' SHAHID ANWAR BAJWA, J.---Facts giving rise to this petition are that the petitioner was enrolled as an Advocate by Sindh Bar Council in 1974. The petitioner practised till 1991 when he was taken in employment as Additional District and Sessions Judge. The petitioner was promoted as District and Sessions Judge in 1997 in which capacity he held various posts. On 15-9-2007 vide Notification No,F.5(1)/ 2007-A-Il issued by the Law, Justice and Human Rights Division, Government of Pakistan, the petitioner was appointed as Additional Judge of Sindh High Court for a period of one year w.e.f, the date he took Oath of his office. Upon taking of Oath of his office on 17-9-2007 the petitioner assumed the office of Additional Judge of this Court. The petitioner continued as Additional Judge of this Court. On November 3, 2007, Chief of Army Staff issued the Proclamation of Emergency. The Provisional Constitutional Order 1 of 2007 as also the Oath of Office (Judges), Order of 2007 were also issued by General Pervez Musharaff in his capacity of Chief of Army Staff. Various other constitutional instruments and Presidential Orders followed and their consequence was that Judges of the superior Courts were required to take fresh Oath under the PCO and such Judges who did not take such Oath or who were not called to take oath ceased to be Judges of their respective Courts. The petitioner refused to take oath under the PCO 2007. Consequently, on December 3, 2007 Notification No,F12(4)/2007.A.II was issued by the Law. Justice and Human Rights Division. It was stated that the petitioner as well as eleven other Judges of this Court had ceased to hold office of Judge c High Court of Sindh w.e.f, 3-11-2007. Upon restoration of Constitution, Notification No,F.I(2)/08.A.II was issued by the Law, Justice and Human Rights Division on August 26, 2008. It was stated in the Notification that in exercise of powers conferred by Article 197 of the Constitution, the President was pleased to "re-appoint" the petitioner and two others "former deposed Additional Judges" of Sindh High Court to be Additional Judges of this Court with effect from the date of taking oath of their office for the period mentioned in the Notification dated September, 15, 2007. Since the period mentioned in the Notification dated September 15, 2007 was one year, therefore, the implication taken from the Notification dated August 26, 2008 was that the petitioner would continue to be Additional Judge of this Court from the date of Notification dated August 26, 2008 till September 16, 2008 i.e, upon completion of one year from the date he took oath as Additional Judge in the first phase. This Notification was followed by a fresh Notification of September 15, 2008. Through this Notification tenure of office of petitioner as Additional Judge was extended for a period of six months. On 17-3-2009, yet another Notification was issued and the petitioner was appointed as a Judge (i.e, permanent Judge) of this Court. In consequence of this Notification petitioner took oath as a permanent Judge of this Court. On July 31, 2009, short order was announced by the honourable Supreme Court of Pakistan in the case of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law, Justice and Human Rights Division, Islamabad and others PLD 2009 SC 879. Upon such announcement, on August 2, 2009, a Notification was issued by Ministry of Law, Justice and Human Rights Division. The Notification reads as under: - "In pursuance of judgment of the full Bench of Supreme Court of Pakistan dated 31st July, 2009, in Constitutional Petitions Nos.9 and 11 of 2009 (Sindh High Court Bar Association and Mr. Nadeem Ahmed, Advocate v. Federation of Pakistan), the eresiclent is pleased to approve that the following Judges of High Court of Sindh shall cease to hold their offices with immediate.
2.
3. Mr. Justice Salman Ansari.
4. Etc.
2. Besides the petitioner there were 19 other Judges whose names were mentioned in the Notification. This Notification has been impugned through this petition which was filed on 8-5-2010.
Learned counsel for the petitioner made the following submissions:--
(i) Learned counsel referred to para 22 and para 193 of the judgment of the honourable Supreme Court in Sindh High Court Bar Association's case (supra) and contended that since the petitioner was a permanent Judge of Sindh High Court in terms of Notification dated March 17, 2009 and since he had taken Oath as permanent Judge of Sindh High Court, para 193 was not attracted to the case of the petitioner.
(ii) Learned counsel submitted that in terms of judgment of the honourable Supreme Court in the case of Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice, Human Rights and Parliamentary Affairs, Islamabad and others, PLD 1998 SC 161 (with reference to page 355) there must have been a direction issued to the Federal Government to de-notify the petitioner's name as a permanent Judge of this Court and since no such direction was issued in the case of Sindh High Court Bar Association (supra) the Notification dated August 2, 2009 is without lawful authority and of no legal effect.
