SYED SAJJAD HUSSAIN SHAH, J. --- This. Constitutional petition is directed against the office order issued by the Registrar bearing No. 10674-81, dated 16.6.2010 by the order of Hon'ble the Chief Justice, Peshawar High Court, Peshawar whereby the petitioner was transferred from Peshawar High Court to the Session Court, Upper Dir against vacant post with immediate effect, till further orders.
2. Precisely stated facts are that the petitioner is serving as key punch operator under the auspices of this Court since 21.4.2005 and was transferred vide impugned order as referred above. The order was challenged on the ground that the appointment of the petitioner was made in the 'Ministerial establishment (Appointment and Conditions of Service) Rules, 1989, of this Court and the petitioner has the vested right to serve at the principal seat or at any Circuit Bench of this Court. His .Transfer order is against the rule ibid, being aggrieved, filed an appeal before Khyber Pakhtun Khawa, Subordinate Judiciary Service Tribunal,, Peshawar High Court, Peshawar. The appeal was returned vide memo. Dated 20.10.2010 as being not competent and the Tribunal has no jurisdiction to hear and adjudicate upon such an appeal. In this regard, the petitioner left with no remedy, thus, filed the instant petition.
3. The learned counsel appearing on behalf of the petitioner contended that the petitioner is Key Punch Operator, appointed under the above-mentioned rules, to serve as member of ministerial establishment of this Court. He could not be transferred from the principal seat to the District Judiciary while highlighting the scope of the impugned order; placed reliance upon Rule 11 of the Peshawar High Court Ministerial Establishment (Appointment and Conditions of Service) Rules, 1989 which deals with the liability of transfer of an employee of the High Court. The learned counsel while dilating upon the , jurisdiction of this Court, argued that the impugned order, besides, being without lawful authority, passed as per direction of Hon'ble Chief Justice issued in administrative, not in judicial capacity, thus, amenable to the writ jurisdiction of this Court.
4. The arguments of learned counsel considered and record carefully perused.
5. In the instant case without dilating upon the merits of the case, we would like to resolve the pivotal question as to whether this Court can issue writ in exercise of the Constitutional jurisdiction against the order issued by the respondent No 2, by the order of Hon'ble the Chief Justice of this Court. In this regard, the provisions envisaged in Arts. 199(5) of the Constitution of Islamic Republic of Pakistan 1973, reproduced for the sake of convenience as under:--- Art. 199(5)---In this Article unless the context otherwise requires--- "person" includes anybody 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;
6. Viewing the provisions of the above-referred sub -Article, the questions as stated above, arising for the adjudication, firstly, about the competency to issue the writ against an order passed by the Hon'ble the Chief Justice of this Court, as sought by the petitioner, secondly, the maintainability of the instant petition. To substantiate and facilitate the answer of the above-referred questions, it is apt to ascertain the Constitutional status of the High Court, with reference to Article 192 of the Constitution which lays down about the Constitution of High Court, for convenience sake, reproduced as under:- Art192---Constitution of High Court:
(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. (2) (3) (4) 7.The provisions of the afore-stated Article emphatically specify the constituents of a High Court, the Chief Justice and the Judges of the High Court. A High Court would not be constituted without its Chief Justice. There can, therefore, be no High Court without a Chief Justice and -Judges, both are the essential components to constitute a High Court. It is well-settled that each Judge of this Court acts as High Court and any direction or order by the Single Bench or for that matter by the Division Bench would amount to its issuance against a Judge who is the component of High Court. Thus, generally speaking this exercise cannot be undertaken if the age old adage notion i.e. "no one can act as a Judge in his own cause" is acknowledged.
8. In this connection, it would be pertinent to say that the jurisdiction exercised by the High Court whether in a Bench of a .Single Judge or the Bench of more Judges, the order would be expressed in the name of High Court and not in the name of individual Judge. In this context, the reference of Article 201, as follows:--- Art. 201---Decision of High Court binding on subordinate Courts.-- Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all its Courts subordinate to it.
9. The provisions of above-referred article seems to be supplementing the provisions contained in Article 199(5) of the Constitution, as the decision of a High Court shall be binding upon the subordinate Courts. The emphasis laid upon the word High Court, no reference made of the Judge of High Court. Had it be the intention of the legislature, same could have provided expressly in the language of the article, without leaving open the room to any other interpretation.
10. It is discernible from the above provisions of the Constitution, as laid down in Article 199(5) read with Article 192, the intention of legislature can easily be perceivable as is abundantly clear, specific in its meaning and purpose. High Court mentioned in Article 199(5) to be constituted by the Chief Justice and the Judges. Therefore, no Judge of a High Court can issue any order or decree or judgment against the other Judge of the High Court. In this regard, reliance placed to a case titled Abrar Hassan v. Government of. Pakistan and another, reported in PLD 1976 SC 315, the relevant portion of the judgment reproduced as under:--- Article 199(1) & (5)---"Judge" and "Court" though often used interchangeably as synonymous yet this does not obliterate distinction between a Judge as an individual and Court as seat of justice as an institution---Both remain distinct entities.
