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Case No. 624/2015 of 1982, decided on 26th November, 1983.

---S. 2 (1) (b) read with Constitution of Pakistan (1973), Arts. 203 & 240 and Punjab Service Tribunals Act (IX of 1974), S. 4-Powers of High Court under Art. 203 of Constitution of Pakistan mainly relate0 to control of subordinate judiciary vis-a-vis their judicial functions00 Such powers do not mean that action taken by High Court against judicial Officers for misconduct would not be challengeable before a forum provided by Constitution--Civil Judges and District and Sessions Judges-Civil servants-Entitled to file appeal before Service Tribunal with regard to their terms and conditions of service Rules and instructions concerning terms and conditions of service are sub‑constitutional arrangements made under various enactments deriving powers from Art 240 of Constitution of Pakistan (1973) so Art 203 is subordinate to Art. 240 and not independent "Recording A. C. Rs. of Judicial Officers by High Court, communication of orders, remarks and representations for expunction thereof‑Very much matters governed by terms and conditions of their service hence within jurisdiction of Service Tribunal ‑‑ Contention that remarks recorded by High Court against a Judicial Officer do not form part of terms and conditions of service as same are recorded by High Court in discharge of its Constitutional obligation of supervising subordinate judiciary under Art. 203 and Art. 203 is not subordinate to Art. 240 which provides for framing of laws and rules governing terms and conditions of service of a civil servant qua Judicial Officers subordinate to High Court and recording of A. C. R. does not form part of terms and conditions of service of Judicial Officers as such Service Tribunal has no jurisdiction to interfere in rejection of representation for expunction of adverse remarks against a judicial Officer‑Rejected.

Muhammad Siddiq v. Syed All Shah P L D 1976 Lah. 293 ; Kazi Muhammad Hussain v. Province of Punjab P L D 1983 S C 126 ; Mst. Farida Parveen v. Qadeeruddin Ahmad Siddiqi P L D 1971 Kar. 118; P L D 1970 Pesh. 169 ; Mst. Gaman v. Taj Dirt P L D 1968 Lah. 987 ; P L D 1972 Kar. 164 and 1981 S C M R 392 rel.

Asmat Kamal for Appellant

A. G. Humayun, District Attorney for Respondent No. 1.

Sh. Riaz Ahmad, A.‑G. and Malik Azam Rasool for Respondent No. 2,

Date of hearing : 26th April, 1983.

‑Ihsanul Haq Sethi, Presiding Officer, Punjab Labour Court No. 1; has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, for expunction of adverse report for the period from 1st January, 1981 to 9th June, 1981, so brought on his A. C. R. by the Lahore High Court. The appellant has impleaded the Government of the Punjab through its Chief Secretary, Civil Secretariat, Lahore and Lahore High Court Lahore, through Registrar, as respondents.

2. By virtue of this appeal he has prayed that the impugned adverse report be expunged.

3. Brief facts of the case are that the Lahore High Court recorded adverse remarks in his A. C. R. for the period, Ist January, 1981 to 9th June, 1981, as under "Lacks tact to handle his subordinates."

The appellant made a representation to the Lahore High Court as well as his Excellency the Governor of the Punjab. As no reply to his represen tation was received by him be agitated for the same and it was only that the Registrar, Lahore High Court, who informed the appellant, that the matter was still under consideration. As a period of 90 days had expired and his representation stood undisposed of, he has filed this appeal before this Tribunal.

