PLJ 2010 AJ&K 58
Present: Ghulam Mustafa Mughal, J.
SHAUKAT AZIZ and 4 others--Petitioners
versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND
KASHMIR through its Chief Secretary, Muzaffarabad and 8 others--Respondents
W.P. No. 122 of 2007, decided on
30.4.2010.
Acting Chief Justice--
----Appointment as Judge of High
Court--Contention--Acting Chief Justice could not make any recommendation for
appointment of permanent Judges of High Court. [P.
64] A
PLD 1996 SC 324; PLD 2000 SC 179; 1999
SCR 235; PLD 2009 SC 879; 1999 SCRG 243 rel.
AJ&K Interim Constitution Act, 1974--
----Ss. 42-E--Alternate remedy--Question
of maintainability--Once a Judge of Supreme Court or High Court is appointed,
he cannot be removed from the office through writ--Validity--Once a Judge is
appointed he can be removed only u/S. 42-E of the Act, 1974 and no writ is
competent against a Judge of the Supreme Court and High Court. [P. 68] B
1977 SCMR 514; 1993 SCR 131 and PLD 2010
SC 61 ref.
Writ of Quo Warranto--
----Remedy for challenging--If
appointment of a Judge is violative of Constitution then appropriate remedy for
challenging the same is writ of quo warranto. [P.
68] C
AJ&K Interim Constitution Act, 1974--
----S. 44(5)--Constitutional
jurisdiction--Judicial action--Appointment of Judge Holding Public Offices as
Judges High Courts of AJ&K--Process for filling the vacancies of Judges of
High Court--Private respondents were appointed as Judges of High
Court--Notification--Violation of the mandatory constitutional requirement of
consultation with Chief Justice--Validity--When an order is passed by a Judge
of High Court in exercise of its Constitutional jurisdiction, then a writ will
not be competent against the order so passed and the aggrieved party has to
avail remedy provided under the Act, but when the appointment of a Judge is
alleged to have been made in violation of the mandatory provision of the Act,
1974, or by an incompetent authority--Challenge to such appointment is not
covered by S. 44(5) of Constitution Act. [P.
70] D
AJ&K Interim Constitution Act, 1974--
----Ss. 42-E & 44--Recommendations of
Supreme Judicial Council--Jurisdiction--Holding of Public Offices as Judges of
High Court AJ&K--Elevation of Judge High Court in Supreme Court--Process
for filling the vacancies of Judges of High Court--Private respondents were
appointed as Judges of High Court--Notification--Violation of the mandatory
Constitutional reuqirement of consultation with Chief Justice--President
recommended the names of private respondents clandestinely without any
construction--Validity--Alternate remedy--Maintainability--Once judge is
appointed under the Act, 1974 cannot be removed except on the recommendations
of Supreme Judicial Council constituted u/S. 42-E of Act, is devoid of any
force--Held: Supreme Judicial Council has to commence its proceedings when a reference
is made to it by President or Chairman of the Council under, the provisions of
the Act, 1974, on the advice of Prime Minister/Chairman of Council--Supreme
Judicial Council can only inquiry into the matters enumerated in the reference
and has to make recommendations in light of S. 42-E(6)--Sphere allotted to
Supreme Judicial Council is totally different and limited and defect in
appointment of a Judge cannot be gone into by Supreme Judicial Council. [P. 70] E & F
PLD 1998 SC 161 & PLD 2000 SC 179 ref.
Juristic Rights--
----Appointment of Judges of High Court
AJ&K--Violation of the Constitution or indepnedence of judiciary--Adversely
affects his rights--Existing right to assail the order which was
illegal--Aggrieved person--Objection for private repsondents--Validity--Petitioners
were members of legal fraternity and naturally were interested in supremacy of
the Constitution law nad independence of judiciary--Advocates have always been
considered aggrieved if some act is done in violation of the Constitution or
independence of judiciary is undermined. [P.
71] G
AIR 1982 SC 149 ref.
AJ&K Interim Constitution Act, 1974--
----Ss. 42(4), 43(2-A) &
44--Appointment of private respondents as Judge--Panels sent to President for
appointment of Judges in High Court--Process of consultation of private
repsondents--Necessity of transparency in making the appointments of
Judges--Letter regarding appointment of private
respondents--Notification--Violation of mandatory constitutional requirement of
Constitution--Letter cannot be treated as consultation--Validity--No such
eventuality arose for fresh recommendations or panel and same cannot be made or
sent at that time because the other consultee (Chief Justice of High
Court)--Held: Consultation with both the Chief Justice was must without which
appointments would be invalid--Summary was sent to Prime Minister Secretariate
which was deferred for discussion of Incharge Minister with Chairman of
AJ&K but without any such discussion and ignoring the duly processed file, advice
regarding appointment of private respondents was conveyed by Principal
Secretary to Prime Minister of Pakistan--Advice has not been signed by Prime
Minister, as is the practice but has been conveyed through his principal
Secretary Council to President--No signature of the Prime Minister of Pakistan
as Chairman Council on duly processed file which was total departure from Rules
of Business, adopted by AJ&K Council--For the appointment of Judges in High
Court consultation with both the Chief Jusitces of AJ&K was must--Furthered
held: Neither law department nor President or Council had any authority to
appoint any person not recommended for appointment by Chief Justice of AJ&K
and Chief Justice of High Court-Appointment of private respondents were declared
vacant. [Pp. 77, 78, 80 &
81] H, I, L & O
AJ&K Interim Constitution Act, 1974--
----Ss. 42(6) & (43(4)--Administered
oath--Function of Chief Justices of AJ&K--Consultation for appointment of
Judges in high Court--Not possible without any express provision in the Act,
1974 that one and the same person can perform the functions of Chief Justice of
AJ&K as well as Chief Justice of High Court. [Pp. 78 & 79] J
AJ&K Interim Constitution Act, 1974--
----Ss. 8, 17 & 44-Appointment of
Judges of AJK--Functions of Constitutional functionaries can be performed by
another constitutional office holder--Acting President--When President is
unable to perform the functions of his office due to absence, illness or any
other cause, Speaker of Assembly shall act as President without taking any
additional oath as such--In the event of death of Prime Minister or office of
Prime Minister becoming vacant by reason of his ceasing to be a member of
Assembly, the most senior minister for time being shall be called upon by
President to perform the functions of that office and Minister shall continue
in office until a new Prime Minister has been elected and has entered upon his
office-When speaker is absent or is unable to perform his functions due to any
cause, Deputy Speaker shall act as speaker. [P.
