1

Stereo. H C J D A 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
JUDICIAL DEPARTMENT

W.P.No.8048 of 2021.

Ali Sher Khan Vs District & Sessions Judge,

Multan and others

JUDGMENT
Date of hearing 03.06.2021

Petitioner by: Chaudhary Muhammad Khalid

Mehmood, Advocate.
Respondents by: Malik Shaukat Mehmood Marha,
Assistant Advocate General, Punjab
assisted by Abdul Qayyum, Staff Officer,
Faisal Shahid, English Clerk and Altaf
Hussain Bhatti, ACOC, office of District
& Sessions Judge, Multan.

Shahid Jamil Khan, J:- Petitioners (in captioned and connected petition;
W.P.No.8049 of 2021) have challenged appointments, on various
posts, by District and Sessions Judge Multan, alleging
illegalities in procedure, lack of transparency and favoritism.

Directions were given, in earlier Petitions, for decision

on representations, highlighting the grievance ibid. Orders dated
21.04.2021 passed in compliance are assailed, rejecting the
allegations and petitioners’ claim for appointment.

2. Facts: briefly are that advertisement for the posts: of

Junior Clerk (BS-11), Process Server (BS-07), Driver (BS-05),
Naib Qasid (BS-03) and Watchman (Chowkidar) (BS-03), were
published on 19.01.2021 (‘Dunya News’), 20.01.2021 (‘The
Nation’) and 23.01.2021 (‘Khabrain & Express Multan’). Except for

the posts of Watchman (Chowkidar), the procedure for

appointment on all other posts was through written test and
interviews.
W.P.No.8048/2021 2

The irregularities, voiced through these petitions relate

to scrutiny of applications, conduct/result of written test and call
for interview. The legal defect, as pointed out, is that the
impugned appointments (excluding the posts of Driver) are in excess of
the number of posts advertised.

3. Learned counsel for the petitioners submitted that the

impugned orders, passed on direction by this Court, are silent
about the irregularities pointed out in the representation, being
decided by discussing, only, merits of the petitioners’ case.

Arguing on absence of transparency and irregularities;

he submitted that written tests, for all the posts (excluding

Chowkidar/Watchman), were conducted on 18.02.2021 and result was

declared on the same date, which raised reasonable suspicion on
transparency of the process. Contended that the result in written
test, of the candidates for all posts, ibid, could not possibly be
prepared manually and declared on same day. He informed that
the result of successful candidates was in order of their serial
numbers, appearing in the list of the candidates called for
written test, after scrutiny of the applications. Contended; it was
not practically possible that the candidates, qualifying written
test, secured marks in line with their assigned serial numbers.
His next contention was that successful candidates, reflecting at
Sr.No.2, 20, 25, 26 and 27 never appeared in the written test but
their names were shown in the list of candidates called for
interviews. By referring to the number of advertised posts and
appointments made, he challenged the validity of the
recruitment process, contending it to be in violation of
mandatory rules.

4. In response to the notice, Mr. Abdul Qayyum (Staff

Officer), Faisal Shahid (English Clerk) and Altaf Hussain Bhatti
(ACOC) from the office of District & Sessions Judge, Multan
appeared along with record.
W.P.No.8048/2021 3

Responding to the arguments on lack of transparency and

irregularities, it was not denied that the list of candidates,
declared successful in written tests, was as per their serial
numbers, in the list for written tests. However, explained that
merit wise list was available, but never displayed on website.
Mr. Faisal Shahid, English Clerk being part of the process, could
not deny that candidates at Serial Nos.2, 20, 25, 26 and 27, were
never shown in the list of successful candidates in written test,
however, explained that name of the above noted candidates
were included in the revised list after removing objections on
their applications during initial scrutiny, which was displayed
on the website on 15.02.2021. On Courts’ query, he apprised
that none of the lists is available now on the website. He could
also not explain how, in presence of objection on application, a
person could be allowed to appear in interview, and that too
without reflecting his name in the list of candidates, who passed
written test.

Learned counsel for the petitioners, in rebuttal, has

referred to list dated 18.02.2021 (Annex-K) of successful
candidates in written test, wherein name of above noted persons
are not mentioned.