4. It may be useful to mention here that Mr. Ihsanul Haq Sethi also filed an appeal before this Tribunal under section 4 of the Punjab Service Tribunal Act, 1974, against adverse remarks, which were given to him by the Lahore High Court for the year 1980 and the same were communicated to him by the Registrar of the Lahore High Court, vide No. 509/R H C, dated 9th September, 1981. On representation by the appellant, it was observed by the Hon'ble Judges that the remarks were not adverse but were advisory in nature. However, the appellant took exception to this observa tion so communicated to him on behalf of the High Court by the Registrar of the said Court and filed appeal for getting the said remarks taken of from the Character Roll of the appellant. This Tribunal vide its Judgment, dated 18th October, 1982 accepted the appeal and directed the said adverse remarks be expunged from the Character Roll of the appellant. Aggrieved against this order of the Tribunal, the Lahore High Court has filed an appeal before the Supreme Court of Pakistan which is still sub judice. In this context, it may be mentioned that when the Lahore High Court was called upon to make its comments against the said appeal of the present appellant, the High Court did not raise any objection to the jurisdiction of this Tribunal but failed to provide its comments for due consideration.

However, in this appeal so before us, when called upon to , comment on the merits of the appeal so filed by the appellant, the Lahore High Court has raised the following preliminary objection :‑

"That an appeal to this Hon'ble Tribunal by a civil servant can be filed under section 4 of the Service Tribunals Act, 1974, against an order pertaining to the terms and conditions of his service. The remarks recorded against a Judicial Officer by the High Court do not form part of the terms and conditions of services of a Judicial Officer. These remarks are recorded by the High Court in discharge of its Constitu tional obligation of supervising the subordinate judicially under Article 203 of the Constitution. Article 203 of the Constitution is not in any way subject to Article 240 of the Constitution which provides for the framing of laws and rules governing the terms and conditions of a civil servant qua the Judicial Officer subordinate to the High Court. The recording of Annual Confidential Report does not form part of the terms and conditions of the service of Judicial Officer and, therefore, this Hon'ble Tribunal has no jurisdic tion in the matter."

5. As the Lahore High Court has declined to argue about the merits of the appeal so before us, we are required to determine the validity of the preliminary objection so raised by the Lahore High Court in this case.

In this respect we have heard the parties at length and have perused the entire case law so quoted from either side. It will be useful to reproduce Article 203 as well as Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973:‑‑

"203‑‑High Court to superintend subordinate Courts.‑Each High Court shall supervise and control all courts subordinate to it."

240‑Appointments to service of Pak15Ian and Condition of service Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined‑

(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All‑Pakistan Services, by or under Act of Parliament ; and

(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.

Explanation.‑In this Article, "All‑Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which maw be created by Act of Parliament."

6. With regard to the interpretation of Article 203 of the Constitution of 1973, there is ample case law before us which could settle this controversy. Moreover, a very useful contribution has been made by the author of the Constitution of the Islamic Republic of Pakistan ex‑Chief Justice of Pakistan late Justice Muhammad Munir in his commentary on Article 203, as well as in the judgment given by late Mr. Justice Karam Elahi Chohan in case of Muhammad Siddiq v. Syed A1i Shah (P L D 1976 Lah. 293). We have also before us the latest pronouncement of the Supreme Court of Pakistan in case of Nazi Muhammad Hussain v. Province of Punjab (P L D 1.983 S .C 126). Late Chief Justice Mr. Muhammad Munir has commented, that "Article 203 confers on High Courts an addi tional Constitutional jurisdiction inasmuch as it makes it the responsibility of the High Court to supervise and control the subordinate Courts. The power conferred is a general power and includes the power to control all subordinate Courts administratively as well as judicially. The terms under which the power is given being stronger than those of section 107 of the Government of India Act, 1935, inasmuch as they are not subject to the limitation that was introduced by subsection (2) of section 224 of that Act, entitle the High Court to correct or revise all proceedings orders and judgments of subordinate Courts. The power is unlimited, but its exercise will have to be regulated by the High Court itself. It will certainly extend to cases where it was exercised under section 107 of the Government of India Act, 1935, and will probably be used to keep the subordinate Courts within the limits of their jurisdiction and to make them conform to the rules applicable to the proceedings before them." Nowhere it has been said by the learned Commentator that Article 203 envisages the powers of the High Court either to deal its subordinates independently under the Efficiency and Discipline Rules and Civil Servants Act, 1974, by taking action against them at their own level, either punishing them or removing them from service, and the said act would attain finality for all purposes.

