PLJ 1997 AJK 70
Present: kh. muhammad saeed, A.C.J., ch. muhammad taj and muhammad siddique farooqi, JJ.
RAJA BASHIR AHMAD KHAN-Appellant
versus AZAD J & K COUNCIL through its Secretary & 2 others-Respondents
W.P.
No. 350 of 1996, decided on 28.1.1997.
(i) Quanoon-e-Shahadat Order 1984--
—S. 114--Estoppel Plea-Taking of--Withdrawal of-Agitation of same at later stage-Effect-Petitioner availing right of appeal but withdrawing same—Petitioner agitating same views/points at later stage— etitioner, held, estopped by his conduct to build a case contrary to spirit of judgment given in his own case on points which he has agitated second time through present petition. [P 75] A
(ii) Azad Jammu & Kashmir Courts & Laws Code, 1949-
—S. 5 (l-A)-Acting Chief Justice-Appointment f-Acts and functions performed by him--Validity of-Validity of act done by Acting Chief Justice including drawing of panel of eligible persons for their levation as Judge of High Courts, held, to be no longer upon to challenge- Petition dismissed. [P. 77] B & C
Petitions in person.
Date of decision : 28-1-1997
order
Khawaja Muhammad Saeed, ACJ.--The petitioner has filed this Constitutional petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, on various grounds, seeking relief to issue a direction to respondent No. 3 to show under what authority of law he is holding a public office in his capacity as Judge of the High Court and, ultimately, to direct him to vacate the said office.
The admitted facts are that respondent No. 3, a leading Advocate of this Court and an ex-Advocate General, was elevated as Judge of this Court on May 5, 1991 and since 7.5.1991, when he took oath of his office, is performing his functions as such. Previously, a member of the Central Bar Association, Muzaffarabad, challenged his elevation on 29.7.1992 on various grounds. However, his petition was finally dismissed by the Supreme Court on 13.1.1993. The present petitioner, a retired District and Sessions Judge of Azad Kashmir, previously challenged the elevation of Mr. Justice Muhammad Siddique Farooqi, a learned member of this Court, through a Constitutional petition on 4.2.1996. This petition was dismissed by a Division Bench of this Court vide its order dated 5.8.1996. Thereafter,according to the petitioner, he availed his right of appeal against this order before the Supreme Court but later on, with the permission of the Court he withdrew his appeal on 15.9.1996. The petitioner filed another Constitutional petition on 19.11.1996 for a writ of prohibition against the respondent-Government to restrain it from terminating his service as Chairman Service Tribunal, In this petition he alleged that at the time ol his appointment as Chairman Service Tribunal, it was ordered that his salary and other terms and conditions of service shall be equal to a Judge of the High Court. On account of his appointment order, he cannot be retired/ousted from service till 1998 when he shall attain the age of 62 years which is the age of superannuation of a Judge of the High Court. At the time of arguments in that petition, the petitioner moved an application before respondent No. 3, who was seized with the case, praying therein that, as the Government-respondent was intending to proceed against him in the light of the judgment of the High Court dated 5.8.1996, which was written by respondent No. 3 in his capacity as a member of the Bench, therefore, his petition be referred to the Chief Justice for the constitution of another Bench for its disposal. Later on, he moved another application whereby he sought permission to withdraw his petition. The permission was granted through a short order, which reads as under:
"The petitioner seeks permission to withdraw this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. In view of the chequered facts and different applications filed by the petitioner and the parawise comments and rejoinder filed by the respondents, the detailed order will follow. However, the petition stands consigned to record in view of the application, pending detailed order."
Thereafter a detailed order was passed by
respondent No. 3 on December 5. 1996, which, according to the petitioner, is
sub judice before the Supreme Court.
"The petitioner before beginning the arguments filed an application for referring writ petition for constitution of another Bench on the ground that as the proposed act against him is being taken in the light of the judgment of the High Court dated 5.8.1996, while the petitioner had no opportunity to defend his position, reference for constitution of another Bench to the learned Chief Justice was therefore necessary. The petitioner was apprised that if this Court felt necessary after hearing the petitioner for constitution of another or larger Bench, the proper order shall be passed after hearing the arguments...."
