Instant judgment proposes to decide eight Constitutional petitions, one in hand and the other Writ.
Petitions Nos, 10485/2005, 10767/2005, 10769/2005, 10892/2005, 12364/2005, 12377/2005 and 13972/005, as all these involve similar questions of law/facts, require determination/ interpretation of same provisions of law/constitution and are directed against the same set of respondents. All these petitions seek notification dated 1.4.2004 reflecting decision/order of the Administration Committee of this Court, wherein the names of the writ petitioners were not included, to be declared illegal, void and of no legal consequence with a direction to the respondents to consider their names for appointment as Additional District & Sessions Judges.
2. Succinctly, relevant facts, as deciphered from the above referred petitions. are that in response to an advertisement in daily `Nawa-e-Waqt' Lahore dated 4.4.2003 by the Lahore High Court inviting applications from the Lawyers having ten years standing at the Bar for appointment against 29 seats of Additional District & Sessions Judges, the writ petitioners submitted their respective applications and undertook a written examination, in which they claimed to have qualified. A nominated Examination Committee comprising of three Honourable Senior Judges of this. Court, recommended a list of 79 successful candidates who had cleared written examination and eligibility of these candidates was suggested to be assessed on the basis of reports from different intelligence agencies, including police department, concerned District & Sessions Judges and Punjab Bar Council. The Honourable Chief Justice, however, did not agree with the procedure suggested by the Examination Committee and directed interview of the candidates who passed the written examination, leaving the matter of eligibility to the determined by the appointing authority after getting reports needed in this behalf. Ultimately, Examination Committee recommended names of 33 candidates with the observation that in case any one of those was found ineligible the next candidate may be appointed. The appointing authority i,e, Lahore High Court did not find all the writ petitioners suitable for appointment as Additional District & Sessions Judges, coercing them to maintain Constitutional petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, before the Honourable Supreme Court of Pakistan, which were disposed of on 10.5.2005 through a consolidated judgment with the observation that first of all petitioners may avail remedy before this Court under Article 199 of the Constitution and thereafter, if need be, may approach the Apex Court again according to law. Petitioners thereafter filed these petitions with the prayer, detailed above.
3. Learned counsel for the petitioners were required to address arguments, in the first instance, about maintainability of the Constitutional petitions in view of bar contained in Article 199(5) of the Constitution and also about the competence to issue any writ against one's own person, as any of the Judges of this Court while granting/accepting these petitions, will be deemed to have acted against his own Court being a part of the High Court. Consolidated arguments, in this behalf, were addressed by the learned counsel for the petitioners. They submitted that this Court has two different functions to perform namely, judicial and administrative, out of which judicial decisions cannot he attacked by maintaining a petition under Article 199 of the Constitution but actions/orders of some Committee discharging administrative work, can be brought under scrutiny on judicial side of this Court. Learned counsel for the petitioners besides formulating their submissions inline with those raised in the case of Asif Saeed vs. Registrar, Lahore High Court and others (PLD 1999 Lahore 350), also referred to an unreported judgment by a Division Bench of Peshawar High Court jurisdiction dated 9.4.2004 delivered in Writ Petition No, 1412/2001 to contend that a writ was issued against the High Court itself. It was further emphasized that a valuable right had accrued to the writ petitioners after passing of written examination and clearance of interview, thus their deprivation from the appointment would be in violation of principles of natural justice and thus, in their aid, writ prayed has to be issued. It was also asserted on behalf of the petitioners that the High Court acted as persona designata under delegated powers conferred by Governor of Punjab vide SOR 3-2-17/83(P) LHR dated 21.3.1994 thus no judicial act/decision of this Court having been challenged, writ can competently be issued. Case of the petitioners was attempted to be brought under one of the exceptions created by the Honourable Supreme Court to the general proposition that no writ can be issued against High Courts, in the case of Muhammad Ikram Chaudhry and others vs. Federation of Pakistan and others (PIM 1988 S.C. 103). A reference was also made to Punjab Judicial Service Rules, 1994 to submit that all the petitions in hand are maintainable.
