IN THE SUPREME COURT OF PAKISTAN 
 
(ORIGINAL JURISDICTION) 
 
 
 
PRESENT: 
 
Mr. Justice Iftikhar Muhammad Chaudhry, HCJ 
 
Mr. Justice Gulzar Ahmed 
 
Mr. Justice Sh. Azmat Saeed 
 
 
Constitution Petition No.53 of 2007 &  
Constitution Petition No.83 of 2012 
 
 
Sh. Riaz-ul-Haq, Advocate Supreme Court 
       (in Const.P.53/07) 
M. Shabbir Ahmed Nasir, Advocate High Court        (in Const.P.83/12) 
 
 
 
 
 
VERSUS 
 
Federation of Pakistan thr. Ministry of Law, etc.        (in Const.P.53/12) 
 
The President of Pakistan thr. his Principal Secretary,  
President’s Secretariat & others 
 
 
       (in Const.P.83/07) 
 
 
For petitioners: 
 
 
Mr. M. Shoaib Shaheen, ASC 
 
 
 
 
 
(in Const.P.53/2007) 
 
 
 
 
 
 
Nemo  
(in Const.P.83/12) 
 
On Court’s Notice: 
 
Attorney General for Pakistan (absent) 
 
For Govt. of Balochistan: 
Mr. Muhammad Azam Khattak, Addl. A.G 
 
For Govt. of KPK:  
 
Syed Arshad Hussain Shah, Addl. A.G. 
 
For Govt. of Punjab: 
 
Mr. Jawwad Hassan, Addl. A.G. 
 
For Govt. of Sindh: 
 
Mr. Muhammad Qasim Mirjat, Addl. A.G. 
 
For Law Commission: 
 
Raja Faisal Iftikhar, Deputy Secretary 
 
Date of hearing:  
 
09.01.2013 
 
 
JUDGMENT  
 
 
Iftikhar Muhammad Chaudhry, CJ.— Founder of Pakistan, 
Quad-e-Azam Muhammad Ali Jinnah while addressing the civil officers 
in Peshawar on 14.04.1948 advised them as follows:-  
Const.P. 53/07 &  
Const.P.83/12 
2 
“The services are the backbone of the state. Governments are 
formed. Governments are defeated. Prime Ministers come and 
go, ministers come and go, but you stay on. Therefore, there is 
a very great responsibility placed on your shoulders. You should 
have no hand in supporting this political party or that political 
party, this political leader or that political leader. This is not 
your business.  
 
Whichever government is formed according to the constitution, 
and who ever happens to be the prime minister or minister, 
coming into power in the ordinary course, your duty is only to 
serve that government loyally and morally but, at the same 
time, fearlessly, maintaining your high reputation, your 
prestige, your honour and the integrity of your service. If you 
start with that determination, you will make a great contribution 
to the building up of Pakistan of our conceptions and our dream-
a glorious state and one of the greatest nations in the world. 
  
While impressing this upon you, I wish also to take the 
opportunity of impressing upon our leaders and politicians in the 
same way, that if they ever try to interfere with you and bring 
political pressure to bear upon you, which leads to nothing but 
corruption, bribery and nepotism-which is a horrible disease and 
for which not only your province but others too are suffering-if 
they try to interfere with you in this way, I say they are doing 
nothing but disservice to Pakistan. … …” 
 
2. 
  
In recognition of the status of civil servants, and so that 
they may work fearlessly, maintaining their high reputation, prestige, 
honesty and the integrity of their service, as was the dream of our 
founding father, the Constitution of Islamic Republic of Pakistan, 1973 
under Article 212(1)(a) provides for the establishment of Tribunals to 
exercise exclusive jurisdiction in respect of matters relating to the 
terms and conditions of persons who are or have been in the service of 
Pakistan, including disciplinary matters by means of appropriate 
legislation. Said Article is reproduced hereinbelow:- 
Const.P. 53/07 &  
Const.P.83/12 
3 
212. Administrative Courts and Tribunals.-(1) Notwithstanding 
anything hereinbefore contained, the appropriate Legislature 
may by Act provide for the establishment of one or more 
Administrative Courts or Tribunals to exercise 
exclusive 
jurisdiction in respect of – 
 
(a)  
matters relating to the terms and conditions of 
persons who are or have been in the service of 
Pakistan, including disciplinary matters; 
(b)  
……… 
(c) 
……… 
As a consequence of above constitutional provision, following Federal 
and Provincial Service Tribunals Acts were promulgated to establish 
Service Tribunals respectively:- 
(1) 
The Service Tribunals Act, 1973 (STA, 1973) 
whereunder the Federal Service Tribunal (FST), was 
established; 
(2) 
The Sindh Service Tribunals Act, 1973 (SSTA, 1973) 
whereunder the Sindh Service Tribunal (SST) was 
established;  
(3) 
The Punjab Service Tribunals Act, 1974 (PSTA, 1974) 
whereunder the Punjab Service Tribunal (PST), was 
established; 
(4) 
The NWFP (KPK) Service Tribunals Act, 1974 (NSTA, 
1974) whereunder the NWFP (KPK) Service Tribunal 
(NST) was established; 
(5) 
The Balochistan Service Tribunals Act, 1974 (BSTA, 
1973) whereunder the Balochistan Service Tribunal 
(BST) was established. 
 
For the sake of convenience, sections 3 of STA, 1973 (Federal), is 
reproduced hereinbelow:- 
 
3.  Tribunals. (1) The President may, by notification in the 
official Gazette, establish one or more Service Tribunals and, 
where there are established more than one Tribunal, the 
President shall specify in the notification the class or classes   of 
civil servants In respect of whom, or the territorial limits within 
which, or the class or classes of cases in respect of which, each 
such Tribunal shall exercise jurisdiction under this Act. 
 
(2)  
A Tribunal shall have exclusive jurisdiction in 
respect of matters relating to the terms and conditions of 
service of civil servants, including disciplinary matters. 
 
(3)  
A Tribunal shall consist of— 
 
(a)  
a Chairman, being a person who is, or has been, or  
 
is qualified to be Judge of a High Court ; and 
(b)  
such number of members not exceeding three, 
each of whom is a person who possesses such 
Const.P. 53/07 &  
Const.P.83/12 
4 
qualifications as may be prescribed by rules, as the 
President may from time to time appoint. 
 
(4)  
The Chairman and members of a Tribunal shall be 
appointed by the President on such terms and conditions as he 
may determine. 
 
(5)  
The Chairman or a member of a Tribunal may 
resign his office by writing under his hand addressed to the 
President. 
 
(6)  
The Chairman or a member of a Tribunal shall not 
hold any other office of profit in the service of Pakistan if his 
remuneration is thereby increased. 
 
(7)  
Notwithstanding anything contained in sub-section 
(3), sub-section (4), sub-section (5) or sub-section (6), a 
Tribunal established to exercise jurisdiction in respect of a 
specified class or classes of cases may consist of one or more 
persons in the service of Pakistan to be appointed by the 
President.  
 
 
 
Aforesaid section of STA, 1973 is pari materia with the provisions of 
the respective Provincial Service Tribunals Acts. Subsection (3)(b) of 
section 3 ibid specifies that the qualifications of a member of the 
Tribunal shall be prescribed by rules, as such, the Federal Government 
has framed rules namely the Service Tribunals (Qualification of 
Members) Rules, 1974, providing qualification for the appointment of 
Member of the Tribunal, which read as under:- 
“2. 
A member of the Tribunal shall be a person who has 
for a period of or for periods aggregating not less than 20 
years held an appointment or post in the Service of 
Pakistan, or in a Corporation or other body set up by 
Government or who, for the said period, has been an 
advocate or legal practitioner. 
Explanation: 
In computing the period during which a 
person has held an appointment or post or has been an 
advocate or legal practitioner there shall be included any 
period during which he has held an appointment or post 
after he became an advocate or legal practitioner or, as 
the case may be, the period during which he has been an 
advocate or legal practitioner after having held the 
appointment or post.” 
Const.P. 53/07 &  
Const.P.83/12 
5 
In exercise of powers conferred by section 3(4) of STA, 1973, the 
terms & conditions of the Chairman and the Members of the Tribunals 
were prescribed by the President in the Federal Service Tribunal 
Chairman and Members Service Rules, 1983. Rules 1 (ibid) provides 
the tenure of the Chairman and the Members of the Tribunal in the 
following terms:- 
“1. 
The Chairman and members shall hold office at the 
pleasure of the President, for such tenure, which may normally 
be for three years extendable by a further period not exceeding 
three years, as may be determined by the President.” 
 
Similarly, in terms of section 3(3)(b) of (PSTA, 1974) the Government 
of Punjab has framed the Punjab Service Tribunals (Qualifications of 
Members) Rules, 1978, which provides following qualification for the 
appointment of Member of the Tribunal:- 
“A member of the Tribunal shall be a person who is not below 
the status of Secretary to Provincial Government and has at 
least 18 years service in Grade 17 or above.” 
 
The qualifications of Members of the Tribunal have been prescribed in 
section 3(3)(b) of provincial statutes of Sindh, NWFP (KPK) and 
Balochistan, therefore, rules were not required to be framed 
thereunder. For reference, same are reproduced hereinbelow:- 
 
 
Sindh Service Tribunals Act, 1973: 
 
3. 
Tribunals: (1) 
……… 
 
 
(2) 
…… 
(3)  
A Tribunal shall consist of— 
(a)  
a Chairman, being a person who has been, or is 
qualified to be, Judge of a High Court ; and 
(b)  
not more than two members each of whom is a 
person who has for a period of not less than 
seventeen years held a post in grade 16 or an 
equivalent or a higher post under the Federal 
Government or a Provincial Government.  
 
 
(4) 
……… 
 
 
NWFP (KPK) Service Tribunals Act, 1974: 
Const.P. 53/07 &  
Const.P.83/12 
6 
 
3. 
Tribunals: (1) 
……… 
 
 
(2) 
…… 
(3)  
A Tribunal shall consist of: 
(a)  
a Chairman, being a person who has been, or is 
qualified to be, Judge of High Court ; and 
(b)  
not less than two and not more than four 
members, each of whom is a person who has for a 
period of not less than fifteen years held a Class I 
or 
an 
equivalent 
post 
under 
the 
Federal 
Government or a Provincial Government.  
 
 
(4) 
……… 
 
Balochistan Service Tribunals Act, 1974: 
 
3. 
Tribunals: (1) 
……… 
 
 
(2) 
…… 
(3)  
A Tribunal shall consist of— 
(a)  
a Chairman, being a person who has been, is a or 
qualified to be, a Judge of High Court ; and 
(b)  
two members each of whom is a person who has 
for a period of not less than ten years held a Class 
I post under the Federal Government or a 
Provincial Government.  
 
 
(4) 
……… 
 
3. 
  
Initially, the FST was under the administrative control of 
the Establishment Division. Subsequently, its administrative control 
was transferred to the Law and Justice Division. As such, it has been 
enjoying 
the 
status 
of 
attached 
department 
of 
the 
Federal 
Government. The position of Provincial Service Tribunals is also not 
different from FST.  
4. 
  
Petitioner in Constitution Petition No.53 of 2007 has 
submitted that the respondents may be directed to fulfill the 
Constitutional Obligations to ensure independence of judiciary from the 
Executive by suitably amending the Service Tribunal Acts and Rules 
framed thereunder. He further prayed that the amended Acts and 
Rules should ensure as under:- 
(a) 
The appointment of Chairman and the Members of the 
Service Tribunals are made after meaningful consultation 
Const.P. 53/07 &  
Const.P.83/12 
7 
with the Chief Justice of Pakistan or, as the case may be, 
the Chief Justice of the respective Province; 
(b) 
The Tribunal should not be under the administrative or 
financial control of the Executive. For this, on the analogy 
of the judges of the High Courts and Federal Shariat Court, 
the terms and conditions of the Chairman and Members 
may be independently determined so as to make them 
outside the Executive influence and to ensure uniformity. 
(c) 
Appropriate 
legal 
and 
judicial 
experience 
may 
be 
prescribed for appointment as Member. Practicing lawyers, 
who are qualified to be appointed as Judge of the High 
Court, be given preference for induction as Members of the 
Service Tribunals. 
 
5. 
  
Mr. M. Shoiab Shaheen, learned ASC appearing for the 
petitioner formulated following prepositions for consideration: - 
“(1) 
Whether the Service Tribunals are judicial forums and are 
performing functions of a Court within the meaning of Article 
175 of the Constitution of Islamic Republic of Pakistan, 1973; 
(2) 
Whether section 3 of Service Tribunals Act, 1973 and the 
Service Tribunals (Qualification of Members) Rules, 1974 
promulgated 
by 
the 
Federal 
Government 
including 
corresponding provisions applicable in the provinces relating to 
appointment of Chairman and Members of the tribunals are 
violative of Article 175 read with Articles 2A, 5, 8 & 25 of the 
Constitution; and  
(3) 
Whether appointments of the Chairman and Members of the 
Service Tribunals should be made with the meaningful 
consultation with the Chief Justice of Pakistan and concerned 
Provincial High Court, as the case may be.” 
 
6. 
  
He argued that the Service Tribunals are the judicial 
forums having exclusive jurisdiction for redressal of grievances of civil 
Const.P. 53/07 &  
Const.P.83/12 
8 
servants relating to terms and conditions of service, under which they 
are governed.  
7. 
  
According to him, the Service Tribunals exercise judicial 
powers with a limited scope of challenge before this Court under 
Article 212(3) i.e. subject to satisfaction of the Court that the case 
involves a substantial question of law of public importance. Thus, the 
matters regarding appointment of the Chairman and Members of the 
Service Tribunals are as important as those of judges of the High 
Courts. Under these circumstances, the appointments of the Chairman 
and Members of the Service Tribunals must be made in consultation 
with the Honourable Chief Justice of Pakistan, or as the case may be, 
the Chief Justice of the respective High Courts. Reliance is placed on S. 
P. Sampath Kumar v. Union Of India (AIR 1987 Supreme Court 386).  
8. 
 
In continuation of his above arguments he further 
submitted that appointment of serving or retired bureaucrats as 
Members with no legal and judicial background is against the principle 
of Independence of judiciary. Inasmuch, as the Federal Government 
had been appointing such persons as Chairman and Members, who are 
either retired judges or bureaucrats usually of 60 to 65 years. 
9. 
 