(iii) That the short order of the Honourable Supreme Court of Pakistan was announced on 31-7- 2009 which was a Friday and the impugned Notification was issued on 2-8-2009 which was a Sunday and this Notification, therefore , was issued in haste and in a mechanical manner and is, therefore, void for that reason. In this regard, learned counsel referred to a judgment of a Full Bench of this Court in the case of Sindh High Court Bar Association through Honorary Secretary v.
Federation of Pakistan through Ministry of Law and Justice Islamabad and 4 others PLD 2009 Karachi 408.
(iv) The petitioner was not a party in the proceeding before the honourable Supreme Court of Pakistan and therefore, no adverse inference against the petitioner could be drawn from the judgment of the Supreme Court.
(v) Without having resort to procedure prescribed under Article 209 of the Constitution of the Islamic Republic of Pakistan the petitioner could not have been removed from his office of permanent Judge of this Court by a mere Notification by a Government bureaucrat. He submitted that his illegal removal from the office was in gross violation of the Constitution. In this regard, he referred to Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary, Law, Justice and Human Rights and others, PLD 2010 SC 61.
3. We have considered the arguments advanced by the learned counsel for petitioner and have also gone through the case law relied upon by the learned counsel. In the Sindh High Court Bar Association's case decided by the Supreme Court on the moot point it was laid down by the Supreme Court as under:-- 22(1) the Chief Justice of Pakistan, the Judges of the Supreme Court of Pakistan; any Chief Justice of any of the High Court and the Judges of the High Court who were declared to have ceased to hold their respective offices in pursuance of the aforementioned alleged judgments or any other such judgment and on account of the instruments mentioned in Para 21 above, shall be deemed never to have ceased to be such Judges, irrespective of any notification issued regarding their reappointment or restoration;.
22(iii) since Mr. Justice Abdul Hameed Dogar was never a constitutional Chief Justice of Pakistan, therefore, all appointments of Judges of the Supreme Court of Pakistan, of the Chief Justice of High Courts and of the Judges of the High Courts made, in consultation with him, during the period that he, unconstitutionally, held the said office from 3-11-2007 to 22-3-2009 (both days inclusive) are hereby declared to be unconstitutional, void ab initio and of no legal effect and such appointees shall cease to hold office forthwith;
193. Reverting to the cases of the respondents Nos.3 and 4, it may be noted that they were appointed as Additional Judges of the High Court of Sindh for a period of one year vide Notification dated 15th September, 2007 on the recommendation of the then Chief Justice of High Court of Sindh and the Chief Justice of Pakistan. They took oath of their office on 18th September, 2008.
However, in pursuance of the actions of 3rd November, 2007 they were declared to have ceased to hold office vide notification dated 3rd December, 2007 because they complied with the order dated 3rd November, 2007 passed by a seven member Bench of this Court in Wajihuddin Ahmed's case and as a consequence did not make oath under PCO No,1 of 2007 read with Oath Order, 2007.
In pursuance of the declaration made in this judgment in respect of the actions of 3rd November, 2007, all Judges who were declared to have ceased to hold office, are to be deemed never to have ceased to be such Judges. Moreover, all such Judges including the respondents Nos.3 and 4 have been restored to the position they were holding prior to 3rd November, 2007. Their reappointment vide notification dated 26th August, 2008 and extension of tenure for a period of six months vide notification dated 15th September, 2008 were of no consequence because such purported appointments were made in consultation with Abdul Hameed Dogar, J, who was not authorized to be consulted for the said appointments. Accordingly, their reappointment and extension of tenure for a period of six months have been declared to be unconstitutional and of no legal effect. So, the tenure of their original appointment as Additional Judges expired on 17th September, 2008. The recommendations made by the Chief Justice, High Court of Sindh (Anwar Zaheer Jamali, CJ,) vide his letter dated 10th September, 2008 for extension of the tenure of the respondents Nos.3 and 4 as Additional Judges for a period of one year, and subsequently by letter dated 25th February, 2009 and further reiterated in letter dated 13th March, 2009, for their appointment as Judges of that Court under Article 193 of the Constitution were also invalid and of no consequence because his own appointment as Chief Justice was not proper on account of invalid consultation by Abdul Hameed Dogar, J. In this view of the matter, the judgments and orders passed and the proceedings taken in the case and/ or any other acts done by the respondents Nos.3 and 4 during the period from 17th September, 2008 onward until they worked as such Additional Judges would not be affected on the principle laid down in Asad Ali's case (supra). It may be observed here that the matter of appointment of the respondent of the respondents Nos.3 and 4 as permanent Judges, or extension in their tenure as Additional Judges was never considered by the proper judicial constitutional consultees, viz. Chief Justice of High Court and the Chief Justice of Pakistan."
