26 of the NWFP Civil Servant Act, 1973,

which reads that:-

“”26 Rules:- (1) The Governor or any person authorized by the Governor in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out of the purposes of this Act.”

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The aforementioned parent law does

not command the rules to be framed thereunder to

be published in the official gazette. Hence, the

Rules of 2001 do not come within the “mischief”

of sections 23 and 22 of the General Clauses Act,

1897 and W.P. General Clauses Act, 1958,

respectively, regarding, inter alia, that the rules

framed under a statute are to be first published in

the official Gazette before the same could have

any legal force. Thus, the validity of the Rules of

2001 cannot be challenged on the touch stone that

the same have not been published in the official

gazette. The apex Court in Hafiz Ahmad Sufyan’s

case (PLD 2004 SC 25), where the objection to

the validity of a legal instrument was repelled on

the ground that the parent law did not require the

same to be published in the official Gazette. It was

held that:-

“We have gone through section 10 of the Punjab Boards of Intermediate and Secondary Act No. XIII of 1976 and find that the said provision which empowered the said Board to frame rules to hold and conduct the examination did not provide that the rules in question would be enforced through a notification. Since promulgation of the rule in question

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through a notification was not a requirement of law, therefore, the provisions of the General Clauses Act prescribing publication of such a notification in the official Gazette were not attracted in the present case. The word “Notification” used by the petitioner-Board is a nomenclature coined by the Board itself and has no legal status. Therefore, the submission of the learned counsel for the respondent regarding the non-publication of the said rules in the official Gazette is fallacious and thus without any merit.” (emphasis provided)

In Saghir Ahmed’s case (PLD 2004

Supreme Court 261) the worthy Supreme Court

went to the extent of validating an instrument,

which though required under the parent law to be

published in the official Gazette was not so

published, in terms that:-

“The notice/notification although had been signed and issued to all concerned but had not been gazetted. In other words, the purpose of the publication in the ordinary sense was practically served almost contemporaneously when the acquisition took place and in fact it was more substantial publication insofar as the owners were concerned than if it would have been in the official Gazette. …….. “In view of above discussion, we hold that the publication of

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notification dated 28.5.1976 of approval of the Housing Scheme by the Provincial Government under section 3 of the Act, in the official Gazette, was not a sine qua non for its legal validity, efficacy and its non-publication was of no consequence”. (Emphasis provided)

What is clear and not disputed by any party

is that the Rules of 2001 have been consistently

followed and applied to the Judicial Officers of

our Province and the same have even found its

safe place in the Judicial Esta Code published by

the Peshawar High Court.

Even otherwise, Rules of 2001 have been

followed consistently in regulating the terms and

conditions of service of the worthy Judicial

Officers of our Province. Hence, the same would

assume the status of statutory rules, as was

clarified by the August Supreme Court of Pakistan

in Nazir Ahmad’s case (PLD 1970 SC 453) in

terms that:-

“Where the departmental practice has followed a course in the implementation of the relevant rule whether right or wrong, it will be extremely unfair to make a departure from it after a lapse of many years and to disturb rights that have been settled by a long and consistent course by the practice. This, to say the least, is bound to waken the faith of the employees in the

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attitude and behaviour of the department. “As regards Departmental constructions”, that is to say, the construction which is placed in practice on the provisions of a statute or rules by the administrative authorities who are charged with the execution of the statute or the rules Crawford thus observes: “Where the executive construction has been followed for a long time an element of estoppel seems to be involved. Naturally many rights will grow up in reliance upon the interpretation placed upon a statute by those, whose duty it is to execute it. Often grave injustices would result should the Courts reject the construction adopted by the executive authorities.”

In view of the above, this Tribunal is of the

firm view that Rules of 2001 is a valid piece of

subordinate legislation, which cannot be ignored

on the ground that the same has not been

published in the official gazette. Accordingly, this

objection of some of the respondents is also

repelled.

