IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Present: 
 
 
 
 
 
 
Mr. Justice Amir Hani Muslim 
 
 
 
 
 
 
Mr. Justice Mushir Alam 
 
Mr. Justice Dost Muhammad Khan 
 
 
 
 
 
 
 
Constitution Petition No.03 of 2014 
And C.M.A.No.8540 of 2015  
 
 
Ch. Muhammad Akram, Advocate High Court, 
Former Vice President, Islamabad High Court 
Bar Association, Islamabad……………………………..Petitioner 
 
 
Versus 
 
 
Registrar, Islamabad High Court and others…………Respondents 
 
 
For the Petitioner  
: 
Mr. Arif Chaudhry, ASC. 
 
 
 
 
 
Ch Akhtar Ali, AOR. 
 
For Respondent No.1 
: 
Mr. M. Shahzad Shoukat, ASC. 
 
For Respondents No. 
: 
Syed Iftikhar Hussain Gillani, Sr.ASC. 
3-22, 24-29, 31-76 
 
For Respondent No.23 
: 
Kh. Azhar Rasheed, ASC. 
 
For Respondent No.30 
: 
Mr. Muhammad Munir Paracha, ASC. 
 
For the Federation  
: 
Mr. Sohail Mehmood, DAG. 
 
 
 
 
 
Mian Abdul Rauf, A.G, Islamabad. 
 
For the Applicant  
: 
In-person. 
in C.M.A.No.8540/2015 
 
Mr. Anees Jillani, ASC.  
 
 
 
 
 
 
Syed Rafaqat Hussain Shah, AOR. 
 
Date of hearing 
 
: 
9, 10, 11, 12 & 16.05.2016. 
Const.P.No.03/14. 
2
 
 
JUDGMENT 
 
 
 
 
AMIR HANI MUSLIM, J. - These proceedings have been 
instituted by Ch Muhammad Akram, a practicing Advocate and 
Human Rights Activist, challenging various appointments, absorptions 
and transfers in the Islamabad High Court, claimed to have been made 
in violation of the Services Rules of the Islamabad High Court.  
 
2. 
 
The Petitioner has mainly relied on an Audit Report for the 
years 2010 to 2013 submitted in July 2013, by Nasim-ul-Ghani, Accounts 
Officer, Office of the Accountant General, Pakistan Revenues, 
Islamabad. The relevant portion of the Report is reproduced 
hereunder:- 
“During scrutiny of personal files, it has been observed 
that after re-establishment of Islamabad High Court in 
2010 not a single appointment of officers/officials has 
been made on merit and a number of appointments have 
been made in relaxation of rules including absorption of 
officer and officials (deputationists) in much higher 
scales than they were holding in their parent 
departments. Whereas, generally the absorption is made 
in the same scale or in some special case maximum one 
stage above only but in Islamabad High Court the 
deputationists have been absorbed in much higher scale 
without any plausible justification. Absorption is also a 
kind of appointment.  
 
The procedure of advertising the posts in 
newspapers for making appointments through open 
competition after conducting test/interview has totally 
been ignored in all the appointments made during the 
Const.P.No.03/14. 
3
audit period. Appointments without open competition 
have been held illegal by the superior courts.  
 
Rule 
8 
of 
the 
Islamabad 
High 
Court 
Establishment (Appointments and Conditions of 
Service) Rules, 2011 also provides that initial 
recruitment to all posts shall be made after proper 
advertisement of the vacancies in the newspapers and 
on the basis of test and interview. It is more alarming 
that even after advertising the posts of non-gazette 
cadres, the same were still filled by relaxing the rules 
and the applicants who had applied against the said 
posts were deprived of their fundamental right to 
compete for getting job on merit. Further observed that 
no justification and exigency existed as already a 
reasonable number of employees (more than 200) had 
been working in the Court and there was no hurdle in 
adopting proper procedure to fill up the vacant posts 
but it appears that the intention was not there and 
nepotism/favoritism was allowed to prevail. Even in 
case of any exigency the post could have been filled 
temporarily (not more than for a period of six months) 
and then regular appointment could have been made by 
adopting the proper procedure in some cases of 
appointments, discretionary powers of relaxing of rules 
have been exercised more than one time. Whereas the 
power to relax any of the rules (rule 16 of the Islamabad 
High 
Court 
Establishment 
(Appointments 
and 
Conditions of Service) Rules, 2011) can only be 
exercised where a strict application of the rule would 
cause undue hardship and it is also subject to recording 
of reason in writing”. 
  
3. 
 
It 
has 
been 
pleaded 
by 
the 
Petitioner 
that 
appointments/absorptions of the Respondents No.3 to 76 were made in 
complete departure of the Islamabad High Court (Appointment and 
Const.P.No.03/14. 
4
Conditions of Service) Rules, 2011 [hereinafter referred to as ‘the 
Islamabad High Court Rules’], without adopting the procedure laid 
down in the Islamabad High Court Rules. It has been pleaded that Rule 
8 of the Islamabad High Court Rules, provides that initial recruitment 
to all posts shall be made after proper advertisement of the vacancies in 
the newspaper having wide circulation and in any other manner to be 
determined by the Chief Justice or subject to his approval by the 
Selection Committee or Selection Board, as the case may be, and the 
applications of the candidates received whereof shall be scrutinized 
accordingly. It has been further pleaded that as per Rule 4 (1) of the 
Islamabad High Court Rules all appointments whether initial or by 
promotion or transfer or by deputation shall be made as prescribed by 
the Rules.  
 
4. 
 
The Petitioner has stated that even after advertising the 
posts of the non-gazetted staff, the appointments were made by 
relaxing the Islamabad High Court Rules and the Applicants who had 
applied for the said posts were deprived of their fundamental rights to 
compete for the jobs on merit, thereby allowing nepotism/favoritism. 
He has pleaded that the selection of persons for Public office is a sacred 
trust, which is required to be discharged honestly, justly and fairly, so 
that each Applicant may get a fair chance to compete for the job, he has 
applied 
for. 
The 
Petitioner 
has 
prayed 
that 
the 
appointments/absorptions of the Respondents No.3 to 76 may be 
declared as illegal having been made without lawful authority. 
Const.P.No.03/14. 
5
 
5. 
 
Mr. Arif Chaudhry, learned ASC for the Petitioner has 
contented that after the creation of the establishment of the Islamabad 
High Court, many appointments were made in its Establishment, which 
are inconsistent with the law, i.e. (1) appointments were made without 
any advertisement (2) direct appointments were made on posts where 
recruitment was supposed to be made on promotion basis (3) these 
appointments had not been made on the basis of merit (4) ineligible 
candidates were appointed against the Islamabad High Court Rules.   
 
6. 
 
He states that ‘The Islamabad High Court Establishment 
(Appointment and Conditions of Service) Rules 2011’ were framed by 
the Administration Committee of the Islamabad High Court in exercise 
of the powers conferred by Article 208 of the Constitution and with the 
approval of the President. He submits that the Islamabad High Court 
Rules were published in the Official Gazette on 20th of May 2011. The 
learned ASC further states that four of the allegedly illegal 
appointments were made prior to the promulgation of these Rules and 
the remaining 57 were made after framing of the Islamabad High Court 
Rules.  
 
7. 
It is contended by the learned Counsel for the Petitioner 
that the appointments were made without advertisement and 
bypassing the Islamabad High Court Rules. Before framing of the 
Islamabad High Court Rules, in terms of Section 5 of the Islamabad 
High Court Act, 2010, the appointments to the establishment were 
Const.P.No.03/14. 
6
governed by the Lahore High Court Service Rules. Instead of 
appointing the Respondents No.3 to 76 under the Lahore High Court 
Rules, the Chief Justice has made all the appointments in relaxation of 
the Rules. He submitted that the mode adopted by the Islamabad High 
Court for making appointments is violative of the Rules besides it 
deprived meritorious and deserving candidates from participating in 
the competitive process for appointment to different public offices 
which is inherent right of every citizen under the Constitution. In 
support of his contentions, the learned Counsel has relied upon the case 
of Abdul Jabbar Memon and others (1996 SCMR 1349), wherein it was 
held by this Court that all appointments made to the public offices 
without requisite advertisement, are violative of the fundamental rights 
of the citizens. The learned Counsel has also relied upon the case of 
Mushtaq Ahmad Mohal  v. Honourable Lahore High Court, Lahore 
(1997 SCMR 1043), wherein paragraph 7 of the aforesaid judgment, it 
has been held that inviting applications from the pubic for 
appointments without advertisement in the press is violative of Article 
18 read with Article 2-A of the Constitution. He, in support of his 
contention, has also relied on the cases of  Muhammad Naseem Hijazi  
v Province of Punjab (2000 SCMR 1720), Dr. Naveeda Tufail Vs. 
Government Of Punjab (2003 SCMR 291) and Chief Secretary Punjab & 
others V Abdul Raoof Dasti (2006 SCMR 1876). He further relied on the 
cases of Muhammad Ali Vs. Province of KPK through Secretary, 
Elementary and Secondary Education, Peshawar (2012 SCMR 673), Baz 
Muhammad Kakar Vs. Federation Of Pakistan through Ministry of 
Const.P.No.03/14. 
7
Law and Justice (PLD 2012 SC 923), Registrar, High Court Of 
Balochistan Vs. Abdul Majeed (PLD 2013 Balochistan 26) and Syed 
Mubashir Raza Jaffri Vs. Employees Old-Age Benefits Institutions 
(EOBI) (2014 SCMR 949).  
 