79] K
PLD 2009 SC 549 ref.
AJ&K Interim Constitution Act, 1974--
----S. 44--Holding public offices as
Judges High Court of AJ&K--Process for filling the vacancies of Judges of
High Court--Private respondents were appointed as Judges of High Court--Notification
issued under Rules of Business--Violation of mandatory
constitution--Notification issued under Rules of Business carry presumption of
truth, is correct but such presumption is rebutable and cannot be treated as
conclusive for purpose of consultation in presence of available Notification
under challenge cannot be saved on the score that same has been issued after
complying with Rules of Business. [P.
80] M
AJ&K Interim Constitution Act, 1974--
----S. 7--Process of consultation
regarding appointment of Judges--Advice of Prime Minister--President shall act
in accordance with the advice of Prime Minister and such advice would be
binding on him as is contemplated by Section 7 of Act, 1974. [P. 81] N
M/s. Farooq Hussain Kashmiri and Mr.
Saddaqat Hussain Raja, Advocates, for Petitioners.
Raja Muhammad Hanif Khan, Advocate, for
AJK Government.
Raja Tariq Mehmood, Assistant Draftsman
and Deputy Secretary AJK Council Secretariat, representative of Respondents No.
2 to 6.
Kh. Muhammad Nasim, Kh. Farooq Ahmed,
Sardar Shahid Hamid, Sardar M.R. Khan, Advocates, for Respondents No. 8 &
9.
Date of hearing: 30.4.2010.
Judgment
Through this petition filed under Section
44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, respondents
No. 8 and 9 (hereinafter to be referred as private respondents) have been
required to show under what authority of law they are holding the public
offices as Judges High Court of Azad Jammu and Kashmir.
The petitioners, herein, are members of
the legal fraternity and claimed to firmly believe in the supremacy of the
Constitution and law, which according to them is impossible in absence of an
independent, dignified and exalted judiciary. It is alleged that due to the
retirement of Judges and elevation in the Supreme Court of Azad Jammu and
Respondents No. 2 to 6, have not
contested the petition. Raja Tariq Mehmood, Assistant Draftsman/Deputy
Secretary AJK Council Secretariat, has made a statement at the bar to that
effect. However, AJK Government has filed written statement. Referring to the
relevant Rules of the Azad Jammu and Kashmir Rules of Business, 1985, they have
pleaded that the matter with respect to the appointments of the Chief
Justices/Judges of the
Private respondents have also filed
written statement whereby they have objected to the maintainability of the
petition on the ground that an alternate remedy under Section 42-E of the Act,
1974 is available, hence, the instant petition is incompetent. They further
submitted that once a Judge of the Supreme Court or High Court is appointed, he
cannot be removed from the office except provided by the above Section which
clearly shows that whatever the grievance against a Judge of the superior
judiciary may be, no proceedings can be taken legally for his removal on any
ground whatsoever except proceedings under Section 42-E of the Act, 1974. They
also stated that the petition merits dismissal because the Judges of the
Supreme Court and High Court have been excluded from the purview of 'person'
under Section 44 of the Constitution. It is stated that Act, 1974, does not
require that the Chief Justice of the Supreme Court and the High Court should
be different persons. It is claimed that if a person holding the office of
Chief Justice of High Court after consultation is elevated to the Supreme Court
and becomes Chief Justice of the Supreme Court, then there is no bar for the
President to consult such Chief Justice of the Azad Jammu and Kashmir
notwithstanding the fact he has already been consulted as Chief Justice of the
High Court. The respondents have also pleaded that the advice has been issued
after due deliberation and in accordance with the Act, 1974, therefore, has
rightly been acted upon. It is also alleged by them that the petition suffers
from laches and has been filed with ulterior motives. It is also claimed that
none of the petitioners fulfils the qualification for appointment as a Judge of
the High Court, therefore, they are not aggrieved.