7. Interpretation of Article 102 of the Constitution of 1962 (which corresponds Article 203 of the present Constitution of 1973), came before the learned Judges in case Mst. Farida Parveen v. Qadeeruddin Ahmad Siddiq (P L D 1971 liar. 118) before Mr. Justice Muhammad Halim, now adorning seat of Chief Justice of Supreme Court of Pakistan, The learncd Judge observed ,that words "Supervise and control". To be interpreted in literal sense. High Court is empowered to exercise judicial control over decisions of subordinate Courts. However, such control is limited to correction of exercise of jurisdiction or non‑compliance of any statutory provision or law and does not extend to interfer ence on merits if subordinate Court acted within its bounds. We haze carefully with respect perused the entire judgment of the learned Judge and do not find anywhere and observation which may persuade us that the interpretation of Article 102 of 1962 Constitution (Article 203 of the Cons titution of 1973), gave any indication that the powers of Superintendence and control of the High Court was beyond the exercise of Judicial control over the decision of Subordinate Courts. All what has been said is that under the said Article, the High Court was within its powers to keep watch over the conduct of their subordinates Courts to see that they did not act against the established Law or procedure .so laid down in this behalf but at the same time did not permit to interfere with the judicial decision which they had given according to the law and according to their independent application of mind.

8. In P L D 1.970 Pesh. 169, similar question came before Mr. Justice Qadeeruddin Ahmad and Mr. Justice Nasim Hasan Shah now eminent Judge of the Supreme Court of Pakistan, and the learned judges held that supervisory jurisdiction of High Court does not make High Court a Court of appeal or revision for providing relief to any party and it was simply meant for keeping administration of justice pure and not to help any party.

This power so conferred under Article 102 of 1962 Constitution (correspond ing Article 203 of the Constitution of 1973), mainly relates to the control of subordinate judiciary vis‑a‑vis their judicial function to see that the said Judicial Officers performed their duties strictly according to the provision of Law and do not act in a manner which would create a feeling among the parties that the orders being passed arbitrarily to the detriment of the one or the other. In this manner the High Court was empowered to keep strict vigilance over its subordinates to keep the stream of justice unpolluted, fresh and clean. In this judgment we do not find any reference to the powers of the High Court under the said Article, to deal with their subordinates, in cases where they found that they have committed such acts, which attracted the penalty under the Efficiency and Discipline Rules or Punjab Civil Servants Act, 1974 and that the action so taken against them by th High Court would not be challengable before any forum so provided by the Constitution of this country. Late Justice Karam Elahi Chohan has also given similar pronouncement in case Mst. Gaman v. Tai Din (P L D 1968 Lah. 987), which we have discussed above. In P L D 1972 Kar 164, their Lordships of the Sind High Court, found as under: ‑

"Interpretation of provision‑Article 102 merely empowers High Court to supervise and control Courts subordinate to it in order to guide, check and encourage them to act and conduct themselves rightly as Courts‑Orders and judgments of lower Court could not be interfered with in respect of merits of cases and powers of hearing appeals and revisions are creation of law and such powers,

where not created, cannot and should not be exercised in order to give relief to aggrieved party by way of supervision and control of subordinate Courts."