5. Responding to the appointments in excess of the

advertised posts, it is apprised that appointment against 27 posts
of Drivers (BS-05) were in accordance with the advertisement.
However, it is admitted that appointments in rest of the
categories are in excess of the posts, advertised in newspapers,
detail of which is as under:-

• 34 posts of Junior Clerk (BS-11) were advertised, whereas

appointments are made against 86 posts.

• 27 posts of Process Server (BS-07) were advertised, whereas

appointments of 57 posts have been made.

• 22 posts of Naib Qasid (BS-03) were advertised, whereas

appointments were made against 65 posts.
W.P.No.8048/2021 4

• 04 posts of Chowkidar (BS-03) were advertised, whereas

appointments were made against 12 posts.

On Court’s query, it was explained that the posts were

enhanced, during recruitment process, vide Notification dated
08.02.2021, which were included in the same process without
fresh publication. The Notification is reproduced:

“LAHORE HIGH COURT, LAHORE

ORDER

In exercise of powers conferred vide sub para (iii) of the

Government of the Punjab, Finance Department’s Notification
No.Judl-1-X (Home)/89, dated 8.10.1995, the Hon’ble Chief Justice
has been pleased to accord sanction to the creation of following 100
new posts in respect of Sessions & Civil Courts, Multan as per details
given below, with immediate effect.

Sessions Courts:-
Sr. No. Description BPS No. of Posts.
1. Junior Clerk 11 34
2. Watchman 03 08
3. Naib Qasid 03 28
Total 70

Civil Courts:-
Sr. No. Description BPS No. of Posts.
1. Process Server 07 30
Total 30

2. The expenditure involved will be met out of the existing

budget grant under function No.PC21011- Administration of
Justice-031101-Courts/Justice-LQ4114-Sessions -Court-MN4013-S
ession Court Multan & LQ4115-Civil Court-MN4015-Civil Court,
Multan for the current financial year, 2020-21.

(ATA UR REHMAN)
Deputy Registrar (P&B)
for Registrar

6. Respondents were confronted to show any direction or

instruction, in the Notification or otherwise, from Lahore High
Court to include the enhanced posts in the same process, but
they failed. Learned AAG, assisted by the Staff Officer and
others were asked to assist, by referring to any rule or law,
which permits for appointments against enhanced posts in the
recruitment process already initiated, without fresh
advertisement, they could not refer to any provision.
On Court’s query, learned AAG submits that
recruitments are made under Recruitment Policy, 2004 dated
W.P.No.8048/2021 5

17.09.2004 (“Policy of 2004”). In support, he has read

instructions letter dated 27.07.2011, issued by the Additional
Registrar (G&S), Lahore High Court, Lahore, which made
Policy of 2004 applicable for appointment in Lower Judiciary
from BS-01 to BS-16.

7. Arguments heard; perusal of the record and statements

from respondents’ side leaves no doubt that the process of
appointments in question was not transparent and full of
irregularities.
Transparency is a condition of seeing through, like from
glass, into the process of recruitment. It stems from Article 19A
of the Constitution of the Islamic Republic of Pakistan, 1973
(“the Constitution), which ensures fundamental right of
“access to information in all matters of public importance.”
Transparency is a tool; not only for ensuring but for showing
that the procedure adopted is unbiased, provides equality of
status and opportunity to each eligible candidate, for achieving
the goal of recruiting the most suitable person. As the famous
aphorism of Lord Hewart goes, “justice should not only be
done, but should manifestly and undoubtedly be seen to be
done.” The philosophy underlying manifestation and
transparency is to maintain confidence of general public in the
system. Selection and appointment of “Right person for right
job” is the bedrock of ‘Social Justice’. As preamble of the
Constitution, reveals that vision of Quaid-e-Azam
Mohammad Ali Jinnah was ‘a democratic State based on
Islamic Principles of Social Justice’. It envisions to guarantee
fundamental right including equality of opportunity. And when
it comes to an institution like judiciary, the standards of
transparency, to ensure fairness through unbiased treatment for
all candidates should be unmatched and unflinching.