M/s Farooq Hussain Kashmir & Saddaqat
Hussain Raja, the learned Advocates for the petitioners, vehemently contended
that Hon'ble Mr. Justice Muhammad Reaz Akhtar Chaudhry, the then Chief Justice
of the High Court, was elevated as Judge Supreme Court of Azad Jammu and
Kashmir on 26.9.2006. His lordship was further elevated as Chief Justice
Supreme Court on 21.10.2006. Mr. Justice Sardar Muhammad Nawaz Khan (now
retired) was appointed as Acting Chief Justice of the High Court vide
Notification dated 28 Sep 2006. Notification dated 23.1.2007, whereby private
respondents have been appointed as Judges of High Court was issued without
consultation with the Chief Justice of Azad Jammu and Kashmir and insertion of
words "after consultation with the Chief Justice of Azad Jammu and Kashmir
and Chief Justice of High Court" in the said Notification are against the
record and mala fide. They argued that outgoing Chief Justice of Azad Kashmir,
Mr. Justice Kh. Muhammad Saeed, as per petitioners' knowledge has not
recommended private respondents for appointment as Judge of the High Court and
their names were also not included in the summary sent by the then President of
Azad Jammu and Kashmir to the Council for advice. They further argued that Mr.
Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice of the Azad Jammu and
Kh. Muhammad Nasim, the learned counsel
representing private respondents, has controverted the arguments advanced on
behalf of the petitioners. The learned Advocate argued that Notification dated
23.1.2007 (under challenge) itself contains that private respondents have been
appointed on the advice of the Council, after consultation with the Chief
Justice of Azad Jammu and Kashmir and Chief Justice of the High Court, as is
required by subsection 2-A of Section 43 of the Constitution. According to the
learned counsel, the said Notification has been issued under the Rules of
Business and published in the official gazette, therefore, will be presumed to
have been issued after complying with the constitutional requirements. In this
regard he placed reliance on a case titled Raja Bashir Ahmed Khan v. Azad
J&K Council through its Secretary and 2 others [PLJ 1997 AJK 70] and A.K.
Trading Corporation v. Messrs Z.H. Construction and 2 others [1997 SCR 336].
Referring to the relevant paras of the comments filed on behalf of the Council and
the Government, the learned counsel submitted that making the appointment of
private respondents in accordance with the Act, 1974, has been admitted, hence,
now, neither the Government nor the Council can change its position by taking
an inconsistent stand. The learned counsel also submitted that writ of quo
warranto is not competent against a Judge of Supreme Court/High Court under
subsection (5) of Section 44 of the Constitution. He further argued that the
petitioners have not appended with the petition any proof regarding violation
of their any vested and even a tangible right. They have also not claimed that
they are eligible for appointment in place of private respondents and have a
right to be considered as such. He submitted that conduct of the petitioners is
not bona fide because most of them have withdrawn the petition which indicates
manoeuvring the filing of the petition with ulterior motive. The learned
counsel argued that writ of quo warranto cannot be issued in routine. In
support of his submissions the learned Advocate placed reliance on the
following cases:-
i) Syed
Amjad Ali v. Ch. Amir Afzal and 5 others [2006 SCR 153]
ii) Syed
Manzoor Hussain Gillani v. Sain Mullah, Advocate, and 2 others [PLD 1993 SC
(AJK) 12]
iii) Ch.
Muhammad Anwar v. Ch. Muhammad Rashid [PLD 1987 SC (AJK) 41]
It was next argued by the learned
Advocate that it is the office which matters in the present case, as at the
time of elevation of private respondents, Hon'ble Mr. Justice Muhammad Reaz
Akhtar Chaudhry, was holding the office of Chief Justice of Azad Jammu and
Kashmir, hence, there was no constitutional restriction upon him to recommend
private respondents again in that capacity notwithstanding the earlier
recommendations made by him as Chief Justice High Court.
Kh. Farooq Ahmed, Sardar Shahid Hameed
and Sardar M.R. Khan, the learned Advocates for private respondents have
adopted the arguments of Kh. Muhammad Naseem, the learned Advocate for private
respondents and added nothing.
Raja Muhammad Hanif Khan, the learned Advocate
while arguing on behalf of the Government of Azad Jammu and Kashmir, contended
that appointment of Judges is an executive act and is liable to be processed in
light of rule 3(3) read with schedule-II Item 18(c) of the Azad Government of
the State of Jammu and Kashmir Rules of Business, 1985. The learned Advocate
contended that adherence to the Rules of Business has not been made in the case
in hand nor in past at the time of making the appointments of Judges in the
Supreme Court or High Court which is not only violative of the aforementioned
rule but is also negation of Section 7 of the Constitution. The learned
Advocate has made a comparison of Section 7 of the Act, 1974, with Article 48
of the Constitution of Islamic Republic of Pakistan and tried to persuade that
even for appointment of the Judges, the process should have been initiated by
the Law Department alongwith the relevant material and the file should be
placed before the President for onwards consideration and advice by the said
Department. The learned Advocate contended that no mode for initiating the
process and making meaningful consultation has been provided in the Act, 1974,
and the same can be ensured by following Rules of Business issued by the
President of the Azad Kashmir under Section 58 of the Act, 1974. The learned
Advocate contended that no provision of law can be interpreted on the basis of
'pick and choose' of few words and in case of any confusion, relevant
provisions of law should be read in toto alongwith preamble of the Statute,
coupled with the objects and reasons thereof to remove the confusion, if any.
He submitted that under the Constitution of Islamic Republic of Pakistan, in
some of the matters the President of Pakistan is empowered to act in his
discretion whereas no such discretion vests in the President of Azad Jammu and
Kashmir under the Act, 1974, hence, even in cases which are submitted for
approval of the President, the President has to act on the advice of the Prime
Minister. According to him, any other interpretation will redundant Section 7
of the Act, 1974. In support of his submissions the learned Advocate placed
reliance on Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through
Ministry of Finance, Revenue and Economic Affairs, Islamabad [PLD 2005 SC 842],
and Mirza Shaukat Baig and others v. Shahid Jamil and others [PLD 2005 SC 530].
