' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---This appeal with the leave of the Court is directed against the judgment, dated 3-4-2008 passed by the Lahore High Court, Lahore whereby Writ Petition No, 8932 of 2007 filed by the respondent No,1 was allowed.
2. Brief facts of the case are that the respondent No, 1, a practising lawyer, filed the aforesaid writ petition before the Lahore High Court, challenging the appointment of respondents Nos. 2 to 8 as Additional Advocates-General, Punjab and that of the respondents Nos. 9 to 20 as Assistant Advocates-General, Punjab, on the ground that their appointments were made in violation of the rules and the law. The main contention of the respondent No, 1 was that at the time of the appointments in question, the Law Department Manual (1938) as amended by Notification No, 8- 19/93 dated 19-10-1993 provided that the Governor may, in consultation' with the Lahore High Court, Lahore, appoint an Additional Advocate-General or an Assistant Advocate General, and Article 140 of the Constitution of Islamic Republic of Pakistan, 1973, which provided that the Governor of each Province shall appoint a person qualified to be appointed as a Judge of the High Court, to be the Advocate-General of the Province, had not been followed, therefore, the said appointments were a nullity in the eye of law. The learned High Court, after hearing the petitioner before it, as also the Advocate-General Punjab, allowed the writ petition with the following directions:-- "(i) The Government of Punjab/Secretary Law, Parliamentary Affairs and Human Rights, will determine, in consultation with the Hon'ble Chief Justice/High Court, the posts of Additional Advocate-General and Assistant Advocates-General in the office of Advocate-General, Punjab taking into account the number of Judges of the Hon'ble Supreme Court, the number of Judges of the Lahore High Court, and other Courts, Tribunals, etc. The fact that prosecution department has already been separately established shall also be considered while determining the required number of Law Officers in the Advocate-General Office. It is further directed that once the number of required posts is fixed, it shall not be changed save following the same procedure.
(ii) In future the Governor of Punjab shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advotate-General for the Province with prior 'consultation' with the Chief Justice/High Court. Likewise, Additional Advocates-General and Assistant Advocates-General shall also be appointed with prior consultation with the Chief Justice/High Court in addition to other qualifications/ requirements provided 'in the Law Department Manual (1938). Reported cases, conducted by the aspirants of the above offices shall be an important requirement.
(iii) No adverse order is being passed against the respondents; however, the appointments of the respondents, for validity of their appointments shall be examined in the light of above findings enshrined in sub-paras. (i) and (ii), within 40 days from to-date."
3. Being dissatisfied with the said judgment/order of the High Court, the Government of the Punjab through Secretary Law, Parliamentary Affairs and Human Rights, filed Civil Petition for Leave to Appeal before this Court in which leave was granted vide order dated 3-6-2008 in the following terms:.-- "It is, inter alia, contended on behalf of the petitioner that the impugned order militates against Article 140 of the Constitution of the Islamic Republic of Pakistan, 1973 which gives discretion to the Governor of each Province to appoint a person as Advocate-General qualified to be appointed as Judge of High Court. Disputing the rules referred in the impugned order, it is contended that if a legislation violates the mandate of the Constitution, it will have no binding effect. The learned counsel for the petitioner has placed reliance on Manendra Nath Rai v. Virendra Bhatia (AIR 2004 Allahabad 133). It is further contended that the writ petitioners had no locus standi.
2. The learned Advocate-General Sindh relying on the case reported as Malik Hamid Sarfraz v.
Federation of Pakistan (PLD 1979 SC 991) supported the contentions of the learned counsel for the petitioner. The Law Officers representing the Provinces of Punjab, N.-W.F.P. And Balochistan have also supported the contentions of the learned counsel for the petitioner. The learned DAG, representing the Federation, has expressed his view that since important points of law are involved in this petition, therefore, it will be in the fitness of things to grant leave. For all these reasons leave is granted to examine the contentions so raised.
3. Let notice be repeated to all the respondents for an early date with a direction to learned Attorney-General for Pakistan as well as Advocates-General Sindh, Punjab, N.-W.F.P. And Balochistan to ensure their personal appearance.