8. The respondent No.1(District & Sessions Judge Multan); being

Appointing Authority under The Punjab Civil and Sessions
W.P.No.8048/2021 6

Court Establishment (Miscellaneous Post) Service Rules, 2005

(“Rules of 2005”), is the highest Judicial Officer of the district,
bestowed with duty to recruit against the posts in machinery of
judicial system. He was bound to follow and apply, stringently,
the instructions given by Lahore High Court through
Notification dated 27th of July, 2011, which is reproduced:

“LAHORE HIGH COURT, LAHORE

No.17540/6-E/VII.A.27
From
Atta-ur-Rehman
Additional Registrar (G&S),
Lahore High Court,
Lahore.
To
The District and Sessions Judges,
In Punjab, except Islamabad.

Dated Lahore, the 27 day of July, 2011.

Subject: RECRUITMENT OF STAFF.
Dear Sir,
I am directed to refer to the subject cited above and
to say that the Competent Authority has directed to circulate a
booklet (as enclosed herewith), well indexed comprising of
Recruitment Policy 2004, copies of letters regarding observance
of certain quotas in vacancies to be filled in and copies of
necessary directions/notifications/letters issued by Government of
the Punjab as well as of this Court on the subject to be taken into
account of recruitments of staff in every Sessions Division in
Punjab, except Islamabad, while also directing you as under:-

1. Henceforth the Recruitment Policy 2004 will be followed

out, in lower judiciary, while making fresh selections for the
posts in BS-01 to BS-16.

2. The applications to be considered under Rule 17-A of the

A&CS Rules 1974 will be disposed of separately before the
general recruitments, against available vacancies and shall
not be made a part of general recruitments.

3. Hence forth, the Reference for seeking approval to the

selections for different categories of posts shall not be sent
to this court in combined form rather the references regarding
each category of posts shall be made received in this court,
segregatedly.

4. Directions/instructions of Government of the Punjab as

well as of this Court shall be complied with in letter &
spirit and for deviations/evasions, to the instructions of
Government of the Punjab as well as of this Court, in addition
to the learned members of recruitment Committee,
Superintendent of respective learned District and Sessions
Judge and COC of the respective Senior Civil Judge as the
case may be shall also be held responsible.
W.P.No.8048/2021 7

5. To consider the district of domicile of a candidate, permanent

address shown in his CNIC, shall be taken as a yardstick for
the purpose.
6. All the recruitment records (only duplicate copies) properly
indexed, shall be sent to this Court through special
messengers, except the papers and applications of
candidates which will be made received in this Court in the
shape of small sized bundles, having serial wise specific
number of the same, duly mentioned in the index attached,
alongwith main reference.

Yours faithfully,

(Atta-ur-Rehman)
Additional Registrar(G&S)”

Recruitment Policy, 2004, issued by Government of the

Punjab on 17.09.2004, was directed to be followed, besides
implementing instructions and letters (part of the Booklet). The
clause (4) renders compliance of the directions, under the
Notification, as mandatory, because consequence of any
deviation is fixation of responsibility, followed by an action.
Needless to say, that any deviation from the mandatory
direction, instruction including Recruitment Policy 2004, would
go to the roots of the recruitment process in question.

9. The Recruitment Policy of 2004, under the heading

LEGAL POSITION, refers to various provisions of law, relevant

for recruitments, and its clause (v) mentions Rule 17 of The

Punjab Civil Servants (Appointment and Conditions of Service)
Rules, 1974 (“Rules of 1974”) to ensure that initial
recruitments, against all posts in BS-1 and above, are made on
merits (after examination or test). The Policy, under the head MERIT
BASED RECRUITMENT, requires advertisement of All Posts and

recruitment strictly on merits. The head STEPS OF RECRUITMENT

PROCESS, reiterates that recruitment should be strictly on the basis

of merit/selection criteria and ensures that “recruitment is made

against clear-cut vacancies”. The Rule 17 and excerpts from the

Policy of 2004 are reproduced for facility:-

“Rule 17. Initial appointments to all posts in Grade I and

above except those filled under rule 16, shall be made
W.P.No.8048/2021 8

on the basis of examination or test to be held by the

appropriate Committee or the Board, as the case may
be, after advertisement of the vacancies in
newspapers, or in the manner to be determined by the
Government.”