In the background of these facts, the petitioner has challenged the elevation of the respondent Judge through this petition.Prima facie, it appears that the present petition has not been filed to uphold the dignity of law. In a previous petition, when a local Advocate impeached the elevation of the respondent Judge after a period of one year and two months, through a writ of quo warranto, before this Court, the Supreme Court while accepting that the principle of laches was not strictly applicable to a case of quo warranto, opined that the bonafide of the petitioner is to be taken into consideration, In that case, the respondent Judge had moved the Chief Justice of this Court to initiate contempt of Court proceedings against the Advocate-petitioner. The apex Court of Azad Kashmir, in view of this fact, held that the petition was badly hit by the mischief of the principle of laches. In the present case, in the light of the histoiy of litigation started by the petitioner in the past without success, the principle of laches is attracted and the petition filed by the petitioner is liable to be dismissed on this ground summarily. However, we have decided to dispose it of even on merits.
In the present case, the petitioner has challenged the appointment of respondent No. 3 on three grounds : (1) that the respondent was appointed a Judge of this Court on the advice of the Chairman, Azad Jammu and Kashmir Council, but without the consultation of the Chief Justices of the
Supreme Court and the High Court of Azad Kashmir. He, in this behalf, has relied on Notification No, 3/19/91-C.A.D. dated 5.5.1991; (2) that the permanent Chief Justice of the High Court of the time was Mr. Justice Abdul Majeed Mallick who was appointed as ad hoc Judge of the Supreme Court on 29.9,1987, Under Section 5(l)(aJ of the Azad Jammu and Kashmir Ci-urts and Laws Code, 1949, Mr. Justice Sardar Muhammad Ashraf Khan was appointed acting Chief Justice. During the tenure of office of the acting Chief Justice, a panel was obtained by the President of Azad Jammu and Kashmir to till two vacancies then available in the High Court. On the basis of the recommendations made by him and the Chief Justice of the Supreme Court aird on the advice of the Chairman Azad Jammu and Kashmir Council, two Judges were appointed in the High Court. After these appointments were made, there was no vacancy left which could justify the appointment of arty other person including respondent No. 3 as Judge of this Court. His third point is that the panel obtained in 1989 was to fill two vacancies in the High Court. After the appointment of two Judges out of this panel, the High Court stood complete. If the Government wanted to increase the strength of the High Court, it should have amended the relevant law. Thereafter the President should have obtained a new panel of eligible persons from the sitting Chief Justices of the High Court and the Supreme Court. While elaborating his point, he argued that on 22.9.1989 the appointment of Mr. Justice Abdul Majeed Mallick Chief Justice of the High Court, who was performing his functions as ad hoc Judge of the SupremeCourt, was terminated with immediate effect, resultantly he assumed his responsibilities as Chief Justice of the High Court. In the like way, on 14.3.1990, Raja Muhammad Khurshid Khan, the Chief Justice of the Supreme Court, on attaining the age of superannuation, had retired and in his place the present Chief Justice, Sardar Said Muhammad Khan assumed the charge of the office. These two persons were relevant so far as the provision of consultation with the Chief Justices is concerned for the appointment of any other Judge in the High Court. But both these persons were not consulted. The old panel obtained in 1989 for filling two vacancies in the High Court was wrongly utilized to accommodate respondent No. 3 as Judge of this Court. According to the petitioner, the case of appointment of respondent No. 3 as Judge of this Court was not processed as required by law. According to him, the President of the time obtained the advice from the Chairman Azad Jammu and Kashmir Council on his letter without even sending the panel of persons drawn by the Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir in 1989.
We have given due consideration to the arguments of the petitioner and have perused the record made available by him on the file. The first point raised by the petitioner can be conveniently answered by reference to the order of appointment of respondent No. 3 as Judge of this Court issued under No. 3/19/91-O.A.D. dated 5.5.1991, which is as under :-
"No. 3/19/91-O.A.D. In exercise of the powers conferred bysub-section (2-A) of Section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the President, on the advice of the Azad Jammu and Kashmir Council, is pleased to appoint Mr, Manzoor Hussain Gilani, Advocate,as Judge, High "Court.2. This Notification shall take effect on and from the date Mr. Manzoor Hussain Gilani enters upon his office as such Judge."
There is no dispute that under law a Judge in the High Court can be appointed by the President on the advice of the Chairman Azad Jammu and Kashmir Council after consultation with the Chief Justices of the Supreme Court and the High Court. The practice is that the President obtains a panel of eligible persons from the Chief Justices of the Supreme Court and the High Court, on the basis of which he seeks advice from the Chairman AJ&K Council. We agree that in the impugned notification, words "consultation with the Chief Justices" are missing. But in our view, this omission is immaterial due to two reasons : Firstly, the impugned notification relating to the appointment of respondent. No. 3 as Judge of this Court especially contains the recital of sub-section (2-A) of Section 43 of the Azad Jammuand Kashmir Interim Constitution Act, 1974, which provision being relevant, is reproduced as under :
"A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation:--
(a)
With the Chief Justice of Azad Jammu and Kashmir; and
(b)
Except where the
appointment is that
of Chief Justice, with the Chief Justice of the
High Court."