He also submitted that the spirit of Service Tribunal 
(Procedure) Rules 1974 is against the fundamental principles as 
contained in the Code of Civil Procedure, 1908. The administrative 
control of the Federal Service Tribunal had earlier been with 
Establishment Division (Respondents No.2) and was then transferred 
to the Law and Justice Division (Respondents No.3). The matter 
regarding appointment of Chairman and Members of the Federal 
Service Tribunal are processed through Respondents No.2 & 3. The 
Const.P. 53/07 &  
Const.P.83/12 
9 
other matters regarding terms & conditions of Chairman and Members 
(such as leave, allotment of cars, housing and telephone facilities etc.) 
are also dealt with by the administrative Ministry. Further, since its 
constitution, the Federal Service Tribunal has been working as an 
attached department of the Federal Ministries. The position of the 
Provincial Tribunals too is not different. Therefore, this state of affairs 
is clearly violates Article 175 of the Constitution.  
10. 
 
Learned Attorney General for Pakistan, despite notice, is 
not in attendance. 
11. 
  
The learned Deputy Attorney General, appearing on behalf 
of Federation of Pakistan, raised preliminary objections to the 
maintainability of the petitions on the ground that the petitioners have 
no cause of action to file the petition as the Chairman and the 
Members of Federal Service Tribunal are appointed in accordance with 
law. The matter is not of a great public importance and no 
Fundamental Right of the petitioner has been infringed as well. 
12. 
  
He submitted that the Chairman/Members of the Tribunal 
are appointed in terms of section 3(4) of the STA, 1973 and the 
Service Tribunals (Qualifications of Members) Rules, 1974 and not in 
terms of Article 193 of the Constitution, which provides qualification 
for appointment of a Judge of the High Court, therefore, the role of 
these Tribunals in administration of justice is not equal to that of the 
High Court. 
13. 
  
His next submission was that the Act and the rules do not 
provide consultation with respective Chief Justices as FST has been 
established to exercise jurisdiction in respect of matters relating to the 
terms and conditions of service of civil servants, therefore, provision of 
Const.P. 53/07 &  
Const.P.83/12 
10
Article 175 of the Constitution is not applicable in the context of 
separation of Judiciary from Executive.  
14. 
  
He 
further 
submitted 
that 
the 
appointment 
of 
Chairman/Members of FST is made by the President of Pakistan, 
therefore, do not fall directly under the control of Law Ministry and the 
Chairman/Members are independent in making decisions with regard 
to the matters brought before it in respect of terms and conditions of 
service. He contended that there could not be a single instance where 
Ministry of Law and Justice ever interfered with or exercised influence 
in the functioning of Service Tribunal.  
15. 
  
According to him the High Courts are judicial forums and 
are established under the Constitution presided over by a serving 
Judge, whereas, the Tribunal does not function as a Court, it has only 
one subject to deal with i.e. matters relating to the terms and 
conditions of civil servants. The FST is an administrative Tribunal, as 
such it is not equal to a High Court, thus no consultation with the Chief 
Justice is necessary. 
16. 
  
Mr. Jawwad Hassan, learned Additional Advocate General, 
Punjab has submitted that the Service Tribunals are administrative 
tribunals, meant to resolve disputes between the persons in the 
service of Pakistan and the State of Pakistan. These tribunals are 
protected as they function within the meaning of Article 175(3) read 
with Article 212 of the Constitution, and in Article 175, the word 
‘tribunal’ has not been mentioned rather only term ‘court’ has been 
used. He further contended that the provisions of Service Tribunals 
Acts and rules made thereunder are not violative of any provision of 
the Constitution as held by Full Bench of the Lahore High Court in the 
Const.P. 53/07 &  
Const.P.83/12 
11
case of Muzaffar Hussain v. The Superintendent of Police [2002 PLC 
(CS) 442]; rather they have the backing of Article 212 of the 
Constitution. Additionally, the constitution of Anti-Terrorism Courts 
were upheld because these Courts had the backing of Article 175 but it 
had no concern with Article 212 of the Constitution, therefore, 
whatever has been decided in the case of Aurangzeb Shafi Burki v. 
Province of Punjab (PLD 2011 Lahore 198) does not apply stricto senso 
in the instant case.  
17. 
 
He contended that the PSTA, 1974 was enacted by the 
Provincial Assembly, Punjab whereby the Governor was empowered to 
establish one or more Service Tribunals; the rules have been framed 
under the authority of section 11 of PSTA, 1974 and the appointment 
of Chairman/Members of the Tribunal have been made strictly in 
accordance with law/rules. He further contended that neither the 
provisions of Article 212 of the Constitution nor the PSTA, 1974 or the 
rules framed thereunder envisage that the Chairman/Members of the 
Tribunal should be appointed after consultation with the Chief Justice. 
Therefore, such appointment made without consultation of Chief 
Justice cannot be construed as unconstitutional or impinging upon 
independence of judiciary. Reliance has been places on the case of 
Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), wherein it 
has been held that where the Constitution makers wanted to provide 
judicial forums other than what is envisaged by Article 175, 202 and 
203, they expressly provided for the same in the Constitution in shape 
of Article 212 of the Constitution. He further contended that in absence 
of term ‘consultation’ appearing in Article 212, it cannot be read into 
or introduce in the said Article. Even the law made under the authority 
Const.P. 53/07 &  
Const.P.83/12 
12
of the said Article does not envisage any consultation with the 
concerned Chief Justice unlike the Indian approach where the same 
has been provided. He submitted that the judgments relied upon by 
the petitioner were rendered in the context of Articles 177 and 193 
relating to the Supreme Court and the High Courts and not with 
reference to Article 212 of the Constitution.  
18. 
 
He further contended that Articles 175, 202 and 203 of the 
Constitution provide the basic framework of the judiciary i.e. the 
Supreme Court, a High Court for each Province as well as Islamabad 
and such other Courts as may be established by law, i.e. the 
subordinate courts. However, Constitution also stipulates other 
specified courts/tribunals to share judicial powers with the courts 
mentioned in Article 175 of the Constitution, which include Federal 
Shariat Court, Administrative Courts and Tribunals established under 
Article 212 as well as Election Tribunals constituted in terms of Article 
225 of the Constitution. According to him, the court or tribunal which 
is not founded by any of the Articles of the Constitution cannot lawfully 
share the judicial powers with the Courts referred to in Article 175 of 
the Constitution, however, the above referred tribunals including the 
Service Tribunals have been envisaged by the Constitution itself, 
therefore, sharing of judicial powers by them with the Court cannot be 
conceived as creating a parallel judicial system. He added that in 
discharge of judicial function, the Tribunal works subject to judicial 
supervision of the Supreme Court.  
19. 
 
He further contended that the appointment of the 
Chairman and Members of Tribunal after superannuation cannot be 
termed as unconstitutional or in derogation of independence of 
Const.P. 53/07 &  
Const.P.83/12 
13
judiciary, inter alia because the Constitution nowhere prohibits 
appointment of a superannuated person whereas the PSTA, 1974 and 
the rules provide a specific provision to that effect. He submitted that 
the Tribunal and the High Courts are two separate entities performing 
assorted functions under separate dispensations and should not be 
construed as equal or comparable.  
20. 
 
His last contention was that as per 1st Schedule to the 
Punjab Government Rules of Business, 2011, PST has not been shown 
as an attached department rather it is reflected as special institution 
associated for administrative linkages with Services & General 
Administration 
Department 
like 
Lahore 
High 
Court, 
Provincial 
Ombudsman and Punjab Public Service Commission. In fact PST has 
been assigned an independent and autonomous status.  
21. 
 
He informed that the Chief Minister, Punjab has constituted 
a Cabinet Sub-Committee for review of Service Laws and following 
recommendations have been made:- 
(a) 
The existing Punjab Service Tribunal Act 1974 stipulates that 
the Chairman of the Punjab Service Tribunal shall be a person 
who is or has been qualified to be a Judge of the High Court. 
Thus, judicial experience is inbuilt in the existing provision 
and no further amendment was required.  
(b) 
The qualification for the members of Tribunal and method of 
recruitment may, however, be revised as under in the light of 
the observations of the Hon’ble court: 
“(2) 
A member of the Tribunal shall be a person who has 
been serving as Secretary to the Government and has been 
performing quasi-judicial functions or functions relating to 
service matters. 
(3) 
A 
member 
shall 
be 
appointed 
on 
the 
recommendations of the Selection Committee consisting of 
the Chief Secretary (Convener), Senior Member Board of 
Const.P. 53/07 &  
Const.P.83/12 
14
Revenue, Chairman P&D Board, Secretary Law and Secretary 
Services (S&GAD).” 
 
It was further informed that the Cabinet has already approved the 
following recommendations: - 
(a) 
Serving civil servants shall not be appointed as members 
of the Tribunal; 
(b) 
The terms of office of a member and Chairman shall be 
fixed for a minimum period of 3 years or till attaining the 
age of 65 years, for the members and 67 years for the 
Chairman, whichever is earlier; and  
(c) 
The term of office of a member, including the Chairman 
shall not be extended and a sitting incumbent shall not be 
appointed for another term. 
 
22. 
  
Mr. Muhammad Kassim Mir Jat, learned Additional 
Advocate General, Sindh has submitted that the concept of 
Administrative Tribunals was introduced by the framers of the 
Constitution which was regularized through Legislation at the Federal 
and the Provincial level. He stated that in the United States the Court 
systems exercise the power of judicial review. However, the 
adjudication of dispute is also done by Tribunals and Federal Agencies 
including the Security & Exchange Commission, the inter State 
Commerce Commission, the National Labour Relations Board, etc., 
with a large measure of independence from Executive. In Britain, 
Special Tribunals ensure that public agencies carry out the instructions 
of Parliament. In France, the Courts are forbidden to oversee the 
public agencies; this job is done by a council of State. The French 
system has been adopted by other countries including Belgium, Italy, 
Portugal, Greece, Egypt and Turkey. Germany has also Administrative 
Court System and a Federal Administrative Court acts as a Court of 
Const.P. 53/07 &  
Const.P.83/12 
15
Appeal.  In Pakistan, separate Administrative Tribunals have been 
established under Article 212 of the Constitution which deals with the 
matter relating to terms & conditions of service.  The Tribunals not 
only provide speedy remedy to the civil servants but also share the 
burden of Courts.  
23. 
 
He further submitted that it is not a parallel judicial system 
as it has the backing of the Articles 175, 203 or 212 of the 
Constitution. As the appeal against the judgments of Tribunal lies 
before the Supreme Court under Article 212(3) of the Constitution, 
therefore, the Tribunals fall under the judicial hierarchy. He has relied 
upon the case of Muzaffar Hussain v. The Superintendent of Police 
[2002 PLC (CS) 442], which view was also endorsed by this Court in 
the cases of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1455), 
Khan Asfandyar Wali v. The Federation of Pakistan (PLD 2001 SC 607) 
and Liaqat Hussain v. Federation of Pakistan(PLD 1999 SC 504).  
24. 
  
Learned counsel also submitted that the cases referred 
from the Indian Jurisdiction are not applicable in our jurisdiction as the 
Indian Service Laws provided for consultation with the Chief Justice.  
25. 
 
Syed 
Arshad 
Hussain, 
learned 
Additional 
Advocate 
General, KPK has submitted that Article 212 of the Constitution 
empowers the Provincial Legislature to establish as many Courts or 
Tribunal to exercise exclusive jurisdiction in respect of matters 
enumerating therein. The Provincial Service Tribunal, KPK has been 
established in terms of Article 212 of the Constitution read with NWFP 
(KPK) Service Tribunal Act, 1974 as such it cannot be equated with the 
High Court. He contended that the appointment of Chairman of the 
Tribunal in KPK has always been made in consultation with the Chief 
Const.P. 53/07 &  
Const.P.83/12 
16
Justice Peshawar High Court, whereas the Members of Tribunals are 
appointed from civil servants in terms of section 3(2)(b) of NSTA, 
1974 by the Governor. He added that as per section 3(2)(b) of NSTA, 
1974, there is no requirement of making the appointment of Members 
from amongst the lawyers/judicial officers as such there is no violation 
of the Constitution or the law in the appointments made till date. 
According to him, like Income Tax and Customs Appellate Tribunal, 
where a matter is heard and decided by a Judicial and Technical 
Member, it can be constituted to include a Judicial Member in the 
Tribunal. He further contended that a situation where difference of 
opinion takes place between the members of the Tribunal has been 
dealt with in section 6(4) of the NSTA, 1974 which provides that in 
case of difference of opinion between the Chairman and member or 
members, when the appeal is heard under sub-section (2) and no 
majority view can be formed, the appeal shall be referred to the other 
member, and the decision of the Tribunal shall be expressed in terms 
of the view of the majority. He lastly submitted that a special 
committee in the light of the directions of this Court has proposed the 
following amendments in NSTA, 1974: - 
(i) 
Section 3(3)(b) of the Act, 1974 may be substituted with 
the following: 
 
Such number of members to be determined by the 
Government from time to time of which equal number may 
consist of judicial members, having judicial or legal 
background of either being exercising the functions and 
powers of Additional District & Sessions Jude or is an 
Advocate qualified to be a Judge of High Court 
 
(ii) 
A proviso to be added at the end of subsection (3)(b) to 
section 3 of the Act, 1974: 
Provided that non judicial members maybe appointed from 
amongst the holders of the post in BS-20 or equivalent 
under provincial and Federal Government. 
 
Const.P. 53/07 &  
Const.P.83/12 
17
(iii) 
In subsection (4) of section 3 of the Act, 1974 following 
proviso to be added: 
Provided that the Chairman and judicial members of the 
tribunal shall be appointed in consultation with the Chief 
Justice of the High Court.  
 
26. 
   
Learned Additional Advocate General, Balochistan has 
stated that it remains the practice that appointment of Chairman of 
Service Tribunal has been made in consultation with the Chief Justice 
of High Court of Balochistan. He has contended that the incumbent 
Chairman/ Members are fully qualified to be appointed as such and no 
provision of Constitution or the law has been violated. Even in the 
past, the persons who were appointed as Chairman/Members were 
fully qualified.  
27. 
 
We have heard the parties and have gone through the 
relevant provisions of law as well as the material placed before us. 
28. 
  
 It would be appropriate to first of all take up the question 
of maintainability of instant petition under Article 184(3) of the 
Constitution in view of the objections raised by the learned Deputy 
Attorney General. The petitioner’s case is that he has approached this 
Court for the vindication of Fundamental Right to have access to 
justice enshrined in Articles 9 of the Constitution. It is to be noted that 
the right of “access to justice to all” is a well recognized inviolable 
right enshrined in Article 9 of the Constitution and is equally found in 
the doctrine of “due process of law”. It includes the right to be treated 
according to law, the right to have a fair and proper trial and a right to 
have an impartial court or tribunal.  
29. 
 