“4. LEGAL POSITION

v). Rule 17 of the Punjab Civil Servants (Appointment

and Conditions of Service) Rules, 1974 requires that
initial recruitment against all posts in BS-1 and above
shall be made on merit after advertisement of
vacancies in newspapers.”

“8. MERIT BASED RECRUITMENT

a) All posts shall be advertised properly in at least two

leading newspapers, as per rules.
b) No relaxation of qualification, experience, physical
criteria etc. as provided in the relevant service rules
shall be allowed, except as prescribed under the
rules.
c) The relevant Selection Committees shall ensure that
recruitments are made strictly on merit and in
accordance with the rules, selection criteria and
other provisions of this policy.

13. STEPS OF RECRUITMENT PROCESS

i) Administrative Secretary and the Appointing

Authority shall periodically update the detail of
available vacancies, especially prior to
recruitment and ensure that recruitment is made
against clear-cut vacancies, after accounting
for vacancies occurring due to leave deputation
etc.
ii) Before advertising the posts, it shall be ensured
that there is no bar on recruitment and
recruitments shall be made only against posts
for which specific approval has been granted
either under the Recruitment Policy or by the
Chief Minister.
iii) Appointing Authority shall advertise the posts
in at least two national dailies indicating the
qualification, etc. as prescribed in the Service
Rules of the post.
iv) At least 15 days’ time, from the date of
advertisement, shall be given for submission of
applications.
v) After detailed scrutiny of the applications, the
eligible candidates shall be issued call letters for
test/interview, as the case may be.
vi) The relevant Selection Committee shall conduct
test/interview and recommend suitable
candidates for appointment, strictly on the
basis of merit/selection criteria, to the
appointing authority.
W.P.No.8048/2021 9

vii) The Appointing Authority, shall issue offer of

appointments to the candidates recommended
by the Selection Committee, clearly indicating
the terms and conditions of such appointment.
viii) The terms and conditions of contract
appointment must be prepared as per provisions
of Contract Appointment Policy and got
approved from Finance Department before
issuing offers of appointment.
ix) Appointing Authority shall issue
appointment/posting orders after the
acceptance of offer and after ensuring that all
the codal formalities have been fulfilled.
x) All the candidates shall be required to produce
National Identity Card, domicile certificate and
transcripts of qualifications, in original, at the
time of interview.
xi) The Selection Committee shall ensure that the
certificates/degrees of candidates are genuine
and have been obtained from recognized
institutions.”
[emphasis supplied]

Besides Notification dated 27.07.2011, by High Court,

usage of words like strictly and shall, in the Policy of 2004,
make implementation of the selection criteria mandatory i.e.,
advertisement of all and clear-cut vacancies followed by
written test and call for interview in fair and transparent
manner.
10. Admittedly, the posts enhanced through Notification
dated 18.02.2021, were included in the recruitment process,
without being advertised, therefore, mandatory requirements of
advertising ‘All Post’ and ‘Clear-cut Vacancies’ are not met.
This deficiency has rendered the whole recruitment process,
except 27 posts of drivers, as illegal and it is held accordingly.
The decision of declaring the whole process illegal is fortified
by the law laid down by August Supreme Court of Pakistan.
In Mst. Nusrat Fatima and others v. Deputy Director
(Admn.) Directorate of Elementary Education and others
(2005 SCMR 955), leave to appeal was refused against Service
Tribunal’s decision, by upholding its findings;

“4. …The Tribunal found from the record that no

advertisement had been made to the press
W.P.No.8048/2021 10

inviting applications for the posts and that the letters of

the appointment had been issued by the District
Education Officer from their residence and not by the
Deputy District Education Officer. …”

In Muhammad Sadiq and another v. Federal Service

Tribunal, Islamabad and others 2003 PLC (C.S.) 1029, the rule
requiring advertisement of the post was declared mandatory and
the appointments were declared illegal, despite a favorable
opinion by the Law Division and the practice of departing from
the rule for recruitments was deprecated as under:-

