PESHAWAR: A Peshawar High Court bench on Wednesday issued notices to attorney general for Pakistan and Khyber Pakhtunkhwa advocate general in a writ petition, challenging appointment of two executive officers as members of KP Services Tribunal.

The bench of Justice Roohul Amin Khan and Justice Syed Afsar Shah observed that as vires of the law, Services Tribunal Act, 1974, was challenged, therefore, it was appropriate to issue notices to the attorney general and advocate general so as to get their response on the issue.

The petition is filed by Advocate Gul Daraz Khan, requesting the court to declare the appointment of executive members from amongst civil servants in BPS-20 and above in the KP Service Tribunal in violation of Article 175 (3) and Article 2(A) of the Constitution.

Response of attorney general and advocate general sought on the issue

Senior advocate Noor Alam Khan appeared for the petitioner and requested the court that as interim relief the government may be directed to de-notify the executive members of the KP Service Tribunal in the meanwhile.

The bench issued notice to the government over the plea of interim relief.

The respondents in the petition are: KP government through chief secretary, KP governor through his principal secretary, secretaries of law and establishment departments, and secretary of KP Assembly.

The counsel contended that Article 212 provided for establishment of administrative courts having exclusive jurisdiction in respect of matters relating to terms and conditions of persons in the service of Pakistan.

He stated that in order to have a court for civil servants as per requirement of Article 212, the government of Khyber Pakhtunkhwa had enacted the Services Tribunal Act, 1974, which was having exclusive jurisdiction in matters of terms and conditions of services of civil servants.

He pointed out that under Section 3 of the Services Tribunal Act the tribunal should consist of a chairman being a person, who was or had been or was qualified to be a judge of high court, and four members, two of whom should be from amongst district and sessions judges and two from amongst civil servants in BPS-20 and above.

He argued that Article 175 (3) of the Constitution emphasised on the separation of the judiciary from the executive progressively within 14 years after commencement of the Constitution, but the structure and constitution of the services tribunal was an amalgamation of judicial officers and civil service officers.

The counsel contended that the provision of Article 175(3) of the Constitution was mandatory but the government failed to implement it. He added that the independence of judiciary was the cardinal principle of the Constitution provided in Article 2(A).

Mr Alam said that the basic purpose of separation of judiciary from executive was to prevent and protect the abuse and misuse of powers by the two organs of the state and one was to check the other, but in the services tribunal, the appointment of executive members was against the basic spirit of the doctrine of separation of powers and check and balance.

Published in Dawn, June 20th, 2019