The scope of jurisdiction of this Court under Article 184(3) 
of the Constitution by now is fairly settled in a plethora of case-law. In 
Const.P. 53/07 &  
Const.P.83/12 
18
the case of Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 
416) it has been held as under:- 
"... ... After all the law is not a closed shop and, even in 
adversary procedure, it is permissible for the next friend to move 
the Court on behalf of a minor or a person under a disability. 
Why not then a person, if he were to act bona fide, activise the 
Court for several reasons. This is what public interest litigation 
seeks to achieve as it goes further to relax the rule on locus 
standi so as to include a person who bona fide makes an 
application for the violation of any constitutional right of a 
determined class of persons whose grievances go unnoticed and 
un-redressed. The initiation of the proceedings in this manner 
will be in aid of the meaningful protection of the rule of law given 
to the citizens by Article 4 of the Constitution, that is, "(1) To 
enjoy the protection of law and to be treated in accordance with 
law is the inalienable right of every citizen, wherever he may be, 
and of every other person for the time being within Pakistan. ..." 
[the World Peace Through Law Conference at Lagos in 1961]” 
 
In Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 
SC 473), maintainability of petition under Article 184(3) was discussed 
and decided as under:- 
"6. While construing Article 17 which guarantees fundamental 
right, our approach should not be narrow and pedantic but 
elastic enough to march with the changing times and guided by 
the object for which it was embodied in the Constitution as a 
fundamental right. Its full import and meaning must be gathered 
from other provisions such as preamble of the Constitution, 
principles of policy and the Objectives Resolution, which shed 
luster on the whole Constitution. Reference in this connection 
may be made to the observations made by Muhammad Haleem, 
C.J. (as he then was) in Benazir Bhutto v. Federation of Pakistan 
PLD 1988 SC 416 at 489:-- 
 
"... ... while construing Article 184(3), the interpretative 
approach should not be ceremonious observance of the 
rules or usages of interpretation, but regard should be had 
to the object and the purpose for which this Article is 
enacted, that is, this interpretative approach must receive 
inspiration from the triad of provisions which saturate and 
invigorate the entire Constitution, namely, the Objectives 
Resolution (Article 2A), the Fundamental Rights and the 
directive principles of State policy so as to achieve 
democracy, tolerance; equality and social justice according 
to Islam." 
 
In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 
324) it has been held that whenever the Constitution is violated, every 
Const.P. 53/07 &  
Const.P.83/12 
19
citizen has a right to challenge the same. Relevant paras there from 
read as under:- 
“12. Yet another objection raised was that the petitioner 
could not invoke Article 184(3) of the Constitution as he 
has not been able to show whether any one, of his 
fundamental rights was infringed. … It is submitted by the 
petitioner that he is a practicing lawyer and has a very 
vital interest in the Judicial set-up which can function 
independently only when there is proper and total 
compliance of the Articles relating to the Judiciary and 
appointments are also made in accordance with the 
Constitutional scheme made there under. According to 
him, a lawyer cannot survive if the Judiciary is not 
independent. … It appears that the remedies under Articles 
199 and 184 (3) available in a High Court and the 
Supreme Court respectively are concurrent in nature and 
question of locus standi is relevant in a High Court, but not 
in the Supreme Court when the jurisdiction is invoked 
under Article 184(3) of the Constitution. According to the 
petitioner, he went to the High Court and his writ petition 
was 
dismissed 
without 
deciding 
the 
questions 
of 
controversy. He filed the petition for leave to appeal 
against the impugned judgment and also filed the direct 
petition under Article 184(3) of the, Constitution praying 
for examination of the Articles relating to the Judiciary and 
in 
that 
connection 
has 
called 
in 
question 
some 
appointments in the Superior Judiciary. … 
 
13. We are of the view that the petitioner has rightly 
invoked the jurisdiction of this Court under Article 184(3) 
of the Constitution and leave has rightly been granted in 
the other petition for the reason that in both the cases 
common question of interpretation of the Articles relating 
to the Judiciary are involved, which are of public 
importance. We are not impressed by the contention that 
interpretation of the Articles in these cases would be 
merely an exercise of academic nature. On the contrary, it 
can be said that this exercise has become very essential 
and necessary and would help a great deal in making the 
matters very clear by interpreting the relevant provisions 
of the Constitution relating to the Judiciary. It is held by 
this Court in the case of Fazlul Quader Chowdhry and 
others v. Muhammad Abdul Haque PLD 1963 SC 486 that 
the interpretation of the Constitution is the prerogative as 
well as the duty of the superior Courts as envisaged in the 
Constitution and this interpretative function cannot be a 
mere academic exercise without relation to concrete 
dispute, either between a subject and subject or between a 
subject and the State. … This right to interpret the 
Constitution is not acquired de hors the Constitution but by 
virtue of the fact that it is a superior Court set up by the 
Constitution itself. It is not necessary for this purpose to 
Const.P. 53/07 &  
Const.P.83/12 
20
invoke any divine or super natural right but this judicial 
power is inherent in the court itself. It flows from the fact 
that it is a Constitutional Court and it can only be taken 
away by abolishing the Court itself.” 
 
In the matter of: Corruption in Hajj Arrangements in  2010 (PLD 2011 
SC 963) it has been held as under:- 
 
“20. The judiciary including the High Courts and the Supreme 
Court is bound to protect and preserve the Constitution as well 
as to enforce fundamental rights conferred by the Constitution 
either individually or collectively, in exercise of the jurisdiction 
conferred upon it either under Article 199 or 184(3) of the 
Constitution. We are fully cognizant of our jurisdiction, it is one 
of the functions of the judicial functionaries to decide the 
matters strictly in accordance with the Constitution and law. We 
are conscious of our jurisdiction, and exercise the same with 
judicial restraint. But such restraint cannot be exercised at the 
cost of rights of the citizens to deny justice to them. The scheme 
of the Constitution makes it obligatory on the part of superior 
Courts to interpret Constitution, law and enforce fundamental 
rights. There is no cavil with the proposition that ultimate arbiter 
is the Court which is the custodian of the Constitution, as it has 
been noted herein before and without repeating the same, this 
Court had initiated proceedings in the instant case as is evident 
from the detailed facts and circumstances noted hereinabove to 
ensure that corruption and corrupt practices by which the Hujjaj 
were looted and robbed has brought bad name to the country.” 
 
In the case of Munir Hussain Bhatti v. Federation of Pakistan (PLD 
2011 SC 407) it has been held as under:- 
“9. … … Article 184(3) ibid empowers this Court to exercise 
jurisdiction thereunder whenever the Court considers a 
matter to: (i) be of public importance and (ii) that it 
pertains to the enforcement of fundamental rights. The 
determination on both these counts is to be made by this 
Court itself, keeping the facts of the case in mind. That 
this case involves a question which relates to the 
“enforcement of fundamental rights” has not been 
seriously questioned. ... 
 
10. Furthermore, in making this determination, the Court 
is not to be swayed by expressions of public sentiment nor 
is it to conduct an opinion poll to determine if the public 
has any interest  in  an  issue  being  agitated  before  the  
Court  under Article 184(3) of the Constitution. Instead, a 
whole range of factors need to be kept in mind, which 
have, over the years, been expounded in numerous 
precedents of this Court.” 
 
In the case of Muhammad Azhar Siddiqui v. Federation of Pakistan  
Const.P. 53/07 &  
Const.P.83/12 
21
(PLD 2012 SC 774)it has been held as under: - 
“15. In the case at hand the Prime Minister stood 
convicted by the apex Court of the land for wilfully, 
deliberately and persistently defying a direction issued in 
Dr. Mobashir Hassan case, and such persistent defiance at 
the highest level was considered substantially detrimental 
to the administration of justice, and as tending not only to 
bring this Court, but also the entire judiciary of this 
country into ridicule. The ruling of the Speaker declaring 
that no question of disqualification of the respondent had 
arisen despite a concluded judgment of the apex Court 
defied the principles of independence of the judiciary and 
trichotomy of powers, and also constituted a violation of 
the due process clause under Article 10A of the 
Constitution. All this has made it a case suitable for 
invoking the original jurisdiction of this Court. Accordingly, 
we hold that the instant petitions raise a question of public 
importance with reference  to  the  enforcement  of  
Fundamental  Rights  enshrined  in Articles 9, 10A, 14, 17 
& 25 of the Constitution and meet the requirement of 
Article 184(3) of the Constitution, therefore, the same are 
held to be maintainable. The objection raised by the 
learned counsel for the respondents, being devoid of any 
merit, is overruled.” 
 
In the case of Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 
2010 SC 1109) it has been held as under: - 
 
“25. A perusal of the above quoted provision would 
demonstrate that this Court was possessed of powers to 
make any order of the nature mentioned in Article 199 of 
the Constitution, if, in the opinion of this Court, a question 
of public importance relating to the enforcement of any of 
the Fundamental Rights was involved in the matter. As has 
been mentioned in the preceding parts of this order, what 
was at stake was not only a colossal amount of 
money/property 
belonging 
to 
at 
least 
one 
million 
depositors i.e. a large section of the public but what was 
reportedly at stake was also the very existence of the Bank 
of Punjab which could have sunk on account of the mega 
fraud in question and with which would have drowned not 
only the said one million depositors but even others 
dealing with the said Bank". And what had been sought 
from this Court was the protection and defence of the said-
public property. It was thus not only the right of this Court 
but in fact its onerous obligation to intervene to defend the 
said assault on the said fundamental right to life and to 
property of the said public.” 
 
Const.P. 53/07 &  
Const.P.83/12 
22
In Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (PLD 2012 
SC 1089) it has been held that: - 
80. 
The expression "public importance" has been interpreted in 
a number of cases including Manzoor Elahi v. Federation of 
Pakistan, (PLD 1975 SC 66), General  Secretary, West 
Pakistan Salt Miners Labour Union (CBA),  Khewra, Jhelum 
v. Director Industries and Mineral  Development, Punjab, 
(1994 SCMR 2061) and Mrs. Shahida  Zahir Abbasi v. 
President of Pakistan, (PLD 1996 SC 632). It is quite clear 
that the question as to whether a particular case involves 
the element of 'public importance' is to be determined by 
this Court with reference to the facts and circumstances of 
each case. 
 
In the case of Baz Muhammad Kakar v. Federation of Pakistan (PLD 
2012 SC 923) it has been held that the right of access to justice and 
independent judiciary is also one of the most important rights of the 
citizens and if there is any threat to the independence of judiciary, it 
would be tantamount to denial of access to justice, which undoubtedly 
is a fundamental right under Article 9 of the Constitution. Whenever 
there is a violation of Articles 9 and 25 of the Constitution, it will 
involve a question of public importance with reference to enforcement 
of the Fundamental Rights of the citizens, who may approach the 
Court for the enforcement of these rights under Article 184(3) of the 
Constitution without having to discharge the burden of locus standi. 
The scheme of the Constitution makes it obligatory on the superior 
Courts to interpret the Constitution and the law and enforce the 
Fundamental Rights.  
30. 
 
It is to be noted that the independence of judiciary is one 
of the salient features of our Constitution. The preamble to the 
Constitution provides that whereas sovereignty over the entire 
Universe belongs to Almighty Allah alone, and the authority to be 
exercised by the people of Pakistan within the limits prescribed by Him 
Const.P. 53/07 &  
Const.P.83/12 
23
is a sacred trust; and whereas it is the will of the people of Pakistan to 
establish an order wherein the independence of the judiciary shall be 
fully secured. The Objectives Resolution, which is now a substantive 
part of the Constitution by means of Article 2A of the Constitution, also 
commands that independence of judiciary has to be fully secured. The 
superior Courts have elaborately interpreted the words ‘fully’ and 
‘secured’ to elucidate the concept of ‘independence of judiciary’. In the 
case of Chairman, NWFP Forest Development Corporation v. Khurshid 
Anwar Khan (1992 SCMR 1202) it has been held that our 
Constitutional setup preserves the independence of superior Courts, by 
a definite mandate including the command of the Objectives 
Resolution that independence of the judiciary has to be fully secured. 
In the case of Government of Balochistan v. Azizullah Memon (PLD 
1993 SC 341) it has been held that the Constitution aims at an 
independent Judiciary which is an important organ of the State within 
the Constitutional sphere. The Constitution provides for progressive 
separation of the Judiciary and had fixed a time limit for such 
separation. The separation of the judiciary as contemplated in Article 
175 of the Constitution and independence of the judiciary as envisaged 
in the Objectives Resolution (Article 2A) cannot be achieved without 
having independent annual budget for the judiciary. In the case of 
Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) it has been 
held as under: - 
  
“The Constitution of the Islamic Republic of Pakistan, 1973 
in its preamble (now made a substantive part thereof vide 
Article 2A) declares that “the independence of the judiciary 
shall be fully secured” therein. 
Now, according to the consensus of the jurists, the 
independence of the judiciary means: - 
Const.P. 53/07 &  
Const.P.83/12 
24
(a) 
that every Judge is free to decide matters before him 
in accordance with his assessment of the facts and 
his understanding of the law without improper 
influences, inducements or pressures, direct or 
indirect, from any quarter or for any reason; and 
(b) 
that the judiciary is independent of the Executive 
and Legislature, and has jurisdiction, directly or by 
way of review, over all issues of a judicial nature.” 
In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 
324) it has been held that our country has Federal system of 
Government which is based on trichotomy of power; each organ of the 
State is required to function within the bounds specified in the 
Constitution, though one can say that the Judiciary is the weakest limb 
as it does not have the resources or power which the Legislature or the 
Executive enjoy but it has been assigned very important and delicate 
role to play, namely, to ensure that none of the organs or the 
Government functionaries acts in violation of any provision of the 
Constitution or of any other law and because of the above nature of 
the work entrusted to the Judiciary, it was envisaged in the 
Constitution that the Judiciary shall be independent. In the case of 
Syed Zafar Ali Shah v. General Pervez Musharaf (PLD 2000 SC 869) 
it has been held that the Constitution of Pakistan is the supreme law 
of the land and its basic features i.e. independence of judiciary, 
federalism and parliamentary form of government, blended with 
Islamic Provision cannot be altered even by the Parliament. In the 
case of Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 
265) certain provisions of NRO were strike down being contrary to the 
principle of independence of judiciary in the following terms: - 
“81. Thus, it would not be sustainable being contrary to 
the principle of independence of judiciary, as mentioned in 
Article 2A of the Constitution, which provides that 
independence of judiciary shall be fully secured read with 
Article 175 of the Constitution, which lays down a scheme 
Const.P. 53/07 &  
Const.P.83/12 
25
for the establishment of the courts, including the superior 
courts and such other courts as may be established by law. 
In the present case, except an appeal under section 32 of 
the National Accountability Ordinance, 1999 to the High 
Court of the Province, no other remedy is available to a 
convict against his conviction/sentence, to get it set 
aside.”   
 