7. The appointments of the petitioners undeniably

were made in departure to the method for
appointment prescribed under Rule 11 of the Civil
Servants (Appointment, Promotion and Transfer)
Rules, 1973. Under the above rules, the post is
necessarily to be advertised in the newspaper
before initiating the process of selection
departure from this mandatory rule would
render the appointment invalid and the defect is
not automatically cured with the lapse of time.
Learned counsel submitted that the appointment of
Malik Azhar Mahmood, Stenotypist in identical
manner, was subsequently regularized and the
present petitioners despite the opinion of the Law.
Division in their favour, were discriminated. We are
afraid, the opinion of the Law Division would not
cure the illegality in the appointments made in
violation of rules and the same cannot be approved
and allowed to be perpetuated on the basis of a
favourable opinion of Law Division. The act of
making of the appointments in departure to the
rules amounts to defeat the equal right of
employment on merits, therefore, the appointments
obtained by the petitioners would not create any
right in their favour for regularization. The mere
passage of time would not be a ground to allow the
rectification of irregularity on the ground that the
appointees should not suffer for the fault of
concerned authorities. It is sad that the public
functionaries through misuse of their powers
without observing the rules make appointments to
oblige their favourites and deprive the deserving
persons from their legitimate right of service. We
may observe that a holder of public office by
misusing his authority in breach of law and public
trust, is guilty of misconduct. The Government while
taking notice, of such regularities should take
appropriate action against the concerned
authorities under the Government Servants
(Efficiency and Discipline) Rules, 1973 to ensure
W.P.No.8048/2021 11

the transparency in the appointments and to

eradicate the element of favouritism and nepotism
for advancement of policy of merits and fairness.

8. We having heard the learned counsel for the

parties, find no substance in these petitions and
while upholding the judgment of the Tribunal
dismiss these petitions with the observation that the
posts against which the petitioners were appointed
shall not be filled without following the prescribed
method provided under the rules and the petitioners
shall also be entitled for appointment subject to their
eligibility and merit. Leave is refused.
[emphasis supplied]

In Abdul Waheed and another v. Secretary, Ministry of

Culture, Sports, Tourism and Youth Affairs, Islamabad and
another (2002 SCMR 769), appointments by an Officiating
Director, working temporarily as Competent Authority, were
challenged. Though this objection was found without substance,
nevertheless, the appointments were declared illegal for not
following the prescribed procedure. Relevant part from the
judgment is reproduced;
“We have considered the contentions raised by
the learned counsel and found that same are
without any substance. We may observe that
despite there being no specific bar for exercise
of powers of Competent Authority by an
Officiating Director, still he would not be
supposed to exercise such powers of
appointment/promotion of the employees
without the proper sanction and allocation of
budget besides observing the prescribed
procedures including 'advertisement of the
posts in the newspaper. The appointments
made by the Officiating Director without
following the prescribed procedure would not
be legal and consequently the petitioners
would neither have any right to hold such
posts nor were entitled to the salaries and
other benefits attached with the said posts.
The Tribunal having considered all aspects of
the matter and the pleas taken on behalf of the
petitioners in the appeals, held that the orders
of appointments/promotion of the petitioners
were illegal and void ab initio. The learned
counsel for the petitioners has not been able to
convince us that the view taken by the Tribunal
was violative of any law to be interfered by
this Court. In any case, the submissions made
W.P.No.8048/2021 12

by the learned counsel have no substance and

further these petitions do not involve any
question of public importance. The same are,
therefore, dismissed and leave is refused.”
[emphasis supplied]

11. The law laid down by the Apex Court also justifies to
declare the appointments against the post of Drivers illegal as
well, because observance of the recruitment criteria under the
Notification dated 27th of July, 2011 and the Policy of 2004 is
lacking.
It is admitted by respondents, during proceedings, that
written tests were conducted and result was declared on the
same day, without showing fairness or transparency from the
record. List of the successful candidates was defective, for not
being displayed, physically or electronically, as per the
prescribed procedure. The candidates, shown as successful at
Sr.No.2, 20, 25, 26 and 27, admittedly were not declared
successful in the written test but their names were reflecting in
the list of candidates called for interviews.
For the reasons noted above, the whole process of
recruitment and consequent appointments, including the posts
of Drivers, are declared illegal, with a direction to initiate fresh
process, with approval of the High Court, after advertising all
clear-cut vacancies, strictly in accordance with the rules and
law.
12. There is another departure from the directions No. 3 and
6 of the Notification dated 27th of July, 2011, by the High Court;
which are reproduced, again, for facility;