7. Before this Tribunal addresses the

submissions of the parties regarding the merits of

their respective claims to seniority under the law,

it would be appropriate to first consider and

determine the main thrust of the arguments of the

present appellants, whereby they have challenged

the impugned order on the ground that the

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competent authority to alter their seniority

position as Additional District and Sessions

Judges was not the worthy Chief Justice of the

Peshawar High Court. In this regard, the

appellants seek support of the provisions of Rule

10 of the Rules of 2001, while the respondents

emphasized upon the provisions of the Rule 16 (ii)

of the High Court Rules and Orders, Minutes of

the Administration Committee of Peshawar High

Court dated 18.12.1976 (“Meeting of 1978”) and

Notification SOR-IV (E & AD/III-11/2001 dated

28.8.2001 (“Notification of 2001”). The salient

features of the aforementioned legal instruments

are as follows:-

High Court Rules and Orders;

Origin;

The High Court Rules and Orders have its

origin dating back to the Government of India Act,

1915. For relevancy of the present issue under

discussion, it would be important to commence

with section 224 of the Government of India Act,

1935, which provided for rule making powers to

the High Courts. The succeeding enactments,

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namely, the Governor General Order 7 (High

Court Lahore) Order 1947, the Constitution of

1956 vide para. 5 of the III Schedule read with

Article 177, the Constitution of 1962 vide Articles

101 and 102 and under Articles 202 and 208 of the

Constitution of Islamic Republic of Pakistan, 1973

(“Constitution”) has preserved the

administrative powers of the High Court to frame

rules for regulating its practice and procedure and

also for the Courts subordinate to it.

Savings:

The High Court Rules and Orders have

been saved through ‘saving-clauses’ of successive

Constitutions; Article 224 of the Constitution of

1956, Article 225 of the Constitution of 1962 and

Article 268 (1) of the Constitution of 1973.

Applicability;

As far as the application of the High Court

Rules and Orders to the Peshawar High Court is

concerned, it is noted that the applicability thereof

has evolved through various stages, which are

noted as under:-

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Stage-I

The High Court of West Pakistan (Establishment ) Order, 1955 (“Order of 1955”)

With the establishment of the Province of

West Pakistan, the High Court of West Pakistan

was created through the Order of 1955. It was to

have its principle seat at Lahore, while Benches of

the said High Court were to function at Karachi

and Peshawar and circuit Courts in other places of

the Province of West Pakistan. Consequently, the

Lahore High Court, the Chief Court of Sindh and

the Judicial Commissioner Court in the NWFP

and Baluchistan ceased to exist.

Stage-II

High Courts (Establishment) Order, 1970. (“Order 0f 1970”)

With the dissolution of Province of West

Pakistan vide Province of West Pakistan

(Dissolution) Order, 1970, the High Court of West

Pakistan also ceased to exist and in its place new

High Courts were established, namely High Court

for the Province of NWFP to be called the

Peshawar High Court, with its principal seat at

Peshawar, High Court for the Province of Punjab

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and Islamabad Capital Territory to be called the

Lahore High Court, with its principal seat at

Lahore and High Court for the Province of

Baluchistan and Sindh to be called Sindh and

Baluchistan High Court with its Principal Seat at

Karachi.

Article 7 of the Order of 1970, clearly

provided, “inter alia”, that the powers of the

Chief Justice and of single Judges and Divisional

Courts of the High Courts of West Pakistan and

with respect to all matters ancillary to the exercise

of those powers, were, with necessary

modification, made applicable in relation to each

of the new High Courts, including the Peshawar

High Court.