The learned Advocate contended that Supreme Court has been constituted and
established under Section 42 of the Act, 1974 and manner of appointment of the
Chief Justice of Azad Jammu and Kashmir, Judges of the Supreme Court, the
powers and functions of the apex Court are provided in the said Section whereas
High Court of Azad Jammu and Kashmir is established under Section 43 of the
Act, 1974. The appointment of Chief Justice of High Court, Judges and powers of
the High Court are visualised by the said Section, hence, by no stretch of
imagination it can be argued that one person can hold two offices
simultaneously and perform the respective functions of both the constitutional
offices. According to the learned Advocate such interpretation will not only be
erroneous but also have an effect of destroying the scheme of the Act, 1974. He
further argued that even under the law of necessity the benefit cannot be
extended to the private respondents because there is a gape of three months
between appointment of Mr. Justice Muhammad Reaz Akhtar Chaudhry as Chief
Justice of Azad Jammu and
i) Abrar
Hassan v. Govt. of
ii) Malik
Asid Ali and others v. Federation of Pakistan through Secretary, Law, Justice
and Parliamentary Affairs, Islamabad and others [PLD 1998 SC 161]
iii) Chief
Justice of
iv) Ghulam
Mustafa Mughal v. The Azad Govt. and others [1993 SCR 131]
v) Sindh
High Court Bar Association, through Honorary Secretary v. Federation of
Pakistan through Ministry of Law and Justice,
The learned Advocate also contended that
comments filed on behalf of the Government and written statement, cannot be
taken in isolation. According to him, comments are not equated with the written
statement and even an admission based on wrong assumption of facts and law does
not create estoppel and debar a party from pleading true facts or stating true
position of law before a Court of law.
I have taken into consideration the
respective arguments of the learned Advocates representing the parties and
perused the record of the case with my utmost care.
Before attending the main controversy,
firstly, I would like to attend the objections raised on behalf of Kh. Muhammad
Naseem, the learned Advocate for private respondents. An objection has been
raised on the strength of subsection (5) of Section 44 of the Act, 1974, which
is para materia with sub clause (5) of Article 199 of the Constitution of
Islamic Republic of Pakistan. For proper appreciation of the matter subsection
(5) of Section 44 of the Act, 1974, is reproduced as follows:-
"44(5) In this Section, unless the
context otherwise requires, person includes anybody politic or corporate, any
authority of or under control of the Council or the Government and any court or
tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court
or a Court or Tribunal established under a law relating to the Defence
Services."
A perusal of the above reveals that
Supreme Court, High Court or a Court or Tribunal established under law relating
to the Defence Services are excluded from the definition of person. In this
background Kh. Muhammad Nasim, the learned Advocate submitted that once a Judge
is appointed he can be removed only under Section 42-E of the Act, 1974, and no
writ is competent against a Judge of the Supreme Court and High Court. The
controversy hardly needs any deliberation because the same has been set at rest
by the various judgments of the superior Courts of the subcontinent. In this
regard Raja Muhammad Hanif Khan, Advocate, has rightly relied upon Mr. Zulfikar
Ali Bhutto v. The State and another [1977 SCMR 514] and Ghulam Mustafa Mughal
v. The Azad Govt. and others [1993 SCR 131] and Chief Justice of Pakistan
Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and
others [PLD 2010 SC 61]. In the above cases it was concluded that if
appointment of a Judge is violative of the Constitution then appropriate remedy
for challenging the same is writ of quo warranto.
Recently in a case titled Chief Justice
of Pakistan, Iftikhar Muhammad Chaudhry v. President of Pakistan through
Secretary and others [PLD 2010 SC 61], the apex Court has again considered the
proposition and while reiterating the view taken in Malik Asid Ali's case at
page 142 of the report concluded as under:-
"100. A reference to clause (5) of
Article 199 of the Constitution would also be of assistance in the matter. The
said provision reads as under:-
"(5)
In this Article, unless the context otherwise requires, 'Person' includes any
body politic or corporate, any authority of or under the control of the Federal
Government or of a Provincial Government, and ANY COURT or TRIBUNAL, other than
the SUPREME COURT, a HIGH COURT or a court or Tribunal established under a law
relating to the Armed Forces of Pakistan............"
Needless to mention that the power to
issue writs emanates from Article 199 of the Constitution which authorises the
High Court to issue writs and Article 184(3) thereof, in turn, permits this
court to make orders of the nature mentioned in the said Article 199. A perusal
of the above quoted clause (5) reveals that while the said Article allowed
issuance of writs, inter alia, to all courts and tribunals of all kinds, it
kept certain courts and tribunals outside the said purview and commanded that
no writ could issue to the Supreme court of Pakistan, to a High Court and to a
court or a tribunal established under any law relating to the Armed Forces. The
significant omission of the Supreme Judicial Council from this protected arena
is more than revealing in the matter of determining the vulnerability of the
said Council to writ jurisdiction.