8. 
The learned Counsel for the Petitioner then turned towards 
the facts of the present case which he believed held pivotal importance 
in advancing his contention. He informed the Court that Respondent 
No.35 Omer Daraz had been appointed to the post of Registrar. The 
basic pay scale for this post was 21 and 22 and the appointment under 
the Rules rests at the discretion of the Chief Justice of the Islamabad 
High Court when he decides to appoint (a) by transfer of District and 
Sessions Judge serving in the High Court or by borrowing District and 
Sessions Judge form Provincial High Courts (b) by promotion of an 
officer serving in BS-20 or (c) by initial appointment on contract basis of 
a suitable person with reasonable experience of administration and 
financial matters. The learned ASC Arif Chaudhry, contended that 
Respondent No.35 was a Reader (BS-18) who was illegally promoted to 
the said post in blatant contravention of the Rules.  
 
9. 
 
The learned Counsel for the Petitioner has contended that 
on 17.04.2012, Idrees Kasi, Respondent No.3, was directly appointed 
against a promotion post of Deputy Registrar (BS-19). In terms of the 
Rules, promotion to the said post could only be made through (a) 
promotion amongst cadres of Assistant Registrars, Readers and Private 
Const.P.No.03/14. 
8
Secretaries on seniority-cum-fitness basis on rotation basis or (b) 
transfer of Senior Civil Judge of Islamabad High Court or other High 
Courts by borrowing their services on deputation basis. Hence the 
direct appointment of Respondent No.3 was illegal and against the 
Rules.  
 
10. 
 
Mr. Arif Chaudhry learned ASC for the Petitioner then 
argued that Respondent No. 30 Usman Qudoos was appointed as 
Research and Reference Officer. He submitted that the mode for 
appointment to the said post is by promotion from amongst the 
Librarians on seniority-cum-fitness basis provided that the said person 
is a law graduate and has rendered seven years’ service in BS-17 and 
above. The Rules further provided that in absence of the above 
qualifications, a person with a Master’s degree in Library and 
Information can be appointed, preferably a law graduate, with seven 
years’ experience in management and maintenance of Court Libraries 
in BS-17 and above. The learned Counsel contended that appointment 
of Usman Qudoos to this post was made over looking the required 
qualification of a Librarian having 12 years’ experience, who was not 
eligible for the aforesaid post. 
 
11. 
 
It was next contended by the learned Counsel for the 
Petitioner that Respondent No.7 Kashif was directly appointed to the 
post of Additional Registrar which is a promotion post and the said 
Const.P.No.03/14. 
9
Respondent was neither eligible nor qualified to hold the said post 
under the Rules.  
 
12. 
 
Ijaz Ahmed, former Additional Registrar of the Islamabad 
High 
Court, 
has 
made 
an 
Application 
for 
impleadment 
(C.M.A.No.8540/2015) as party in these proceedings. The said 
Application was dismissed with the observation that he will have a 
right of audience. He has contended that out of 64 appointments made 
in the establishment of Islamabad High Court, 42 persons were eligible 
but were appointed without following the mandatory requirement of 
advertisement in the press. According to him, the remaining 22 persons, 
who were appointed, were neither eligible nor qualified and the 
process of appointments was not transparent. He contended that 
Respondent No.40, 41, 42 and 43 were originally employees of different 
corporations, who were inducted in the Islamabad High Court without 
advertising the said posts. According to Ijaz Ahmed, these Respondents 
did not posses the qualifications for the posts against which they were 
appointed and thereafter unauthorizedly absorbed.  
 
13. 
 
He further contended that Usman Mir, Respondent No.40, 
was serving in Allied Bank Ltd. as Credit Analysis Officer and was 
appointed and absorbed as Assistant Registrar (BS-18) in the Islamabad 
High Court. Saqib Sheraz, Respondent No.41, was in Pay Scale 4 in the 
Pakistan Broadcasting Corporation and was appointed and absorbed as 
Assistant Accounts Officer (BS-17). Aamir Abdul Majeed, Respondent 
No.42, who was serving as Stenographer in Punjab University was 
Const.P.No.03/14. 
10 
appointed and absorbed as Personal Assistant (BS-17). Shakeel Raza, 
Respondent No.43, was serving as Assistant in Balochistan Assembly 
and was appointed and absorbed as Data Processing Officer in BS-17. 
He submits that all these appointments were violative of the judgments 
of this Court titled as Contempt Proceedings Against Chief Secretary 
Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs. Province of 
Sindh (2015 SCMR 456). He next contended that this Court in the case 
of Muhammad Naseem Hijazi vs. Province of Punjab (2000 SCMR 
1720), while interpreting the scope of writ of quo warranto has held that 
any party can challenge the appointment of a person, who is not legally 
qualified to hold the office by way of a writ of quo warranto. He has 
further contended that the appointments of the Respondents were not 
only violative of the Rules of the Court, but also violative of Articles 27 
and 189 of the Constitution.  
 
14. 
 
Mr. Shehzad Shoukat, learned ASC appearing for the 
Islamabad High Court has contended that the Registrar, Islamabad 
High Court has filed a concise statement by way of C.M.A.No.369 of 
2015 on behalf of the Respondents No.1 and 2. He has contended that 
Respondents No. 3 to 76 were appointed by the Islamabad High Court, 
which fact is incorrect. According to him, 11 Respondents have been 
named twice in the array of the Respondents. He contended that in all, 
61 Respondents were appointed out of which 29 were appointed on 
lower posts e.g. Naib Qasids, Chowkidars and Sweepers. He contended 
that these employees could not be said to hold Public Office and, 
Const.P.No.03/14. 
11 
therefore, the Petition against them in the nature of quo-warranto does 
not lie. In support of his contention, he has relied on the judgment in 
the case of Sohrab vs. the State reported in (PLD 1975 SC 248). He next 
contended that the Respondents No.48 and 56 are no more in the 
employment of the Islamabad High Court.  
 
15. 
 
The learned Counsel has further contended that out of the 
remaining 32 Respondents, 10 were appointed prior to the 
promulgation of the Islamabad High Court Rules and from the 
remaining 22, 06 were initially appointed on deputation and 
subsequently absorbed by the Competent Authority in terms of Rule 
4(5) of the Rules. He contended that 14 fresh appointments were made; 
one was appointed on contract basis and the other on deputation. 
According to him, these appointments were made in relaxation of Rule 
16 of the Rules, which confers power on the Chief Justice to relax the 
Rules. He submits that in exercise of powers conferred on the Chief 
Justice, he has appointed these persons, assigning good reasons for 
their appointment and, therefore, no illegality, if any, has been 
committed by the Chief Justice/Competent Authority.  
 
16. 
 
He next contended that the grievance of the Petitioner 
cannot be entertained by this Court in exercise of its jurisdiction under 
Article 184 (3) of the Constitution, which according to the learned 
Counsel, has limited scope. He contended that the Counsel for the 
Petitioner has pleaded that the appointments of the Respondents were 
made in violation of the Rules, therefore, they be declared illegal. The 
Const.P.No.03/14. 
12 
learned Counsel while advancing his arguments has contended that 
this Court in exercise of jurisdiction under Article 184 (3) of the 
Constitution will seek guidance from the provisions of Article 199 (5) of 
the Constitution. He contended that even otherwise, a writ cannot be 
issued against a High Court or Supreme Court and in support of his 
contention, he has relied on the judgment reported as Jamal Shah vs. 
The Member, Election Commission, Govt. of Pakistan, Lahore (PLD 
1966 SC 1). In substance, the contention of the learned Counsel was that 
the powers of appointment exercised by the Chief Justice were in his 
administrative capacity and cannot be examined under Articles 199 (5) 
and or 184 (3) of the Constitution. He submits that in order to exercise 
jurisdiction under Article 184 (3) of the Constitution, the Petitioner has 
to establish that the Competent Authority has not followed the Rules or 
exercised jurisdiction not vested in him under the law or did not have 
the requisite authority at all. According to the learned Counsel, unless 
any of the aforesaid ingredients are established, the Petitioner cannot 
seek relief in a writ of quo-warranto. He submits that the Chief Justice/ 
Competent Authority has the powers under Rules 16, 17 and 18 of the 
Islamabad High Court Rules to relax the conditions for appointment in 
the establishment and such appointments cannot be challenged. He 
submits that no rule can restrict the powers of the Chief Justice with 
regard to the appointments made under Rules 16, 17 and 18 to appoint 
any one, as these Rules have overriding effect on the other Rules. It is 
next contended by the learned Counsel that the scope of Article 184 (3) 
of the Constitution is limited. According to him, in order to entertain a 
Const.P.No.03/14. 
13 
Petition under Article 184 (3) of the Constitution, a party has to 
establish that the issue involved relates to a question of public 
importance having nexus with fundamental rights. He submits that in 
the absence of any of these ingredients, a Petition is not entertainable. 
The learned Counsel contends that in the case in hand, the Petitioner 
has failed to place any material which could justify invoking the 
jurisdiction of this Court under Article 184 (3) of the Constitution.  
 
