' This order shall dispose of this writ petition, i.e, W.P. No,864 of 2008 (Liaqat Mumtaz v. Government of Punjab and others) as well as Writ Petitions Nos. 936/2008 (Khizar Hayat v. The Registrar, Lahore High Court, Lahore), 1108 of 2008 (Muhammad Akram v. Government of Punjab and others), 2220 of 2008 (Riaz Hanif Rahi v. The Registrar, Lahore High Court Lahore and others), 2221 of 2008 (Mian Humayoon Aslam v. The Registrar, Lahore High Court Lahore), 2222 of 2008 (Tariq Zubair Zulqarnain v. Administration Committee through Registrar, Lahore High Court, Lahore) and W.P. 2312 of 2008 (Muhammad Ali Qureshi v. The Registrar, Lahore High Court Lahore and others), total seven in numbers, because in all of them identical questions i.e, interpretation of Article 199 (1) (c) (5) of the Constitution of Islamic Republic of Pakistan, 1973 are involved.
2. The key proposition involved in all these cases is regarding competency of writ petitions in terms of Article 199 (5) of the Constitution. As in our view, the legality of the actions impugned in these petitions, could only be gone into the answer qua competency of the petitions was in the affirmative, therefore, we have proceeded to decide this as preliminary issue.
3. The common facts involved in all the writ petitions is that petitioners are appointed as Assistant District Attorney, Public Prosecutor Anti-Terrorism Court, and Research Assistant in the Office of Attorney General for Pakistan, except the petitioner in Writ Petitions Nos.2222/08 who is less than the required age of 35 years, and the petitioner W.P. No,2312 of 2008 who is not possessing required experience and practice at law.
4. The respondent has filed report and parawise comments, wherein the preliminary objection has been taken that the High Court is not a 'person' in terms of Article 199(5) of the Constitution therefore no writ can be issued against the High Court in respect of any judicial or administrative order passed by it.
5. Before us, the learned counsel for the petitioners contends that there is no absolute ouster of jurisdiction of this Court to entertain the writ petitions on the touchstone of Article 199 of the Constitution of the Country. It is further contended that for the purposes of enforcement of fundamental rights any aggrieved person may make an application on which a direction/writ can be issued to any person or Authority. According to the learned counsel, provisions of Article 199(5) only exclude a 'person' from the ambit of writ jurisdiction and not the `authority' therefore, an order which is of administrative nature has been passed by the High Court and in respect of fundamental right of a citizen writ petition would be competent, because in that case the High Court would be acting as an `Authority' and not a person. The learned counsel has placed reliance on the case reported as Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another (PLD 2007 SC 498) and M.D. Tahir v. Punjab Government through Chief Secretary and 2 others (2005 YLR 1417 Lahore).
6. To resolve the controversy between -the parties, reading of Article 199 (1)(c) and (5) of the Constitution is necessary, which provisions are reproduced hereunder:-- "199 (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law---
(c) On the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter-I of Part-II.
(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 prescribed law officer' means---
(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."
7. In the case reported as Asif Saeed v. Registrar Lahore High Court and other (PLD 1999 Lahore 350), it had been ruled that:- "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."
8. In the case reported as All Nawaz, Advocate District Bar Association, Sargodha v. Lahore High Court Lahore, through its Registrar and 2 others (2006 YLR 445), while interpreting the provisions of Article 199 (1) and (5) of the Constitution it has been held that, "In terms of Article 199 of the Constitution a direction can be issued to a person performing within the territorial jurisdiction of High 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 authority/Institutions mentioned in its sub-Article (5)." The High Court does not act as persona designata on behalf of the Governor of the Punjab rather it acts in its own rights to appoint Additional District & Sessions Judges against the vacancies occurring under its control.
9. In the case reported as Nusrat Elahi and 41 others v. Registrar Lahore High Court Lahore and others 1991 PCr.LJ 1181, it has been ruled that, "Article 199 of Constitution excludes Supreme Court, High Court, or a Tribunal established under a law relating to Armed Forces from those persons against whom High Court can issue writ." It was held that no petition can be entertained under Article 199 of the Constitution against High Court itself, and so petition was clearly not maintainable.
10. Somewhat similar question fell for consideration before the Honourable Supreme Court of Pakistan in the case reported as Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315), and while construing the effect of sub-Article (5) of Article 199 of the Constitution, it was observed that 'High Court' is not a person to whom a writ may issue.
11. The cases reported as Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and other (PLD 2007 SC 498) and M.D. Tahir v. Punjab Government through Chief Secretary and 2 others (2005 YLR 1417 Lahore) do not attract to the facts and circumstances of the present case.
12. In view of the above, we hold that all the above mentioned writ petitions are not competent under the provisions of Article 199 (5) of the Constitution, and dismiss the same with no order as to costs.