In the case of Baz Muhammad Kakar v. Federation of Pakistan (PLD 
2012 SC 923) it has been held as under: - 
“64. In the case of Chairman, N.W.F.P. Forest Development 
Corporation v. Khurshid Anwar Khan (1992 SCMR 1202), it 
was held that Court acting under rules framed by virtue of 
the Constitutional power was not bound to follow any other 
statutory dispensation, which came in conflict with the 
independence of judiciary. Supreme Court was not even 
bound by the provisions of Civil Procedure Code, 1908 or 
Criminal Procedure Code, 1898 in so far as regulation and 
control of practice and procedure of the Court itself was 
concerned. It was further held that Article 2A of the 
Constitution 
(Objectives 
Resolution) 
commands 
that 
independence of judiciary has to be fully secured. Words 
`fully' and `secured' are explicit enough not to leave any 
doubt that Constitutional set up of Pakistan preserves the 
independence of Supreme Court by a definite mandate.” 
 
 
31. 
 
Admittedly, civil servants being citizens of Pakistan have 
Fundamental Rights including the right of access to justice as 
envisaged under Article 9 of the Constitution. The enforcement of 
terms and conditions of service of these civil servants depends upon 
the impartial, independent and unbiased Tribunal. Further, in the 
words of our founding father, the services are the backbone of the 
state as the affairs of the Government are performed by the civil 
servants. Therefore, ultimately, the general public gets affected from 
the functioning of the service Tribunals; as such, the instant case 
involves a question of public importance.  
32. 
 
It may be mentioned here that the instant petition falls in 
the category of public interest litigation, which is not adversarial but 
inquisitorial in nature. It is well settled that this Court has the 
Const.P. 53/07 &  
Const.P.83/12 
26
jurisdiction to adjudicate upon a case if it falls within the ambit of 
inquisitorial proceedings. Reference may be made to the cases of 
Watan Party v. Federation of Pakistan (PLD 2011 SC 997), All Pakistan 
Newspapers Society v. Federation of Pakistan (PLD 2012 SC 1) and 
Workers' Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681). 
Thus, the instant petitions are maintainable and objection is overruled.  
33. 
  
Now we would examine as to whether or not the Service 
Tribunals, Federal and Provincial, are judicial forums and are 
performing their functions within the meaning of Article 175 of the 
Constitution of Islamic Republic of Pakistan, 1973, which deals with 
the establishment and jurisdiction of courts as well as independence of 
judiciary through its separation from the Executive. Clause (1) of the 
said Article provides that there shall be a Supreme Court of Pakistan, a 
High Court for each Province and a High Court for the Islamabad 
Capital Territory and such other courts as may be established by law. 
Whereas, Clause (3) provides that the Judiciary shall be separated 
progressively from the Executive within fourteen years from the 
commencing day. 
34.    
Firstly, it is to be examined whether Service Tribunals 
established under Article 212(1)(a) of the Constitution read with 
Federal or Provincial Legislation, fall within the definition of a court, 
under Article 175 of the Constitution.  
35. 
 
It is to be noted that the word ‘Court’ has not been defined 
in any legal instrument, therefore, we have to refer to its dictionary 
meanings, which are as under: - 
Corpus Juris Secundum; vol. 21 
Const.P. 53/07 &  
Const.P.83/12 
27
Generally, a court is a body in the government to which 
the public administration of justice is delegated, being a 
tribunal officially assembled under authority of law, at the 
appropriate time and place, for the administration of 
justice, through which the State enforces it sovereign 
rights and powers, and consisting in its jurisdiction and 
functions and not its title or name.   
The court exists as a forum to hear and resolve suits and 
controversies raised by parties who have invoked its 
authority.  
The term ‘court’ may include a Judge and a jury, ……….may 
include a Tribunal presided over by a police judge, or by a 
justice or justices of the peace, or various other tribunals.  
Halsbury’s Laws of England, 4th Edition Vol.10: 
Originally the term ‘Court’ meant, among other things, the 
Sovereign’s place. It has acquired the meanings of the 
place where justice is administered and, further, has come 
to mean the persons who exercise judicial functions under 
authority derived either directly or indirectly from the 
sovereign…… A Tribunal may be a court in the strict sense 
of the term even though the chief part of its duty is not 
judicial.  
The Oxford Companion to Law by David M. Walker: 
A court was originally the King’s or a great lord’s place or 
mansion……A court is accordingly a person or group of 
persons having authority to hear and administer disputes 
in accordance with rules of law. Tribunals or adjudicators 
who exercise adjudicative functions by virtue of contract or 
of the voluntary submission of persons to their decisions.  
Words and Phrases Legally Defined (1969 Edition, Vol. I, p. 
367)  
the terms `Court' originally meant the sovereign's palace; 
it acquired the meaning of the place where justice is 
administered and has come to mean the person who 
exercises judicial functions.  
The Major Law Lexicon, 4th Edition, 2010: 
“Court” includes all Judges and Magistrates and all 
persons, except arbitrators, legally authorized to take 
evidence. The “Court” means the person or persons before 
whom a legal proceeding is held or taken. “Court” means a 
civil, criminal or revenue Court and includes any tribunal or 
any other authority constituted under any law for the time 
being in force, to exercise judicial or quasi-judicial 
functions.  
Const.P. 53/07 &  
Const.P.83/12 
28
 
 
Black’s Law Dictionary: 
An organ of government, belonging to the judicial 
department, whose function is the application of the laws 
to controversies brought before it and the public 
administration of justice. 
 
 
Ballentine's Law Dictionary  
Court is the organ of the Government, consisting of one 
person, or of several persons called upon and authorized 
to administer justice.  
In Nasir Muhammad v. Murad Ali (PLD 1960 Lahore 757), a Division 
Bench, has held that “the expression ‘Court’ has not been defined 
either in the Limitation Act or the General Clauses Act and this can be 
said of almost all Acts in force in Pakistan. The expression, however, 
means according to the context in each case either the Presiding 
Officer or the whole Court including the Presiding Officer of the Court 
or the place where cases are heard.” In the case of Rehman Khan v. 
Asadullah Khan (PLD 1983 Quetta 52) while dealing with the question 
as to whether or not the Tribunals established under Civil Procedure 
(Special Provisions) Ordinance, 1968 were the Court and was 
competent to hear suits under section 42 of the Specific Relief Act, 
1877, the High Court held as under: - 
“7. The Black's Law Dictionary defines the "Court" as "an organ 
of the Government belonging to the judicial Department, whose 
function is the application of the laws to controversies brought 
before it and the public administration of justice". 
This definition finds support from White Country v. Gwin (136 
Ind. 562=36 N E 237=22 L R A 402), Bta-dley v. Town of 
Bloomfield (85 N J Law 506=89 A 1009). With reference to 
some other case-law it further defines the "Court" as a "body in 
the Government to which the administration of justice is 
delegated". Proceeding further it also says that the word "Court" 
is often applied in circumstances otherwise than in technical 
sense and is applied to various tribunals not judicial in their 
character, and includes Jury as well in the definition of the 
"Court." This explanation amply clarifies that although in strict 
sense Courts are such bodies or organs of the Government 
which apply laws to controversies and administer justice by 
pressing into service the prescribed rules of procedure and 
Evidence, but at times this term is loosely applied to such 
Const.P. 53/07 &  
Const.P.83/12 
29
forums also which are not the Courts stricto senso. So it does 
not mean that all forums responsible for the settlement of 
various kinds of disputes created from time to time under 
different laws are all Courts by dint of their function. 
In Words and Phrases Legally Defined by Butterworths, 
Vol. 1, p. 367I the word "Court" has been defined as a 
Department entrusted with the' administration of justice and it 
also includes in its definition the Parliament I. Parliament is 
included because it passed verdict in impeachment proceedings. 
Otherwise, parliament would not fall into the category of the 
Court. Similarly Jury is included in the term Court and Mr. 
Ansari on this premises argued that alike Jury a Tribunal could 
also be called Court. It is a fallacy to says so. Jury in the Anglo 
Saxson system is the Judge of facts but in the Tribunals under 
Ordinance I of 1968, it is only a recommendatory body and its 
verdict is in no way binding upon the Deputy Commissioner over 
and above this Deputy Commissioner is not a judicial Officer but 
an executive authority. That makes all the difference. The 
"Shorter. Oxford English Dictionary" also defines the Court as a 
forum for the decision of causes and here also decision means 
decision in the fashion I have referred heretofore. 
 
It is thus manifest that although the term "Court" is at 
times used for quasi judicial or administrative tribunals also but 
on this premises it cannot be inferred that such forums should 
be equated with the "Court" of law. Therefore, in our opinion 
"Courts" are such organs of the State which administer justice 
strictly in accordance with law, meaning thereby that while 
applying laws to the controversies, they follow certain rules with 
regard to procedures and evidence and are not left altogether 
unguided and uncontrolled to act on their whims and fancies as 
in the case of the Ordinance I of 1968, which although a 
procedural law, nullifies all laws and all doctrines hitherto 
universally considered necessary for the imparting of justice. 
The Tribunal under the Ordinance I of 1968 is one such forum 
which is not bound by any law of procedure or Evidence and like 
the Jirga under the erstwhile F. C. R., it may or may not even 
record evidence; and if recorded, the applicability or otherwise 
of the same has no criterions. It all depends on the whims of the 
tribunal to deny or allow any kind of evidence.” 
According to the Dictionary meanings, following three elements are 
essential for the conception of Court: - 
 
 
(1)  Time when Judicial functions may be exercised. 
(2)  A place for the exercise of Judicial functions. 
(3)  A person or persons exercising Judicial functions. 
 
Thus, the judicial functions are the common characteristic of each 
element. The term `judicial function' has also not been clearly spelt 
out either in any Dictionary or in any other book. However, Griffith, 
Const.P. 53/07 &  
Const.P.83/12 
30
C.J. in Huddart Parker's case has defined the term as, “the words 
‘judicial power’ as used in section 71 of the Constitution mean the 
power which every sovereign authority must of necessity have to 
decide controversies between its subject, or between itself and its 
subjects, whether the rights relate to life, liberty, or property. The 
exercise of this power does not come into being until some tribunal 
which has power to give binding and authoritative decision (whether 
subject to appeal or not) is called upon to take action.” The same 
definition has been quoted with approval in Shell Co. of Australia 
Limited v. Federal Commissioner of Taxation [(1930) All E R 671] and 
United Engineering Workers’ Union v. Uevanayagam [(1976) 2 All E R 
367]. From the detailed analysis of above case law it is clear that the 
exercise of Judicial power is considered to be an essential feature of a 
Court, and it distinguishes a Court from an administrative tribunal.  
36. 
 
Under section 5(2) of the STA, 1973, the Tribunal is 
deemed to be a civil Court having all the powers which are vested in 
the civil Court as such it has the power to grant temporary injunction, 
mandatory or prohibitory, under Order XXXIX, Rules 1 & 2 CPC during 
the pendency of the appeal before it and has also the power of the 
appellate Court under Order XLI, Rule 5 to stay the execution/ 
operation of the decree or order. In terms of section 5(1) ibid, the 
Tribunal can set aside, vary or modify the order in an appeal before it, 
of course, after full and final hearing of the appeal. Thus, the tribunal 
performs the judicial function. Reference may be made to the case of 
Imran Raza Zaidi v. Government of Punjab (1996 SCMR 645). 
Relevant portion therefrom is reproduced hereinbelow:- 
“12. … … Service Tribunal in the instant case is 
established under section 3 of the Punjab Service Tribunals 
Const.P. 53/07 &  
Const.P.83/12 
31
Act and appeal thereto is provided under section 4 while 
the powers conferred on it are reflected in section 5 … … 
Under subsection (2) of section 5, Service Tribunal is 
deemed to be a Civil Court having all the powers which are 
vested in the Civil Court under C.P.C. Such powers would 
include the jurisdiction of the Civil Court under Order 
XXXIX, rules 1 and 2, C.P.C. to grant temporary injunction 
and that of the appellate Court under Order 41, rule 5, 
C.P.C. to stay the execution/operation of the decree/order 
appealed from. … Apart from this, law is fairly well settled 
that even in the absence of an express provision for the 
grant of interim relief, the appellate Court/Tribunal having 
the power to grant the main relief can also grant the 
interim relief by suspending wholly or partially, the 
operation of the order under appeal before it as such a 
power is reasonably incidental or ancillary to the main 
appellate jurisdiction. … Needless to observe that under 
section 5(1) aforereferred, the Service Tribunal on an 
appeal filed before it can set aside, vary or modify the 
order appealed against, of course, after full and final 
hearing of the appeal. … Thus, viewed from whatever 
angle, the Service Tribunal has the power to grant interim 
relief/temporary injunction during. the pendency of the 
appeal.” 
  