17. 
 
Syed Iftikhar Hussain Gillani, learned Sr.ASC, for the 
Respondents No.3 to 76, has submitted that the appointments were 
challenged by the Petitioner three times i.e. the Petitioners challenged 
the appointments in Writ Petition No.2997 of 2011 which was dismissed 
by the Islamabad High Court on 26.10.2011 against which they filed 
I.C.A.No.562 of 2012, which was also dismissed on 18.09.2012. They 
again challenged the appointments through another Writ Petition 
No.10100 of 2013, which was returned by the Registrar of the Islamabad 
on grounds of maintainability, against which order the Petitioners filed 
an Appeal and the learned High Court maintained the objections of the 
Registrar.  
 
18. 
 
He next contended that the Petitioner has not approached 
this Court with clean hands. According to the learned Counsel, most of 
these appointments were made prior to the promulgation of the Rules. 
He contended that the Islamabad High Court has appointed 150 
persons in the establishment, out of which appointments of only 10 
Const.P.No.03/14. 
14 
persons have been challenged which clearly shows malice on the part of 
the Petitioner. 
 
19. 
 
He contended that the Islamabad High Court was initially 
established under the Presidential Order No.VII of 2007. By judgment 
dated 31st July 2009 in the case of Sindh High Court Bar Association vs. 
Federation of Pakistan (PLD 2009 SC 879), the Islamabad High Court 
was declared unconstitutional. Through the 18th Amendment in the 
Constitution, Act No.XVII of 2010 was introduced and the Islamabad 
High Court was created. The learned Counsel has referred to Sections 5, 
8 and 11 of the Islamabad High Court Act 2010, in order to show that 
prior to the Islamabad High Court (Appointment and Conditions of 
Service) Rules, 2011, the appointment of officers and staff of the Court 
was regulated by the Rules and procedures of the Lahore High Court 
and even the Administration Committee of the Islamabad High Court 
had adopted the aforesaid Rules of appointment, therefore, the 
appointments made prior to the promulgation of the Islamabad High 
Court Rules were on the basis of Rules of the Lahore High Court.  
 
20. 
 
He next contended that the details of the Petitions filed by 
the present Petitioner are incorporated in the concise statement filed by 
the Respondents, by way of C.M.A.No.6198 of 2014, which clearly 
reflects that the Petitioner with ulterior motives, has repeatedly 
challenged the appointments of the Respondents, therefore, the present 
proceedings are tainted with malice and the Petitioner has not 
approached this Court with clean hands. It was contended by the 
Const.P.No.03/14. 
15 
learned Counsel for the Respondents that the provisions of Article 184 
(3) of the Constitution which confers jurisdiction on this Court has to be 
read as a whole. According to him, in exercise of the jurisdiction under 
Article 184 (3), this Court cannot pass any order other than the order 
which the High Court can pass under Article 199 of the Constitution 
and that too, with the exception that before exercising the jurisdiction, 
this Court has to satisfy that the Petition raises question of public 
importance having nexus with fundamental rights.  
 
21. 
 
It is further contended by the learned Counsel that even if 
one of the ingredients as stated hereinabove is missing, this Court could 
not entertain the Petition on the ground of maintainability.  He next 
contended that the Petitioner has sought declaration in regard to the 
appointments on the ground that the said appointments were illegal 
and made without lawful authority. Such a prayer, according to the 
learned Counsel, is not covered under the writ of quo warranto. 
According to the learned Counsel, a writ of quo warranto is 
discretionary in nature. He submits that the appointments of the 
Respondents have not been challenged on the ground of their 
qualifications nor on the basis of encroachment on the fundamental 
rights of the public at large, therefore, the Petition merits dismissal.  
 
22. 
 
The learned Counsel next contended that Article 199 (5) of 
the Constitution provides protection to the administrative orders of the 
High Courts. He, while arguing the matter contended that orders 
passed by the Administration Committee of the High Court could not 
Const.P.No.03/14. 
16 
be challenged under Article 199(5) or 184 (3) of the Constitution. (In 
support of his contention, he has relied upon the case of Wukala 
Mohaz Barai Thafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 
1263). He submits that in paragraph 3 at page 1301 of the said 
judgment, this Court has provided protection to the superior judiciary 
and has placed the same on a higher pedestal providing a shield from 
challenging its orders passed on the administrative side). He next 
contended that this issue was dealt with by a Full Bench of the Lahore 
High Court in the case of Asif Saeed Vs. Registrar, Lahore High Court 
and others (PLD 1999 Lahore 350). He, however, contended that the bar 
contained in Article 199 (5) is not absolute and is subject to exceptions 
like if the order passed is mala fide, coram non judice and/or without 
jurisdiction. The learned Counsel states that these exceptions have been 
accepted as settled principles irrespective of the language of the ouster 
clause. While developing his arguments, he has referred to Article 
199(3) which bars the jurisdiction of the High Court in relation to the 
matters of armed forces, but this bar does not extend if the order 
challenged before the High Court lacks jurisdiction, is tainted with 
malice or is coram non judice.  
 
23. 
 
The learned Sr. ASC, Iftikhar Hussain Gillani, representing 
Respondents No.3 to 76, has contended that the Islamabad High Court 
had adopted the Lahore High Court Establishment Rules (Volume-V) 
1981, during the interim period, for appointments in the establishment 
of the Islamabad High Court. He submitted that the Lahore High Court 
Const.P.No.03/14. 
17 
Rules referred to hereinabove were adopted by the Administration 
Committee of the Islamabad High Court, in terms of the provisions 
provided in the Islamabad High Court Act, 2010, as an interim 
arrangement. According to the learned Counsel, the Rules of the Lahore 
High Court conferred powers on the Chief Justice to appoint any 
person in the establishment of the Islamabad High Court in relaxation 
of the Rules. He submitted that different appointments in the 
establishment of the Islamabad High Court by the Chief Justice were 
made in exercise of powers conferred on him under Rule 26 of the 
Lahore High Court Rules 1981, and could not be challenged by any 
person and/or employee, in view of the bar contained in Article 199 (5) 
of the Constitution. He, however, contended that the bar of Article 199 
(5) is not absolute and is subject to three exceptions laid down in the 
case of Federation of Pakistan vs. Ghulam Mustafa Khar (PLD 1989 SC 
26). He submitted that if an impugned order is (1) without jurisdiction 
or (2) coram non judice or (3) mala fide, the High Court can entertain such 
a petition. He submitted that these exceptions also apply to the bar 
contained under Article 199 (3) of the Constitution, which restricts a 
High Court from entertaining a Constitution Petition in relation to the 
terms and conditions of a member of the Armed Forces of Pakistan.   
 
24. 
 
He next contended that the judgment of the Lahore High 
Court in the case of Asif Saeed (supra), was affirmed by this Court in the 
case of Muhammad Iqbal and others vs. Lahore High Court through 
Registrar and others (2010 SCMR 632), which supports his contention 
Const.P.No.03/14. 
18 
that Article 199 (5) takes away the jurisdiction of the High Court to 
entertain 
a 
petition 
of 
an 
aggrieved 
party, 
challenging 
the 
appointments made by the Chief Justice and/or Administration 
Committee of a High Court. He, however, conceded that the protection 
provided under Article 199 (5) has to be read with the exceptions 
referred to hereinabove.  
 
25. 
 
Giving a brief historical account of the Islamabad High 
Court, Mr. Gilani has contended that the Chief Justice Islamabad High 
Court had requested all the High Courts for borrowing the services of 
the officers required in the newly established Islamabad High Court. In 
response to this request, officers from the High Court of Sindh and 
Balochistan High Court were sent to the Islamabad High Court on 
deputation and these deputationists were later absorbed in the 
establishment.  
 
26. 
He further submitted that he does not support the view 
taken by the Lahore High Court in the case of Asif Saeed (supra), that 
the definition of the ‘High Court’ includes the Registrar, as according to 
him the term “High Court” given in Article 192 (1) says “A High Court 
shall consist of a Chief Justice and so many other Judges as may be determined 
by law or, until so determined, as may be fixed by the President”. The learned 
Counsel admitted that the term ‘High Court’ as defined in Article 192 of 
the Constitution read with the provision of Article 199(5) reflects that it 
is only the orders of the High Court that are protected under Article 
Const.P.No.03/14. 
19 
199(5) and the orders of its Registrar etc. do not enjoy the same 
protection.  
 
27. 
He next contended that another ground that would create 
room for the exercise of the jurisdiction of the High Court under Article 
199 (5) of the Constitution is if an appointment made by a competent 
authority in ‘excess of jurisdiction’. In support of his contention, he has 
relied upon the judgment in the case reported as Muhammad Yousaf v. 
Malik Karam Dad Khan and others (PLD 1968 Lahore 30). He therefore 
contended that order of the Chief Justice and/or Administration 
Committee of a High Court could be questioned under Article 199(5) of 
the Constitution if an ineligible person or a person lacking qualification 
has been appointed as such, which  order would be in ‘excess’ of the 
jurisdiction. According to the learned Counsel, such an order would 
attract the mischief of the term ‘excess of jurisdiction’ as provided in the 
Black’s Law dictionary.  He submits that where persons not eligible 
under the Rules to hold certain posts in the establishment were 
appointed by the Chief Justice of the Islamabad High Court, such 
orders of appointment can be assailed on the ground of exercise of 
excessive jurisdiction.  
 
