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1 Elevation of Civil Servants as Judges of High Courts

Elevation of Civil Servants as judges of High Courts

By: Fazal Akbar

Probationer at DMG Campus, Civil Services Academy, LahorePakistan

Dated: 7thOctober, 2011

Introduction

The process of elevation of civil servants to positions in subordinate and superior judiciary of

Pakistan has its roots in the Indian Civil Services (ICS) where members of ICS were appointed

as judges of the high court and later made a permanent part of the judicial service. After

partition, both India and Pakistan continued this process for a long period of time. In Pakistan,

after partition, the ICS was converted into Pakistan Administrative Service (PAS), the short- lived

successor of the ICSwhich again was reformed as the Civil Service of Pakistan in 1950, in

pursuance of an inter-provincial agreement. The CSP had its own judicial branch where the

federal civil servants served for five years as Additional District & sessions Judges where after,

they were promoted as District & Sessions Judges for a minimum period of three years and then

were elevated as judges of the High Court.

In 1973, as a result of civil services reforms, the Govt of Pakistan, Establishment Division issued

a Notification No. SRO1237/ARC-I, dated 21stAugust, 1973 which converted the CSP into an

All Pakistan Unified Group (APUG)on the one hand and abolished the judicial branch of CSP

on the other. This notification also held in abeyance two statutes regulating the judicial structure

in Pakistan, titled as Civil Services (Qualification for Appointment as High Court Judge) Act,

1965and Civil Posts (Listed Posts) Act, 1967. This abolition of judicial branch, resultantly, led

to the discontinuation of the elevation process in 1973.

Constitutional and Legal Position

In the view of constitutional framework regulating the judicial institutions in India and Pakistan,

India refrained to adopt the model of a federation as enshrined in the Govt of India Act, 1935.

The lower judiciary was given under the administrative control of the provinces and provincial

judicial officers were recruited for the service. On the other hand, Pakistan adopted the

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2 Elevation of Civil Servants as Judges of High Courts

conceptual design of a federation given in the Govt of India Act of 1935 and the institutions were

also designed on its basis under which a connection of carefully engineered balance was

developed between the Provincial Civil Service and an All Pakistan Service. The subordinate

judiciary was under the supervision of provinces and provincial high courts. In the light of

practical experience in 1947-56, this system was further modified to the extent that some

important functions of the provinces, which included administration of justice and law and order,

were entrusted to the Federal Govt to be discharged by the two All-Pakistan service institutions

i.e. CSP and Judiciary.

When Pakistan came into being it adopted the Govt of India Act, 1935 as its provisional

constitution till the making of its own constitution. The said Act, under its Section 220, Sub-

section3(b) fixed the qualification for appointment of a judge of high court as a member of the

Indian Civil Service of at least ten years standing, who has for at leastthree years served as, or

exercised the powers of, a district judge. The 1956 constitution of Pakistan also adopted the same

provision. It said in Article 167, Clause 1(b) that a person shall not be qualified for appointment

as a Judge of a High Court unless he is a citizen of Pakistan and is a member of the Civil Service

of Pakistan of at least ten years' standing, who has for at least three years served as, or exercised

the powers, of, a District Judge. The 1962 and 1973 constitutions restricted the induction to only

those members of civil service who are presently in service, by adding the words, he is, and

has. In 1965, the Civil Services (Qualification for Appointment as High Court Judge) Act, 1965

was enacted as a result of a decision of High Court and Supreme Court in a writ petition, which

put into practice the constitutional provision regarding selection and appointment of High Court

judges. Under this Act, the CSP was notified to be the qualifying service for these appointments

from one of the three sources mentioned in Article 78 of the constitution of 1962. In 1967,

another Act XXI titled Civil Posts (Listed Posts) Act, 1967 was passed which empowered the

President to set out the principles for appointment to posts of the provinces from amongst

members of the service and judicial as well as executive services of the province. As a result ofthe notification No.SRO1237/ARC-I, dated 21st August, 1973 of the Establishment Division,

these Acts were held in abeyance and the judicial branch of CSP was abolished and eventually

renamed as APUG. Hence, this process of elevation of civil servants from CSP judicial branch

was stopped.

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