4. Mr. M.J.I. Jaffari, Advocate; rendered support to the stance of the writ petitioners, acting as Amicus Curiae, by asserting that while administrating justice, technicalities should not hamper the same. He further contended that no one is immune from judicial scrutiny by this Court in exercise of jurisdiction vested under Article 199 of the Constitution. It. was also urged that this Court in its judicial capacity must examine administrative work done by the appointing authority and that the petitioners cannot be left without any remedy. Reference was also made to the some Quranic verses to do justice, by remaining above board and by ignoring all the self made hindrances.
5. Learned Additional Advocate General heavily relied on the judgment by Full Bench of this Court in the case of "isif Saeed (supra) and submitted that bar contained in Article 199(5) of the Constitution is absolute. According to him, judgment of Full Bench of this Court being binding on :Single Judge of the same Court, cannot be ignored, as all the aspects of the matter raised at the Bar by the petitioners were already scrutinized and decided therein which was never challenged before the lionourable Snoreine Court and still holds the field.
6. I have minutely considered the arguments' of the learned counsel for the parties and have examined the record appended herewith. Without entering into merits of all the cases., as observed above, it was elected to first. decide their competence/maintainability as those seek issuance of writ by the High Court against itself. It is settled by this time that each Judge of this Court act as High Court and any direction by the Single Judge would amount to its issuance against himself. thus generally speaking this exercise cannot he undertaking if the renowned principle "no one act as a Judge in his own cause", is acknowledged. Undisputedly, judgment in the case of Muhammad Mohsin Siddiqui vs. Goiwrnment of West Pakistan (PLD '1974 SC 64) cannot. be ignored while embarking upon decision of the controversy,_ like the one in hand. In this case the Honourable :Supreme Court had no doubt interfered in the orders of the Administrative Judge of this Court but the same was quasi judicial nature, returned in exercise of administrative functions, examining removal from judicial service of Mr. Mohsin Siddiqui on the basis of proceedings before the District Judge., Ratio of the judgment was that in case the basic order is void, the superstructure raised there over, would also fall. In this manner, our Apex Court adjudged order . of the Dist rict Judge and not that of the Administrative Judge of this Court.
7. On January 16, 1975, Mr. Justice Tufail Ali Abdur Reitman. C.J. of Sindh and Baluchistan High. Court died and to fill vacancy caused thereby, the President appointed Mr. justice- Abdul Qadir Sheikh. a judge of the Supreme Court as Chief Justice of the said High Courts. This appointment was challenged by a member of the High Celia Bar by filing a writ petition, on the ground that the appointment was violative of Constitutional provisions. The objection was raised regarding the maintainability of the writ petition to the effect that High Court is not a 'person' to whom a writ may 'he issued under Article 199. On the other hand, it was contended by the writ petitioner that a judge should be distinguished from the High Court and that though a writ, cannot, be issued to a High Court, but the same may be issued to a judge of a High Court as an individual. The matter reached before the Honourable Supreme Court and it was observed that a judge and the light Court are interchangeable terms in our Constitution as is borne out by the he provisions of Article 192(1). The lengthy, reasons and views of Justice Muhammad Yaquh Ali, the Honourable Chief Justice were as under-- That a judge and the High Court are interchangeable terms in our Constitution is borne out by the provisions of Article 192(1). It lays. down: "192(1). A High Court shall consist of a Chief Justice and so many other judges as may be determined by law or, until so determined, as may be fixed by the President. The Article does not say that there shall be a High Court and the President shall appoint a Chief Justice and so many other judges as may be declared by law or until so declared as may be fixed by the President. On the contrary, it says that a High Court shall consist of a Chief Justice and so many other judges as may be determined by law or, until so determined, as may be fixed by the President. There can, therefore, be no High Court without a Chief justice and the prescribed number of judges.
It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of judges sitting singly or in Benches. In this context each judge is a High Court. That explains why orders, judicial and decrees passed and summons and warrants issued under the direction of a judge are expressed in the name of the High Court and not in the name of the individual judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or enumerates a principle of law, is binding on all Courts subordinate to it. The decision rendered by the judge of a High Court thus carries the authority conferred by Constitution and law on the High Court and not the authority of an, individual judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in Clause (5) of Article 199 includes judges of these respective Courts.