4. Meanwhile, operation of the impugned order shall remain suspended."
4. The learned counsel for the appellant has submitted that learned High Court has passed the impugned judgment relying upon Notification No, 819 of 1993, dated 19-10-1993 which had ceased to hold the field with effect from 3-11-1994 when Notification No, 8-16/93/5671 of the said date was issued whereby a new Rule 1.18 was substituted in the Law Department Manual (1938), which prescribed detailed qualifications and terms and conditions and did away with the requirement of consultation with the High Court, which position was maintained vide Notification No,8-6/94/4108 dated 13-12-1995. He contended that the notifications dated 3-11-1994 and 13-12-1995 were brought to the notice of the learned Division Bench of the High Court seized with the matter through the report filed on behalf of the Secretary Law, and the copies of the said notifications were also appended with the said report, but the learned High Court, without adverting to the said notifications, directed that in future the Government of the Punjab/Secretary Law, Parliamentary Affairs and Human Rights will determine the number of posts and make the appointments against such posts in consultation with the Chief Justice/Lahore High Court, which was against the existing law/rules on the subject. He has next contended that though the learned High Court has noted in the impugned judgment that the Advocate-General, Punjab had no serious disagreement with the respondent No,1 on the question of 'consultation', but that being a question of law, and not of evidence, it was the duty of the Court to have applied the correct law on the subject, instead of pressing into service the 'non-serious disagreement' of the learned Advocate-General. Thus, according to the learned counsel, necessary deliberation and due care was missing on the Court's part. The learned counsel has further submitted that the office of Attorney-General in England is a political office and the appointment is made in the same manner as that of the other members of the Cabinet. He has contended that the appointment of Advocate-General is made by the Governor under Article 140 of the Constitution on the advice of Chief Minister, which does not envisage role of any other functionary and the significance of the functions of the Advocate- General as highlighted in the impugned judgment with reference to the provisions of Articles 111 and 140 of the Constitution had no bearing on the manner of appointment of a constitutional office.
That being the position in the matter of appointment of the Advocate-General, the learned counsel submitted, the respondent No, 1 had not been able to dig out a role of the High Court in the matter of appointment of Additional Advocate General or the Assistant Advocate-General, especially after the amendment brought about in the Law Department Manual (1938) vide notification dated 3-11- 1994.
5. The learned counsel submitted that the reliance placed by the learned Judges of the High Court in the impugned judgment on Basu's Constitution of India wherein he referred to a report of Joint Parliamentary Committee on the Government of India Act, 1935 to support the premise that the Advocate-General ought to be free from trammels of political or party association, he should have handsome salary and appointment should be for a recognized period, was misplaced in the context of the controversy before the High Court, and so was the reference to Justice (Retd) Fazal Karim's book "Access to Justice", p.14, where he said that the Attorney-General was a first law officer and his principal function was to provide independent legal advice to the Government and to represent the Government in Courts.
6. The learned counsel for the appellant has next submitted that as held in the case of Muhammad Khurshid Khan v. Returning Officer (1998 SCM R 425), the posts of Additional Advocate-General and Assistant Advocate-General are qualitatively different from the post of Advocate-General on the critical touchstone that the Advocate General's office is a constitutional office whereas the Additional and Assistant Advocates-General are not constitutional offices, and though the learned High Court referred to the aforesaid judgment, but surprisingly failed to give weight to it in the impugned judgment/order.
7. The learned counsel has next submitted that the language used in Article 140 is clear and distinct from Article 193 which deals with the appointment of Judges of High Court and binds the President to make the appointment in consultation with the Chief Justice. There is a great difference between the appointment of a Judge and that of a lawyer/counsel. In the case of the latter, there is no requirement of consultation and falls within the exclusive domain of the Government concerned. In this behalf, the learned counsel has referred to the cases of Malik Hamid Sarfraz v. Federation of Pakistan (PLD 1979 SC 991) and Manendra Nath Rai v. Virendra Bhatia (AIR 2004 Allahabad 133).
8. In response to the Court notices, the learned Attorney-General for Pakistan as well as the law officers appearing on behalf of the Provincial Governments of Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh have submitted that the impugned judgment cannot be supported in view of the provisions of Article 140 and Rule 1.18 of the Law Department Manual (1938), as amended from time to time. The respondent No, 1 (the writ petitioner) too conceded the above legal position.