28. 
In this context, he pointed out that except one clerk, all the 
other Respondents were eligible for the posts to which they were 
appointed. He states that the Petitioner had incorrectly and 
irresponsibly stated that all Respondents to this Petition had fake 
degrees without placing any material in support of the allegations.  
Const.P.No.03/14. 
20 
 
29. 
He next contended that the present proceedings do not 
attract the ingredients of Article 184 (3), therefore, the Petition ought to 
have been dismissed on that score alone. According to Syed Iftikhar 
Gillani, learned ASC, the Petitioner has failed to satisfy this Court that 
the issue raised in these proceedings is of public importance and 
secondly it encroaches upon the fundamental rights of the public at 
large. In support of his contention, the learned Counsel has relied upon 
the case of Mian Muhammad Shahbaz Sharif vs. Federation of 
Pakistan (PLD 2004 SC 583) and the case of Dr. Muhammad Tahir-Ul-
Qadri vs. Federation of Pakistan through Secretary M/o Law, 
Islamabad (PLD 2013 SC 413).  
 
30. 
He has further submitted that the allegation that the 
brother of the incumbent Chief Justice was appointed on one of the 
posts despite the fact that he was ineligible to hold such a post, is 
incorrect, since he was not holding the office of the Chief Justice at the 
time of the appointment of his brother. However, it may be observed 
that the incumbent Chief Justice was nevertheless a Judge in the 
Islamabad High Court and could have exercised influence for the 
appointment of his brother.  
 
31. 
The learned Counsel for Respondent No.23, Shakeel Raza, 
has contended that he was promoted from the post of Clerk (BS-07) as 
Assistant Coordinator (BS-15) in the Balochistan Provincial Assembly, 
on clearing the relevant departmental promotion examination. The 
Const.P.No.03/14. 
21 
learned Counsel has submitted that on 12.03.2011, Respondent No.23 
was appointed as Computer Operator (BS-15) by deputation in the 
Islamabad High Court and was later absorbed in the establishment. 
Thereafter on 11.05.2011, the said post was upgraded as Data 
Processing Officer (BS-17).   
 
32. 
The learned Counsel representing Respondent No.30 has 
submitted that the said Respondent was directly appointed to the post 
of Research and Reference Officer (BS-19). He was previously a 
practicing Advocate of the High Court based at Mansehra, and was 
appointed on 02.05.2011, before the promulgation of the 2011 Rules, but 
without advertising the said post in the print media. 
 
33. 
He has further submitted that the jurisdiction of this Court 
under Article 184(3) of the Constitution can only be invoked if any of 
the fundamental rights of a citizen have been encroached upon or the 
issue involved is that of public importance. He stated that Article 27 of 
the Constitution is the relevant Article for the case in hand, which 
warrants protection from discrimination on grounds of race, religion, 
cast, sex, residence, or place of birth. None of these grounds have been 
mentioned in the present Petition. He further submitted that the term 
“Service of Pakistan” used in Article 27 is defined in Article 260 of the 
Constitution, which is a wider term and includes officials of “Civil 
Service of Pakistan”.  Therefore, in absence of the grounds of 
discrimination laid down in Article 27, the present Petition is not 
maintainable. 
Const.P.No.03/14. 
22 
 
34. 
He has submitted that Article 184(3) cannot be invoked 
against the orders of a High Court in the absence of an issue of public 
importance impairing any of the fundamental rights. In support of his 
contention, he read out Section 11 of the Islamabad High Court Act 
2010 which reflects that the Chief Justice had to adjust the employees of 
the previously established and later dissolved Islamabad High Court 
and hence there was room for direct recruitment. He stated that since 
the Islamabad High Court was a newly established Court, therefore, 
there was no possibility of making appointments on promotion.  
 
35. 
He then concluded his arguments by submitting that 
according to him, under Article 199(5) of the Constitution, the Supreme 
Court has no jurisdiction to question an order of a High Court since 
Article 199(5) provides blanket protection to all orders passed by this 
Court or the High Courts. He also pointed out that the cherry picking of  
mere 10 Respondents out of a plethora of similarly placed officers 
substantiates malice on the part of the Petitioner.  
 
36. 
In rebuttal, the learned Counsel for the Petitioner, Mr. Arif 
Chaudhry, ASC, has contended that the present Petition has been filed 
by a practicing Advocate, who was neither provided access to the 
record nor was he given any information pertaining to the 
appointments/promotions made by the Islamabad High Court, inspite 
of his repeated requests. He submits that the present proceedings are in 
the nature of quo warranto and the Petitioner, in no way, has any 
Const.P.No.03/14. 
23 
personal interest in the appointments made in violation of the Rules of 
Lahore High Court by the Islamabad High Court. Most of the 
appointments which are under challenge, were made on grounds of 
invoking of Rule 26 of the Lahore High Court Rules. This Rule 
authorizes the Chief Justice to undertake the exercise of appointments 
by relaxing the Rules ‘as may appear just and equitable to him’. He 
contended that he has merely passed on the information to this Court, 
in terms of Article 184(3) of the Constitution, with the objective to 
enable this Court to satisfy itself as to whether the mode adopted by the 
competent authority while making these appointments goes against the 
interest of the public at large, depriving the merit of those who were 
entitled to compete. According to him, every citizen of this country is 
entitled to hold a public office by competing in the process of 
appointments, which right is conferred upon by the Constitution, 
therefore, the two essential ingredients attracting the jurisdiction of this 
Court i.e. (1) that the question raised is one of public importance and (2) 
that fundamental rights of the citizens have been infringed, are covered 
in the Petition in hand, enabling this Court to exercise jurisdiction 
under Article 184(3) of the Constitution. According to the learned 
Counsel, there are a number of citizens who were similarly placed but 
were not allowed to compete for appointments, which reflects that the 
task undertaken by the Chief Justice in making appointments or 
promoting the officers in the establishment of the Islamabad High 
Court was neither transparent nor could it in any manner sustain the 
litmus test of merit. In support of his contentions, he has relied upon 
Const.P.No.03/14. 
24 
the case of Renue and others vs District and Sessions Judge (AIR 2014 
SC 2175).  
 
37. 
We have heard the learned Counsel for the parties, the 
learned Law Officers and perused the record with their assistance. In 
the present proceedings, the Petitioner who is a practicing Advocate, 
has challenged different appointments made by the Administration 
Committee of the Islamabad High Court. On the surface of this pool of 
heated debates between the parties, the material point of contention, is 
whether this Court under Article 184(3) is competent to entertain a 
Petition in the nature of quo warranto, challenging the appointments 
made by the then and the incumbent Chief Justice of the Islamabad 
High Court in the establishment. It is important to unshackle some of 
the legal minds from the preconceived notions about the limitations to 
‘justice’. We need not remind the learned Counsel that the Supreme 
Court is the supreme and ultimate authority for the judicial 
determination of the precise scope of any Constitutional provision. The 
language of Article 184(3) of the Constitution provides a clear gateway 
to this Court to step in the matters which (1) raise a question of public 
importance and (2) involve the enforcement of any of the fundamental 
rights of the citizens of this Country. Moreover, under sub-Article 3 of 
Article 184, the application of Article 199 has been expressly excluded 
where the two aforementioned conditions have been satisfied. The term 
‘considered’ used in sub-Article 3 of Article 184 is of pivotal importance 
as it connotes subjective assessment of this Court. Once this Court has 
Const.P.No.03/14. 
25 
satisfied itself that the matter in hand is one that affects the public at 
large and involves the infringement of fundamental rights given 
protection under the Constitution, there remains no bar on its 
competence to entertain this Petition. Conversely, it is equally 
important to distinctly define the outline of the scope of this Court’s 
judicial determination in the case at hand; the orders in question are the 
orders made by the Chief Justice of High Court in his capacity as the 
Chairman of the Administration Committee and not the judicial orders 
passed by him in his capacity as a Judge. The latter would be a separate 
debate, which can only aptly be addressed in wholly different 
circumstances. The challenge in these proceedings does not pertain to 
the competence of the appointing authority but in fact it is the process 
of appointments which needs to be examined for its legality.  
 
