' SARDAR MUHAMMAD RAZA KHAN, J.---The appellants, by leave of the Court, have filed these appeals from the judgment dated 11-11-2005 of a learned Judge in chambers of Lahore High Court, whereby, their writ petitions stood dismissed as barred by Article 199(5) of the Constitution.
2. The brief facts of the case are that against an advertisement dated 3-4-2003, issued by Lahore High Court for 29 posts of Additional District and Sessions Judge, Muhammad Iqbal Khan, Arshad Mehmood, Amir Iqbal Basharat, Waqar-ul-Hassan and Javaid Hussain qualified the competitive examination, but were not selected for the reasons that they did not fulfil the required length of practice etcetera. Javaid Hussain appellant though qualified yet could not hit the merit list of 29 candidates. He was placed on the waiting list. He claimed his selection and appointment in the subsequent batch or batches, next first being that of 2005. Such non-selection was challenged through writ petitions, dismissed as afore-said.
3. Coming directly to the real point in dispute arising out of Article 199(5) of the Constitution, the learned High Court is of the view that the orders passed by the High Court are protected under the aforesaid sub-Article and cannot be challenged before the High Court under Article 199. To the contrary, the stance taken by the appellant is that the orders protected by Article 199(5) of the Constitution are only the judicial orders and not those passed on administrative side. That the order of non-selection of the appellants passed by the High Court was in its administrative capacity and hence no immunity could be claimed under Article 199(5) of the Constitution.
Learned counsel appearing on behalf of the appellants placed reliance on a Division Bench judgment of Peshawar High Court in Kaleem Arshad Khan's case 2004 PLC (CS)1558, whereby, the non-selection of writ petitioner therein was considered to be an administrative order, amenable to challenge under Article 199 of the Constitution. The learned counsel further placed reliance upon a Division Bench judgment of Indian Supreme Court in High Court of Madhya Pradesh v. Mahesh Prakash AIR 1994 SC 2595. The Indian Supreme Court was of the view that the orders passed by a High Court in its administrative capacity could be challenged before the High Court, exercising constitutional jurisdiction.
4. The learned counsel for the respondent claimed, in nutshell, that the orders passed by the High Court whether in its judicial or administrative capacity, are both protected under Article 199(5) of the Constitution and hence the view of Lahore High Court was perfectly valid. Reliance was placed on an earlier judgment of Lahore High Court in Nusrat Elahi's case 1991 MLD 2546 and a subsequent judgment of a full Bench of Lahore High Court in Asif Saeed's case PLD 1999 Lah.
350. Lahore High Court consistently seems to be of the view that orders passed by a High Court, whether judicial or administrative, are protected under Article 199(5) of the Constitution.
5. For sake of convenience, the relevant provision of the Constitution is reproduced:--- "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; and
(a) .
(b) .
6. As the conflict of judgments has been arisen between Lahore High Court and Peshawar High Court, we may point out that in cases of appointment in both the High Courts, the High Court or the Chief Justice exercise the delegated powers of the Governor. Punjab Judicial Service Rules, 1994 as framed by the Governor, operate to delegate power under Rule 4 thereof to the High Court as appointing authority. On the other hand, Notification No,SOR-IV(E&AD)/3-11/2001, issued by Government of N.-W.F.P., Establishment and Administration Department, the Governor happened to delegate such power of appointment to the Chief Justice, Peshawar High Court. To our mind, the use of two different words like "High Court" and "Chief Justice" in the two provinces, make the least difference, because under Article 192 of the Constitution, the Chief Justice along with other Judges constitutes the High Court. So, we are left with only question of difference between judicial and the administrative powers exercised by the High Court with reference to the immunity given by Article 199(5) of the Constitution.
7. The view held by Lahore High Court is challenged in the light of Mahesh Prakash's case (supra), which is very well distinguished by Mr. Justice Mian Saqib Nisar speaking on behalf of the full Bench in Asif Saeed's case (supra). The learned Judge distinguished the Indian ruling on the ground that there are no provisions in the Indian Constitution analogous or parallel to Article 199(5) of our Constitution. Secondly, it was reasoned that the Indian Supreme Court was of the view, despite no analogous provision in their Constitution, that no writ would lie against the judicial order of a High Court. Meaning thereby "that the true purpose of this sub-Article is more pointed towards protecting the non-judicial actions/orders/steps of this Court rather than its judicial orders". We perfectly agree with the view taken by Lahore High Court that all judicial orders passed by a High Court can be challenged in accordance with the Constitution or the law and are individually and specifically protected. For such purpose of protecting judicial orders, there was no need absolutely to enact the provisions of sub-Article (5) of Article 199 and that such provisions were given in the Constitution to protect, rather, the non-judicial orders of the High Court. We are further of the view that if such orders are allowed to be challenged before the same High Court, it would lead to creating ludicrous situations and hazardous consequences.
8. If a Chief Justice of a High Court transfers a subordinate officer, so to say, in his administrative capacity and if the same is set aside by another Bench of the same High Court, one can well imagine the devastating consequences. This can be visualized about any order of the High Court and the resultant consequences thereof. It runs diametrically opposed to the principles of comity and can lead to the complete destruction of judicial as well as administrative fabric of the institution.
9. While discussing the implications involved, the learned author Judge of Asif Saeed's case (supra) has gone further to reinforce his reasoning, saying:- "It is clear that the Supreme Court of Pakistan has also been excluded from the definition of the word "person" clubbed, together with the High Court. Undoubtedly, it is inconceivable that the order of the Supreme Court on its judicial side can be challenged before the High Court in writ, irrespective of sub-Article (5). Now if the interpretation of the petitioners that administrative order of the High Court can in writ be challenged is accepted, the same rule would also apply to the Supreme Court, situation may arise where a full Court of the apex forum takes a non-judicial decision then on the basis of above reasoning a Single Judge of this Court may issue writ to quash the same which would he just preposterous. This also applies to the administrative decision taken by the Full Court of a High Court, particularly, when the same Judge/Judges are party to such a decision. There can be numerous examples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rules made by the Supreme Court, under Article 191 and by the High Courts, under Articles 203, and 208 are not safe from attack and may become subject of every day's litigation leading to a hazardous situation.
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 the 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."
10. Whether such person aggrieved has any remedy, is to be seen in the light of each case but the fact remains that this ground of having no further remedy cannot be pressed into service if the relief claimed is not otherwise tenable. This Court in Muhammad Ikram Chaudhry's case PLD 1998 SC 103 has emphatically held that "the factum that the aggrieved party may have no other legal remedy simpliciter will not bring this case within the purview of Article 199 of the Constitution, if otherwise, it does not fall within its compass". In Asif Saeed's case (supra) almost every aspect of the case has very elaborately been discussed, answered and distinguished wherever necessary. In the instant case the scenario would have been altogether different if the appointments had been challenged by someone seeking a writ of quo warranto .
11. 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. The consistent view taken in this behalf by Lahore High Court is perfectly valid and that of Peshawar High Court, as reported in Kaleem Arshad Khan's case (supra) is not in accord with the true spirit of sub-Article (5). The same is overruled. The impugned judgment dated 11-11-2005 is upheld and the instant appeals are hereby dismissed, holding that the impugned orders were protected under Article 199(5) of the Constitution. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.