4. A cumulative reading of the judgment in general the above two paras in particular indicates that it has been, conclusively, authoritatively and unambiguously rather in ringing tones, held by the Supreme Court of Pakistan that:--
(a) Mr. Justice Iftikhar Muhammad Chaudhry was never lawfully removed from the office of Chief Justice of Pakistan on November 3, 2007 and, therefore, continued to be Chief Justice of Pakistan all along.
(b) Since office of the Chief Justice of Pakistan never fell vacant any Notification or appointment of any other person as Chief Justice of Pakistan is without lawful authority, unconstitutional, void ab initio and of no legal effect.
(c) Any appointment made in any High Court or the Supreme Court whether of a Judge or of a Additional Judge or of Chief Justice of a High Court or any extension in the tenure of any Additional Judge during the period between 3-11-2007 and 22-3-2009 (both days inclusive), since it has been without consultation with the lawful Chief Justice of Pakistan, would be without lawful authority and of no legal effect and for all intents and purposes (except protecting judgments and orders etc. By such illegally appointed appointees), it is to be presumed and treated as if no such person has ever been appointed as a Judge or an Additional Judge or Chief Justice and in case of extension no such extension has been given.
5. As far as case of present petitioner is concerned he was appointed as Additional Judge vide Notification dated September 15, 2007. This was an appointment after consultation with lawful Chief Justice of Sindh High Court (Mr. Justice Sabihuddin Ahmed) and lawful Chief Justice of Pakistan (Mr. Justice Iftikhar Muhammad Chaudhry). It was therefore a lawful appointment. The Notification dated December 3, 2007 by which Notification petitioner and 11 other Judges, in terms of the provisions contained in the Oath of Office (Judges) Order were declared to have ceased to hold offices of Judges of High Court is of no legal authority whatsoever and therefore, it is to be assumed and treated as having never been issued. Since by Notification dated August 26, 2008, the petitioner was reappointed "for remainder period to which he was appointed under Notification September 15, 2007" no legal consequences flows out of his Notification after judgment of the Supreme Court in Sindh High Court Bar Association's case (Supra) because since their removal by Notification dated December 3, 2007 was illegal they in law continued to be Judges all along till September 16, 2008 i.e, for a period of one year for which period they were appointed in consultation with lawful Chief Justice of Sindh High Court and the lawful Chief Justice of Pakistan.
6. Notification dated September 15, 2008 by which notification tenure of the present petitioner was extended by six months is a Notification without lawful authority because neither the Chief Justice of the Sindh High Court at the time was a lawful Chief Justice because he had not been appointed in consultation with the lawful Chief Justice of Pakistan nor the person who was performing function of the office of Chief Justice of Pakistan was lawful Chief Justice of Pakistan. Notification dated September 15, 2008 is Notification without lawful authority and therefore, of no legal effect.
Same is the position of Notification dated March 17, 2009. This is the natural, logical and clearly spelt out effect of judgment dated 31-7-2009 passed by the honourable Supreme Court. Therefore, the contention of the learned counsel that Notification dated August 2, 2009 is without lawful authority and of no legal effect is without substance because the Notification merely performs an administrative chore which the executive was duty bound to perform in terms of the judgment of the Supreme Court in Sindh High Court Bar Association's case.