101. As has been mentioned above, the
principle of maintaining comity among the Judges of the Superior courts was
also canvassed to screen the proceedings before the S.J.C. from scrutiny by
this Court. A passing reference to this principle was made by this Court in
Mian Jamal Shah's case (PLD 1966 SC 1 at 38). But then it was subsequently
clarified that the said principle could never be stretched to deprive people of
what was due to them. What emerges from the provisions of clause (5) of Article
199 of the constitution as also from some precedent cases is that writs should
not issue from one High Court to another High Court or from one Bench of a High
Court to another Bench of the same High Court because that could seriously
undermine and prejudice the smooth and harmonious working of the Superior
Courts. But this should never be understood to mean that no writ could ever
issue to a Judge in his personal capacity or where a Judge was working as a
PERSONA DESIGNATA."
In view of above it stands concluded that
when an order is passed by a Judge of High Court in exercise of its
constitutional jurisdiction, then a writ will not be competent against the
order so passed and the aggrieved party has to avail remedy provided under the
Act, 1974, but when the appointment of a Judge is alleged to have been made in
violation of the mandatory provision of the Act, 1974, or by an incompetent
authority. The challenge to such appointment is not covered by subsection (5)
of Section 44 of the Act, 1974. It is only judicial action of the Judge
mentioned in the subsection, which is immune from challenge.
The contention of the learned Advocate
that once Judge is appointed under the Act, 1974, cannot be removed except on
the recommendations of the Supreme Judicial Council constituted under Section
42-E of the Act, 1974, is devoid of any force.
The above contention was raised that as
alternate remedy in view of Section 42-E of the Act, 1974, is available,
therefore, the petition is not maintainable. The objection though
half-heartedly been argued at the Bar but the same has been taken in the
written arguments with force, hence, it is necessary to consider this aspect of
the matter in detail. The jurisdiction of the Supreme Judicial Council is
qualified and conditional. Firstly, the Supreme Judicial Council has to
commence its proceedings when a reference is made to it by the President or the
Chairman of the Council under the provisions of the Act, 1974, on the advice of
the Prime Minister/Chairman of Council, as the case may be. Supreme Judicial
Council can only inquiry into the matters enumerated in the reference and has
to make the recommendations in light of subsection (6) of Section 42-E of the
Act, 1974. The sphere allotted to the Supreme Judicial Council is totally
different and limited and defect in appointment of a Judge cannot be gone into
by the Supreme Judicial Council. The proposition has been considered at length
by the Supreme Court of Pakistan in Ghulam Hyder Lakho's case [PLD 2000 SC 179]
and in Malik Asid Ali's case [PLD 1998 SC 161]. Relevant observation recorded
in Malik Asid Ali's case is at page 289 of the report which is as under:-
"81. With due deference to the
learned counsel, firstly, the right to move the Supreme Judicial Council (SJC)
against a Judge of the superior Court under Article 209 of the Constitution is
not available to any individual. Secondly, the President alone on the advice of
the Prime Minister or the Cabinet as the case may be, can refer a case of the
Judge of the superior Court to Supreme Judicial Council for holding an enquiry
against him. Thirdly, the jurisdiction of Supreme Judicial Council to hold an
enquiry against the Judge of a superior Court arises only when a reference is
made to it by the President in this behalf. Fourthly, the enquiry by the
Supreme Judicial Council against the Judge of a Superior Court under Article
209 ibid, is limited only to two points, namely (I) the incapacity of the Judge
to perform the duties of his office properly arising from any physical or
mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the
findings of the Supreme Judicial Council in such an enquiry are recommendatory
in nature and the action, if any, is to be taken by the President on the advice
of the Prime Minister or the Cabinet. It is, therefore, quite clear that
besides the fact that the Supreme Judicial Council itself cannot grant any
relief to a person aggrieved by the illegal and unconstitutional appointment of
a Judge of the superior Courts, the invalidity and unconstitutionality of the
appointment of a Judge of superior Court are outside the purview of the enquiry
under Article 209 of the Constitution, because such an appointment has no nexus
either with the mental or physical incapacity of the Judge to perform properly,
the duties of his office or with the misconduct of the Judge concerned.
Therefore, the remedy provided under Article 209 of the Constitution cannot be
equated with the proceedings filed under Article 199(1)(b)(ii) of the
Constitution to challenge the unconstitutional appointment of a Judge of the
superior Court. The reason for keeping the question of validity or
constitutionality of the appointment of a Judge of superior Court outside the
purview of the enquiry under Article 209 of the Constitution is obvious, as
validity of such appointment is open to be challenged before the High Court
under Article 199 of the Constitution in appropriate proceedings."
The next objection of Kh. Muhammad Nasim,
the learned Advocate for private respondents that the petitioners are not
aggrieved is also devoid of any force. In various judgments of the superior
Courts it is concluded that an aggrieved person does not mean that he shall
have a strict juristic right. It is sufficient if he successfully establishes
that he has an existing right to assail the order which is illegal and
adversely affects his rights. In some of the cases, petitions were filed for
compelling the respondents to perform their statutory duty in accordance with
law even then the petitioners were treated as aggrieved. The petitioners,
herein, admittedly are members of the legal fraternity and naturally are interested
in the supremacy of the Constitution, law and the independence of the
judiciary. The Advocates have always been considered aggrieved
if some act is done in violation
of the Constitution or independence of the judiciary is undermined. Reference
can be made to S.P. Gupta's case [AIR 1982 SC 149]. Relevant observation is
recorded in para No. 25 of the report in the following words:-
"25. ........................ The
petitioners are lawyers practising in the High Court of Bombay. The first
petitioner is a member of the Bombay Bar Association, petitioners No. 2 and 3
are members of the Advocates Association of Western India and petitioner No. 4
is the President of the Incorporated Law Society. There can be no doubt that
the petitioners have a vital interest in the independence of the judiciary and
if an unconstitutional or illegal action is taken by the State or any public
authority which has the effect of impairing the independence of the judiciary,
the petitioners would certainly be interested in challenging the
constitutionality or legality of such action. The profession of lawyers is an
essential and integral part of the judicial system and lawyers may figuratively
be described as priests in the temple of justice. They assist the court in
dispensing justice and it can hardy be disputed that without their help, it
would be well nigh impossible for the Court to administer justice. They are
really and truly officers of the court in which they daily sit and practice.