Secondly, the notification was issued in strict compliance with the provisions of the Rules of Business. The same shall, the efore, be presumed to have been issued legally in accordance with the legal requirements, because presumption of correctness is attached to all the official acts unless and until they are rebutted through some cogent evidence, which is totally missing in the present case.
In the previous litigation, reference of which has been given in the earlier part of this order, the elevation of respondent No. 3 was assailed by an Advocate of the local Bar. The Supreme Court of Azad Kashmir held his elevation as legal and valid vide its judgment dated 13.1.1993.
The second ground raised by the petitioner is self-contradictory. The petitioner, in his petition, has admitted that the respondent Judge was appointed on the basis of the panel which was obtained by the President in 1989. This shows that the name of respondent No. 3 was present in the panel which was drawn by the acting Chief Justice of the High Court as well as by the Chief Justice of the Supreme Court in 1989. However, his objection in this behalf is that the said panel was obtained to fill two vacancies of Judges in the High Court. According to the petitioner, after the appointment of Sheikh Basharat Ahmad and Khawaja Muhammad Saeed as Judges of the High Court, the High Court had become complete. There was no vacancy left in the High Court, as such no fresh panel was obtained by the President from the two Chief Justices of the superior Courts of Azad Kashmir. According to the petitioner, the budget for the respondent Judge and his staff was made available much after his appointment. We are not impressed even by his this submission. This point was previously pressed before the Supreme Court in the earlier litigation against the said Judge and was resolved by the apex Court by making following observation :
"We have given due consideration to the arguments on the point and would like to note that no law has been cited that the President or the Government are empowered under the Courts and Laws Code or the Azad Jammu and Kashmir Interim Constitution Act to 'create' the post of a Judge in the High Court. Even otherwise, sometimes the budgetary provisions for a newly appointed Judge are made after theappointment and that is never interpreted to mean that the order of the Government making budgetary provisions for the Judge and his staff would imply that the post of the Judge was created by the said order...."
The petitioner's another attack in this regard is that the Chief Justice of the High Court was illegally sent to the Supreme Court as ad hoc Judge and Sardar Muhammad Ashraf Khan was appointed as acting Chief Justice of the High Court under Section 5(l)(a) of the Azad Jammu and Kashmir Courts and Laws Code, 1949. According to him, the appointment of Mr. Justice Sardar Muhammad Ashraf Khan as acting Chief Justice of the High Court under the provisions contained in the Azad Jammu and Kashmir Courts and Laws Code, 1949, was bad in law. Any appointment in pursuance of his recommendations was a subversion of the Constitution, ae such void ab initio. We have given our thought to this submission also. Prior to the amendment of the Constitution carried through Act No. XX of 1993, there was no provision in the Azad Jammu and Kashmir Interim Constitution Act that if the office of Chief Justice of the High Court is vacant or the Chief Justice is absent or is unable to perform the functions of his office due to any other cause, how the Court could perform its functions. For this reason, the provision contained in the Azad Jammu and Kashmir Courts and Laws Code, 1949, were used to be invoked and the senior Judge among the other Judges used to act as acting Chief Justice. In the light of this practice, Sardar Muhammad Ashraf Khan, who was next in seniority to the Chief Justice of the time, Mr. Justice (retired) Abdul Majeed Mallick, was appointed as acting Chief Justice of this Court. Recently, on distinguishable facts, this practice was not approved by the apex Court of Pakistan in the famous 'Judges Case', "Al-Jehad Trust and others versus Federation of Pakistan and others", P.L.D. 1996 Supreme Court 324. In our view, no illegality can be presumed with the appointment of the Judges on the recommendation of the acting Chief Justice made prior to the above referred recent judgment of the Supreme Court of Pakistan. A Division Bench of this Court in the case filed by the present petitioner against another Judge of this Court, Mr. Justice Muhammad Siddique Farooqi, has expressed the same view, with reasons which need not be reproduced in this order, particularly when the petitioner who had availed right of appeal before the Supreme Court against that order, withdrew his appeal on 15.9.1996. The petitioner, therefore, was estopped by his conduct to build a case contrary to the spirit of the judgment given in his own case on the points which he has agitated second time through this petition. There was no illegality committed by respondents 1 and 2 in acting upon the recommendation of the acting Chief Justice of the High Court because the functions performed by him as acting Chief Justice shall remain valid and effective even if his own appointment is found illegal or invalid. There are number of authorities in support of this proposition. However, we will