Orders binding on executive, judicial functionaries: SC

The Supreme Court on Saturday held that once a judicial order is passed, it is binding on the executive as well as the judicial functionaries in accordance with Articles 5 and 190 of the constitution.
The detailed judgement issued by the SC regarding a suo motu case on corruption in the Haj arrangements 2010 read, “Under the constitution, if this court passes orders, it should be complied with and no approval of any authority in executive is required for its implementation. The rules or even statutes, which are subordinate to the constitution could not place bar on the authority of this Court to seek the enforcement of its orders.”
The court said non-compliance of the SC orders would have made Establishment Secretary Sohail Ahmed liable to contempt proceedings. “There was no complaint whatsoever against Sohail Ahmed except that he had obeyed the order of this court in terms of various articles of the constitution,” the court observed. The SC said such officers could not be penalised inter alia on the ground that he issued the notification in violation of the rules. The establishment secretary had issued the notification in compliance with the SC order dated 25-07-2011 and 26-07-2011.
The SC said, “Transfer and posting is the domain of the executive authority, however, keeping in view the peculiar facts and circumstances of the case, instead of passing orders ourselves, we had send the issue of transfer/reposting of Hussain Asghar as FIA director to the government through attorney general for Pakistan but it did not work.”
Mercy: “Under these circumstances, we examined the administrative orders ourselves in exercise of the powers of judicial review and have passed the orders on 25-07-2011 and 26-07-2011, which have resulted in making Sohail Ahmed OSD. It is not only Sohail Ahmed, secretary establishment, who suffered for obeying the lawful orders and if such acts are allowed to continue, it will have serious impacts on the officials/authorities and will send message to them that if they comply with orders of Supreme Court without seeking prior approval of the competent authority, they will be posted out or they shall be proceeded against departmentally.
Moreover, it would discourage upright, honest and committed officers as well. Therefore, under these circumstances, this court cannot leave such officers at the mercy of the executive to deal with them in a manner they like,” the court said. The order observed that the manner in which Sohail Ahmed had been penalised persuaded the court to have strong reasons to believe that it was an act designed to frustrate the orders of the court.
The court observed, “It may be unfair and unjust to keep a government servant on tenterhooks without getting any work from him. The right to work is a valuable right of a person as visualized by Article 3 of the Constitution of Islamic Republic of Pakistan, a provision meant to ensure social and economic justice to the people of Pakistan.”
“A civil servant cannot be made OSD if the competent authority is not satisfied with his performance, though the authority has the power to order his transfer but he cannot be penalised as has been done in this case”, the court observed. The court further said, “We have all the respect for parliament and the executive as we know that parliament has to make law and constitution to confer jurisdiction upon the superior courts to interpret it.”