3. Hence forth, the Reference for seeking approval to

the selections for different categories of posts shall not
be sent to this court in combined form rather the
references regarding each category of posts shall be
made received in this court, segregatedly.
7. All the recruitment records (only duplicate copies)
properly indexed, shall be sent to this Court through
special messengers, except the papers and applications
of candidates which will be made received in this Court
in the shape of small sized bundles, having serial wise
W.P.No.8048/2021 13

specific number of the same, duly mentioned in the

index attached, alongwith main reference.
[emphasis supplied]

It was necessary to seek approval of the process of

recruitment, before issuance of appointment letters and record
of all the recruitments was to be sent to the High Court.
On an information, sought from Senior Additional
Registrar (Services) of Lahore High Court, it is informed that
this requirement was dispensed with through Notification dated
19.06.2014, which is reproduced:

“LAHORE HIGH COURT, LAHORE

No.33/RHC
Dated: 19.06.2014
From
The Registrar,
Lahore High Court,
Lahore.
To
(i) All the District & Sessions Judges in the Punjab.
(ii) All the Senior Civil Judges in the Punjab.

Subject: POLICY ABOUT RECRUITMENT.

Dear Sir,
I have been directed to refer to above subject and to circulate
that the Hon’ble Competent Authority has taken a serious notice
of unnecessary delays and general complaints regarding
recruitment process of the staff of lower Courts Establishment. It
has been reiterated by the Hon’ble Authority that the District &
Sessions Judges and Senior Civil Judges being Competent
Authority to recruit the staff under relevant Policy/Rules are
also competent to take disciplinary actions under E&D Rules
1999, therefore, prior approval of advertisement alongwith
recruitment criteria followed by approval of recommendations of
Selection Committees from this Court is anomalous and uncalled
for.
2. In view of above, the circular letter No.509/RHC dated
17.07.2008 is hereby withdrawn and the recruitments for Lower
Courts Establishments shall no longer require prior approval of
this Court. Likewise, the recommendations of Selection
Committees alongwith relevant record of recruitment process shall
not be submitted in future for approval to this Court.
3. Consequently, the recommendations for recruitments yet to
be considered by this Court, shall be returned to the relevant
quarters for their final disposal under Recruitment Policy, 2004,
Civil & Sessions Courts Establishment (Misc.Posts) Service
Rules, 2005 and other relevant SORs issued from time to time.

(MAHBOOB QADIR SHAH)

REGISTRAR”
W.P.No.8048/2021 14

It is important to note that through this Notification,

Circular letter No.509/RHC dated 17.07.2008 was withdrawn,
without making any amendment in the Notification dated 27th
of July, 2011, which, in this Court’s opinion, still holds the field
and non-compliance of it, renders all the appointments as
illegal. For this departure alone, the appointment letters issued
without approval of the High Court are nullity in eye of law,
being against the spirit of Article 208 of the Constitution.

13. Under Article 208 of the Constitution, Lahore High

Court is empowered to make rules providing for the
appointments of the officers and servants of the Court including
their terms and conditions of the employment. Supervision and
control of all the Courts, subordinate to it, is given by the Article
203. Both the Articles are reproduced:-
“203. High Court to superintend subordinate Courts.
Each High Court shall supervise and control all
courts subordinate to it.”

“208. Officers and servants of Courts.

The Supreme Court [and the Federal Shariat
Court], with the approval of the President and a
High Court, with the approval of the Governor
concerned, may make rules providing for the
appointment by the Court of officers and servants
of the Court and for their terms and conditions of
employment.”
[emphasis supplied]

The supervision and control of the Courts subordinate to

the High Court, as ordained in the Article 203, could not be
abdicated, through Notification dated 19.06.2014. The
Notification dated 27th of July, 2011 appears to be in accordance
with Articles 203 and 208 of the Constitution, which delegates
the power for recruitment of staff in every Sessions Division in
Punjab with directions, instructions and rules to be followed.
The observation, in Notification dated 19.06.2014, that ‘District
and Sessions Judges and Senior Civil Judges are Competent
Authority to recruit the ministerial staff’, seems to have
W.P.No.8048/2021 15

emanated from the Notification dated 19th of September, 2005,

whereby, Rules of 2005 are made, opening part of which is
reproduced for a quick reference:-

“GOVERNMENT OF THE PUNJAB

SERVICES AND GENERAL ADMINISTRATION
DEPARTMENT.