like to refer to only one authority of the Supreme Court of Azad Jammu and Kashmir, in a case titled "Azad Government of the State ofJ & K vs. Kh.Noor-ul-Amin and others" (1991 P.S.C.. 967). The facts of this case were that late Col. (Rtd.) Muhammad Naqi Khan was elected in 1985 as a member of the Azad Jammu and Kashmir Legislative Assembly as a nominee of Tehrik-e-Amal Party. In the Legislative Assembly, All Jammu and Kashmir Muslim Conference obtained majority, as such formed the Government which was headed by Sardar Sikandar Hayat Khan as Prime Minister. Tehrik-e-Amal Party was the main opposition party in the Assembly. On June 9, 1988, late Col. (Rtd.) Muhammad Naqi Khan was inducted in the Cabinet. Kh. Noor-ul-Amin, a member of the District Bar Association Mirpur, filed a petition in the High Court contending therein that late Col. (Rtd.) Muhammad Naqi Khan by taking oath in the Cabinet of All Jammu and Kashmir Muslim Conference, had ceased to be the member of the Legislative Assembly in view of the provisions contained under sub-section (3) of Section 5 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. This writ petition was allowed by this Court vide order dated April 21, 1990. This judgment was assailed in appeal before the Supreme Court of Azad Jammu and Kashmir. Our view is fortified by the observation recorded by the learned Supreme Court in para 14 of its judgment, which reads :
"14. Before parting with the case, we may point out that 'de facto doctrine' which has been given due recognition by the Courts of law is not only applicable to a Judge but it also applies to certain officers. Under that doctrine the contravention of a constitutional provision may invalidate an appointment but the acts done and functions performed by a person who hejd that office acting under the colour of lawful authority continue to be valid and effective. This doctrine has recently been applied by this Court in Amjad Hussain and others v. Ghulam Rasool Mir (Criminal Appeal No. 6 of 1990)."
Sardar Muhammad Ashraf Khan performed his duty as Acting Chief Justice from September 29, 1987 to September 22, 1989. All the acts performed by the High Court during this period of time were never questioned either in the High Court or in the Supreme Court. Later on, the Interim Constitution Act was amended in the light of the provisions contained in Section 5, sub-section (1-A) of the Azad Jammu and Kashmir Courts and Laws Code, 1949, which reads as under :--
"(1-A). At any time when :--
(a) the office of the Chief Justice of the High Court is vacant; or
(b) the Chief Justice of the High Court is absent or is unable to perform the functions of his office due to any other cause,the President shall appoint the most senior of the other Judges of the High Court to act as Chief Justice."
It is our considered opinion that in the light of the above referred facts, all the facts performed by Sardar Muhammad Ashraf Khan in his capacity as Acting Chief Justice had not only de facto validity but had acquired the de jure validity by reasons of the un-questioned recognition, extended to them by the Courts in Azad Kashmir and later on by the Constitution itself after it was amended strictly in accordance with the above quoted provisions contained in Section 5(1-A) of the Azad Jammu and Kashmir Courts and Laws Code, 1949. The validity of the act done by him including drawing of panel of eligible persons for their elevation as Judge of the High Court, is therefore, no longer open to challenge.
In view of the above, there is no justification for us to issue notice to the respondent-Judge that under what authority of law he is holding the office of Judge of the High Court. In the light of the above reasoning, this writ petition is dismissed in limine.
However, before parting with the case, we have noted with regret that certain indecent remarks have been given by the petitioner about respondent No. 3 without any proof. The petitioner has even attributed malice to the Bench which had dismissed his petition which he had filed against another member of this Court. The petitioner, who in the very beginning of his petition, has pleaded that he was conversant with law on account of his long association with the profession as an Advocate and a judicial officer, should have pleaded the facts in a concise form to enable the respondents and this Court to ascertain whether in fact and in law a cause of action did arise to him or not. He had no right to pass indecent remarks about the respondents to blame them. The indecent remarks given by him in para 10, starting from the words "While going through the judgment" upto the words "decision of the writ petition." occurring before the sentence "The judgment is attached herewith as Annexure I", in para 11, fourth line, starting from the words "The observation" upto the words "by any citizen", and sub-para (B) of para 13 of his writ petition may cause adverse effect on the dignity, impartiality and independence of the institution and may even lower down the prestige of the Judges in the mind of the general public. These remarks could be taken notice of for action, but keeping in view that he has been removed from service against his expectation that he would retire at the age of 62 years, we ignore this aspect of the matter. However, the remarks referred above are ordered to be struck off.
(Aq.By.) Petition dismissed.