In case of Qazi Muhammad Hussain, what we find is that this officer who was holding the post of Additional District and Sessions Judge, was found to have committed certain lapses which amounted to misconduct during the performance of his duties as a Judicial Officer and the High Court took a notice of the same. The High Court moved the Punjab Government against this officer and after obtaining the orders from the competent authority (Governor) a formal charge‑sheet alongwith statement of allega tions duly signed by the Chief Secretary, was set down and by a notifica tion, dated 26th August, 1974, learned Judge of the High Court was appoin ted as Authorised Officer. There was also substitution of the Enquiry Officer by another notification dated 28th November, 1974. The Enquiry Officer completed the enquiry and made recommendations for major penalty to the Authorised Officer and ultimately the matter was put upto the competent authority (Governor) who after hearing the said Additional District and Sessions Judge found him guilty of the charges and dismissed him from service under the Efficiency and Discipline Rules, 1960. The said officer filed appeal against the order of the Governor before this Tribunal under section 4 of the Service Tribunals Act. He impleaded the High Court Lahore as a necessary party alongwith Government of the Punjab and the High Court submitted comments and ultimately the case was decided against the said officer and the order of the Government of Punjab was upheld. The said officer filed appeal before the Supreme Court of Pakistan which was pleased to uphold the order of this Tribunal, vide its judgment, dated 1st November, 1982, and in the said judgment their Lordships of the Supreme Court of Pakistan repelled the argument advanced on behalf of the appellant that High Court could only take action against him for its contempt when it was found that he was not observing Rules and service discipline by holding as under :‑

"where what is found is something having the appearance of indiscipline the powers of superintendence vested in the High Court are quite sufficient to enable restoration of a proper state of affairs, without recourse to the severe process of contempt."

"It was further observed that by . an amendment in the year 1963 W. P. Statutes, (p. 400) another misconduct was added in Rule 3 of the Efficiency and Discipline Rules and it was of "reputa tion for being corrupt." thus endorsed the action taken by the High Court against the said officer under the E & D Rules.

9. The ratio decidendi of the entire case law on the interpretation of Article 203 of the Constitution of 1973, would clearly reveal that the I powers conferred on the High Court under the said Article, was only to control of day‑to‑day working and to correct and revise all proceedings, orders and judgments of the said Courts subordinate to the High Court, and nothing beyond that and a case also hold it accordingly.

10. While disposing of the said controversy with regard to the inter pretation of superintendence and control as given in Article 203 of the Constitution of 1973, we will now proceed to examine Article 240 of the said Constitution. This Article has been reproduced in the earlier part of our judgment. Under the said Article, the Punjab Civil Servants Act, 1974, was promulgated. In the preamble of the said Act it was stated as under :‑

"Whereas it is expedient to regulate by law the appointment to and the terms and conditions of the services of the Punjab and to provide for matters connected therewith or ancillary thereto.

"Section ‑I (2). It applies to all civil servants, wherever they may be. In section 2 (i) (b) it defines term civil servant and does not exclude the Judicial Officer from it. Section 3 deals with terms and condi tions and sections 7 and 8 deal with seniority and promotion. Section 14 deals with conduct to be regulated by law and rules prescribed and section 15 deals with Efficiency and Discipline and according to this section, a civil servant shall be liable to such discip linary actions, penalties and in accordance with such procedure as may be prescribed."

Under this Act, Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, were enforced from 12th March, 1975. We further take notice of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and would refer to rule 6, which deals with the authorities com petent to make appointments to various grades‑Grade‑16 and above appointing authority "Government" (District Judges are above Grade‑16). The Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, apply to all civil servants except members of such services and holders of such posts as may be specified by Government.

11. In context of what we have quoted above, a reference to the Civil Courts Ordinance II of 1962, would be important. According to section 3 of the said Ordinance, various classes of Courts had been mentioned. section 5 clearly lays down that District Judges will be appointed by the Government in consultation with the High Court. Section 6 deals with appointment of Additional District Judges by the Government. Section 8 deals with appointment of Civil Judges that too by the Government in consultation with the High Court. Section 14 of the said Ordinance, deals with the control of Courts of Presiding Officers. It has been laid down as under :‑

"All civil Courts in the areas in which this Ordinance extends shall be subordinate to the High Court and subject to the general superinten dence and control of High Court and District Judge shall have control over all civil Courts within the local limits of his jurisdiction."