38. 
It is settled that while it is impossible to mould the term 
‘public importance’ in a rigid definition that is applicable to myriad 
situations, this Court in Watan Party vs. Federation of Pakistan (PLD 
2012 SC 292) has held that a matter is of public importance if it directly 
and vitally concerns the general interest of the community or public at 
large, as opposed to the particular interest of an individual.  It is not 
denied that the appointments made in the establishment of the 
Islamabad High Court are of acute significance to the community. A 
High Court is amongst the sacred establishments that stand as a beacon 
of justice. It is amongst the eminent establishments that are entrusted 
by the nation with the shoulder-crushing responsibility of dispensing 
Const.P.No.03/14. 
26 
justice. It goes without saying, that if appointments in the Islamabad 
High Court are made in colorful exercise of power or by bypassing the 
transparent process of recruitment provided under the Rules, it will 
have far reaching undulate effects on the public at large.  If the torch 
bearers of justice are permitted to make appointments overlooking 
merits, the sanctity of the judicial system will be in peril. The exercise of 
power in a manner that results in depriving meritorious citizens from 
the opportunity of competing for public offices, therefore, is beyond a 
shadow of doubt and is a matter of public importance. Such an 
unlawful exercise of power is also an abrogation of the fundamental 
rights guaranteed under Article 18 of the Constitution, which protects 
an individual’s right to enter upon a lawful profession or occupation. 
The right conferred under Article 18 has to be read with Article 4 of the 
Constitution which provides every citizen the right to be dealt with in 
accordance with the law.   
 
39. 
 
While the Counsel for Respondents in unanimity were of 
the view that no specific fundamental right has been violated by the 
Chief Justice/Administration Committee of the Islamabad High Court 
in making non-meritorious appointments to the establishment, it must 
be pointed out that no instance of a specific violation of Fundamental 
right needs to be established where ex-facie codal formalities or 
eligibility or competence of candidates have been given the due 
consideration as held by this court in the cases Dr. Akhtar Hassan Khan 
and others v. Federation Of Pakistan and others (2012 SCMR 455). 
Const.P.No.03/14. 
27 
Similarly this Court in the case of Miss Benazir Bhutto v. Federation of 
Pakistan (PLD 1988 SC 416) held that :-  
"After all the law is not a closed shop and even in the adversary 
procedure, it is permissible for the next friend to move the Court on 
behalf of a minor or a person under disability, or a person under 
detention or in restraint. Why not then a person, if he were to act bona 
fide activise a Court for the enforcement of the Fundamental Rights of 
a group or a class of persons who are unable to seek relief from the 
Court for several reasons. This is what the public interest 
litigation/class action, seeks to achieve as it goes further to relax the 
rule on locus stands 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 unredressed. 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" 
 
40. 
 
In the aforesaid background, we are of the considered view 
that the issue raised in these proceedings attracts a question of public 
importance, which has a direct bearing on the fundamental rights of the 
citizens of Pakistan, therefore, we hold that this Petition under Article 
184(3) is competent as the appointments to the public office made by an 
authority can be challenged through a petition even in the nature of a 
writ of quo-warranto so that no one can claim immunity from its 
scrutiny under the garb of any constitutional provision.  
 
41. 
 
Having addressed the maintainability of this petition, now 
the next issue that needs to be focused is the bar contained under 
Const.P.No.03/14. 
28 
Article 199(5) with regard to challenging the appointments made in the 
High Court establishment by the Chief Justice or by the Administration 
Committee under the Rules framed under Article 208 of the 
Constitution; and whether such bar applies to the present proceedings.  
A common contention of the Counsel for the Respondents was that 
both the judicial and non-judicial decisions of the High Court/ 
Supreme Court are protected under Article 199(5) of the Constitution. 
This contention is based on the view of the Full Bench judgment 
rendered in the case of Asif Saeed v. Registrar Lahore High Court 
(PLD 1999 Lahore 350), which judgment was maintained by this Court 
in the case of Muhammad Iqbal and others v. Lahore High Court 
through Registrar and others (2010 SCMR 632).  
 
42. 
 
We have gone through aforementioned judgments and 
have examined the case law cited by the Counsel in support of their 
contentions. We, with great respect, are not in agreement with the 
conclusion reached by the learned Lahore High Court that the judicial, 
administrative, consultative and executive powers are indistinguishable 
within the meaning of Article 199(5), and hence, unassailable through a 
writ petition. It is our considered view that the Constitution confers 
judicial powers (jurisdiction) on the High Court only under Article 199 
and the administrative, consultative or executive powers are conferred 
on the High Court by virtue of the rules framed under Article 208. 
Rules framed by the High Court or Supreme Court further require 
approval of the Governor or President as the case may be. It needs to be 
Const.P.No.03/14. 
29 
highlighted that Article 199(5) excludes a High Court and Supreme 
Court from the definition of ‘person’. High Court is defined under 
Article 192, the relevant part of which is reproduced as under: 
“192. Constitution of High Court. (1) A High Court shall consist of a Chief 
Justice and so many other Judges as may be determined by law or, until so 
determined, as may be fixed by the President.”   
 
 
This definition does not include the Registrar or any other officer 
of a High Court Establishment, who is appointed by the Chief Justice or 
the Administration Committee under the Rules. The executive/ 
administrative/ consultative powers conferred on the Chief Justice or 
an Administration Committee are drawn from the Rules; whereas the 
judicial powers (jurisdiction) conferred upon the High Court and 
exercised by the judges are embedded in Article 199 itself; hence, both 
the powers are different and unparalleled.  
 
43. 
 
We, for the aforesaid reason, are of the considered view 
that the view of learned Lahore High Court and maintained by this 
Court in the cases of Asif Saeed (Supra) and Muhammad Iqbal is 
against the language of Article 192 and Article 199 of the Constitution. 
Moreover, the provisions of Article 208 which empowers the High 
Court or Supreme Court to frame Rules for their establishments have 
been completely overlooked. As a result, the judicial powers and the 
powers which are administrative/consultative/executive in nature 
have been mixed up leading to denial of remedy to an aggrieved person 
Const.P.No.03/14. 
30 
even in a case where codal formalities or eligibility or other mandatory 
requirements have been blatantly disregarded.  
 
 
44. 
 
Even the plain reading of Article 199(5) leads to the 
conclusion that by excluding a High Court and Supreme Court from the 
definition of ‘person’, the framers of Constitution envisaged judicial 
jurisdiction and not the extraneous administrative/ executive/ 
consultative matters pertaining to the Establishment of the Courts. The 
reason obviously lies in the conferment of powers through the rules 
which are subject to the approval of the executive. Hence, in our view, a 
Judge acts in two different domains, when he performs judicial 
functions under Article 199 and when he performs administrative/ 
executive/ consultative functions under the Rules which cannot be 
mixed with each other. In other words, there is a grading of power: the 
parameters of judicial powers exercised by a judge under the provisions 
of the Constitution are distinct from the non-judicial powers he 
exercises under the Rules framed under the provision of the 
Constitution. The judgment rendered in the case of Mohammad Iqbal 
(supra) approving the case of Asif Saeed (supra) being against the 
provisions of the Constitution is per incuriam and is not a good law.    
 
 
 
45. 
 
We for the aforesaid reasons conclude that the provisions 
of Article 199(5) would bar a writ against a High Court if the issue is 
relatable to judicial order or judgment; whereas a writ may lie against 
Const.P.No.03/14. 
31 
an administrative/consultative/executive order passed by the Chief 
Justice or the Administration Committee, involving any violation of the 
Rules framed under Article 208, causing infringement of the 
fundamental rights of a citizen. 
Relaxation of Rules:  
46. 
 
The learned Counsel for the Respondents jointly attempted 
to save the appointments and absorptions, as the case may be, under 
the garb of Section 26 of the Lahore High Court Rules and Section 16 of 
the Islamabad High Court Rules. For facility of reference these two 
provisions are reproduced hereunder:- 
 
 
 
Rule 26 of the Lahore High Court: 
“26. 
Nothing in these rules shall be deemed to limit or 
abridge the powers of the Chief Justice to appoint or promote 
any person who has neither passed nor qualified at an 
examination held by the Public Service Commission or under 
these rules or to deal with the case of any person in such 
manner as may appear to him to be just and equitable. 
 
Rule 16 of the Islamabad High Court (Establishment) 
Appointment and Conditions of Service) Rules, 2011: 
 
“16. 
Relaxation.- The Chief Justice may relax any of these 
rules, subject to reason in writing, if the Chief Justice is 
satisfied that a strict compliance of the rule would cause undue 
hardships and his decision shall be final on such matter.” 
 
47. 
 
A bare perusal of the Rule 26 of Lahore High Court Rules, 
makes it abundantly clear that the Chief Justice may deal with the case 
of a person/employee of the Lahore High Court as may appear to him 
just and equitable. It would be advantageous to interpret the term “just 
Const.P.No.03/14. 
32 
and equitable”. In Corpus Juris Secundum, Volume L, the term “just” 
has been defined as under:- 
 
“conforming to, or consonant with, what is legal or lawful; 
conformable to laws; conformable to rectitude and justice; 
conformed to rules or principles of justice; conforming to the 
requirements of right or of positive law; correct; right; legally 
right; rightful; right in law or ethics; due; lawful; legitimate; 
equitable; fair; honest; true; impartial in accordance with law 
and justice; not doing wrong to any; not transgressing the 
requirements of truth and propriety;  
 
 
 
48. 
 
In Words and Phrases, Permanent Edition, Volume 23A, 
the term “just” has been defined as under:- 
 
“The term “just” may apply to law as well as ethics. In certain 
cases it denotes that which is right and fair according to 
positive law. The word “just” means a right, and more 
technically a legal right – a law. This “jus dicere” was to 
pronounce the judgment; to give the legal decision.” 
 