They have, therefore, a special interest in preserving the integrity and
independence of the judicial system and if the integrity or independence of the
judiciary is threatened by any act of the State or any public authority, they
would naturally be concerned about it, because they are equal partners with the
Judges in the administration of justice. Iqbal Chagla and others cannot be
regarded as mere bystanders or meddlesome interlopers in filing the writ
petition............"
Same view was followed and approved in
Supreme Court Advocates-on-Record Association and another v. Union of India
[A.I.R 1994 Supreme Court 268]
Identical view was taken by the apex
Court of Azad Jammu and Kashmir in a case titled Azad Govt. and others v.
Genuine Rights Commission and others [PLJ 1998 SC (AJK) 251] wherein it has
been observed as under:-
"15.......... It is correct that
none of the writ petitions, which culminated in the impugned judgment, has been
couched as a writ of quo warranto but all the same it cannot be said that the
petitioners-respondents were not aggrieved person, especially so when apart
from being the leading members of the society, they are practising lawyers and
are directly interested in the constitutionality of the Courts in view of their
day to day professional duties. The view of this court on the question of locus
standi in maintaining a writ petition under Section 44 of the Interim
constitution Act, has been liberal one; if a person shows an injury to his
right which may not be injury to a juristic right, he is entitled to invoke the
writ jurisdiction of the High Court under the aforesaid provision of law.
Therefore, we are of the view that the writ petitions filed by the petitioners
respondents could not be thrown out without going into the merits of the same
on the ground that the petitioners respondents were not aggrieved persons
within the meaning of relevant constitutional provisions."
Now the question which emerges for
decision is as to whether process of consultation visualised by the Act, 1974,
has been completed in the case of appointment of private respondents?
It may be stated that that mode and
manner of consultation has been attended at length by the apex Court of
Pakistan in Al-Jehad Trust's case, [PLD 1996 SC 324]. The detail of
deliberation is recorded in para Nos.79 to 82 of the report. It is useful to
reproduce these paras which are as under:-
79. On
the subject of "consultation", since no debate took place on this
point in the proceedings when Constitution Bill was being processed, we have
tried to construe it in the light of other factors, such as, Islamic provisions
in our Constitution and separation of judiciary which has already taken place.
Appointment of a Judge and the mode and manner in which he is appointed has
close nexus with the independence of the judiciary and cannot be separated from
each other as advocated by several counsel before us during the hearing. We do
not buy the idea that as soon as a Judge takes oath, there is a sudden
transformation and he forgets his past connections and turns a new leaf of life.
The process of appointment of a Judge must be made transparent so that the
litigant public and people at large should have faith in the independence of
judiciary. Normally, people come to the Court to have their disputes
adjudicated by the Judges and they come with expectation that Judges are
impartial and justice will be imparted strictly according to law without any
fear or favour or extraneous considerations. This kind of faith and trust will
vanish if appointments are not made in a transparent manner strictly on the
basis of merits. Article 5 of the Constitution envisages that loyalty to the
State is the basic duty of every citizen and obedience to the Constitution and
law is inviolable obligation of every citizen. Judges are also expected to be
loyal to the Constitution.
80. Coming back to Article 193 of the
Constitution the plain reading of the provision is that the appointment of a
Judge of the High Court is to be made by the President "after
consultation" with:-
(a) Chief
Justice of
(b) Governor
concerned; and
(c) Chief
Justice of the High Court (except where the appointment is that of the Chief
Justice).
Here the intention is that the
appointment is to be made by the President "after consultation" with
three consultees, who are mentioned there. In the Constitution, proper scheme
is provided for the appointment, hence it can be called Constitutional
appointment. For such appointment Constitution requires
"Consultation", which cannot be treated lightly as a mere formality.
To say that the President has sole power of appointment and opinion of the
consultees can be ignored particularly of the Chief Justice of the High Court
and the Chief Justice of Pakistan, who are supposed to be experts in the
particular field of law in which the appointment is to be made, cannot be
reasonable construction of the word "consultation". It is
understandable that the Governor can find out from intelligence sources about
the candidate who is to be appointed as a Judge and his report or opinion is to
be confined to that aspect of the matter. The President can refuse to appoint a
candidate in whose favour Chief Justice of the High Court and Chief Justice of
Pakistan have given their positive opinions, but Governor has given negative
opinion for reasons of improper antecedents. The Chief Justice of the High
Court and the Chief Justice of Pakistan normally know advocates who appear in
their Courts regularly and would nominate or recommend names of such advocates
who are capable and fit to be Judges of the High Court and their opinion, which
is expert opinion in a way, cannot and should not be ignored, but must be given
due weight. "Consultation" in the scheme as envisaged in the
Constitution is supposed to be effective, meaningful, purposive, consensus
oriented, leaving no room for complaint of arbitrariness or unfair play. The
opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as
to the fitness and suitability of a candidate for judgeship is entitled to be
accepted in the absence of very sound reasons to be recorded in writing by the
President/Executive.