(REGULATIONS WING)

Dated Lahore the 19th September, 2005

NOTIFICATION

No. SOR-III(S&GAD)1-10/93 In exercise of the powers conferred

upon him under Section-23 of the Punjab Civil Servants Act,1974
(VIII of 1974), the Governor of the Punjab is pleased to make the
following rules:-
1. Short title and commencement:-
(i) These rules may be called, ‘The Punjab Civil
and Sessions Courts Establishment
(Miscellaneous Posts) Service Rules,
2005…”
[emphasis supplied]

These Rules have declared the District and Sessions

Judge and Senior Civil Judge as Competent Authority. The
power for issuance of this Notification, is derived from Section
23 of The Punjab Civil Servants Act, 1974 (“Act of 1974”),
which is in conflict with unambiguous command in Article 208
of the Constitution; envisaging framing of Rules by High Court
with approval of the Governor concerned. The underlined part
of the Rules of 2005, has to be read down for bringing it within
competence, under the Article 208 i.e. on recommendation by
the Lahore High Court, the Governor has approved the Rules.
The Rule, so read down, has appointed the Competent
Authority, through delegation without abdicating the control
and supervision of the High Court, as ordained by the Article
203.

14. The use of phrase “Competent Authority” for Lahore

High Court, in various Notifications and Circulars, does not
W.P.No.8048/2021 16

commensurate with Articles 192 (1) and 202 of the

Constitution, which are reproduced hereunder:-
“192. Constitution of High Court.
(1) A High Court shall consist of a Chief Justice and so
many other Judges as may be determined by law
or, until so determined, as may be fixed by the
President.”

“202. Rules of procedure.

Subject to the Constitution and law, a High Court
may make rules regulating the practice and
procedure of the Court or of any court subordinate
to it.”
[emphasis supplied]

The High Court, as defined under Article 192 of the

Constitution, consists of a Chief Justice and Judges of the High
Court. The High Court have delegated “powers for
administrative and executive work” to the Chief Justice and
Administrative Committee, as are mentioned in Chapter-10
Volume V of the Rules and Orders of Lahore High Court,
Lahore (“the Rules & Orders”). Rules 1 to 4 deal with the
Constitution and powers of Administrative Committee, which
is to control administrative and executive work of the High
Court. The proviso to Rule 1, excludes only the matters, which
are exclusive concern of the Chief Justice, i.e. ‘constitution of
Benches’ and ‘appointment and control of the High Court
Establishment’. Rule 5 enlists the matters, upon which meeting
of all the Judges (Full Court) is required to be called invariably.
Sub-rule (i) of Rule 5 requires a meeting of all Judges on matters
involving “questions of principle and policy”, sub-rule (ii)
ensures convening of Full Court meeting for matters relating to
“amendments in existing laws or to statutory rules”.

15. For what has been discussed, this and connected petition
(W.P.No.8049 of 2021) are allowed with following declaration
and directions:-

i). The process of recruitment for all the posts, in

question and consequent appointments are
declared illegal, having no effect.
 W.P.No.8048/2021 17

ii). For fixation of responsibility and consequent

action against the responsibles, who committed
illegalities and irregularities, ibid, the Registrar,
Lahore High Court, Lahore is directed to place the
matter before the Administrative Committee for
consideration to appoint an Inquiry Committee.
iii). Since Notification dated 27th of July, 2011, by
the High Court, is declared to holds the field,
therefore, the Registrar of this Court is directed to
place record of appointments in all the Districts
of the Punjab by respective District and Sessions
Judges and by Senior Civil Judges, before the
Administrative Committee for approval, in terms
of Clause (1) and (6) of the Notification.
iv). The Registrar shall also place the Rules,
Regulations and Laws, relevant for recruitment of
ministerial staff in subordinate Courts, before the
Administrative Committee, for their
consideration to bring them in harmony with
Articles 192(1), 202, 203 and 208 of the
Constitution.

Petitions are allowed.

(Shahid Jamil Khan)

Judge
SAJJAD

APPROVED FOR REPORTING

Judge