9. We have heard the learned counsel for the parties and have also perused the impugned judgment.
10. At the outset, it is necessary to mention that the impugned judgment essentially rests on the premise that an Additional Advocate-General or an Assistant Advocate General performs functions, which are performed by the Advocate-General of a Province and given the significance of the functions of that office, the appointment of Additional Advocate-General and Assistant Advocate-General, and even that of the Advocate General itself ought to be made disregarding personal and political considerations. This led the High Court to pass the directions that the Government of the Punjab/Secretary Law will determine, in consultation with the Chief Justice/High Court the posts of Additional Advocates-General and Assistant Advocates-General, and that the Governor of the Punjab shall appoint the Advocate-General, Additional Advocates General and Assistant Advocates-General in consultation with the Chief Justice/High Court. The ground pressed in support of the above view was the "requirement of consultation" under the provisions of Article 140 and Rules 1.5 and 1.18 of the Law Department Manual (1938). As rightly pointed out by the learned counsel for the appellant, Article 140 does not envisage requirement of consultation by the Governor with the Chief Justice while making the appointment of Advocate-General. The fact of the matter is that the notification dated 19-10-1993 provided that the Government may, in consultation with Lahore High Court, appoint an Additional Advocate-General or an Assistant Advocate-General, but the requirement of such 'consultation' was done away with by notification dated 3-11-1994. The learned counsel for the appellant vehemently contended that the aforesaid notification was brought to the notice of the learned High Court, but the factum of omission of the word 'consultation' therein was not taken note of in the impugned judgment, though the learned High Court, in para.10 of the impugned judgment, did refer to 'subsequent notifications' to say that the other conditions of appointment, such as requirements of being a citizen of Pakistan, being not less than 40 years of age, being enrolled as Advocate Supreme Court, etc., were not expressly amended thereby.
11. The learned Judges of the High Court having held, in Para 14 of the impugned judgment, that consultation under Article 140 of the Constitution and Rules 1.5 and 1.18 of the Law Department Manual (1938) could not be construed in the manner it was done in terms of Article 193 of the Constitution, proceeded to issue directions to the Government/Governor of the Punjab to deter the number of posts and make future appointments to the posts of Advocate-General, Additional Advocate-General and Assistant Advocate-General, in consultation with the Chief Justice/High Court. As noted earlier, Article 140 does not envisage consultation by the Governor with the Chief Justice/High Court in the matter of appointment of Advocate-General, the reference to Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 24) was absolutely off the mark. By no stretch of imagination could Rule 1.18 of the Law Department Manual (1938), as amended by the notification dated 19-10-1993, which provided for consultation by the Governor with the Lahore High Court Lahore in the matter of appointment of Additional Advocate-General or Assistant Advocate- General, be made applicable to the appointment of the Advocate-General of the Province, which was a constitutional office and was governed by the express provisions of the Constitution. Further, as noted earlier, the said notification was superseded by the notification dated 3-11-1994. It is a clear case of non-reading of the relevant legal instruments.
12. The learned counsel for the appellant relied upon the case of Manendra Nath Rai v. Virendra Bhatia (supra) to contend that consultation with the Chief Justice of the High Court in the matter of appointment of a Judge of High Court could not be made a requirement in the matter of the appointment of Advocate-General. In the said case, the Allahabad High Court, while dealing with the issue held as under:- "The argument that the provision of Sub-clause (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate-General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a High Court.
The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate-General.
The appointment of Advocate-General is not governed by the aforesaid Article which falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals with the appointment of Advocate-General for the State falls in Chapter II of Part 6. The scheme of the Constitution for the appointment of Advocate-General as well as for appointment of a Judge of the High Court is totally different."
13. The issue of reading the qualifications of a Judge of High Court as referred to in the provision relating to appointment of Advocate-General was also dwelt upon in the Indian jurisdiction in the case of G.D. Karkare v. T.L. Shevde (AIR 1952 Nagpur 330), which was approved by a Constitutional Bench of the Indian Supreme Court in the case Atlas Cycle Industries Ltd. Sonepat v. Their Workmen [1962 Supp.(3) SCR 89]. In the above Karkare's case (supra), it was held as under:-- "(26) What the first clause of Art.165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Art.217. It is true that the first clause of Art 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years". The real question then is whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. As the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court.
