‘Reconstitution of Tribunal’ Islamabad Judiciary Service Tribunal declares MoLJ’s order illegal

ISLAMABAD: The Islamabad Judiciary Service Tribunal Friday declared the Ministry of Law’s notification dated March 18 for reconstitution of the Tribunal as illegal.

The tribunal comprising of its Chairman Justice Tariq Mehmood Jahangiri and members Justice Babar Sattar and Justice Sardar Ejaz Ishaq Khan ruled this while deciding an appeal filed by Senior Civil Judge Muhammad Shabbir against the absorption of respondent Shahrukh Arjumand as Senior Civil Judge and further promotion as AD&SJ.

The appellant had sought the said absorption of the respondent to be set aside, he be promoted as AD&SJ with all back benefits.

The Tribunal through short order declared the initial appointment of Respondent No 2 (Shahrukh Arjumand) ultra vires the Islamabad High Court Act, 2010, and the Islamabad Judicial Service Rules, 2011.

The order noted; “The appointment and absorption of a deputationist against a permanent or promotion post has been made in disregard of the law as has been laid down by the Supreme Court in Chaudhary Muhammad Akram vs. Registrar Islamabad High Court (PLD 2016 SC 961). Respondent no. 2 will stand de-notified as a member of Islamabad subordinate judiciary and shall be repatriated to his parent department; i.e. the Judicial Service of the Province of Khyber Pakhtunkhwa in accordance the law laid down by the Supreme Court.”

The Chairman and Members of the Tribunal convened a judicial conference on 13.03.2025 and agreed to allow the appeal. The Tribunal said that short order is being released in peculiar circumstances that require some explanation.

Withdrawal of case from bench: Rules governing IHC CJ’s authority questioned

The order noted that the registrar of the Tribunal informed the personal secretary of the chairman of the Tribunal that the personal secretary of the acting chief justice had issued verbal direction to the registrar of the Tribunal on 17.03.2025 to advise members of the Tribunal not to issue any orders in pending appeals, including those reserved for judgment, as the acting chief Justice had “decided that the Tribunal be dissolved.”

The Tribunal ruled that acting chief justice is vested with “no administrative authority to issue such directions or otherwise interfere with the outcome of grievances of the members of the subordinate judiciary pending before the Tribunal against decisions rendered by the departmental authorities that report to the office of the chief justice.”

It mentioned that by notification dated 18.03.2025 the president purportedly sought to reconstitute the Tribunal on the advice of the acting chief justice IHC while the Tribunal was previously reconstituted by notification dated 09 .01.2024 as some of the erstwhile members of the Tribunal were unable to serve in such capacity given that they were members of, inter alia, the Administration Committee against the decisions of which appeals are filed before the Tribunal.

The order added, “It was therefore in view of the proviso to section 3 (3) of the Islamabad Subordinate Judiciary Service Tribunal Act, 2016, that the Tribunal was reconstituted with the consent of members serving on such Tribunal. No such conflict arose in relation to the Chairman and Members of the Tribunal as is presently constituted. Consequently, there was no occasion to reconstitute the Tribunal pursuant to notification dated 18.03.2025.”

It maintained that the Tribunal was last constituted pursuant to notification dated 09.01.2024 on the basis of nominations made by chief justice. Once the Tribunal was duly constituted, the chief justice became functus officio.

The acting chief justice had no role to play in the functioning of the Tribunal and could no longer withdraw earlier nominations made by the chief justice on the basis of which this Tribunal was constituted pursuant to notification dated 09.01.2024.

It added, “Likewise, the federal government and the president were vested with no authority to reconstitute the Tribunal, unless a vacancy emerged, which required to be filled in accordance with the chief justice’s nomination.”

It further said that the staff from the office of the acting chief justice have been insisting that the files in appeals reserved for judgment be handed over to them to enable them to have the appeals placed before members of the Tribunal notified pursuant to notification dated 18.03.2025.

“Neither the President had the power to reconstitute the Tribunal, nor did the acting chief justice have the power to nominate new members in place of duly nominated members serving on a duly-constituted Tribunal. As notification dated 18.03.2025 and the Tribunal sought to be established pursuant to such notification would have no authority to determine its legality in terms of the law laid down by the Supreme Court in Pir Sabir Shah vs Shah Muhammad Khan (PLD 1995 SC,” said the order.

It held that notification dated 18.03.2025 is without legal authority and of no legal effect. Just as judges of the High Court cannot be removed from office and bereft of their jurisdiction based on an illegal notification issued by the federal government, the same cannot be done to usurp jurisdiction vested in judges under a statutory enactment.

“The office of the chief justice is vested with no inherent administrative authority. The office of the Chief Justice is a creature of the Constitution, and the chief justice, who is the first among equals in a High Court, can only exercise such authority as vested in him/ her by the Constitution and the law,” it further said.

The Tribunal stated that consequently, any decision by the chief justice or a committee appointed by the chief justice, that is not in accordance with the requirements of the law is not sustainable in the eyes of law, including decisions with regard to an appointment on deputations, induction, or promotion, and is liable to be set aside by this Tribunal.

It directed that let the registrar of the Tribunal provide a copy of this order to the acting IHC chief justice and the judges nominated by him to serve on the Tribunal, while purportedly seeking to reconstitute this Tribunal.

“We have been informed that a cause list has been issued by the Registrar’s office, to fix for hearing a miscellaneous application under office objection in this appeal, which had been reserved for orders and judgment on 13.03.2025.”

“We would not wish to embarrass ourselves or our brother judges nominated by the acting chief justice to the Tribunal, under the mistaken belief that the chief justice was vested with power to reconstitute the Tribunal, with the newly nominated members assuming jurisdiction over this matter under notification dated 18.03.2025, which notification is devoid of legal authority and has been issued in breach of Section 3 of the Islamabad Subordinate Judiciary Service Tribunal Act, 2016,” concluded the order.

Copyright Business Recorder, 2025