High Courts and their individual groups of Judges--- Invested with co-ordinate jurisdiction---Writ, if issued by one Judge to another, Judge against whom writ is issued may in exercise of same jurisdiction nullify such writ---Historical background and practice of British Courts explains why no writs issue to superior Courts---Judges of superior Courts---Not agents and servants of State--- Appointment of person as Chief Justice of High Court (such person formerly being Judge of Supreme Court and notified as having a lien on his former post)---Cannot be challenged in writ proceedings..
The policy of law that no writ will issue to a High Court and 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 consequence of the fact that High Courts and their individual groups of Judges are invested with coordinate jurisdiction.
11. The provisions contained in Article 199 of the Constitution empowered a High Court to issue the directions to a person performing within the territorial jurisdiction of High Court in connection with the affairs of Federation, Province or a local authority but a "person" as used in sub-Article (1) of Article ibid does not include a High Court including other authorities institutions as mentioned in sub-article (5), reference of the same has already been made.
12. While interpreting Article 199(5) with regard to the definition "person" included Supreme Court or High Court or a Tribunal under the law relating to the Armed Forces of Pakistan from its purview, no writ or order can be issued to the High Court or Supreme Court under Article 199 of the Constitution; as it amounts issuance of same against the Supreme Court and High Court itself. Moreso, the administrative or executive orders passed by the Chief Justice of the High Court or the Registrar while acting under the orders of Hon'ble Chief Justice also enjoying the protection falling within the ambit of said article. Reliance placed upon the Division Bench Judgment made in a case titled Mesrs Nusrat Elahi and 41 others v. The Registrar Lahore High Court, Lahore & 68 others, reported in 1991 MLD 2546 for the sake of convenience, reproduced as under:-
(b) Constitution of Pakistan (1973)- -Art. 199(5)---Constitutional petition against High Court---Maintainability---Provision of Art. 199(5) while defining 'person' excluded Supreme Court, High Court or a Tribunal established under law relating to the Armed 'Forces of Pakistan from its purview---No -petition thus, could be entertained under Art. 199 of the Constitution against the High Court itself---Constitutional petition filed by petitioner employees of High Court against respondent employees of High. Court to challenge their promotion was not maintainable.
(c) High Court Establishment (Appointment and Conditions of Service) Rules- ---R.8---Constitution of pakistan (1973), Arts. 199 & 208---Impugned orders were passed by the Chief Justice who had exercised powers and had acted on behalf of the High Court---Registrar had carried out orders of Chief Justice and the Judges of the High Court---Appellants' contention that orders passed on executive side by the Chief Justice or the Registrar were not protected from the purview of Art. 199 ut the Constitution, was fallacious by reference to art. 208 of the Constitution vesting powers to frame Rules in respect of employees of High Court in the High Court itself---Constitutional jurisdiction of High Court, thus, could not be invoked by the employees of High Court against the orders passed by the Chief Justice or the Registrar on behalf of the High Court.
13. Again the provisions of Article 199(5) of the Constitution examined by the Full Bench, in a case titled Asif Saeed v. Registrar, Lahore High Court and others reported in PLD 1999 Lahore 350. The distinction drawn between judicial orders of the Supreme Court and the High Courts and the executive/administrative are consultative functions orders and acts. The relevant 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 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 'special power-to decide the case of a particular nature. His orders are not amenable to the writ."
14. In the cited judgment, the Hon'ble Full Bench while deciding the question of alike nature concluded that all the actions, acts and orders passed by the High Court or the Supreme Court in exercise of administrative/executive powers, not amenable to the writ jurisdiction for the reason that such orders passed by the High Court and not by a Judge having character different than a High Court. In this context, the latest view of the Supreme Court was also to the same effect, the reference made, of an unreported judgment in. Civil Appeals Nos. '338, 339, 340 & 342 of 2006 titled as Muhammad lqbal and three others versus Lahore High Court through Registrar, etc., the Division Bench judgment authored by Mr. Justice Sardar Muhammad Raza (as his Lordship then was): The dictum laid down that "consequently, we are of the firm view that Article 199(5) of the Constitution protects all orders passed by the High Court, including the administrative one,"
15. As a corollary of the above discussion and the dictum laid down by the Superior Courts, no writ can be issued by the Judge of the High Court to the another Judge of the High Court in terms of Article 199 of the Constitution against orders passed in judicial or Administrative/Executive capacity.
16. The learned counsel for the petitioner agitated that no other remedy available for the redressing of grievance of the petitioner, therefore, the Constitutional jurisdiction can also be exercised under the above-mentioned Article. In this regard, the reference can be made of paragraph 28 of Asif Saeed case supra".
17. The final submission from the petitioners' side that as no other/further remedy is available to them, therefore, the provisions of sub-Article (5) should be construed in away, permitting the invocation of writ, cannot be allowed because, if this. Sub-Article is interpreted as suggested by the learned counsel it would tantamount to adding into the Constitutional provisions something which is not permissible under the law. Reference can be made to the cases reported in PLD 1997 SC 426 and PLD 1997 SC 32.
18. For the reasons noted above, the Constitutional petition, is hereby dismissed as being without any substance and not maintainable.