Section 14 (2) permits the High Court to make postings of the Judges sub ordinate to it.

All this would mean that the High Court is exercising powers under an enactment and not independently to any law enacted by the Government legislature. If the plea of the learned Advocate‑General is admitted as it is, that the District Judges will also have independent jurisdiction on all civil Courts, which is not the intention of the legislature. In this context, exami nation of the Civil Service (Judicial Branch) Rules of 1962, would also be more useful. According to section 3 it has been laid down that the service shall comprise of posts of Civil Judges and such other posts as may be determined by Government. Rule 4 provides appointing authority‑ appointments to the service shall be made by the Government. Rule 11 provides that Members of the service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applica ble to them. The perusal of the aforesaid provisions would clearly show that appointments and terms and. conditions of service as specified above, have to be made by the appropriate Government of the Province. The Punjab Service Tribunal came into existence under Article 212 of the Constitution of 1973, in the year 1974. Section 1 (3) says that it applies to all civil servants wherever they may be Section 4 deals with appeals of Tribunals. Any civil servant aggrieved by the final order may prefer an appeal to the Tribunal. In the Casual Leave Rules appendix 18, list of Government servants includes Judges and their establishment. With this set up under the law, we have no hesitation to hold that Civil Judges and Sessions Judges would be civil servants and would be very much entitled‑' to file appeals before this Tribunal with regard to their terms and conditions of service. We have no doubt in our minds that if we hold that a Civil Judge/District and Sessions Judges are not civil servants, this will lead to chaos that such an important as well as vast class of service, would be unable to draw their salaries from the Public Exchequer, which is only available to civil servants and none else. However, there is still another issue to resolve and that is, whether the recording of A. C. Rs., their communication to the officers concerned, entertainment of representa tions against the adverse remarks and their expunction are matters, governed by the terms and conditions of the service or not. In this respect we may mention that this Tribunal refused to entertain the appeal of "Ahmad Kamaluddin" a civil servant against the expunction of his adverse remarks when he came before this Tribunal. This civil servant filed an appeal against the judgment of this Tribunal before the Supreme Court of Pakistan and this controversy was set at rest by their Lordships of the Supreme Court of Pakistan, Mr. Justice Mushtaq Hussain and Mr. Justice Shafiur Rahman in their judgment reported as 1981 S C M R 392, In para. 5 of the said judgment, it was observed as under :‑

"(5) The recording of the annual confidential remarks, their communica tion to the officer concerned, entertainment of representation against adverse remarks and their expunction are all matters governed by detailed instructions of the Government. They can be made the basis for departmental and disciplinary action against an official. These reports make up the service record of the officer concerned. Such record is consulted and heavily relied upon for determining the suitability for promotion, posting and disciplinary action. The Civil Servants Act while enumerating the terms and condi tions by subsection (2) of section 23 provides that any rules, orders or instructions in respect; of any terms and conditions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commence ment of the Act, shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." On the strength of this provision the instructions with regard to the recording of the remarks their communication and expunction would have the status of rules made under the Civil Servants Act and would be determina tive of the terms and conditions of service. The recording of the remarks is indeed within the exclusive competence of the superior officers but to say that such a record is immune from review or reconsideration would defeat the very provisions made which provide for representation and their expunction in certain situations. These remarks are review-able under the rules applicable to their recording and an appeal to the Service Tribunal will lie in appro priate cases."