 
49. 
 
The term “equitable” has been interpreted in Words and 
Phrases, Permanent Edition Volume 15, as under:- 
 
“The term “equitable” is defined as meaning according to 
natural right or natural justice; marked by the due 
consideration for what is fair, unbiased, or impartial.”  
 
 
50. 
 
The term “undue” used in Section 16 of the Islamabad 
High Court Rules, has been defined in Words and Phrases, Permanent 
Edition, Volume 43, as under:- 
 
“Undue” means not appropriate or suitable, improper, 
unreasonable, unjustifiable, illegal, going beyond what is 
appropriate, warranted or natural” 
 
 
Const.P.No.03/14. 
33 
51. 
 
From the perusal of the above definitions in conjunction 
with the above-quoted Rules of Lahore High Court and Islamabad 
High Court, it can safely be held that absolute power to relax a certain 
service Rule has not been conferred on the Chief Justices of both the 
High Courts and this power is limited only to be exercised where it 
does not encroach upon the statutory rights of the other persons or 
employees. These two Rules cannot be interpreted in such a manner as 
to bestow an absolute power upon the Chief Justices to deal with the 
case of a person/employee in a manner they like. The Chief Justices can 
exercise powers under these Rules only in a manner that may not cause 
injustice or prejudice to any individual/employee. In the case in hand, 
the learned Chief Justice of Islamabad High Court has exercised a 
power beyond the scope of the Rules and relaxed them under the garb 
of “relaxation of Rules” which cannot be permitted in any 
circumstances, especially when it impinges upon the statutory rights of 
the citizens and other employees of the High Court. Rules can only be 
relaxed if the rules permit their relaxation, and the conditions 
stipulated for relaxation are strictly met. Admittedly, the conditions for 
relaxation of the Rules which are “just and equitable” and “undue 
hardship” have not been met in relaxing the Rules for making 
appointments and absorptions in the Islamabad High Court.  
 
52. 
 
We have noticed that the Chief Justice Islamabad High 
Court has exercised powers under Rule 26 of the Lahore High Court 
and under Rule 16 of the Islamabad High Court to alter the eligibility 
Const.P.No.03/14. 
34 
and qualification for appointment as well as promotion within the 
Establishment of Islamabad High Court. We hold that the Chief Justice 
has lost sight of the scheme of the Rules by appointing Respondents 
and others in the Establishment of Islamabad High Court. We have also 
noticed that the provisions of Rules that provide for a mandatory 
competitive test for the appointment of employees in the Islamabad 
High Court Establishment were not followed, nor any advertisement 
was made to invite applications of eligible candidates.  The justification 
that the Islamabad High Court was a new Establishment is not 
sufficient to override the mandatory requirement for the appointments. 
As a result, a number of meritorious and eligible candidates have been 
deprived of their fundamental right to seek employment through a 
competitive examination as provided under Article 18 of the 
Constitution. 
53. 
 
This Court in the case of Ali Azhar Khan Baloch vs. 
Province of Sindh (2015 SCMR 456), while interpreting Section 24 of the 
Sindh Civil Servants Act, has held as under:- 
“ 137. .......The Competent Authority can exercise powers under 
section 24 of the Act, by relaxing rules, if there is a vacuum in law, 
but such powers cannot be exercised under the garb of the term 
"Relaxation of Rules" with the intent to by-pass the mandate of law 
for extending favours to a person or an individual, offending and 
impairing the statutory rights of other Civil Servants. The Competent 
Authority, by an executive order, cannot frame Rules in exercise of 
powers under section 24. The authority conferred under section 24 of 
the Act is confined to hardship cases, without negating the vested 
rights of the other Civil Servants and/or causing prejudice to their 
Const.P.No.03/14. 
35 
interests.” 
 
 
54. 
 
While discussing section 23 of the Civil Servants Act, 1973 
in the case of Peer Mukarram-ul-Haq Vs Federation of Pakistan (2014 
SCMR 1457) this Court was pleased to observe that: 
 
“15.    We may further observe that scope of section 23 is very limited. 
This section empowers the Competent Authority (President) to deal 
with the case of a Civil Servant in such a manner as may appear to 
him to be 'just' and 'equitable', but such powers are not unbridled.” 
 
55. 
 
Scope of powers of Governor under section 22 of the 
Punjab Civil Servants Act, also (pari materia to section 24 of the Sindh 
Civil Servants Act) were discussed in the case of Muhammad Iqbal 
Khokhar Vs. Govt of Punjab (PLD 1991 SC 35) and it was observed 
that: 
“This power permits the Governor, as the Chief Executive of 
the Province at the apex, to deal with serious cases relating to 
civil servants in such manner as may appear to him to be just 
and fair, which otherwise cannot be sorted out by the Chief 
Minister or the Punjab Government under the various powers 
vested in them by the different rules existing from time to time 
relating to relaxation. This section is primarily a saving 
section, basically intended to correct serious cases, where 
unusual factors place a civil servant in serious disability, 
which requires correction on the basis of equity and justice by 
the Governor himself, sitting at the apex of the executive 
hierarchy. Amendments, additions and substitutions effected 
in the rules from time to time, mergers in and transfers from 
one service to another, etc., create a host of problems, where 
civil servants placed under serious disability and hardship call 
for a fair and equitable resolution of their difficulties. To meet 
these genuine cases, the Governor has been granted this special 
Const.P.No.03/14. 
36 
savings power to deal with such cases, so as to remove injustice 
and inequity which may stand in the way of a civil servant in 
securing his just rights. In short, it is a power rarely used, 
unless to serve justice or correct grave injustice, and 
perhaps never used arbitrarily to reward a person or to 
grant him an undue privilege over the right of another.” 
(Emphasis is ours) 
56. 
 
We have noticed the numerous infirmities in the 
appointments 
of 
the 
following 
made 
by 
the 
Chief 
Justice/Administration Committee, and these infirmities are incurable 
by the Chief Justice under the powers conferred on him under Rule 26 
of the Lahore High Court Rules and Rule 16 of the Islamabad High 
Court Rules.  
57. 
 
 Respondent No 31, Mr. Faiz Rasool was working as 
Deputy Registrar in the High Court of Baluchistan and after his 
retirement, on 10.05.2013, he was appointed on contract basis in BS-19 
as Deputy Registrar. Since then his contract has been extended twice, 
thereby keeping a public office unnecessarily occupied which under the 
Rules is either to be filled through promotion from amongst the cadres 
of Assistant Registrars, Readers and Private Secretaries on seniority 
cum fitness basis or by transfer of a Senior Civil Judge serving under 
the High Court.  
 
58. 
 
Respondent No. 27, Mr. Shakil Ahmed Qazi, was 
previously a Programmer in BS-18 in the Sindh High Court. On 
02.06.2012, he was appointed as Additional Registrar (I.T) in BS-20 in 
the Islamabad High Court on deputation basis for a period of three 
Const.P.No.03/14. 
37 
years and was later absorbed. His appointment was made after the 
promulgation of the Islamabad High Court Rules according to which 
appointment to this post can be made by promotion from amongst the 
Deputy Registrars on seniority-cum-fitness basis; or by transfer of an 
Additional District and Sessions Judge serving under the High Court or 
the Provincial High Courts by borrowing his services on deputation 
basis. The appointment of a Computer Programmer to the post of 
Additional Registrar on the face of it is legally flawed and the Chief 
Justice’s power to relax the rules under Rule 26, only opens a narrow 
window for such relaxation where it is ‘just and equitable’ to provide 
such relaxation.  
 
59. 
 
Respondent No.26, Mr. Shehzada Aslam, was previously a 
Private Secretary in BS-18 in the Lahore High Court. On 01.02.2011, his 
services were requisitioned on deputation basis for a period of three 
years to work as Secretary to the Chief Justice of the Islamabad High 
Court (BS-20). He was absorbed on 09.05.2011 as Additional Registrar 
(BS-20) under Section 11 of the Act. His appointment was made during 
the interim period and therefore as per Rule 7 read with Rule 6(i) of the 
Lahore High Court Rules, such appointment could only be made either 
(a) with the concurrence of the Governor or in Consultation with the 
Public Service Commission. This procedure was not followed. Section 
11 cannot be used as a shield to effect the said appointment, since his 
appointment in 2008 too is not in conformity with the Rules for 
induction in the High Court establishment.  
Const.P.No.03/14. 
38 
 
60. 
 
Respondent No. 7, Mr. Muhammad Kashif was previously 
a practicing lawyer in the Subordinate Courts of Punjab. On 27.04.2011, 
he was appointed as Assistant Registrar (BS-18) in the Islamabad High 
Court. He was placed on probation for a period of two years and on 
10.05.2013 his probation was further extended. His appointment was 
made during the interim period and therefore as per Rule 7 read with 
Rule 6(i) of the Lahore High Court Rules, appointment could only be 
made either (a) with the concurrence of the Governor or in Consultation 
with the Public Service Commission. This procedure was not followed. 
The Chief Justice’s power to relax the rules under Rule 26, only opens a 
narrow window for such relaxation where it is ‘just and equitable’ to 
provide such relaxation. This was not the case here. 
 
