ISLAMABAD: The Supreme Court declared on Friday that the present composition of the Federal Services Tribunal (FST) was illegal and ordered the federal government to de-notify by Tuesday the appointment of its Chairman Sheikh Ahmad Farooq and all 11 members of the tribunal.

As a judicial forum the tribunal addresses grievances of civil servants relating to terms and conditions of service.

A three-judge bench headed by Chief Justice Anwar Zaheer Jamali, which had taken up an application of Sarfraz Saleem, held that the tribunal had been set up in contravention of the observation made by the Supreme Court in its Jan 1, 2013, judgment in the Sheikh Riaz-ul-Haq case.

Orders de-notification of appointment of tribunal’s chairman and 11 members

The 2013 judgment required the appointment of FST chairman and its members in consultation with the Chief Justice of Pakistan.

“Since the Supreme Court verdict still holds the field, it has to be followed in letter and spirit,” Additional Attorney General Waqar Rana, who represents the federal government, told Dawn after a brief court hearing.

He said the government had sought time till Tuesday (Oct 20) for de-notifying the appointments.

The bench then adjourned the hearing to Oct 20 when the government will inform the court whether or not its directives have been implemented.

Ahmad Farooq was appointed FST chairman on Oct 2014.

In the 2013 judgment, a three-judge bench headed by then chief justice Mohammad Iftikhar Chaudhry had held that functions of the tribunal would be “judicial” in exercise of “judicial powers” conferred upon it by the legislature.

Therefore, the FST enjoys the status of a ‘court’ and is required to be separated from the executive in terms of Article 175(3) of the Constitution. Since FST’s role was in substitution of the highest constitutional body i.e. the high court so being a judicial forum, it must also enforce the fundamental rights of access to justice and enjoy financial autonomy as had been given to the high courts and the Supreme Court, the verdict had held.

It further said that since the FST fell in the category of the court, capable of exercising judicial powers, it was bound to follow the principle of independence of judiciary for the purpose of ensuring enforcement of the fundamental right of access to justice under Article 9 of the Constitution which envisaged security of persons. Therefore, it is required to be separated from the executive.

Moreover, to make the chairman and members of the FST independent, it is necessary to make their appointment after a meaningful consultation with the CJP and that of the provincial service tribunals in consultation with the chief justices of high courts.

The compliance with such condition (consultation), the judgment had said, was necessary because if the chairman had to be appointed from among sitting judges of a high court without the consent of the CJP, judicially and administratively, no judge of the high court could relinquish his post without approval by the chief justice concerned because he had to discharge his function as judge of the high court under the administrative control of the chief justice.

Similarly, a person qualified to be judge of the high court, either a district judge or an advocate, has to be appointed after the meaningful consultation with the high court chief justice because the district judge, if allowed to hold the charge of provincial service tribunal, could only be released if permission is granted by the high court chief justice.

As far as the appointment of an advocate, who is qualified to be chairman of a tribunal or member, was concerned, the 2013 verdict said, his performance or capability could only be evaluated during the period when he had been practising law because a person who had obtained enrolment but never appeared before the high court or the Supreme Court, could not claim to have legal experience.

Published in Dawn, October 17th, 2015

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