In the case of Tariq Transport Company v. The   Sargodha-Bhera Bus 
Service (PLD 1958 SC 437) while considering the question that as to 
whether an act is judicial, quasi-judicial or administrative, Justice 
Muhammad Munir, CJ has observed that the said question is clouded 
by a confusion which is extremely difficult to resolve and no clear cut 
distinction between these three functions can be discovered from the 
case law. In modern States where expertise is the dominating feature 
of Government more than one function is combined in administrative 
tribunals, and more often than not an administrative agency 
discharges not only legislative and administrative but also judicial 
functions. The true question in the case of such tribunals always is 
whether the act which is complained of is a judicial act and not 
whether the procedure adopted by the tribunal is judicial or quasi-
judicial or whether the dominant or general aspect of the tribunal is 
that of a judicial, quasi-judicial or administrative body. A tribunal is not 
Const.P. 53/07 &  
Const.P.83/12 
32
always furnished with the trappings of a Court, nor will such trappings 
make its action judicial. The character of the action taken in a given 
case and the nature of the right on which it operates must determine 
whether that action is judicial, ministerial or legislative or whether it is 
simply the act of a public agent. A tribunal acts judicially in the full 
sense of the term if it has to determine a dispute; the dispute relates 
to a right or liability which, whatever its immediate aspect, is 
ultimately referable to some right or liability, recognised by the 
Constitution or statute or by custom or equity which by the domestic 
law is declared to be the rule of decision; since every right or liability 
depends upon facts, the tribunal is under an obligation to discover the 
relevant facts; the ascertainment of the facts is in the presence of the 
parties either of whom is entitled to produce evidence in support of its 
respective case and to question the truth of the evidence produced by 
his opponent; and after an investigation of the facts and hearing legal 
arguments the tribunal renders a judgment which so far as the tribunal 
is concerned terminates the dispute. In the case of an administrative 
tribunal, however, the emphasis is on policy, expediency and 
discretion to enable it to achieve the object with which it was set up. 
In the case of such a tribunal the, approach in determining the 
relevant facts is therefore often subjective and not objective, there 
being generally no lis before it in which the parties are arrayed against 
each other for the enforcement of a private right or liability and who 
for that purpose are entitled to produce evidence and adduce legal 
argument. The word `quasi' as prefixed to the word `judicial' may 
either indicate that the tribunal is not acting purely administratively or 
Const.P. 53/07 &  
Const.P.83/12 
33
that it is acting in a manner in which a judicial tribunal is expected to 
act.  
37. 
  
In the case of Mohammad Hashim Khan v. Province of 
Balochistan (PLD 1976 Quetta 59) it has been held that the Tribunal 
under section 5 of the Service Tribunals Act is deemed to be civil Court 
for the purpose of deciding any appeal before it with all the powers 
under the Code of Civil Procedure. As any other civil Court, the 
Tribunal will have the jurisdiction to examine whether or not a law is 
void by reason of its conflict with the Fundamental Rights or is 
otherwise ultra vires or that the order made is mala fide. The 
conferment upon the Tribunal the exclusive jurisdiction to adjudicate 
upon these matters cannot be given any less effect even if it were to 
be assumed, though there is no warrant for such an assumption, that 
one or the other ground of challenge may not be available to the 
petitioners before the Tribunal. In the case of Iftikhar Ahmad v. 
Muslim Commercial Bank Ltd. (PLD 1984 Lahore 69) it has been 
observed that despite the collection of elaborate views above, it has 
been generally observed that the definitions so far attempted are not 
exhaustive of the term ‘Court’. However, inspired by all that has peen 
said so far, and without claiming that it will be exhaustive, in my 
humble view, ‘judicial power’ is the legal right, ability and authority to 
hear and decide, objectively and after allowing opportunity to produce 
evidence, a justifiable issue, dispute, or controversy, concerning the 
existing legal rights, duties or interests of persons or property, arising 
out of relations and dealings, between two or more parties, who bring 
the same for an authoritative decision, binding on them and may 
include the authority to execute or get executed its decision and 
Const.P. 53/07 &  
Const.P.83/12 
34
protect rights, prevent and redress wrongs and punish offences 
through legal process. Further, the judicial power must be conferred 
by the State under Constitution or law and not the mere consent of 
parties, on persons who are paid by the State and removable by it 
only. The authority or body in which this power is vested is generally 
called ‘Court’ and in performing its functions it declares, construes and 
applied law or custom or usage, having the force of law. The ‘judicial 
power’ is thus the instrument to be used by the Court.  
38. 
  
In the case of Mehram Ali and others v. Federation of 
Pakistan,( PLD 1998 SC 1445) it has been held that Constitution 
recognizes only such specific Tribunals to share judicial powers with 
the Courts, established under Article 175 of the Constitution, which 
have been specifically provided by the Constitution itself, namely, 
Federal Shariat Court under Chapter 3A, Tribunals under Article 212, 
Election Tribunals under Article 255 of the Constitution. The same view 
was reiterated with approval by this Court in the case of Liaqat 
Hussain v. Federation of Pakistan (PLD 1999 SC 504).   
39. 
 
 In the case of Messrs Ranyal Textiles v. Sindh Labour 
Court (PLD 2010 Karachi 27) it has been observed that under the 
judicial system as established by the Constitution of the Islamic 
Republic of Pakistan, there are Courts and there are Tribunals. 
However, the Tribunals are only limited to the Tribunals specified in 
the Constitution such as Election Tribunal [Article 225], Administrative 
Tribunal [Article 212] and Tribunal relating to military affairs [Article 
199(5)]. Beside these Tribunals, whenever judicial power is vested in a 
forum, whatever be its designation, be it called a Court, be it called a 
Const.P. 53/07 &  
Const.P.83/12 
35
Tribunal or be it called a Commission, for all legal intends and 
purposes it is a Court and therefore has to be manned, controlled and 
regulated in accordance with the established judicial principles and the 
law relating to manning, regulation and control of Courts in Pakistan. 
Therefore, it was held that the Labour Appellate Tribunal, legally 
speaking, through denominated as a Tribunal, is a Court: nothing 
more, nothing less. 
40. 
 
The perusal of above case law makes it abundantly clear 
that a tribunal is not always function as a ‘Court’, nor its action is 
always judicial; however, the determining factor is the nature of the 
dispute to be resolved by the Tribunal. If the Tribunal has to determine 
a dispute relating to a right or liability, recognised by the Constitution 
or law and is under an obligation to discover the relevant facts, in the 
presence of the parties, in the light of the evidence produced by them, 
it acts judicially. Besides, whenever judicial power is vested in a 
forum, be it called a Court or Tribunal, for all legal intends and 
purposes it is a Court. Further, such Tribunals have to be manned, 
controlled and regulated in accordance with the established judicial 
principles.  
41. 
 
It is pertinent to mention here that as the service Tribunals 
are not only deemed to be a civil Court but also exercise judicial 
powers, therefore, they are included in the term ‘Court’ mentioned in 
Article 175 of the Constitution. As such, these Tribunals are to be 
manned, controlled and regulated in accordance with the law relating 
to management, regulation and control of Courts in Pakistan.  
42. 
 
It is to be noted that independence of judiciary has been 
recognized as a universal human right. In terms of Article 10 of the 
Const.P. 53/07 &  
Const.P.83/12 
36
Universal Declaration of Human Rights, G.A, 1948, everyone is entitled 
to full equality to a fair and public hearing by an independent and 
impartial Tribunal. In Pakistan, the independence of judiciary is a basic 
principle of the constitutional system of governance. The Preamble and 
Article 2A state that “the independence of judiciary shall be fully 
secured”. This Court while interpreting Article 175 has further 
strengthened the principle of the independence of judiciary, by 
emphasizing the separation of Judiciary from the Executive. The 
Constitution makes it the exclusive power/responsibility of the 
Judiciary to ensure the sustenance of the system of “separation of 
powers” based on checks and balances. This is a legal obligation 
assigned to the Judiciary. It is called upon to enforce the Constitution 
and safeguard the Fundamental Rights and freedom of individuals. To 
do so, the Judiciary has to be properly organized and effective and 
efficient enough to quickly address and resolve public claims and 
grievances; and also has to be strong and independent enough to 
dispense justice fairly and impartially. [see Zafar Ali Shah v. Pervez 
Musharraf (PLD 2000 SC 869)]. Our Constitution is based on 
separation of powers whereby Parliament makes the laws and the 
judiciary interprets them. However, it remains the duty of the Judiciary 
to examine vires of legislation at the touchstone of the Constitution. 
Reference may be made to the case of Shahid Nabi Malik v. Chief 
Election Commissioner(PLD 1997 SC 32).  
43. 
 
In the case of Chenab Cement Products v. Banking 
Tribunal (PLD 1996 Lahore 672) various provisions of the Banking 
Tribunals Ordinance, 1984 were challenged  on the plea that the same 
were violative of the Article 25(1) and the theory of independence and 
Const.P. 53/07 &  
Const.P.83/12 
37
separation of judiciary enshrined in the Constitution. A full Bench of 
the Court declared the sections 4, 6(6) [as amended by Act VII of 
1990] and first proviso to section 9 of the Banking Tribunals 
Ordinance, 1984 to be unconstitutional as those eroded the 
independence of judiciary and were hit by Article 175 read with 
Articles 2A, 4, 8 and Article 25 of the Constitution and further held that 
the notifications appointing Presiding Officers of the Banking Tribunals, 
issued under the said Ordinance, were  too unconstitutional and 
without lawful authority and were quashed. 
44. 
  
In Kilbourn v. Thompsons [103 US 168; 26 L ED 377], it 
has been held that because, living under a written constitution, no 
branch or department of the government is supreme; and it is the 
province and duty of the judicial department to determine in cases 
regularly brought before them, whether the powers of any branch of 
the government, and even those of the legislature in the enactment of 
laws, have been exercised in conformity to the Constitution; and if 
they have not, to treat their acts as null and void. The house of 
representatives has the power under the Constitution to imprison for 
contempt; but the power is limited to cases expressly provided for by 
the Constitution, or to cases where the power is necessarily implied 
from those constitutional functions and duties, to the proper 
performance of which it is essential. 
45. 
  
The Principle of separation and independence of judiciary 
as envisaged in Article 175 of the Constitution is also applicable to the 
lower judiciary as it is the part of the judicial hierarchy. Thus, its 
separation and independence has to be secured and preserved as that 
of superior judiciary. In terms of Article 175 read with Article 203 of 
Const.P. 53/07 &  
Const.P.83/12 
38
the Constitution, the lower judiciary should be separated from the 
Executive and the High Court shall supervise and control all courts 
subordinate to it. Reference may be made to the case of Government 
of Sindh v. Sharaf Faridi (PLD 1994 SC 105). In the case of Dr. 
Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) it has 
been held that the Legislature is competent to legislate but such 
legislation would not be sustainable if it is contrary to the principle of 
independence of judiciary as mentioned in Article 2A of the 
Constitution, which provides that independence of judiciary shall be 
fully secured read with Article 175 of the Constitution, which lays down 
a scheme for the establishment of the Courts, including the superior 
Courts and such other Courts as may be established by law. As it has 
been held that Service Tribunal discharges judicial functions, thus falls 
within the definition of a “Court’ in view of the above discussion, 
therefore, the Tribunals have to be separated from Executive following 
the principle of independence of judiciary in view of Article 175(3) of 
the Constitution.  
46. 
  
In the light of the finding given hereinabove to the extent 
that the Service Tribunals are included in the term ‘Court’ mentioned 
in Article 175(3) of the Constitution and are to be managed, controlled 
and regulated in accordance with the law relating to the Courts in 
Pakistan, the question arises as to whether Service Tribunal enjoys 
independence even in the appointment of its Chairman and the 
Members. Although the Act and the rules do not provide consultation 
with the respective Chief Justice, yet having been declared that the 
Tribunals established under Article 212 fall within contemplation of 
Article 175(3) of the Constitution, the requirements of said provision 
Const.P. 53/07 &  
Const.P.83/12 
39
has 
to 
be 
adhered 
to 
while 
making 
appointment 
to 
the 
Chairman/Members of the Tribunal. We are in agreement with the 
learned counsel for the petitioner that the Service Tribunals exercise 
judicial powers with remedy of appeal before this Court under Article 
212(3), if the case involves a substantial question of law of public 
importance, as such, the matters regarding appointment of the 
Chairman and Members of the Service Tribunals are as important as 
those of judges of the High Courts. Thus, we are in agreement with 
the learned counsel for the petitioner that the Tribunal should not be 
under the administrative or financial control of the Executive. On the 
analogy of the judges of the High Courts and Federal Shariat Court, 
the terms and conditions of the Chairman and Members of the Tribunal 
may be independently determined so as to make them outside the 
Executive influence and to ensure uniformity. 
47. 
 
In this context, it is to be noted that in the case of 
Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it has 
been held that the Constitution provided that the appointment of 
Judges of the superior Courts is to be made by the President after 
consultation with the consultees mentioned therein. Such ‘consultation’ 
cannot be treated lightly as a mere formality, rather supposed to be 
effective, meaningful, purposive, consensus oriented, leaving no room 
for complaint of arbitrariness or unfair play. The Chief Justice of the 
High Court and the Chief Justice of Pakistan normally know advocates 
who appear in their Courts regularly and would nominate or 
recommend names of such advocates who are capable and fit to be 
Judges of the High Court and their opinion, which is expert opinion in a 
way, cannot and should not be ignored, but, must be given due 
Const.P. 53/07 &  
Const.P.83/12 
40
weight. Their opinion, as to the fitness and suitability of a candidate 
for judgeship, is entitled to be accepted in the absence of very sound 
reasons to be recorded in writing by the President/Executive.  
48.    
In the case of Imran v. Presiding Officer, Punjab Special 
Court (PLD 1996 Lahore 542), constitution of Special Courts under the 
Suppression of Terrorists Activities (Special Courts) Act, 1975 and the 
Offences in Respect of Banks (Special Courts) Ordinance, 1984 were 
challenged, on ground that the said courts were established and 
managed at the will of Executive as the Presiding Officers are 
appointed by the Government and work at its pleasure without having 
security of office. The Court held that it stands recognized that even if 
the power of appointment or of establishment of a Court vests in the 
Government/Executive, the appointments cannot be made arbitrarily, 
and the said power of appointment is to be exercised through 
meaningful consultation of the judiciary or its head (Chief Justice), and 
judicial power cannot be invested by the Executive by appointing 
persons on its own, providing any procedures or imposing any 
sentence or conviction so as to control free and fair exercise of judicial 
power. It was further held as under: - 
“20. The principles deductible from the survey of the 
Constitutional provisions and the case-law are that in order 
to comply with the mandate of independence and 
separation of Judiciary, the Courts howsoever designated 
as 'Special Court' or 'Tribunal' are to be established and 
constituted by making appointment with meaningful 
consultation of the Chief Justice of the High Court and by 
providing security of tenure for a period which will not act 
as a disincentive, such a tenure should then be secured by 
making necessary provision in the Statute itself. The 
concept of consultation with the Chief Justice/the High 
Court is not a new concept introduced by the Supreme 
Court in its recent judgment. The consultation with the 
High Court is provided by the Civil Courts Ordinance, 1962, 
for making appointments of District Judges under section 
Const.P. 53/07 &  
Const.P.83/12 
41
5, for Additional District Judges under section 6 and for 
Civil Judges under section 8 of the Ordinance. … … Even 
the Executive Magistrates who desire -to be absorbed in 
the Judiciary on option are to be accepted by the High 
Court provided they fulfil the requisite qualifications 
prescribed 
by 
the 
relevant 
Service 
Rules. 
The 
appointments made to the judicial posts/tribunals as such 
by any contrary method is thus violative of the theory of 
independence of judiciary. In addition to these features, 
the power to transfer cases from one Tribunal to the other 
is not to be left to the discretion of the Executive and 
financial independence is also to be secured.” 
 