(28) The provision that every Judge of a High Court "shall hold office until he attains the age of sixty years" has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a disability in that a Judge cannot hold his office as of right after he attains the age of sixty years.
(29) ' We say as of right because under Art. 224 a person who has retired as a Judge of a High Court may be requested to sit and act as a Judge of a High Court. The attainment of the age of sixty by a person cannot therefore be regarded as a disqualification for performing the functions of a Judge. But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224.
' The distinction between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Articles 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article 217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that Article expressly provides that a Judge shall hold office until he attains the age of sixty years.
(30) If the provision in the first clause of Article 217 viewed as a guarantee of tenure of office until the age of sixty is not available to the Advocate-General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate-General after the age of sixty years."
14. In the recent case of State of Uttaranchal v. Balwant Singh, Chaufal decided on 18th January, 2010, the Indian Supreme Court after considering all the earlier judgments on the point, held that the issue has been fully settled that the Advocate-General for the State can be appointed after he/she attains the age of 62 years while the Attorney General for India can be appointed after he/she attains the age of 65 years.
15. The issue of application of qualifications of Judge Supreme Court to the Attorney-General for Pakistan was considered in our own jurisdiction in the case of Hamid Sarfraz (supra) wherein this Court held as under:-- "Mr. Mahmud Ali Qasuri referred us to Article 207 of the Constitution in an effort to show that as a person appointed as Attorney-General had to be one who was qualified for appointment as a Judge of the Supreme Court, therefore, he could be deemed to be under the same disability as has been placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another assignment carrying the right to remuneration. The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court. The correct position is that the Attorney-General functions under Article 100 of the Constitution, which gives him the right of audience in all Courts and Tribunals in Pakistan in the performance of his duties. Clause (3) of the same Article also contemplates that it shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government. It appears to us, therefore, that irrespective of Mr.Sharifuddin Pirzada's submission that he is functioning as the Federal Law Minister not under the 1973 Constitution, but under an ad hoc arrangement made by the President and Chief Martial Law Administrator, the Attorney-General could be required to undertake extra duties in terms of Article 100 of the Constitution and for that reason alone he would not cease to be the Attorney-General, nor would he lose his right of audience in all Courts and Tribunals of Pakistan.. It is, therefore, erroneous to suggest that by being assigned the extra functions of looking after the port folio of Law and Parliamentary Affairs, Mr.Sharifuddin Pirzada stands disqualified from appearing in this Court as Attorney-General."
16. In the light of the above discussion, since Article 140 of the Constitution itself does not envisage consultation .By the Governor with the Chief Justice/High Court in the matter of appointment of Advocate-General, the learned High Court wrongly read the same into the said Article, and the appointment of Additional Advocate-General and Assistant Advocate General being governed by the rules made by the Governor, the requirement of consultation could not be read into the rules so made unless it was explicitly provided therein. In the instant case, the Government of the Punjab, by making an amendment in the Law Department Manual (1938), vide notification 19-10-1993, provided such a consultation, but subsequently vide notification dated 3-11-1994 done away with it, which position was not altered later. We also uphold the contention of the learned counsel for the appellant raised in the light of the law laid down in the case of Hamid Sarfraz (supra) that a person appointed as Advocate General has to be one who is qualified for appointment as a Judge of the High Court, but that does not mean that he also does not suffer from the disqualifications or disabilities envisaged in respect of the office of Judge. It is clear that such a person cannot be deemed to be under the same disability as has been placed by the Constitution on a Judge of the High Court in other respects.
17. Above are the reasons for the short order of even date whereby the titled appeal was allowed and the impugned judgment/short order dated 31-3-2008 of the Lahore High Court were set aside and in consequence the writ petition filed by the respondent No, 1 was dismissed.
18. HR Cases Nos. 23315-S and 16229-S of 2010 are disposed of with the observation that the aggrieved persons may avail appropriate remedy. There will be no order as to costs.