81. If the Chief Justice of the High
Court and the Chief Justice of Pakistan are of the opinion that a particular
candidate is not fit and capable to be appointed as Judge of the High Court,
then acting against the expert opinion would not be proper exercise of power to
appoint him as a Judge on the ground that the President/Executive has final say
in the matter. It is not correct interpretation to say that because word
"consultation" is used, which is different from 'consent', opinion of
Chief Justice can be ignored. If the opinion of the Chief Justice is ignored,
then the President/Executive should give reasons which could be juxtaposed with
reasons of the Chief Justices to find out as to which reasons are in public
interest.
82. We are interpreting the word
"consultation" to widen and enlarge its normal scope for the reasons,
firstly, that the Constitution-makers have not debated this word 'consultation'
and fixed its parameters. Secondly, we would like to assign meaning to
'consultation', which is consistent and commensurate with the exalted position
of judiciary as is envisaged in Islam. Thirdly, we would like to give positive
interpretation to 'consultation' which promotes independence of judiciary.
Executive may have the last word and may issue notification of appointment, but
cannot give loose interpretation to the word 'consultation' to ignore or brush
aside expert opinion of Chief Justice of the High Court and the Chief Justice
of Pakistan. Fourthly, the President is administered Oath by the Chief Justice
of Pakistan as required under Article 42 of the Constitution and the Chief
Justice of Pakistan administers oath to other Judges of the Supreme Court and
Chief Justice of Province administers oath to Judges of his High Court as
contemplated under Articles 178 and 194 respectively, which shows that both the
Chief Justices are heads of their institutions and their opinion in their own
field of expertise should not be treated lightly particularly when they are
Constitutional consultees and the appointments are also being made of the
Judges within the Constitutional scheme."
In
"17. Necessarily, the opinion of all
members of the collegium in respect of each recommendation should be in
writing. The ascertain-ment of the views of the senior most Supreme Court
Judges who hail from the High courts from where the persons to be recommended
come must also be in writing. These must be conveyed by the Chief Justice of
India to the Government of India alongwith the recommendation. The other view
that the Chief Justice of India or the other members of the collegium may
elicit, particularly if they are from non Judges, need not be in writing, but
it seems to us advisable that he who elicits the opinion should make a
memorandum thereof, and the substance thereof, in general terms, should be
conveyed to the Government of India."
For judging the process of consultation
of the private respondents in light of the guidelines laid down in Judges case,
at this juncture, I would like to refer record placed before me for perusal by
the Council and the office of the President of Azad Jammu and Kashmir. The
President office's record reveals that upon availability of vacancies, the
President of Azad
"Reference to your letter No.
PS/2109/2006 dated November 8, 2006. As you have sought a query from me that
whether I have any objection on the appointment of Mr. Muhammad Younas Tahir,
Raja Rafiullah Sultani and Ch. Muhammad Azam Khan, Advocates, as Judges of the
High Court. As I have already recommended Mr. Muhammad Younas Tahir and Raja
Rafiullah Sultani, Advocates, for appointment as Judges of the High Court being
Chief Justice of the High Court, therefore, I have no objection on their
appointment as well as Mr. Muhammad Azam Khan."
It appears that after receiving this letter
from the Chief Justice of Azad Kashmir, President in office wrote a letter on
21.12.2006 requesting therein for appointment of the private respondents,
herein. Judging the letter of the Chief Justice of the Azad Jammu and Kashmir
in light of the guidelines laid down in Al-Jehad Trust's case, it is crystal
clear that this letter cannot be treated as consultation because the wording of
the letter itself show that some query was made from the Chief Justice of the
Azad Jammu and Kashmir. No panel was sought from the Chief Justice of Azad
Kashmir. The Hon'ble Chief Justice has simply stated that he has already
recommended the private respondents being Chief Justice High Court. It was
nowhere stated that private respondents are again recommended by him as Chief
Justice of Azad Kashmir. For that purpose definitely the learned Chief Justice
of Azad Kashmir has to draw a fresh panel. No such eventuality arose for fresh
recommendations or panels and the same cannot be made or sent at that time
because the other consultee (Chief Justice High Court) was holding the office
as Acting Chief Justice.
Though no mode and manner of consultation
is provided but practice is that process is always initiated by requesting the
Chief Justices for sending their respective panels which in this case is
missing and the criteria laid down in Al-Jehad Trust's case, supra, which has
streamlined the appointments of the Judges in the superior judiciary, is also
departed without any reason which is negation of the Act, 1974. Record reveals
that the Council has made hectic efforts for obtaining the panels and opinion
of the President since 2005 and various letters to that effect are on the file.
One of the letters has also been written by the In-charge Minister but the same
has not been replied. Ultimately Council treating the panels sent by both the
Chief Justices as consultations within the meaning of Section 42(4) and 43(2-A)
of the Act, 1974, prepared a summary for approval. It also reveals that
Secretary Council has also referred Al-Jehad Trust's case and opined that
consultation with both the Chief Justices is must without which appointments
would be invalid. Summary was sent to the Prime Minister Secretariat on
24.5.2006 which was deferred for the discussion of the Incharge Minister with
Chairman of the
"9. Technically it is correct that
the Chairman of Azad Jammu and Kashmir Council i.e. Prime Minster of Pakistan
has not himself signed the proposal submitted by authorised officer i.e. the
Auditor General, but perusal of the file reveals that the relevant staff of the
Prime Minister Secretariat obtained the approval of the Prime Minister.