The matter of appointment of the judges of the special Courts was 
examined by this Court in the case of Mehram Ali and others v. 
Federation of Pakistan (PLD 1998 SC 1445) wherein it was held as 
under: - 
“35. The appointment of the Judges of the Special Courts 
are required, by subsection (2) of section 14 of the Act, to 
be made by the Government after consultation with the 
Chief Justice of the High Court. The Executive does not 
have a free hand in the making of such appointments. As 
to the meaning of consultation we can do no better than to 
rely on the recent judgments of the Supreme Court in the 
cases of Al-Jehad Trust through Raeesul Mujahideen Habib 
Al-Wahabul Khairi, and others v. Federation of Pakistan 
PLD 1996 SC 324 and Al-Jehad Trust through Raees-ul-
Mujahidin Habib-Al-Wahabul Khairi, Advocate Supreme 
Court and another (PLD 1997 SC 84). The Federal 
Government is bound to accept the recommendations of 
the Honourable Chief Justice of the High Court except for 
valid reasons justifying a departure. We were informed by 
the learned Attorney General for Pakistan and the learned 
Advocate-General, Punjab, that no Presiding Officer of the 
Special Court shall be removable except with the 
consent/concurrence 
or 
recommendation 
by 
the 
Honourable Chief Justice of the High Court. Even 
otherwise, the power of removal is basically an adjunct to 
the power of appointment. We, however, notice that the 
security of tenure for a certain period is also required to be 
provided by making necessary provisions in the statute 
itself as held by a Full Bench of this Court in the case of 
Imran v. Presiding Officer, Punjab Special Court No.VI, 
Multan and 2 others (PLD 1996 Lahore 542). In the 
precedent case, provisions of Suppression of Terrorist 
Activities (Special Courts) Act, 1975 and the Offences in 
Respect of Banks (Special Courts) Ordinance, 1980, were 
examined threadbare. We allow two months' time of 
making necessary amendments in the law.” 
 
Const.P. 53/07 &  
Const.P.83/12 
42
49. 
  
In the case of Hazrat Baz v. Political Agent/District 
Magistrate Khyber Agency (PLD 2010 Peshawar 7) it has been held 
that if it is required to establish Special Courts and then to appoint a 
Sessions Judge or an Additional Sessions Judge as a Judge Special 
Court, same should be done after consultation with the Chief Justice of 
the High Court. In the case of Messrs Ranyal Textiles v. Sindh Labour 
Court (PLD 2010 Karachi 27) it has been held that in the appointment 
of Chairman of Labour Appellate Tribunal, the consultation with the 
Chief Justice of the High Court is an essential prerequisite and a 
condition precedent. It was further held that all judicial appointments 
must be subordinate to the High Court and it is only High Court which 
can and should exercise exclusive administrative and supervisory 
control 
over 
subordinate 
judiciary. 
Such 
supervisory 
and 
administrative control cannot exist if a credible and pivotal role is 
denied to the High Court in appointment of such persons. It will be 
axiomatic to say that a Court is subordinate to High Court but its 
Presiding Officers is to be appointed by the Provincial Government 
without consulting High Court. Reliance can also be placed on S. P. 
Sampath Kumar v. Union Of India (AIR 1987 Supreme Court 386). 
50. 
  
From the above case law, it is manifest that whenever the 
appointment of a ‘judicial officer’ or the Chairman/Member of a 
Tribunal performing ‘judicial functions’ is made, the consultation with 
the concerned Chief Justice is prerequisite. Thus, the appointments of 
the Chairman/Member of the Service Tribunal, Federal or Provincial, 
must be made in consultation with the Chief Justice of Pakistan or the 
Chief Justice of concerned High Court, as the case may be and all 
appointments made without such consultation are void. 
Const.P. 53/07 &  
Const.P.83/12 
43
51. 
 
Learned counsel for the petitioner has emphasized that 
there must be requirement of possessing legal and judicial experience 
for a Member of the Tribunal, to be able to deal with the judicial 
questions arising in a particular case and in this behalf, appropriate 
experience should be prescribed. According to him, practicing lawyers, 
who are qualified to be appointed as Judge of the High Court, be given 
preference for induction as Members of the Service Tribunals. In this 
regard it is to be noted that the law prescribes that the Chairman of 
the Tribunal must be a person who is or has been qualified to be a 
Judge of the High Court, which has an inbuilt mechanism of having 
legal/judicial experience, however, there is no requirement of having 
legal or judicial experience for the Members of the Tribunal. Whereas, 
according to law a Bench can be constituted comprising two members 
and Chairman or two members. Thus, the Bench, comprising the 
members only, could decide a particular case.  If the Members who 
belong to the executive constitute a Bench, there is likelihood that 
they may not be able to decide the judicial question in appropriate 
manner, having no judicial experience and if the case is against the 
orders of the President/Governor or senior officers they may not be 
able to act fairly, justly and independently being under pressure, 
thereby eroding the concept of fair administration of justice. Keeping 
in view such situation, a full Bench of Lahore High Court in the case of 
Muzaffar Hussain v. The Superintendent of Police [2002 PLC (CS) 
442], considered the possibility of appointment of Judicial Members in 
the Service Tribunal in line with the provisions of (Indian) 
Administrative Tribunals Act, 1985 and observed that the Tribunal 
should also have equal number of judicial members from amongst the 
Const.P. 53/07 &  
Const.P.83/12 
44
persons qualified to be Judge of the High Court and to be appointed 
after meaningful consultation with the Chief Justice of and every Bench 
should be headed by at least one Judicial Member so as to eliminate 
any misgiving or apprehension of an aggrieved person as regards 
independent working of the Tribunal. Relevant portion from the said 
judgment is reproduced hereinbelow: - 
“62. … … We are of the view that in line with the 
provisions of (Indian) Administrative Tribunals Act,1985 
the Tribunal should also have equal number of judicial 
members from amongst the persons qualified to be Judge 
of this Court and to be appointed after meaningful 
consultation with the Chief Justice of this Court and every 
Bench should be headed by at least one Judicial Member 
so as to eliminate any misgiving or apprehension of an 
aggrieved person as regards independent working of the 
Tribunal. This observation is not to be construed as a 
direction of this Court to legislate because we are 
conscious of our limitations but to improve the quality of 
justice by the Tribunal we very strongly feel that it is 
required to be done.” 
52. 
 
As it has already been held that the Service Tribunals act 
as a Court and perform judicial functions, therefore, it is necessary 
that not only the Chairman but also the Members of the Tribunal must 
have legal/judicial experience. For that purpose, the person who is or 
has been qualified to be a District Judge, may be appointed as Member 
of the Tribunal. 
53. 
 
It is to be noted that in the neighbouring country 
corresponding provision to Article 212 of our Constitution is Article 
323A of the Constitution of India. In pursuance of said provision of 
Indian Constitution, Administrative Tribunal Act (Act No.13) of 1985 
has been promulgated, section 28 whereof has excluded the 
jurisdiction of the High Court in relation to recruitment and matters 
concerning recruitment to any service or post or service matters 
Const.P. 53/07 &  
Const.P.83/12 
45
concerning members of any service or persons appointed to any 
service, or post. A challenge was thrown to the said Act in the case of 
S.P. Sampath Kumar v. Union of India (AIR 1987 SC 386), mainly to 
question the abolition of the jurisdiction of the High Court in respect of 
specific service disputes. In this judgment, the Indian Supreme Court 
without declaring the provision of section 28 of the Act, 1985 
unconstitutional, as it has taken away the jurisdiction of the High 
Court, issued certain directions for making amendments in the Act, 
1985, emphasizing that as the Administrative Tribunal has been made 
a substitute of the High Court, therefore, constitutionally and legally it 
must exercise its jurisdiction as a replacement of the High Court 
providing confidence to the litigants and the public that the statutory 
body is capable to administer efficaciously the powers of the judicial 
review. Relevant paras there from are reproduced herein below:- 
 “3. 
Here, in the present case, the impugned Act has been enacted 
by Parliament in exercise of the power conferred by clause (1) of 
Article 323A which was introduced in the Constitution by Constitution 
(42nd Amendment) Act, 1976. Clause (2) (d) of this Article provides 
that a law made by Parliament under clause (1) may exclude the 
jurisdiction of courts, except the jurisdiction of the Supreme Court 
under Article 136, with respect to the disputes or complaints referred 
to in clause (1). The exclusion of the jurisdiction of the High Court 
under Articles 226 and 227 by any law made by Parliament under 
clause (1 ) of Article 323A is, therefore, specifically authorised by the 
constitutional amendment enacted in clause (2) (d) of that Article. It is 
dear from the discussion in the preceding paragraph that this 
constitutional amendment authorising exclusion of the jurisdiction of 
the High Court under Articles 226 and 227 postulates for its validity 
that the law made under clause (1) of Article 323A excluding the 
jurisdiction of the High Court under Articles 226 and 227 must provide 
for an effective alternative institutional mechanism or authority for 
judicial review. If this constitutional amendment were to permit a law 
made under clause (1) of Article 323A to exclude the jurisdiction of the 
High Court under Articles 226 and 227 without setting up an effective 
alternative 444 institutional mechanism or arrangement for judicial 
review, it would be violative of the basic structure doctrine and hence 
outside the constituent power of Parliament. It must, therefore, be 
read as implicit in this constitutional amendment that the law 
excluding the jurisdiction of the High Court under Articles 226 and 227 
permissible under it must not leave a void but it must set up another 
effective institutional mechanism or authority and vest the power of 
judicial review in it. Consequently, the impugned Act excluding the 
jurisdiction of the High Court under Articles 226 and 227 in respect of 
service matters and vesting such jurisdiction in the Administrative 
Tribunal can pass the test of constitutionality as being within the ambit 
Const.P. 53/07 &  
Const.P.83/12 
46
and coverage of clause (2) (d) of Article 323A, only if it can be shown 
that the Administrative Tribunal set up under the impugned Act is 
equally efficacious as the High Court, so far as the power of judicial 
review over service matter is concerned. We must, therefore, address 
ourselves to the question whether the Administrative Tribunal 
established under the impugned Act can be regarded as equally 
effective and efficacious in exercising the power or judicial review as 
the High Court acting under Articles 226 and 227 of the Constitution.  
4. 
It is necessary to bear in mind that service matters which are 
removed from the jurisdiction of the High Court under Articles 226 and 
227 of the Constitution and entrusted to the Administrative Tribunal 
set up under the impugned Act for adjudication involve questions of 
interpretation and applicability of Articles 14, 15, 16 and 311 in quite a 
large number of cases. These questions require for their determination 
not only judicial approach but also knowledge and expertise in this 
particular branch of constitutional law. It is necessary that those who 
adjudicate upon these questions should have same modicum of legal 
training and judicial experience because we find that some of these 
questions are so difficult and complex that they baffle the minds of 
even trained Judges in the High Courts and the Supreme Court. That is 
the reason why at the time of the preliminary hearing of these writ 
petitions we insisted that every bench of the Administrative Tribunal 
should consist of one judicial member and one administrative member 
and there should be no preponderance of administrative members on 
any bench. Of course, the presence of the administrative member 
would provide input of practical experience in the functioning of the 
services and add to the efficiency of the Administrative Tribunal but 
the legal input would undeniably be more important and sacrificing the 
legal input or not giving it sufficient weightage would definitely impair 
the efficacy and effectiveness of the Administrative Tribunal as 
compared to the High Court. Now section 6 provides that the Chairman 
of the Administrative Tribunal should be or should have been a Judge 
of the High Court or he should have for at least two years held office of 
Vice-Chairman or he should have for at least two years held the post 
of 445 Secretary to the Government of India or any other post under 
the Central or State Government carrying a scale of pay which is not 
less than that of a Secretary to the Government of India. I entirely 
agree 
with 
Ranganath 
Misra, 
J. 
that 
the 
Chairman 
of 
the 
Administrative Tribunal should be or should have been a Judge of a 
High Court or he should have for at least two years held office as Vice-
Chairman. If he has held office as Vice-Chairman for a period of at 
least two years he would have gathered sufficient experience and also 
within such period of two years, acquired reasonable familiarity with 
the constitutional and legal questions involved in service matters, But 
substituting the Chief Justice of a High Court by a Chairman of the 
Administrative Tribunal who has merely held the post of a Secretary to 
the Government and who has no legal or judicial experience would not 
only fail to inspire confidence in the public mind but would also render 
the Administrative Tribunal a much less effective and efficacious 
mechanism than the High Court. We cannot afford to forget that it is 
the High Court which is being supplanted by the Administrative 
Tribunal and it must be so manned as to inspire confidence in the 
public mind that it is a highly competent and expert mechanism with 
judicial approach and objectivity. Of course, I must make it clear that 
when I say this, I do not wish to cast any reflection on the members of 
the Civil Services because fortunately we have, in our country, brilliant 
civil servants who possess tremendous sincerity, drive and initiative 
and who have remarkable capacity to resolve and overcome 
administrative problems of great complexity. But what is needed in a 
judicial tribunal which is intended to supplant the High Court is legal 
training and experience. I am, therefore, of the view, in agreement 
with Ranganath Misra, J. that clause (c) of section 6 (1) must be 
struck down as invalid.  
Const.P. 53/07 &  
Const.P.83/12 
47
6. 
That takes me to another serious infirmity in the provisions of 
the impugned Act in regard to the mode of appointment of the 
Chairman, Vice Chairman and members of the Administrative Tribunal. 
So far as the appointment of judicial members of the Administrative 
Tribunal is concerned, there is a provision introduced in the impugned 
Act by way of amendment that the judicial members shall be 
appointed by the Government concerned in consultation with the Chief 
Justice of India. Obviously no exception can be taken to this provision, 
because even so far as Judges of the High Court are concerned, their 
appointment is required to be made by the President inter alia in 
consultation with the Chief Justice of India. But so far as the 
appointment of Chairman, Vice-Chairmen and administrative members 
is concerned, the sole and exclusive power to make such appointment 
is conferred on the Government under the impugned Act. There is no 
obligation cast on the Government to consult the Chief Justice of India 
or to follow any particular selection procedure in this behalf. The result 
is that it is left to the absolute unfettered discretion of the Government 
to appoint such person or persons as it likes as Chairman, Vice-
Chairman and administrative members of the Administrative Tribunal. 
Now it may be noted that almost all cases in regard to service matters 
which come before the Administrative Tribunal would be against the 
Government or any of its officers and it would not at all be conducive 
to judicial independence to leave unfettered and unrestricted discretion 
in the executive to appoint the Chairman, Vice-Chairmen and 
administrative members, if a judicial member or an administrative 
member is looking forward to promotion as Vice Chairman or 
Chairman, he would have to depend on the goodwill and favourable 
stance of the executive and that would be likely to affect the 
independence and impartiality of the members of the Tribunal. The 
same would be the position vis-a-vis promotion to the office of 
Chairman of the Administrative Tribunal. The administrative members 
would also be likely to carry a sense of obligation to the executive for 
having been appointed members of the Administrative Tribunal and 
that would have a tendency to impair the independence and objectivity 
of the members of the Tribunal. There can be no doubt that the power 
of appointment and promotion vested in the executive can have 
prejudicial effect on the 447 independence of the Chairman, Vice-
Chairmen and members of the Administrative Tribunal, if such power is 
absolute and unfettered. If the members have to look to the executive 
for advancement, it may tend, directly or indirectly, to influence their 
decision-making process particularly since the Government would be a 
litigant in most of the cases coming before the Administrative Tribunal 
and it is the action of the Government which would be challenged in 
such cases. That is the reason why in case of appointment of High 
Court Judges, the power of appointment vested in the executive is not 
an absolute unfettered power but it is hedged in by a wholesome 
check and safeguard and the President cannot make an appointment 
of a High Court Judge without consultation with the Chief Justice of the 
High Court and the Chief Justice of India and a healthy convention has 
grown up that no appointment would be made by the Government 
which is not approved by the Chief Justice of India. This check or 
safeguard is totally absent in the case of appointment of the 
Chairman, 
Vice-Chairmen 
and 
administrative 
members 
of 
the 
Administrative Tribunal and the possibility cannot be ruled out indeed 
the litigating public would certainly carry a feeling that the decision 
making process of the Chairman, Vice-Chairmen and members of the 
Administrative Tribunal might be likely to be affected by reason of 
dependence on the executive for appointment and promotion. It can 
no longer be disputed that total insulation of the judiciary from all 
forms of interference from the coordinate branches of Government is a 
basic essential feature of the Constitution. The Constitution makers 
have made anxious provision to secure total independence of the 
judiciary from executive pressure or influence. Obviously, therefore if 
the Administrative Tribunal is created in substitution of the High Court 
and the jurisdiction of the High Court under Articles 226 and 227 is 
Const.P. 53/07 &  
Const.P.83/12 
48
taken away and vested in the Administrative Tribunal, the same 
independence from possibility of executive pressure or influence must 
also be ensured to the Chairman, Vice-Chairmen and members of the 
Administrative Tribunal. Or else the Administrative Tribunal would 
cease to be an equally effective and efficacious substitute for the High 
Court and the provisions of the impugned Act would be rendered 
invalid. I am, therefore, of the view that the appointment of Chairman, 
Vice-Chairmen and administrative members should be made by the 
concerned Government only after consultation with the Chief Justice of 
India and such consultation must be meaningful and effective and 
ordinarily the recommendation of the Chief Justice of India must be 
accepted unless there are cogent reasons, in which event the reasons 
must be disclosed to the Chief Justice of India and his response must 
be invited to such reasons. There is also another alternative which 
may be adopted by the Government for making appointments of 
Chairman, Vice Chairmen and members and that may be by setting up 
a High Powered Selection Committee headed by the Chief Justice of 
India or a sitting Judge of the Supreme Court or concerned High Court 
nominated by the Chief Justice of 448 India. Both these modes of 
appointment will ensure selection of proper and competent persons to 
man the Administrative Tribunal and give it prestige and reputation 
which would inspire confidence in the public mind in regard to the 
competence, objectivity and impartiality of those manning the 
Administrative Tribunal. If either of these two modes of appointment is 
adopted, it would save the impugned Act from invalidation. Otherwise, 
it will be outside the scope of the power conferred on Parliament under 
Article 323-A. I would, however hasten to add that this judgment will 
operate only prospectively and will not invalidate appointments already 
made to the Administrative Tribunal. But if any appointments of Vice-
Chairmen or administrative members are to be made hereafter, the 
same shall be made by the Government in accordance with either of 
the aforesaid two modes of appointment.  
7. 
I may also add that if the Administrative Tribunal is to be an 
equally effective and efficacious substitution for the High Court on the 
basis of which alone the impugned Act can be sustained, there must 
be a permanent or if there is not sufficient work, then a Circuit Bench 
of the Administrative Tribunal at every place where there is a seat of 
the High Court. I would, therefore, direct the Government to set up a 
permanent bench and if that is not feasible having regard to the 
volume of work, then at least a Circuit Bench of the Administrative 
Tribunal wherever there is a seat of the High Court, on or before 31st 
March, 1987. That would be necessary if the provisions of the 
impugned Act are to be sustained. So far as rest of the points dealt 
with in the judgment of Ranganath Misra, J. are concerned, I express 
my entire agreement with the view taken by him.” 
 
