' GULZAR AHMED, J.---Civil Appeal No,841 of 2012 and Civil Petition No,1724-L of 2012, have been filed against a common judgment dated 2-7-2012, of a learned Judge in Chamber of the Lahore High Court, Lahore. By the said Judgment, F.A.O. No,415 of 2009, filed by the appellant Ch. Anwaar-ul-Haq Arif, Advocate, so also Writ Petition No,15898 of 2009, filed by the petitioner Muhammad Kamran, Advocate, were dismissed and the appointment of respondents Nos.4 and 5 namely Munir Sadiq and Shahid Jamil as Judicial Members, Income Tax Appellate Tribunal (ITAT) was held to be in accordance with law.
2. Leave to appeal was granted vide order dated 10-9-2012, in Civil Appeal No,841 of 2012, which is as follows:--- "The petitioner, inter alia, contended that the respondents were not eligible to be appointed as Member Judicial Income Tax Appellate Tribunal on 15th July, 2009 because the constitutional amendment was introduced through PCO wherein the lower age limit for appointment of a Judge of High Court under Article 193(2) of the Constitution was reduced from 45 to 40. This amendment through PCO, has been declared unconstitutional and non-est vide judgment dated 31st July, 2009 and as a consequence all such actions taken under the so called amendment in the Constitution through the PCO were declared void, therefore, the appointment of the respondents was also liable to be set aside. He contended that the High Court without attending to this aspect of the case dismissed the FAO filed by the petitioner.
(2) Leave to appeal is granted, inter alia, to consider the above contention. As a short point is involved, the office is directed to prepare appeal stage paper books on the present record with liberty to the parties to file additional documents if need be. The appeal shall be listed for hearing within a month."?
3. Brief facts of the matter are that the Federal Public Service Commission (FPSC) had published an advertisement dated 25-10-2007, seeking applications for appointment of Judicial Member, Income Tax Appellate Tribunal (ITAT). The qualification, experience and age limit prescribed in the said advertisement was as follows:- "MINIMUM QUALIFICATION/EXPERIENCE.--- A person who has exercised the powers of a District Judge and is qualified to be Judge of a High Court. OR A person who is or has been an advocate of a High Court and is qualified to be a Judge of a High Court.
AGE LIMIT: 42-50."
' Two of the seats were meant for the candidates having domicile of Punjab Province. It seems that the post was re-advertised on 3-4-2008, in which prescribed age, qualification and experience was given as follows:--- "MAX AGE: 40 QUALIFICATION/EXPERIENCE.--- A person who has exercised the powers of a District Judge and is qualified to be Judge of a High Court. OR A person who is or has been an advocate of a High Court and is qualified to be a Judge of a High Court. OR A person who has held the Judicial office for a period of ten years as given in Article, I93(2)(a), (b) and (c) of Constitution of Islamic Republic of Pakistan."
' Through an advertisement dated 11-4-2008 age limit was amended as follows:-- "AGE LIMITS.--- Minimum 40 years, and Maximum 50 years, plus five (5) years general relaxation up to the age of 55 years."
4. The appellant and respondents Nos.4 and 5 applied for the two posts reserved for Punjab Province. It seems that after complying with the recruitment procedure, the FPSC through its letter dated 6-4-2009, recommended respondent No,4 namely Munir Sadiq and respondent No,5 namely Shahid Jamil, for appointment to the posts of Judicial Member (ITAT). The appellant was thus not recommended for appointment. Against his non-appointment, the appellant filed a representation before the FPSC which was rejected. He filed a review application which was initially dismissed on technical grounds but subsequently on the basis of order dated 3-7-2009 passed in Writ Petition No,13607 of 2009, the FPSC was directed to decide the review application of the appellant preferably within a period of six weeks. The appellant also seems to have filed FAO No,284 of 2009, in the Lahore High Court, Lahore, which too was disposed of vide order dated 18-9-2008, with direction to the FPSC to decide the review application of the appellant expeditiously possibly within a period of 3 weeks. After hearing the appellant vide letter dated 3-11-2009, the said review application of the appellant was dismissed by the FPSC. This letter of the FPSC was challenged by the appellant by filing FAO No,415 of 2009. In the meanwhile through Notification dated 15-7-2009 respondents Nos.4 and 5 were appointed as Judicial Member (ITAT), Lahore. The petitioner namely Muhammad Kamran Sheikh filed a Writ Petition No,15898 of 2009 of quo warranto in the Lahore High Court, Lahore, challenging the appointment of respondents Nos.4 and 5. As noted above, both the FAO and Writ Petition respectively filed by the appellant and the petitioner were dismissed by the High Court by the impugned Judgment.
5. Learned counsel for the appellant and the petitioner have made common submissions and have contended that the very requirement of the post of Judicial Member (ITAT) was that a person should be qualified to be a Judge of a High Court and has to meet the qualification to be a Judge of a High Court as prescribed in the Constitution. They have contended that as on the date of first advertisement i,e, 25-10-2007, the qualification that the Constitution, inter alia, provided for being appointed as a Judge of a High Court was that the age of a person should not be less than 45 years. They have further contended that even though such age limit was amended by the Constitution (Second Amendment) Order, 2007 dated 14-12-2007, where it was brought to not less than 40 years but such amendment of the Constitution was declared by this Court to be unconstitutional and non est in the Judgment reported as Sindh High Court Bar Association v.