Accordingly, the presence of the worthy

Chief Justice and the Members of the

Administration Committee of the High Court, as

provided under the High Court Rules and Orders

were made applicable to Peshawar High Court

vide Order of 1970. Some of the relevant

provisions thereof are as under:-

“1. Administrative Business.--- The Administrative and executive work of the

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High Court shall be controlled by a Committee of Judges to be known as the Administration Committee. Provided that the work of the Benches at Karachi and Peshawar shall be conducted in such manner as the Chief Justice may direct. Provided further that those matters which are the exclusive concern of the Chief Justice, namely, the constitution of Benches and the appointment and control of the High Court Establishment, shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice. 2. Constitution and appointment of

Administration Committee.--- The administration Committee shall consist of seven Judges. The Chief Justice and the Senior Puisne Judge shall be ex-officio members and the Chief Justice shall annually nominate the other five members of the Committee.

3……………………….. 5. Matters which shall be disposed of at a Judges’ meeting.--- Notwithstanding anything contained in the preceding rules the following matters shall invariably be referred to and disposed of at a meeting of all the Judges:-

i…. ii…. iii…. vi. The promotion of Subordinate Judges and District and Sessions Judges, in cases where it is proposed to pass over an officer or where the

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Administration Committee is not unanimous.

16. (i) Notwithstanding anything contained in the Chapter, the administrative and executive work of High Court shall be controlled by three Committees of Judges to be known as the Administration Committee functioning at Lahore, Karachi and Peshawar.

(ii) These Committees shall be Advisory Committees and final decision in all administrative matters shall rest with the Chief Justice, except matters which are the statutory responsibility of the High Court as a whole.

Minutes of Administrative Committee of the Peshawar High Court dated 18-12-1976. The Administrative Committee of the

Peshawar High Court comprising of the Worthy

Chief Justice and three Hon’ble Judges on

18.12.1976 resolved that the administrative and

executive work of the High Court was to be

controlled by the Administrative Committee

consisting of four Judges. The powers and duties

assigned to the worthy Chief Justice were as

under:-

“Roster and cause-lists. Constitution of Benches and the appointment and

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control of High Court Establishment, except re-imbursement of medical charges and GP Fund Advance cases. Appointment, transfers, promotions, deputations etc. of the members of subordinate Judiciary. Conferment of powers on Civil Judges and Magistrates.”

NWFP Judicial Service Rules, 2001 (“Rules of 2001”).

It is noted that the NWFP Judicial Service

Rules, 2001 were initially issued on 5.3.2002 and

the same were later reissued/substituted with

certain amendments on 1.7.2002. However, the

Office has been unable to confirm, whether the

Rules of 2001 have been published in the official

gazette or otherwise. The implication thereof has

been discussed earlier. The matter of “inter se”

seniority of Judicial Officer has been provided

under Rule 10 of the Rules of 2001, which reads

as:-

10. Seniority: The seniority inter-se of the members of the service in the various pay scales thereof shall be determined by the High Court, subject to the following conditions:

(a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Selection

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Authority as mentioned in Rule-5; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection.

(b) In the case of members appointed by promotion, seniority in a post, service or cadre to which a Civil Servant promoted shall take effect from the date of regular appointment to that post; provided that Civil Servants who are selected for promotion to a higher post in one batch shall, on their promotion to higher post, retained their inter-se seniority as in the lower post. Explanation-1 If a Jr. officer in a lower grade is promoted temporarily to a higher grade in the public interest, even through continuing later permanently in the higher grade, if would not adversely affect the seniority in the interest of his/her senior officer in the fixation of his/her seniority in the higher grade. Explanation-II If a Jr. officer in a lower grade is promoted to a higher grader by superseding a Sr. officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently.

Notification SOR-IV (E & AD/III-11/2001 dated 28.8.2001. The worthy Chief Justice of Peshawar High

Court was authorized to appoint Judicial Officers

in the Province and exercise powers as an

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Administrative head of a Department of the

Provincial Government.

8. Reviewing the provisions contained in the

aforementioned legal instruments, some of the

anomalies, which are blatantly apparent and

relevant to the present controversy are noted as

under:-

I The Minutes of the Administrative

Committee of 1976 and the Notification of

2001, are silent and do not vest the worthy

Chief Justice of the Peshawar High Court to

alter the position of seniority of the Judicial

Officers.