The stand of the Lahore High Court that the Judicial Officers are not civil servants vis‑a‑vis writing of A. C. Rs. has already been repelled by us by detailed reasons given in the earlier part of our judgment. However to elaborate further inherent weakness of this stand, we would now refer to O & M Establishment Vol. I (Revised) edition 1974, which has been issued by the Services, General Administration and Information Department, Government of the Punjab, a letter No. S (R) 3542/4‑8/65‑SOXIII, dated 12th February, 1968, had been addressed by the Chief Secretary to Government of West Pakistan, Lahore, to all the Administrative Secretaries to Government, Ail Heads of Attached Departments and All Commissioners of Divisions, Deputy Commissioners etc. including the Registrar/Additional Registrar of the High Court of West Pakistan. Para. 3 of the letter deals with the writing of Confidential Reports and the reports of all such officers. under the administrative control of the Government are required to be furnished to the Chief Secretary with the exception of Judges of the High Court. Instruction 1 o. 43 of the said letter deals with the representation about expunction of adverse remarks made through proper channel to the competent authority laid down in the Delegation of Powers, Col. 7 of Appendix I. In this chapter, details have been given how the Reports are initiated, countersigned and under what manner, t hey would be communicated and expunged. In Col. 3, sub‑clause (vii) Sessions Judge, the Initiating Authority is High Court and it has to be countersigned by the High Court and the authority for communication of adverse remarks is Chief Secretary and authority of expunction of adverse report is Governor (page 368 of the O & M Manual Vol. I (Revised)). Appendix I is also being used by the High Court for writing of A. C. Rs. but the same is issued by the Government, and ever, the Form of Confidential Reports are supplied by the Government to the Registrar of High Court to show that ultimated authority in this respect would be the Governor. In this connection we will also point out letter No. 605/RHC, dated 27th September, 1981 filed by the appellant and placed on record at Annexure C‑1 addressed by Malik Lehrasap Khan, Registrar, Lahore High Court, Lahore, to the appellant, subject being the communication of adverse remarks. In this letter, it has been clearly stated that the adverse remarks recorded in his A.C.R. have been so made under the Government's instructions. In this manner the High Court has all along conceded the supremacy of the appointing authority/Governor vis‑a‑vis Judicial Officers over which the High Court has supervisory control. With this analysis of the case, the stand of the learned Advocate‑General is absolutely with out any foundation that in the matters of A. C. Rs. pertaining to the Judicial Officers, this Tribunal has no power to entertain appeal(s) under section 4 of the Punjab Service Tribunals Act, 1974. When under the Act this Tribunal is duly empowered to hear appeals against the final order of the competent authority of a civil servant how it can be said that it is debarred to entertain a. grievance of a Judicial Officer who, for all purposes and intents, is a civil servant, so made by him with regard to the recording adverse remarks in his A. C. R. by the High Court. We are of the considered opinion that Rules and Instructions concerning terms and conditions are under the sub‑constitutional arrangement made under various enactments which have been promulgated and issue depriving powers from Article 240, so Article 203 is subordinate to Article 240 and not independent.

12. Before entering into the merits of the appeal of the appellant before us, our conclusion with regard to the points raised by the High Court and resisted by the appellant, would be applicable to all the cases of the Judicial Officers which are pending before us and have not yet been disposed of because this issue had yet to be decided.

13. As we have already repelled the preliminary objections so raised by the High Court in the case of the appellant, therefore, we now proceed with the merits of the case.

14. During the pendency of this appeal, we have received a letter from the Registrar, Lahore High Court addressed to the Registrar of Punjab Service Tribunal, Lahore dated 16th August, 1983, in which it has been clearly mentioned that the adverse remarks under appeal pertaining to the period from 1st January, 1981 to 9th June 1981, have been expunged after considering the representation of Officer. The appellant who is probably before us in person and was confronted with this situation, sub mitted that in fact this is a mala fide act of the High Court by keeping the remarks alive till his juniors were promoted as Judges of the High Court and has vehemently argued that this Tribunal may hold that actually the act of the High Court i4 colourful act, purposely done to deprive the appellant from promotion.

15. We are afraid we cannot go into this controversy as there is noth ing on the record to lay foundation for the same. Mere oral assertion by the appellant has in no way advanced his case vis‑a‑vis the averment made in this respect. As the appeal has become infructuous we, dispose of the same accordingly. However, there will be no order as to costs.

Appeal disposed of as infructuous.

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