7. Second contention of the learned counsel was with reference to Malik Asad Ali's case, in Malik Asad Ali's case while appointment of Mr. Justice Sajjad Ali Shah, as Chief Justice of Pakistan, was declared invalid and unconstitutional and it was held that Mr. Justice Sajjad Ali Shah ceased to hold office of Chief Justice of Pakistan, the Federal Government was directed to de-notify appointment of Mr. Justice Sajjad Ali Shah as Chief Justice of Pakistan. Contention of the learned counsel was that since no such direction for de-notification has been issued in Sindh High Court Bar Association's case, issuance of Notification by the executive on August 2, 2009, is without lawful authority. The contention is misconceived. In the case of Malik Asad Ali, it was only a case of Chief Justice of Pakistan, which was being considered and therefore, specific direction was stated in para 143. In the case of Situlh High Court Bar Association it is not a case of a single Judge rather broad principles regarding legality of the appointments and extensions during the period between 3-11-2007 and 22-3-2009 was considered and they were held to be illegal and unconstitutional. The Hon'ble Supreme Court has very clearly held in Sindh High Court Bar Association's case in para.22(i), 22(ii) that all such appointments are unconstitutional, void ab initio and of no legal effect and such appointees ceased to hold the office forthwith. The petitioner clearly falls within the stipulation made in these paras as firstly his tenure was extended during the period in question between i.e, 3-11-2007 and 22-3-2009) and then he was made a permanent Judge during the said period. Therefore, both extension as well as act of making the petitioner a permanent Judge were unconstitutional, void ab initio and of no legal effect and consequently the Notification dated 2-8- 2009 is held to be in conformity with the terms of the judgment of the Supreme Court and the executive by issuing this notification has committed no illegality.
8. Third contention of Mr. Abrar Hassan is also without force. His contention was that judgment in Sindh High Court Bard Association's case (supra) was announced on 31-7-2009 which was a Friday and the impugned Notification was issued on 2-8-2009 which was a Sunday and therefore, the action was taken in haste. He relied upon the following observation from the opinion of Mr. Justice Mushir Alam in the case of Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 Karachi 408. In the reported case there was a recommendation by Chief Justice of Sindh High Court which was not agreed to by the Governor Sindh and the Chief Justice of Pakistan and then the President of Pakistan, the moment he received the advice, issued the Notification and it was in this context of difference of opinion between two Chief Justices that it was observed that it seemed from the record nothing was available to substantiate that the President made any attempt to reconcile the two views or to record reasons for the particular view taken by him that it was held that action was taken post haste. In the present matter a judgment had been passed by the Supreme Court on 31-7-2009 and the Notification issued by the Government, the learned counsel has failed to demonstrate, as to in what respect the Notification is not in accordance with the judgment of the honourable Supreme Court. If an executive functionary promptly obeys an order by a Court and acts in accordance with the orders of the Court it cannot be argued that though it acted in accordance with the Court but it should have awaited for so many days before acting.
9. Next contention of the learned counsel that the petitioner was not a party in the proceeding before the Supreme Court and therefore, no adverse inference could have been drawn from the judgment of the Supreme Court against the petitioner. The contention is again misconceived. If the executive has acted in accordance with the judgment of the Supreme Court and if the petitioner has a grievance the forum available to him is to approach the Supreme Court. This Court in this petition is only required to see whether action of the executive is with lawful authority or not. Action of the executive in this case is backed by a clear and lucid judgment of the honourable Supreme Court.
10. A short shrift may be given to the last argument of the learned counsel for the petitioner that since the petitioner was permanent Judge of this Court, therefore, he could not be removed without resorting to the procedure prescribed under Article 209 of the Constitution. The argument of the learned counsel would have been perfectly valid had he been able to establish that he had been lawfully appointed as permanent Judge in this Court. We have already held above that it has been held by the honourable Supreme Court of Pakistan in Sindh High Court Bar Association's case that all such appointments and extensions made and given between 3-11-2007 to 22-3-2009 are, in the words of the honourable Supreme Court, "unconstitutional, void ab initio and of no legal effect". Since appointment of the petitioner as a permanent Judge is void ab initio, it is not available to the petitioner to argue that since he was a permanent Judge without resorting to Article 209 he could not be removed. The petitioner was never a permanent Judge of this Court. As far as law is concerned the petitioner was appointed as an Additional Judge vide Notification dated September 15, 2007. He took Oath on September 17, 2007 and his tenure as an Additional Judge came to an end on September 16, 2008. After that date as far as law and the Constitution are concerned the petitioner has never been a Judge or an Additional Judge of this Court.
For the above reasons, this Constitutional Petition is dismissed in limine along with listed applications.