II The High Court Rules and Orders expressly

delegates authority to the Administrative

Committee under Rule 4 –B, ibid, which

includes appointment, confirmation or

promotion of Judicial Officers, while on the

other hand Rule 16 ibid, rests the final

decision in all administrative matters with

the worthy Chief Justice, subject to the

exception of cases where the statutory

responsibility vests in the High Court.

III Similarly, the authority of the worthy Chief

Justice, provided in the Minutes of 1976 is

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in conflict with the authority vested in the

Administrative Committee under the High

Court Rules and Orders.

9. This Tribunal considers that it need

not enter to resolve these glaring controversies,

which go to the roots of the powers of the

Administrative Committee and the worthy Chief

Justice, which is best left for the Administrative

Committee to decide or to refer the same to the

Full Court of the Peshawar High Court, being a

policy matter under Rules 4 (xviii) and 5(vi) of the

High Court Rules and Orders.

10. The instant appeals can be decided by

maintaining valid and interpreting the provisions

of sub Rule ii of Rule 16 of the High Court Rules

and Orders, which was the authority cited by the

worthy Chief Justice in passing the impugned

order.

The arguments advanced by the learned

counsel for the appellants that Rule 16, ibid, has

been deleted are factually in correct. In fact, the

said provision has been deleted by the Lahore

High Court in 2000 and not by the Peshawar High

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Court. Thus for all practical and legal purposes,

Rule 16 ibid, is still valid and applicable as far as

Peshawar High Court is concerned. For reference,

we reproduce the said provisions again;

“16 (ii) These Committees shall be Advisory Committees and final decision in all administrative matters shall rest with the Chief Justice, except matters which are the statutory responsibility of the High Court as a whole.”

Now, even if, we assume the authority of the

worthy Chief Justice to be “final” in cases

relating to administrative matters, as provided

under Rule 16 (ii), ibid, the said authority has a

“rider” attached thereto, in cases where the law

has expressly vested the jurisdiction in the High

Court. When we review the provisions of Rule 10

of the Rules of 2001, it is noted that Peshawar

High Court has been expressly vested to be the

competent authority to decide the “inter se”

seniority the Additional District and Sessions

Judges in our Province. Thus, when the law has

mandated the Peshawar High Court to be

competent authority to decide matters relating to

seniority of Judicial Officers of our Province, then

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with utmost respect to the office of the worthy

Chief Justice, Rule 16 (ii) of the High Court

Orders and Rules cannot be exercised by the

worthy Chief Justice. Needless to mention that the

“inconvenience” to the members of the

Administrative Committee and causing “delay”

cannot circumvent the mandate of law. Even

otherwise, the Joint Representation was filed on

26.9.2007 and the impugned decision was passed

on 13.8.2009 and during the interim period,

nineteen meetings of the Administrative

Committee of the Peshawar High Court were

held.

11. As this Tribunal finds that the

Administrative Committee and not the worthy

Chief Justice of the Peshawar High Court is the

competent authority to determine and alter the

inter-se seniority of Judicial Officer, it would not

be appropriate to comment on the merits of their

respective claims to seniority, lest the same

prejudice the decision of the worthy

Administrative Committee.

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12. This Tribunal is alive to the

promotions and postings of the Judicial Officers,

which have taken place since the passing of the

impugned order. But the command of law has to

prevail. When the original order lacks jurisdiction,

then the entire “superstructure” built thereon

cannot be sustained and thus must fall. This

principle of law has been eloquently laid down by

the apex Court in Yousaf Ali’s case (PLD 1958

Supreme Court (Pak.) 104), which reads as

under:-

“Where the Legislature clothes an order with finality, it always assumes that the order which it declares to be final is within the powers of the authority making it, and no party can plead as final an order made in excess of the powers of the authority making it, in the eye of the law such order being void and non-existent. And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders , together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded.”

The superior Courts of our

jurisdiction have consistently followed the

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aforementioned principle in cases of Executive

District Officer Education) Rawalpindi-Vs-

Muhammad Younas (2007 SCMR 1835), Mr.