54. 
 
As far as Article 212(1) of the Constitution is concerned, it 
has also excluded the jurisdiction of the High Court to the extent of 
some of the terms & conditions of the civil servants. Reference in this 
behalf may be made to the case of Syed Arshad Ali v. Pakistan 
Telecommunication Company Ltd. (2008 SCMR 314), wherein it has 
been held that jurisdiction of High Court was barred under Article 212 
of the Constitution, as specific forum was provided for redressal of 
Const.P. 53/07 &  
Const.P.83/12 
49
grievance of employees, even if order proposed to be challenged might 
have been passed in whatsoever circumstances viz. mala fide, coram 
non judice or without jurisdiction. Whereas, jurisdiction of this Court is 
also confined to fulfillment of the conditions mentioned in Article 
212(1) of the Constitution, in view of the observations made in S.P. 
Sampath Kumar’s case (supra), reproduced hereinabove from the 
added note of Bhagwati, CJ, who had agreed with other members of 
the Bench, but in view of the importance of the case had added his 
independent note as well.  
55. 
 
In the above background, this Court has also to examine 
the vires of section 3 of the STA, 1973 along with corresponding 
provisions of the Provincial Service Tribunal Acts, reproduced 
hereinabove, to make it possible that a Service Tribunal, having 
backing of the Legislation as well as the Constitution, is capable to 
maintain the principle of independence of judiciary as well as to ensure 
enforcement of Fundamental Rights enshrined in Article 9 of the 
Constitution, namely, access to justice. At this juncture, it may be 
noted that under this Article, right to ‘access to justice’ has been 
recognized to be one of the Fundamental Rights. Reference in this 
behalf may be made to the case of Ms. Benazir Bhutto's case (PLD 
1989 SC 416) wherein it has been held as under: - 
“In this milieu, I am of the view that the adversary 
procedure, where a person wronged is the main actor if it 
is rigidly followed, as contended by the learned Attorney 
General, for enforcing the Fundamental Rights, would 
become self-defeating as it will not then be available to 
provide "access to justice to all" as this right is not only an 
internationally recognized human right but has also 
assumed constitutional importance as it provides a 
broadbased remedy against the violation of human rights 
and also serves to promote socio-economic justice which is 
pivotal in advancing the national hopes and aspirations of 
the people permeating the Constitution and the basic 
Const.P. 53/07 &  
Const.P.83/12 
50
values incorporated therein, one of which is social 
solidarity, i.e. , national integration and social cohesion by 
creating an egalitarian society through a new legal order. 
 
In Sharaf Faridi v Islamic Republic of Pakistan (PLD 1989 Karachi 404) 
after referring to Ms. Benazir Bhutto's case (supra) it was observed as 
under: - 
The right of 'access to justice to all' is a well-recognised 
inviolable right enshrined in Article 9 of the Constitution. 
This right is equally found in the doctrine of 'due process of 
law'. The right of access to justice includes the right to be 
treated according to law, the right to have a fair and 
proper trial and a right to have an impartial Court or 
Tribunal. 
This 
conclusion 
finds 
support 
from 
the 
observation of Willoughby in Constitution of United States, 
Second Edition, Vol. II at page 1709 where the term 'due 
process of law' has been summarised as follows: - 
  
(1)  He shall have due notice of proceedings which affect 
his rights. 
  
(2)  He shall be given reasonable opportunity to 
defend. 
  
(3)  That the Tribunal or Court before which his rights are 
adjudicated is so constituted as to give reasonable 
assurance of his honesty and impartiality, and 
  
(4)  That it is a Court of competent jurisdiction. " 
 
It therefore follows that in terms of Article 9 of the 
Constitution a person is entitled to have an impartial Court 
and tribunal. Unless an impartial and independent Court is 
established the right to have a fair trial according to law 
cannot be achieved. Therefore justice can only be done if 
there is an independent judiciary which should be separate 
from executive and not at its mercy or dependent on it. 
 
In the case of Government of Balochistan through Additional Chief 
Secretary v Azizullah Memmon (PLD 1993 SC 341), it was held as 
under: - 
13. The above extract indicates what are the basic 
requirements of the doctrine "due process of law", which is 
enshrined inter alia in Article 4 of our Constitution. It is 
intrinsically linked with the right to have access to justice, 
which this Court has held inter alia in the above report as a 
fundamental right. This right inter alia includes the right to 
have a fair and proper trial and a right to have an impartial 
Const.P. 53/07 &  
Const.P.83/12 
51
Court or Tribunal. A person cannot be said to have been 
given a fair and proper trial unless he is provided a 
reasonable opportunity to defend the allegation made 
against him. In the instant case the Returning Officer was 
seized of the question, whether respondent No.1 was 
qualified to be a candidate for the office of the President. 
His decision that respondent No.1 was not qualified to be 
elected as a member of the Parliament would have entailed 
his non-seating as a member of the Senate, which was a 
question of the nature, which could not have been 
adjudicated upon in a summary inquiry under Rule 5(3)(a) 
of the rules, particularly when the correctness of the 
contents of the interview was not admitted by respondent 
No.1. 
 
In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 
324) after referring the Sharaf Faridi’s case (supra) it was observed 
that the right to have access to justice through an independent 
Judiciary is a Fundamental Right; without having an independent 
Judiciary, the Fundamental Rights enshrined in the Constitution will be 
meaningless and will have efficacy or beneficial value to the public at 
large. The same view has been reiterated in the case of Al-Jehad Trust 
v. Federation of Pakistan (PLD 1997 SC 84), Muhammad Nadeem Arif 
v. Inspector General of Police, Punjab (2011 SCMR 408) and All 
Pakistan Newspapers Society v. Federation of Pakistan (PLD 2012 SC 
1). 
56. 
 
On having discussed hereinabove and before identifying 
void parts of certain provisions of the Federal and the Provincial 
Service Tribunal Acts, it is observed that under Article 8 of the 
Constitution, any law, inconsistent with the rights conferred by the 
said Chapter, shall, to the extent of such inconsistency, be void.  
57. 
 
This Court in exercise of judicial review, time and again 
has maintained that violation of Article 8 casts a duty/obligation upon 
this Court to declare any such law to be void. In the case of Baz 
Const.P. 53/07 &  
Const.P.83/12 
52
Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923) it has 
been held as under: - 
“14. 
The apprehensions expressed by the learned counsel for 
the 
Federation 
are 
unfounded. 
Pakistan 
has 
a 
written 
Constitution and all the organs of the State, namely, legislature, 
executive and the judiciary are functioning within their 
respective domains. The judiciary has never claimed supremacy 
over other organs of the State. However, it has a duty to 
interpret the Constitution and law as well as to examine the 
constitutionality of any law if it is concluded that it has been 
promulgated in derogation of the Fundamental Rights as 
envisaged by Article 8 of the Constitution, or where any of the 
provision of any law is found contrary to the Constitution. It is 
also one of the recognized principles of jurisprudence that 
person specific laws cannot be promulgated because such 
exercise instead of promoting the administration of justice 
causes injustice in the society amongst the citizens who are 
being governed under the Constitution, particularly, in a matter 
relating to implementation of Court orders following the 
directions of the Court. The Courts have always made efforts to 
avoid enforcement of their orders by taking extreme steps of 
punishing the delinquents for disobeying the orders/judgments. 
However, if an act of contempt of Court persists and no prompt 
action is taken, the court loses its authority and all its decisions 
and the judgments will be considered mere paper decrees, 
therefore, to maintain its dignity and respect and to restore the 
confidence of the citizens in the supremacy of the Constitution 
and the rule of law, as a last resort, proceedings for contempt of 
Court are initiated.” 
 
Reference may also be made to the cases of Mrs. Benazir Bhutto v. 
Federation of Pakistan (PLD 1988 SC 66), Government of Balochistan 
v. Azizullah Memon (PLD 1993 SC 341), Muhammad Mubeen-us-Salam 
v. Federation of Pakistan (PLD 2006 SC 602), Wattan Party v. 
Federation of Pakistan (PLD 2006 SC 697) and Dr. Mobashir Hassan v. 
Federation of  Pakistan (PLD 2010 SC 265). 
58. 
 
On having discussed the cases supra it is concluded that 
Service Tribunals (Federal and Provincial) falling in the category of 
Court capable to exercise judicial powers are bound to follow the 
principal of independence judiciary for the purpose of ensuring 
enforcement of fundamental rights of access to justice under Article 9 
of the Constitution, thus, are required to be separated from the 
Const.P. 53/07 &  
Const.P.83/12 
53
Executive under Article 175(3) of the Constitution. These listed 
constitutional objects ought to have been redressed by the Legislature 
in making suitable amendments in the law governing the Tribunals and 
the rules framed thereunder to the extent as noted hereinabove, any 
of the provisions of the law contrary to the fundamental and 
constitutional provisions if any.  
59. 
 