The policy of law that no writ will issue to a High Court and the Supreme Court is based on sound principles. If one judge of a High Court were to issue a writ to another judge under Article 199, the judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ. This is the logical conbequence of the fact that High Courts and, their individual groups of judges are vested with-co-ordinate jurisdiction.
There is a historical background and practice of British Court also, from which this jurisdiction is borrowed why writs do not lie to judges of superior Courts. Writs of certiorari, mandamus, prohibition, quo warranto and habeas corpus have their origin in the exercise of prerogative powers of the Crown. They are commonly known as prerogative writs. These writs issue to persons who act as the agents and servants of Crown in the exercise of its prerogative powers. The reason being that it is only within the sphere of the prerogative that the Crown can act by orders given to its servants. The following useful discussion appears on this subject in Law Quarterly Review (January 1932), Vol. XVIII, political parties. 26-27: It is by the application of this principle that we can distinguish between the very different Clauses of persons who, in a large sense, are persons in his Majesty's service. It is clear that when such persons as mayors, justices of the peace, lord-lieutenants, or sheriffs perform their functions, they are not acting as the agents or servants of the Crown in the exercise of its prerogative powers. They are performing duties cast upon them by common law or statute, and, subject to that law, they have a large measure of discretion in the manner in which they perform their duties. The performance of their duties is not dependent upon the orders of the Crown, for, in respect of many of their functions, the matters falling within their competence are matters which it is not within the power or the prerogative to control. It is true, as Maitland pointed out in his Constitutional History, that at the present day many of the Ministers of the Crown have large powers conferred upon them by statute, and that in exercise of these powers they are not acting as the agents of the Crown in the exercise of its prerogative powers. It is true that when acting in the exercise of these statutory powers their position is analogous to those servants of the crown who do not act as its agents in the exercise of its prerogative powers. But these powers are given to them because they hold for the time being the position' of the principal agents through whom the Crown exercises its prerogative powers. The addition of these powers, therefore, does not make them any-the-less 'person in His Majesty's service.
It will thus appear that the test whether or not a person is a person in His Majesty's service in the strict sense, or in a loose or general sense, does not depend upon the question whether or not the person is paid by the Crown; the justices of the peace are unpaid; but if a Secretary of State agreed to serve without a salary he would be nonetheless a person in the service of the Crown. Nor does it depend upon the question whether the person is appointed and can be dismissed by the Crown; but that does not make them persons who act as the agents of the Crown in the exercise of its prerogative powers. Now, if this test be applied to the judges of the Supreme Court of judicature, it is quite obvious that they are not persons in His Majesty's service, nor are their office 'n the service of His Majesty. From the very beginning of our legal history they have acted as the interpreters of the law, and as the arbitrators, not only as between subject and subject, but as between king and subject. So far are they from being the agents of the Crown in the exercise of its prerogative powers, that one of their principal functions to adjudicate upon the legality of the exercise of these powers.
In 'consonance with this historical, background, judges of the Supreme Court and High Court as were, in the 1956 Constitution, excluded from the definition of 'service of Pakistan'. In the Constitution of 1962, a departure was made and the judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This however, does not affect the legal status of judges. So long as judges of Superior Courts act as interpreters of law and Constitution and decide- disputes not only between citizen and citizen, but also between citizens and the State and exercise the power to strike down actions of the state as without lawful authority, they do not fall in the category of agents and servants of the state to whom writs may be issued under Article 199. In my view, Clause (5) of Article 199 is enacted to achieve this object. These findings were graciously returned in the case of Abra Hassan vs. Government of Pakistan PLD 1976 SC 315).
8. In the case of Mumtaz Ali Bhutto vs. Mr. Justice AnwarulHaq and 2 others PLD) 1979 Karachi 52,4) a Petition under Article 199(1) was filed before the Sindh High Court, wherein, appointment of the then Honourable Chief Justice of Pakistan was challenged and the appeal decided was also prayed to be treated as pending as full bench of the Honourable Supreme Court which decided the appeal was alleged not to have been constituted validly. The Sindh High Court dismissed the writ petition as it was not maintainable in the following words: It may be noticed in the present case, that the petitioner does not allege that Mr. Justice Amami Haq is not qualified to be a judge of the Supreme Court to hold High Court Office of-Chief Justice of Pakistan. The petition quite Clearly challenges the act of my Lord the Chief Justice as Chief Justice in constituting the Bench of the Supreme Court which decided Criminal Appeal No, 11 of 1978 and the judgment given by my Lord the Chief Justice in the said Appeal. In other words, what is being challenged is action of my. Lord the Chief Justice as a Court and not as a judge in his individual capacity. In this view of the matter aforesaid decision of the Supreme Court with which we are in any even bound,' clearly leads to the conclusion that this petition is not maintainable.'