61. 
 
Respondent No. 5, Mr. Usman Mir was previously a Credit 
Analyst in Allied Bank Limited. On 30.05.2013, he was appointed on 
deputation basis as Assistant Registrar (BS-18) in the Islamabad High 
Court. On 27.05.2016, concurrence was obtained from Allied Bank 
Limited for extension of his deputation which was not available in the 
bank’s policy.  He was appointed on deputation after the promulgation 
of the Islamabad High Court Rules. Furthermore, the Chief Justice’s 
power to relax the rules under Rule 16 of the Islamabad High Court 
Rules only permits for such leniency where undue hardship exists. The 
illegality in appointing a Credit Analyst from a bank to the post of 
Assistant Registrar on deputation in disregard of the applicable Rules 
Const.P.No.03/14. 
39 
cannot be cured by Rule 16 since the Respondent was previously 
employed and no undue hardship existed.  
 
62. 
 
Respondent No.35, Mr. Umar Daraz was previously a 
Reader (BS-18) in the Lahore High Court and on 01.02.2011, he was 
appointed as Deputy Registrar (BS-19) on deputation basis in the 
Islamabad High Court. On 09.05.2011, he was absorbed against the post 
of Additional MIT (BS-20) on permanent basis. His absorption was 
made during the interim period and therefore as per Rule 7 read with 
Rule 6(i) of the Lahore High Court Rules, the absorption could only be 
made either (a) with the concurrence of the Governor or in Consultation 
with the Public Service Commission. This procedure was not followed. 
The Chief Justice’s power to relax the rules under Rule 26 only permits 
such relaxation where it is ‘just and equitable’. This was not the case 
where a Reader was appointed as Deputy Registrar on deputation basis 
and later absorbed as Additional Member Inspection Team, depriving 
countless meritorious potential candidates from the chance to compete 
for the post.  
 
63. 
 
Respondent No.28, Mr. Imtiaz Ahmed was previously a 
Private Secretary (BS-18) in the Lahore High Court. On 01.02.2011 he 
was appointed on deputation basis as Deputy Registrar (BS-19) in the 
Islamabad High Court. On 09.05.2011 he was absorbed on permanent 
basis in the establishment. His appointment was made during the 
interim period and therefore as per Rule 7 read with Rule 6(i) of the 
Const.P.No.03/14. 
40 
Lahore High Court Rules, such appointment could only be made either 
(a) with the concurrence of the Governor or in Consultation with the 
Public Service Commission. This procedure was not followed. The 
Chief Justice’s power to relax the rules under Rule 26, only permits 
such relaxation where it is ‘just and equitable’.  
 
64. 
 
Respondent No.29, Mr. Muhammad Naveed Qaisar, was 
previously a Personal Assistant (BS-17) in the Lahore High Court. On 
01.02.2011, he was appointed on deputation basis for a period of three 
years as Private Secretary (BS-18) in the Islamabad High Court. On 
09.05.2011 he was absorbed as Private Secretary on permanent basis in 
the establishment. His appointment was made during the interim 
period and therefore as per Rule 7-A of the Lahore High Court Rules, 
his credentials did not match the eligibility criteria and yet he was 
selected at the cost of other deserving candidates.  
 
65. 
 
Respondent No. 34, Mr. Waheed Nawaz was directly 
appointed to the post of Assistant Accounts Officer (BS-17) on 
18.02.2011. He was previously an Income tax Practitioner and was 
enrolled as Advocate of the subordinate Courts in Sindh Bar Council, 
Karachi, since April, 2009. His appointment was made during the 
interim period and therefore under Rule 7 read with Rule 6(i) of the 
Lahore High Court Rules, he was required to be selected on the basis of 
competitive examination but he was also selected by the Competent 
Authority using his power to relax the rules under Rule 26.  
Const.P.No.03/14. 
41 
 
66. 
 
Respondent No. 30, Mr. Usman Qudoos, was previously a 
practicing lawyer with an LL.M degree, who was directly appointed on 
02.05.2011 as a Research and Reference Officer (BS-19) in the Islamabad 
High Court. He was appointed during the interim period and since 
there are no rules applicable to the appointment of a Research and 
Reference Officer in the Lahore High Court Rules, applicable customary 
practices of recruitment shall apply. This post was not advertised and 
he was appointed by the Chief Justice under the garb of relaxation of 
Rules. In this case also the Chief Justice’s power to relax the rules under 
Rule 26 is not applicable, because such relaxation did not pass the test 
of it being ‘just and equitable’.  
  
67. 
 
Respondent No. 8, Mr. Sabir Hussain was a fresh 
appointee who was appointed as Personal Assistant (BS-17) in 2008 
after the advertisement of the post in the Daily Azkaar newspaper on 
20.11.2008. Under Section 11 of the Act, he was appointed in the 
establishment in 2011. He was previously working as Stenographer (BS-
16) in the Lahore High Court. Selection of a Stenographer with a B.A for 
the post of Personal Assistant from a pool of deserving candidates, on 
the face of the record does not make sense to the discerning eye. Lack of 
transparency is clearly reflected.   
 
68. 
 
Respondent No. 24 (and 41), Mr. Saqib Sheraz, who was 
previously working as Assistant Accountant (SPS-04) in Pakistan 
Const.P.No.03/14. 
42 
Broadcasting Corporation (Islamabad), was appointed on deputation 
basis on 17.02.2011 as Assistant Accounts Officer (BS-17) and later 
absorbed. His appointment was made after the promulgation of the 
Islamabad High Court Rules according to which, initial recruitment 
could be made from amongst the holders of B.Com or equivalent 
degree. No advertisement had been published whereby other eligible 
candidates could be permitted to compete. Moreover, he was appointed 
on deputation basis and the Rules do not permit his absorption. The 
Chief Justice’s power to relax the rules under Rule 16 of the Islamabad 
High Court Rules only permits for such leniency where undue hardship 
exists. 
 
69. 
 
Respondent No.43, Shakeel Raza, was previously working 
as Coordination Assistant (BS-15) in the Provincial Assembly of 
Baluchistan. On 24.03.2011, he was appointed as Computer Operator 
(BS-15) on deputation basis (before the promulgation of the Rules) for a 
period of three years. On 11.05.2011 his post along with that of Mr. 
Yasir Altaf was upgraded to Data Processing Officer (BS-17). On 
12.09.2011 he was absorbed in the establishment of the Islamabad High 
Court, by the Chief Justice in relaxation of Rules. The illegality 
committed in his absorption cannot be cured by the Chief Justice’s 
power to relax the rules.  
 
70. 
 
Respondent No. 13, Mr. Amir Abdul Majeed, was 
previously working as a Stenographer (BS-12) in the University of 
Const.P.No.03/14. 
43 
Punjab. On 27.05.2011 he was appointed on deputation basis as 
Personal Assistant (BS-17) in the Islamabad High Court. Although his 
credentials match the eligibility criteria applicable under the Islamabad 
High Court Rules no advertisement had been published whereby other 
eligible candidates could be permitted to compete and therefore, his 
application was the only one considered for the said post. The Chief 
Justice’s power to relax the rules under Rule 16 of the Islamabad High 
Court Rules only permits for such leniency where undue hardship 
exists. 
71. 
 
Respondent No.3, Muhammad Idrees Kasi, was appointed 
directly without advertisement on the post of Deputy Registrar on 
17.04.2012, which is meant for promotion. Since he was appointed after 
the promulgation of the Islamabad High Court Rules, appointment to 
this post could only be made on promotion basis from the cadres of 
Assistant Registrars, Readers and Private Secretaries on seniority-cum-
fitness basis or by transfer of a Senior Civil Judge serving under the 
High Court. It is impossible that even a year after the establishment of 
the Islamabad High Court, there was no other deserving candidate who 
could be appointed on this post on promotion or transfer basis, that too 
without advertisement and treating him as the sole candidate for this 
post. The Chief Justice’s power to relax the rules under Rule 16 of the 
Islamabad High Court Rules only permits for such leniency where 
undue hardship exists. No such hardship existed in this case.  
 
Const.P.No.03/14. 
44 
72. 
 
On 13.09.2011, Respondent No. 8, Mr. Hafiz Muhammad 
Sufyan, was directly appointed to the post of Assistant Registrar (BS-
18), without advertisement of the post in the press. Although he had a 
Master’s Degree in Journalism, the required qualifications under the 
eligibility criteria for initial recruitment to this post was BA, B.Sc or 
B.Com and hence the required field may not have been journalism for a 
post of this nature. He was appointed after the promulgation of the 
Islamabad High Court Rules. Regardless of his credentials, however, 
the procedure of initial recruitment in terms of advertisement and 
transparency was not followed. Furthermore, the Chief Justice’s power 
to relax the rules under Rule 16 of the Islamabad High Court Rules only 
permits for such leniency where undue hardship exists. No such 
hardship is apparent on the face of the record.  
 
73. 
 