To make the Chairman and the Members of the Service 
Tribunal independent, it is necessary to make their appointment with 
the meaningful consultation of the Chief Justice i.e. for the purpose of 
Federal Service Tribunal, with the Chief Justice of Pakistan and for 
Provincial Service Tribunals, with the Chief Justice of the respective 
High Court. It is to be noted that compliance of such condition seems 
to be necessary, because if the Chairman has to be appointed amongst 
the sitting Judges of a High Court, without consent of the Chief Justice, 
judicially and administratively, no Judge of the High Court can 
relinquish the post of Judge of High Court without the approval of the 
concerned Chief Justice as he has to discharge his function as a Judge 
of High Court under the administrative control of the Chief Justice. 
Similarly, a person qualified to be the Judge of High Court, either a 
District Judge or an advocate, has to be appointed with the meaningful 
consultation of the Chief Justice of the High Court because the District 
Judge, if is allowed to hold the charge of Provincial Service Tribunal, 
can only be released, if permission is granted by the Chief Justice. As 
far as the appointment of an advocate who is qualified to be the 
Chairman of a Tribunal or the Member is concerned, his performance 
or capability can only be evaluated during the period when he had 
been practicing law because a person who had obtained enrollment but 
Const.P. 53/07 &  
Const.P.83/12 
54
had never appeared before the High Court or Supreme Court cannot 
claim to have legal experience.  
60. 
  
As far as a sitting Judge of the High Court acting as 
Chairman of the tribunal is concerned, there is no difficulty in 
determining the tenure during which he shall hold the charge in 
addition to his own functions, simultaneously performing as a Judge of 
the High Court and the Chairman of the Tribunal. Preferably, it would 
be appropriate and in the interest of institution if a sitting Judge is not 
asked to perform his duties as Chairman of a Federal or Provincial 
Service Tribunals. However, appointments for the position of Chairman 
can conveniently be made from amongst the Judges who had been a 
Judge of the High Court. If a retired Judge of the High Court is to be 
appointed as Chairman of the Tribunal, selection should be made in 
consultation with the Chief Justice of the High Court in the case of a 
Provincial Service Tribunal and in consultation with the Chief Justice of 
Pakistan in the case of Federal Service Tribunal, who may nominate a 
retired Judge. The tenure of such incumbent should not be for a period 
of more than three years for one time only. By adopting these 
measures, the object of ensuring the principle of independence of 
judiciary and also enforcement of the right of access to justice could 
be achieved, otherwise such Hon’ble retired Judges would try their 
best to continue to hold such post for an indefinite period against the 
principle of independence of judiciary, which also speaks about the 
tenure of such post. Reference in this behalf may also be made to the 
notification No. F.38(1)/2012-A.II, dated 03.09.2012, whereby the 
incumbent Chairman of Federal Service Tribunal, Mr. Justice (R) Abdul 
Ghani Shaikh, was appointed contrary to the rules, for an indefinite 
Const.P. 53/07 &  
Const.P.83/12 
55
period, as a Chairman, whereas, the Federal Service Tribunal 
Chairman and Members Service Rules, 1983, provide that a Chairman 
shall not continue to hold office for a period over three years at a time. 
However, when the petitioner and his counsel objected on issuance of 
such a notification by filing a Civil Miscellanies Application, then the 
same was rectified and a fresh notification has been issued on 
22.09.2012. It may not be out of context to point out that the 
incumbent Chairman had been holding the same position earlier for 
the period of three years from 05.06.2009 to 04.06.2012. Prior to it, 
he had remained as Chairman, Sindh Service Tribunal w.e.f. 
11.11.2000. Had the Chief Justice of Province or the Chief Justice of 
Pakistan been consulted, they would have advised to nominate 
someone else for the purpose of said appointment. Therefore, the 
Executive cannot be allowed to interfere in the process of appointment 
of such important functionaries of Tribunals i.e. Chairman, who is 
required to be appointed independently because while discharging its 
functions the tribunal does not act as an executive body rather 
performs judicial functions. If such a body/tribunal is not in a position 
to enforce Fundamental Rights, including the right to have access to 
justice because of the reason that when the appointments have to be 
made, they remain at the mercy of the executive, which is itself a 
litigant party in most of the cases before the Tribunal, and no hope can 
be pinned on such a tribunal to discharge its functions independently.  
61. 
 
As far as the Members of the Tribunal are concerned, 
except in few cases i.e. in the Province of Balochistan where at least 
one Member is appointed from the Judiciary (District Judge), the 
practice is going on to appoint members from the bureaucracy. For 
Const.P. 53/07 &  
Const.P.83/12 
56
reference the detail of Chairman/Members of present composition of 
Service Tribunals is given herein below:- 
 
 
Sr.No. 
Name of 
the 
Tribunal 
Chairman 
Members 
1. 
Federal 
Service 
Tribunal 
Retired 
Judge of 
the High 
Court 
 
 Four retired government 
servants;  
 Two Advocates and  
 Two retired District 
Judges. 
 
2. 
Punjab 
Service 
Tribunal 
Retired 
Judge of 
the High 
Court 
 
All the six Members are 
retired government 
servants 
 
3. 
Sindh 
Service 
Tribunal 
Retired 
Judge of 
the High 
Court 
 
 One retired government 
servants; and 
 One retired Addl. 
District Judges. 
4. 
KPK Service 
Tribunal 
Serving 
District 
Judge 
All the four Members are 
Serving government 
servants 
 
5. 
Balochistan 
Service 
Tribunal 
Advocate 
 One retired government 
servants; and 
 One District Judge. 
 
62. 
  
The above table shows that in the case of Sindh, Punjab 
and KPK, retired government officers have been appointed as Members 
of the Tribunals because there is no restriction in the law for the 
appointment of any person notwithstanding whether he has reached 
the age of superannuation as a government servant or not, therefore, 
efforts are made  at the Federal and the provincial level to 
accommodate retired officers including civil servants or the servants 
belonging to disciplinary forces like police department etc. The record, 
if collected, would reveal no dearth persons who were appointed as 
Members of the Tribunal with no judicial experience.  
Const.P. 53/07 &  
Const.P.83/12 
57
63.    
We are conscious of the fact that there are civil servants 
who are quite capable of performing their functions independently 
without being influenced by any of their seniors amongst the 
Executive, however, the selection of Members has to be made in 
consultation with the Chief Justice, on having gone through the 
credentials of nominees and by also giving preference to those, who 
have a legal background and had not reached the age of 
superannuation with their tenure, which is to be restricted to a one 
time tenure not more than a period of three years or till the date of 
superannuation, whichever is earlier. 
64.    
In the Province of Balochistan it is evident from the 
material placed on record that the incumbent Chairman has been 
appointed from amongst the Advocates, whereas, one of the Members 
is District Judge while the other is civil servant. The Chairman of 
Provincial Service Tribunal, KPK is a District Judge, whereas, the 
members are from government service. In Punjab and Sindh, the 
Chairman is a retired Judge of the High Court, whereas, the all the 
Members are retired government servants. 
65.    
It is to be observed that the Chairman would also be 
facilitated by the presence of a combination of judicial officers i.e. 
District Judge/Advocate and the civil servants to constitute the Bench. 
In such a situation, with reference to the disputes of civil servants, 
both can give their input on the judicial and executive sides, which 
would improve the quality of the decision making and the judgments 
pronounced and strengthen the independence of judiciary in its role of 
enforcing the Fundamental Right of access to justice.  
Const.P. 53/07 &  
Const.P.83/12 
58
66. 
  
It is also to be observed that where District Judges or  
incumbent civil servants are not available for appointment, the 
Executive with the consultation of the respective Chief Justice may 
appoint Advocates qualified for appointment as a Judge of the High 
Court, either as a Member or the Chairman, as the case may be. 
Reference in this behalf has already been made to the incumbent 
Chairman of the Balochistan Service Tribunal, who was an Advocate, 
qualified to be appointed as a Judge of the High Court. Similarly, the 
KPK Service Tribunal is presently headed by a sitting District & 
Sessions Judge. 
67. 
  
It has already been discussed hereinabove that the Service 
Tribunal performs ‘judicial functions’ in exercise of ‘judicial powers’ 
conferred upon it by the Legislature and therefore, enjoys status of a 
‘Court’ and is required to be separated from the Executive in terms of 
Article 175(3) of the Constitution; however, no steps have been taken 
in this behalf by making suitable amendments in the Service Tribunals 
Acts, because existing provisions of the law relating to the 
appointment of Chairman and Members of the Service Tribunals do not 
provide for consultation of the Chief Justice and ensure that they  
(Chairman and the Members) should act independently following the 
principle of independence of judiciary, especially since their role is in 
substitution of the highest constitutional body i.e. High Court. And the 
Tribunal, as judicial fora, must enforce the Fundamental Right of 
access to justice and they should also enjoy financial autonomy as has 
been given to the High Courts and the Supreme Court. Reference in 
this behalf may be made the case of Government of Sindh v. Sharaf 
Const.P. 53/07 &  
Const.P.83/12 
59
Faridi (PLD 1994 SC 105), relevant Para therefrom is reproduced 
hereinbelow:- 
“In our opinion, financial independence of the judiciary can 
be secured if the funds allocated to the Supreme Court and 
High Courts (by the Parliament and the Provincial 
Assemblies in their respective annual budgets) are allowed 
to be disbursed within the limits of the sanctioned budget 
by the respective Chief Justices of these Courts without 
any interference by the Executive (in practical terms 
without reference and seeking the approval of the Ministry 
of Finance/the Provincial Finance Department). Thus, the 
Chief Justice would be competent to make reappropriation 
of the amounts from one head to another, create new 
posts, abolish old posts or change their nomenclature and 
to upgrade or downgrade etc. as per requirements of their 
respective Courts and this should be possible, as has been 
observed earlier, without being obliged to seek the 
approval of the Ministry of Finance or the Provincial 
Finance Departments as the case may be, provided of 
course the expenditure that is incurred by them falls within 
the limits of the budget allocation for their Courts. To 
ensure financial discipline, an Accounts Officer of the 
Accountant General may sit in all Courts for pre-audit and 
issue of cheques. In this way, the control of the executive 
over the judiciary in this important sphere will be 
eliminated 
and 
the 
judiciary 
enabled 
to 
function 
independently.” 
 
68. 
In view of the above discussion, the following provisions of 
STA, 1973; PSTA, 1974; SSTA, 1973; NSTA, 1974 and BSTA, 1974, to the 
extent reproduced hereinbelow, are void and unconstitutional being in 
derogation of Article 2A and 9 read with Article 175 of the 
Constitution: -  
Service Tribunals Act, 1973 (Federal) 
 
Section 3(1):  
 
The President may, by notification in the official Gazette, 
establish one or more Service Tribunals and, where there 
are established more than one Tribunal, the President shall 
specify in the notification the class or classes   of civil 
servants In respect of whom, or the territorial limits within 
which, or the class or classes of cases in respect of which, 
each such Tribunal shall exercise jurisdiction under this 
Act. 
 
Const.P. 53/07 &  
Const.P.83/12 
60
Section 3(3):  
 
A Tribunal shall consist of— 
(a) a Chairman, being a person who is, or has been, or is 
qualified to be Judge of a High Court. 
 
Section 3(3)(b):  
 
Such number of members not exceeding three, each of 
whom is a person who possesses such qualifications as 
may be prescribed by rules, as the President may from 
time to time appoint. 
 
Section 3(4):  
 
The Chairman and members of a Tribunal shall be 
appointed by the President on such terms and conditions 
as he may determine. 
 
Section 3(7):  
 
Notwithstanding anything contained in sub-section (3), 
sub-section (4), sub-section (5) or sub-section (6), a 
Tribunal established to exercise jurisdiction in respect of a 
specified class or classes of cases may consist of one or 
more persons in the service of Pakistan to be appointed by 
the President.  
 
Service Tribunals (Qualifications of Members) Rules, 
1974 
 
Rule 2: 
 
A member of the Tribunal shall be a person who has for a 
period of or for periods aggregating not less than 20 years 
held an appointment or post in the Service of Pakistan, or 
in a Corporation or other body set up by Government or 
who, for the said period, has been an advocate or legal 
practitioner. 
 
Federal Service Tribunal Chairman and Members 
Service Rules, 1983 
 
Rule 1:  
 
The Chairman and members shall hold office at the 
pleasure of the President, for such tenure, which may 
normally be for three years extendable by a further period 
not exceeding three years, as may be determined by the 
President. 
 
Similarly, Section 3(3)(b) of the Sindh Service Tribunals Act, 1973, 
Section 3(3)(b) of the KPK Service Tribunals Act, 1974 and Section 
Const.P. 53/07 &  
Const.P.83/12 
61
3(3)(b) of the Balochistan Service Tribunals Act, 1974 are also 
declared to be ultra vires to the Constitution of the Islamic Republic of 
Pakistan, 1973. 
69.   
It is to be noted that while constituting a Bench, the 
Chairman shall preferably constitute each bench comprising one 
Judicial/legal Member and one Member from civil service. However, 
where a single Member Bench is to be constituted, preference should 
be given to the Judicial Member to hold the hearing.  
70. 
  
The Service Tribunals Acts do not contain any specific 
provision providing for the financial autonomy of the Tribunals. Thus, 
on this score as well, the Service Tribunals cannot discharge their 
functions independently. The Tribunals must be duly empowered to 
disburse their annual funds, allocated by the Parliament and the 
Provincial Assemblies, in their respective annual budgets, within the 
prescribed limit by the Chairman of the respective Tribunals, without 
the need to seek approval of the Finance Ministry or provincial Finance 
Department.  
71.    
The Service Tribunals both Federal and Provincial perform 
vital judicial functions by adjudicating upon issues pertaining to the 
terms and conditions of Civil Servants, therefore, it is imperative that 
appropriate legislation action be taken post-haste. Consequently, to 
avoid denial of access to justice to them, the Federal and the Provincial 
Governments through their respective Law Secretaries are hereby 
allowed 30 days’ time to give effect to the above conclusions/findings 
and implement this judgment forthwith by making fresh appointments 
of Chairmen/Members of the Tribunals, following the observations 
made hereinabove. If no steps are taken within the stipulated time, 
Const.P. 53/07 &  
Const.P.83/12 
62
either through temporary or permanent legislation, the provisions of 
the legislation which have been declared void under Article 8 of the 
Constitution shall seize to have effect. As a consequence whereof, the 
incumbent Chairman/Members of the Tribunals, whose cases are not 
covered under the above-said proposed provisions, shall also seize to 
hold said positions, as the case may be. Similarly, independent 
budgetary allocation for annual expenditures of the Service Tribunals 
shall be provided for in accordance with the Constitution, enabling the 
Tribunals to function independently.  
72. 
  
The petitions are disposed of in the above terms. No order 
as to costs. 
Chief Justice 
 
Judge 
 
Judge 
Announced in Open Court on         at Islamabad 
 
Chief Justice