Muhammad Idris and others-Vs-Federation of

Pakistan through Ministry of Finance and

others (PLD 2011 Supreme Court 213),

Province of Punjab through District Officer

(Revenue), District Collector, Kasur-Vs-

Border afrea Committee through Chairman

and others (PLD 2011 Supreme Court 550),

Rehmatullah and others-Vs-Saleh Khan and

others (2007 SCMR 729) and Muhammad

Tariq Khan-Vs-Khawaja Muhammad Jawad

Asami and others (2007 SCMR 818).

13. All Judicial orders passed by the

Judicial Officers, who had been promoted to

higher grade in pursuance of the impugned order

of the worthy Chief Justice need to be protected

and preserved for public confidence, unless dealt

with otherwise in accordance with law, on the

principles of ‘closed and past transactions’ and

the doctrine of “de-facto exercise of power by a

holder of Public office”, as has been rendered

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earlier in various authoritative decisions of the

Supreme Court in Tika Iqbal Muhammad

Khan’s case (PLD 2008 SC 615), Zafar Ali

Shah’s case (PLD 2000 SC 869), Rehmatullah

and othrs-Vs-Saleh Khan and others (2007

SCMR 729), Jusrtice Khurshid Anwar Bhinder

and others-Federation of Pakistan and another

(PLD 2010 Supreme Court 483), Malik Asad

Ali and others-Vs-Federation of Pakistan

through Secretary, Law, Justice and

Parliament Affairs, Islamabad and others

(PLD 1998 Supreme Court 161), Mir

Muhammad Idris and oth3rs –vs-Federation of

Pakistan thrugh Secretary ministry of Finance

and others (PLD 2011 Supreme Court 213).

14. Before parting with the judgment, the

Tribunal is forced to register its anguish and to

note that the present appellants, despite requests,

had been denied the right to know or even view

the order of the Worthy Chief Justice dated

13.8.2009, which was the very basis of adversely

affecting their seniority. In fact, it took the Office

four long years to place the same before this

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Tribunal and that too with the prayer to maintain

its confidentiality. Even the written comments

filed on behalf of the worthy Registrar of the

Peshawar High Court were not helpful; as the

same were very vague, scanty and evasive, to say

the least. In addition to the above, serious

objection was raised by some of the appellants,

regarding the “conflict of interest” of the Judicial

Officers, who represented Registrar in the present

appeals before the Tribunal. With utmost respect

and due deference to the worthy Chief Justice and

the other Members of the Administration

Committee, it is earnestly urged to take remedial

measures to ensure that such discouraging actions

and inactions, as stated hereinabove, are not

repeated by the Office in any future proceedings

before the Tribunal.

15. Accordingly, for the reasons stated

hereinabove, this Tribunal partially accepts the

present appeals in terms that;

i) Declare and hold that the order of the worthy Chief Justice Peshawar High Court dated 13.8.2009 is beyond the jurisdiction of its maker and hence is of no legal effect;

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ii) Declare and hold that all actions and orders

taken in pursuance of the impugned order passed by the worthy Chief Justice dated 13.8.2009 affecting the terms and conditions of service of the parties before us are also declared without lawful authority and hence of no legal effect;

iii) Declare and hold that all judicial orders

passed by the respondents during the interim period are protected under the principle of past and closed transaction and doctrine of de-facto exercise of authority of holder of Public office;

iv) Declare and hold that the Joint

Representation of the M/S Jehanzeb and Shoaib Khan, Additional District and Sessions Judges, is deemed pending before the Administrative Committee of the Peshawar High Court; and

V) Direct the Office to immediately place the

present judgment and the Joint Representation of M/S Jehanzeb Khan and Shoaib Khan, Additional District and Sessions Judges before the worthy Administrative Committee of the Peshawar High Court for its consideration and decision.

Announced on: 26th August, 2013 CHAIRMAN

MEMBER