9. In terms of Article 199 of the Constitution a direction can be issued to a person performing within. the territorial jurisdiction of this Court functions in connection with the affairs of Federation, Province or a local authority but the word 'person' used in Sub Article (1) of Article 199 does not include a High Court including other authorities/institutions mentioned in its Sub Article (5) which for convenience of reference is reproduced as below:-- "(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; and (a)in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the advocate-General for the Province in which the application is made."
Unambiguous language of Article 199(5) of the Constitution was examined a Full Bench of this Court in the case of Asif Saeed (supra) paragraphs 16 and 17 of which read as under:-- "16. To our mind the judicial orders of the Supreme Court and the High Court on jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this sub-Article. By plain reading of sub-Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i,e, one judicial. which is immune from writ, and the other administrative which is amenable to the writ.
17. Where a Judge of the High Court, acts as a Court, for and on behalf of the Court, it is the Court by itself and has complete and absolute immunity, which is not dependent on the kind of jurisdiction he exercises. It is for this reason, that when a Judge of this Court acts as a Company Judge under the Company Laws, or as a Judge dealing exclusively with the bank cases under relevant law he acts as High Court though conferred with a special power to decide the case of a particular nature.
His orders are not amenable to the writ."
The Honourable Full Bench concluded in the cited judgment that, all the actions, acts and order made by the High Court or the Supreme Court, in exercise of powers and functions in the office cannot be subjected to writ because such orders passed are always of the High Court and not by a Judge having character different than a High Court.
10. The Honourable Supreme Court in the case of Muhammad Ikram Chaudhry (supra) after scanning entire case law graciously mandated that a High Court or the Supreme Court cannot in exercise of its Constitutional jurisdiction under Article 199 of the Constitution interfere with ,an order passed by another Judge or another Bench of the same Court and alike view was pronounced in the case of Malik Asad Ali and others vs. Federation of Pakistan through Secretary, Law, Justice and Preliminary Affairs, Islamabad and others (PLD 1998 S.C. 161).
11. Analysis of the judgments above referred including those of the Honourable Supreme Court and Full Bench of this Court bring me to hold that this Court did not act as persona designata on behalf of the Governor of the Punjab rather it acted in its own rights to appoint Additional District & Sessions Judges against the vacancies occurring under its control, hence cases of the petitioners do not fall within any of the exceptions pointed out in the case of Muhammad Ikram Chaudhry (supra). In this behalf, reference to Notification No, 44/RHC/AD & SJJ dated 1st April, 2004, is not only apt but also puts the controversy to naught, as its opening lines read as under:- "In exercise of the powers conferred by Rule 4 of the Punjab Judicial Service Rules 1994, the Chief Justice and Judges are pleased to appoint the following Additional District & Sessions Judges (BS- 19) in Punjab with effect from the dates they resume charge of the posts on the terms and conditions given in subsequent paragraphs."
(Underlining is mine to highlight the appointing authority).
Non-availability of remedy to the petitioners for redressal of their grievance cannot confer jurisdiction to issue a writ which is specifically excluded by virtue of Article 199(5) of the Constitution, as discussed above, besides the binding view of the Honourable Supreme Court in the case of Muhammad Ikram Chaudhry (supra). It goes without saying that I feel myself unable to undo the above discussed judgments of the Honourable Supreme Court and the one given by a Full Bench of this Court by jumping Constitutional provisions, of which I am under oath and thus respectfully following the rule of law propounded therein, hold that all the petitions above referred are not maintainable.
12.For the reasons noted above, all the Constitutional petitions, deserved dismissal and are accordingly disallowed with no order as to costs.