Although in the case in hand, the staff of the Prime Minister of Pakistan in
his capacity as the Chairman of the Azad Jammu and Kashmir Council, is the
Secretariat of Azad Jammu and Kashmir Council, and approval should have been
obtained through the Council Secretariat by any of the designated officers of the
Council. However, the authorised officer submitted it directly to the Prime
Minister Secretariat which is a departure from the Rules of Business of the
AJ&K Council, as the matter in hand relates to the Council's employees, not
the employees of the Government of Pakistan. This is a failure at the level of
Secretariat that the process is not conducted in accordance with the Rules of
Business of Azad Jammu and
The argument that functions of Chief
Justice of Azad Jammu and
"DOUBLE CAPACITY AND DOUBLE
PERSONALITY
English law recognizes many different
capacities in which a man may act. Often he has power to do an act in an
official or representative capacity when he would have no power to do the act
in his private capacity or on his own account. All sorts of difficult questions
arise out of these distinctions; for instance, whether a person on a particular
occasion was acting as trustee for fund A or as trustee for fund B; whether a
director has the powers and duties of a trustee; whether an executor has turned
into a trustee, and so on. These troubles need not concern us here; the only
point to be noticed is that the mere fact that a man has two or more capacities
does not give him the power to enter into a legal transaction with himself.
Double capacity does not connote double personality. For instance, at common
law a man could not sue himself or contract with himself or convey property to
himself; and it made no difference that he was acting on each side in a different
capacity. So rigorous was the rule that, if the same party appeared on both
sides of a contract, even though accompanied by different parties in each case,
the whole contract was void. In many cases the rule worked hardship, and its
consequences had to be mitigated. For instance, where a creditor became his
debtor's executor, the rule that he could not sue himself for the debt was
mitigated by giving him a right of retainer. By statute, where a person
purports to contract with himself and others, the contract is enforceable as if
it had been entered into with the other persons alone. Also, by a historical
accident, namely, the effect given to the Statute of Uses, it became possible
for a man to convey to himself; and this power, which was found to be useful
however theoretically anomalous, is preserved in the modern legislation that
repeals the Statute of Uses. With these and other small exceptions, the rule
that a person cannot enter into a legal transaction with himself remains
unimpaired."
In view of above, for the appointment of
Judges in the High Court, consultation with both the Chief Justices, i.e. Chief
Justice of Azad Jammu and
The argument of Kh. Muhammad Nasim, the
learned Advocate for the private respondents that impugned Notification issued
under the Rules of Business carry presumption of truth, is correct but this
presumption is rebutable and cannot be treated as conclusive for the purpose of
consultation in presence of available record. Therefore, Notification under
challenge cannot be saved on the score that the same has been issued after complying
with the Rules of Business. The authority referred to and relied upon by him
has distinguishable facts, hence, is not applicable.
The contention of Raja Muhammad Hanif
Khan, the learned Advocate representing the Government of Azad Jammu and Kashmir
that process of consultation is liable to be initiated through Law Department
in light of Section 7 of the Act, 1974 read with Rules of Business, referred to
and relied upon by him, has already thoroughly been examined in Sardar Muhammad
Ayub Khan's case [PLD 1998 (AJK) 127] by this Court, therefore, no further
deliberation is required. Suffice
it to observed
that under the
scheme of the Constitution, the
President shall act in accordance with the advice of the Prime Minister and
such advice shall be binding on him as is contemplated by Section 7 of the Act,
1974. The position is further clarified by Section 12 of the Act, 1974 which
postulates that the executive authority of the Azad Jammu and Kashmir
Government shall be exercised in the name of the President by the Government,
therefore, the President has no independent power under the Act, 1974 as his
counterpart in Pakistan was holding, previously. There is no harm in processing
the case by the Law Department, placing the same before the President for
consideration and onwards process if the panels are sent to it by the
respective Chief Justices but fact remains that neither the Law Department nor
the President or the Council has any authority to appoint any person not
recommended for appointment by the Chief Justice of the Azad Jammu and Kashmir
and the Chief Justice of High Court. That is why, the Council treated the
panels of the Chief Justices as advice contemplated by the relevant provisions
of the Act, 1974, while preparing the summary dated 24.5.2006. The power of the
Government as well as President with regard to the appointment of the Judges in
Pakistan has been considered in Al-Jehad Trust's case [PLD 1997 SC 84] wherein
some clarifications have been made and it was observed that if the recommended
persons of the constitutional consultees are not appointed by the President,
then the concerned authority is bound to issue Notification in the name of the
President under the relevant provision of the Constitution.
Before parting with the case it may be
stated that persons appointed as Chief Justices or Judges of the superior
judiciary are not angels and being human being they may commit error though
they are obliged to perform the duties of their respective offices strictly
under the provisions of the Constitution and subject to the Constitution under
law, without fear, favour or ill will but it is noticed that some time the
deserving candidates have not been included in the panels. To streamline the
process of effective, meaningful and purposive consultation, the Council, the
Government and the President of Azad Jammu and Kashmir, may frame some rules or
policy for making the consultation process transparent, free from objections
and confidence inspiring.
The epitome of the above discussion is
that as the consultation, required by the Act, 1974, is missing in the present
case, therefore, I am constrained to hold that the impugned Notification dated
23.1.2007 has been issued without any lawful authority and the offices of the
private respondents are hereby declared vacant.
(R.A.) Petition
accepted.
------------------------