LAHORE: The Lahore High Court (LHC), while declaring the contractual appointments of Judicial Members (JM) in Appellate Tribunal Inland Revenue (ATIR) as unconstitutional, has held that the tendency of bypassing the due process of law and the competitive process would deprive the deserving candidates from appointment on merits.
In a constitutional petition, moved by the Lahore Tax Bar Association (LTBA), the appointments of JM and Chairman ATIR have been declared unconstitutional by the LHC. The petition was argued by lawyers Shahzad Butt and Anwaar Ul Haq Arif on behalf of LTBA.
LHC ruled that rules framed under the new income tax law are unconstitutional, illegal and without lawful authority and the process of recruitment shall be completed within 45 days. Chairman shall also be appointed under the Rules to be framed in accordance with law, soon after the Rules are notified.
The Constitutional Courts can always gauge the competence of a Member or a Judge, when decisions are brought before them in Appellate or Reference. Unfortunately, these posts are being filled on a political basis, by considering the allegiance, to a political party or a group of lawyers, as eligibility criteria.
Advocate Waheed Shahzad Butt said that it is a landmark development in the LHC to question the role of Prime Minister to appoint Judicial Members in ATIR on a contract basis against sanctioned posts and even without following the due process of law.
He claimed that the candidates had not completed the due process of the Federal Public Service Commission with the active connivance of the Ministry of Law and Justice.
Butt added that earlier Islamabad High Court has directed the Law Ministry to serve notices on judicial members working on a contract basis. Contractual appointments of judicial officers cannot be made without advertisement and information, hence, violative of Article 5, 10A, 18, 25 and thus, illegal and void ab-initio.
LHC order states that the word ‘Prime Minister’ as used in existing Section 130 shall be read as ‘Federal Government’ from the date when this provision was brought in the statute book. Admittedly, the Appointment Rules of 2020, were not approved by the Federal Cabinet, therefore, are declared ultra vires to the Constitution.
Tax Tribunals are the last fact-finding independent forum, which must pass prompt and consistent orders, in accordance with the law laid down by Superior Courts. A competent lawyer would never, leave his practice for appointment as a Member on contract for few years, in the absence of a career in the job and a chance of elevation. Constitutional Courts should have an overarching or supervisory role, in the appointments of Members and Judges of the Commercial Courts and Tribunals.
In the competitive process, to determine capacity and capability based on eligibility, Public Service Commissions are constituted under Article 242 of the Constitution. The statutes under this mandate are providing an independent forum and procedure, thereunder.
The tendency of bypassing this forum would not only deprive the deserving candidates from appointment on merits, but would instill mistrust in the candidates and those who are striving for the future and fortune. They would always look for ‘Sifarish’ and pledge their ability and competence, in the hands of those who exploit them for political or extraneous purpose, LHC order said.