On 02.07.2012, Respondent No. 9, Mr. Zaid Ahmed, was 
directly appointed to the post of Assistant Registrar (BS-18), after the 
promulgation of the Islamabad High Court Rules. He was previously 
working as data Processing Officer for Official Assignee in the High 
Court of Sindh. Although with a BA, he fulfilled the required 
qualifications under the eligibility criteria for initial recruitment to this 
post which is BA, B.Sc or B.Com, the procedure of initial recruitment in 
terms of advertisement and transparency was 
not followed. 
Furthermore, the Chief Justice’s power to relax the rules under Rule 16 
of the Islamabad High Court Rules only permits for such leniency 
Const.P.No.03/14. 
45 
where undue hardship exists. No such hardship is apparent on the face 
of the record.  
74. 
 
On 25.09.2012, Respondent No. 4, Mr. Ghawas Gul Mastoi, 
was directly appointed to the post of Assistant Registrar (BS-18), after 
the promulgation of the Islamabad High Court Rules. Although he had 
a Master’s Degree in International Relations, the required qualifications 
under the eligibility criteria for initial recruitment to this post was BA, 
B.Sc or B.Com and hence the required field may not have been 
International Relation for a post of this nature. He was appointed after 
the promulgation of the Islamabad High Court Rules. Regardless of his 
credentials however, the procedure of initial recruitment in terms of 
advertisement and transparency was not followed. Furthermore, the 
Chief Justice’s power to relax the rules under Rule 16 of the Islamabad 
High Court Rules only permits for such leniency where undue hardship 
exists. No such hardship is apparent on the face of the record.  
75. 
 
On 01.06.2011, Respondent No.6, Ms. Faiza Mir, was 
directly appointed as Personal Assistant (BS-17), after the promulgation 
of the Islamabad High Court Rules. She was previously working as a 
Teacher at Beacon House School System since March 2003, and 
although the record shows that she was computer literate, there is no 
record of her possessing the required skills for the post under the 
Islamabad High Court Rules which are shorthand speed of 100 w.p.m. 
and typing speed of 40 w.p.m. Although with a BA degree, she did not 
fulfill the required qualifications under the eligibility criteria for initial 
recruitment to this post, which is BA, B.Sc or B.Com with the required 
Const.P.No.03/14. 
46 
speed in typing and shorthand, and the procedure of initial recruitment 
in terms of advertisement and transparency was not followed. 
Furthermore, the Chief Justice’s power to relax the rules under Rule 16 
of the Islamabad High Court Rules only permits for such leniency 
where undue hardship exists. No such hardship is apparent on the face 
of the record.  
76. 
 
On 15.04.2011, Respondent No. 10, Mirza Abid Baig, was 
directly appointed as Assistant (BS-14), after the promulgation of the 
Islamabad High Court Rules. The eligibility criteria for this post was 
fulfilled by the Respondent as he possessed a MS (CS) while the 
requirement was BA, B.Sc or B.Com, however the procedure of initial 
recruitment in terms of advertisement and transparency was not 
followed. On 19.05.2011, he was appointed as Personal Assistant (BS-
17), without complying with the codal formalities. It is not known 
whether he possessed the required skills of typing speed of 50 w.p.m. 
On 25.09.2012, he was appointed as Assistant Registrar (BS-18). It is also 
alarming that the competent authority for appointment, found no need 
of finding other deserving candidates for the posts and no 
advertisements were published for any of these posts, making the 
Respondent the only applicant. Furthermore, the Chief Justice’s power 
to relax the rules under Rule 16 of the Islamabad High Court Rules only 
permits for such leniency where undue hardship exists. No such 
hardship is apparent on the face of the record.  
 
Const.P.No.03/14. 
47 
77. 
 
Respondent No. 38, Mr. Imtiaz Ahmed, was appointed 
directly on the post of Deputy Registrar (BS-19) on 10.03.2008, after an 
advertisement was published in the Daily Nawa-i-Waqt newspaper. He 
possessed a BA and LL.B. It is not known whether the appointment of 
Respondent No.38 was made in a transparent manner or if all required 
procedures for initial recruitment were followed. Eligibility criteria 
under Lahore High Court Rules for this post were not followed. Since 
he was appointed in 2008, he was inducted in the establishment of the 
Islamabad High Court under Section 11 of the Act.  
 
78. 
  
After hearing the contentions of the learned Counsel for 
the parties and on examining the record made available to us, we hold 
that the appointments which have been made in the Establishment of 
the Islamabad High Court since 2011 without following the codal 
formalities of competitive process are a nullity. Such appointments 
cannot be sanctified by the Chief Justice or the Administration 
Committee by dispensing with the mandatory requirements including 
competitive process. 
 
79. 
 
We, therefore, direct in the following manner:  
Contract Employment 
Any person appointed on contract basis against a 
permanent vacancy or against a promotion post is violative 
of the spirit of the Rule and untenable, and should be de-
notified. 
 
 
Const.P.No.03/14. 
48 
Deputation 
Any appointments made on the basis of deputation 
without observing the required codal formalities under the 
Rules and absorption of the deputationist thereafter 
against a permanent post or promotion post, in complete 
disregard of the eligibility or qualification required for 
initial appointment should also be de-notified. 
Initial Appointment 
Initial appointments made against a permanent post 
without following the required procedure as provided in 
the Rules, particularly the provisions related to the 
advertisement 
of 
posts, 
eligibility 
and 
competitive 
examination, are also to be de-notified.  
Promotions/up-gradations 
Appointments whether by way of initial appointment, 
deputation, contract or absorption in the grades/scales 
higher than the grades/scales in which such employees 
were serving before their induction in the Establishment 
are to be de-notified, as such up-gradation is not envisaged 
under the Rules and is contrary to the established 
principles of service laws.   
 
Absorptions 
Except those employees who have been recruited from the 
Establishments of different High Courts of Pakistan, in the 
same scale in which they were serving or were given one-
step promotion within the same cadre, all other 
appointments by way of absorptions are without lawful 
authority and hence to be de-notified.   
 
Const.P.No.03/14. 
49 
 
We may clarify that the aforesaid directives will not be applicable 
to the low scale employees appointed in BS-1 to BS-07, provided they 
are otherwise eligible. 
 
80. 
 
We direct that the appointments of the Respondents and 
other such employees of the Islamabad High Court are to be de-notified 
and they shall be repatriated to their parent departments, including the 
private sector, within fifteen days from the date of their de-notification 
in line with the mode given by this Court in the case of Contempt 
proceedings against Chief Secretary Sindh and Others reported in (2013 
SCMR 1752) and in the case of Ali Azhar Khan Baloch reported in (2015 
SCMR 456).   
 
81. 
 
On repatriation the Respondents and/or other such 
employees shall be allowed to join their parent departments and the 
question of termination of lien of their service will not come in their 
way as their deputation or appointment by way of absorption was 
nullity in the eyes of law. They will also be entitled to their seniority 
with their batch mates in their parent departments.   
 
82. 
 
For the purpose of these proceedings, the principles laid 
down by this Court in the case of Contempt proceedings against Chief 
Secretary Sindh and others reported in (2013 SCMR 1752) and in the 
case of Ali Azhar Khan Baloch and others vs. Province of Sindh and 
others reported in (2015 SCMR 456) would be applicable to the 
employees of Islamabad High Court Establishment.  
Const.P.No.03/14. 
50 
 
83. 
 
In order to examine the cases of appointments of the 
employees other than the Respondents, we constitute a three-member 
Committee, comprised of Senior Pusine Judge and two senior most 
Judges next to him, to examine the cases of all appointments made from 
2011 onwards in violation of the Rules and findings recorded by us in 
these proceedings, and order their de-notification accordingly. The 
Committee shall complete this exercise within a period of one month 
from the date of communication of this judgment and submit a detailed 
report to this Court.  
 
84. 
 
Fresh recruitment in place of the denotified employees 
shall be initiated simultaneously in accordance with the Rules and 
preferably completed in 45 days. This competitive process should be 
undertaken through NTS as is being practiced in this Court and Sindh 
High Court.    
 
85. 
 
Before parting with the judgment, we may observe that the 
Chief Justice Islamabad High Court and/or the Administration 
Committee of Islamabad High Court have made appointments in the 
Establishment in complete disregard of the mandate given by the Rules 
framed under Article 208 of the Constitution. If the competent authority 
itself starts cherry picking by deliberately ignoring and overlooking 
meritorious candidates in appointment exercising powers under Rule 
26 of the Lahore High Court or Rule 16 of the Islamabad High Court, 
then the image of the institution will be tainted beyond repair. Such 
Const.P.No.03/14. 
51 
practice may lead to distrust of the public in the judicial institution of 
the country. We could not allow denial of justice to those candidates 
who merit appointment nor could we encourage anyone to bypass 
transparent process of recruitment provided under the Rules. We have 
already cited certain instances showing the mode and manner in which 
the appointments were made by abusing the authority.     
 
 
86. 
 
We, for the aforesaid reasons, allow this Petition in the 
above terms. Copy of this judgment be immediately remitted through 
fax to the Registrar, Islamabad High Court, for placing it before the 
Chief Justice and all the Judges for their information and compliance.            
 
Judge 
 
Judge 
 
Judge 
 
Approved for reporting 
 
 
 
Announced in open Court on 26-09-2016. 
 
 
 
 
 
 
 
 
 
J. 
 
Sohail & Saeed/**