Federation of Pakistan (PLD 2009 Supreme Court 879). They have contended that the age of respondent No,4 on the closing date of receipt of applications for the post of Judicial Member
(ITAT) was 41 years 7 months and 20 days whereas the age of respondent No,5 was 42 years and 6 days. Both did not qualify to be a Judge of a High Court and thus were not qualified to be appointed to the post of Judicial Member (ITAT).
6. On the other hand, respondent No,4 appeared in person but respondent No,5 despite notice to him remained absent. Respondent No,4 has supported the impugned Judgment and contended that in terms of Article 240 of the Constitution, the Parliament is competent fprum to prescribe condition of service for a post in connection with the affairs of the Federation and in this regard Income Tax Ordinance, 2001, (ITO, 2001) has been promulgated, section 130 of which though provides qualification of a Judicial Member that who is qualified to be a Judge of a High Court but in doing so it did not incorporate Article 193(2) of the Constitution and thus the age limit for appointment will be that prescribed by the Government for appointment of Civil Servants. The learned Deputy Attorney General has supported the submissions made by respondent No,4.
7. We have considered the submissions made by the learned counsel and respondent No,4 and have gone through the record. The question that needs to be considered in the context of present controversy is about the interpretation of section 130 of the ITO, 2001, which provides for appointment, to the Appellate Tribunal subsection (3) of which specifically deals with the appointment of a Judicial Member of the Appellate Tribunal. Such provision reads as follows:- "130. Appointment of the Appellate Tribunal.---(1) There shall be established an Appellate Tribunal to exercise the functions conferred on the Tribunal by this Ordinance.
(2) The Appellate Tribunal shall \consist of a chairperson and such other judicial and account kit members as are appointed by the Federal Government having regard to the .Needs of the Tribunal.
(3) A person may be appointed as a judicial member of the Appellate Tribunal if the person.
(a) has exercised the powers of a District Judge and is qualified to be a Judge of a High Court; or
(b) Is or has been an advocate of a High Court and is qualified to be a Judge of the High Court."
8. On reading of the provision of subsection (3) of section 130 of the ITO, 2001, it is apparent that for appointment of a Judicial Member of the Appellate Tribunal two categories of persons have been provided, one who has exercised the powers of the District Judge and the other who has been an Advocate of a High Court and both these categories of persons have been required to fulfil one common qualification that is they should be qualified to be a Judge of a High Court. What is real effect and import of the words 'qualified to be a Judge of a High Court' appearing in clauses (a) and (b) of subsection (3) of section 130 is of significance. The post of Judge of a High Court is constitutional post and qualification for appointment of such Judge has also been laid down in Article 193 of the Constitution, the relevant is its sub-Article (2) which is as follows:-- "193(2) A person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, is not less than forty five years of age."
9. Before dilating upon the subject further, it may be noted that in terms of Article 193(2) for appointment as a Judge of a High Court, a person has to be a citizen of Pakistan and not less than 45 years of age. The provision specifically with regard to age was amended by the Constitution (Second Amendment) Order, 2007, published in Gazette of Pakistan, Extraordinary Part-I, dated 14th December, 2007, by which the age for appointment of a Judge of a High Court was reduced to be not less than 40 years. As noted above, this constitutional amendment with other laws directly came in challenge in this Court in the case of Sindh High Court Bar Association (supra) where the said Constitution (Second Amendment) Order, 2007, was specifically declared to be unconstitutional and void ab initio. Thus so far the Constitution is concerned, it continued to lay down for appointment of a Judge of a High Court the age of not less than 45 years and no deviation from it at all occurred meaning thereby that the age of a person to be appointed as a Judge of a High Court at no point in time came to be changed from not less than 45 years.
10. The insertion of words 'qualified to be a Judge of a High Court' in section 130(3) of the ITO, 2001, apparently incorporates the whole text and tenor of the provision of Article 193(2) of the Constitution, which provides for qualification to the appointment to a post of a Judge of a High Court. This manner of legislation is known in law as a referential legislation and the interpretation and meaning to be derived from such referential legislation has been dealt with by this Court many a times, the latest of which was done in the case of Rana Aamer Raza Ashfaq and another v.
Dr. Minhaj Ahmad Khan and another (2012 SCM R 6) wherein the Court dealt with it as follows:- "16. The insertion of subsection (8) in section 11 of the Act and similar provision in Statutes of other Universities are instances of referential legislation which is a common device to incorporate earlier statutory provisions by reference rather than setting out similar provisions in totality. Such legislation is as old as the Latin maxim Verbal relate hoc massive operator per referential ut in his finesse indenture i,e, words to which reference is made in an instrument have the same effect and operation as it they were inserted in the clause referring to them.
17. Referential legislation broadly is of two kinds i,e, either a specific provision of a certain Act is incorporated into another Statute or the provision of a certain Statute or the provision of a certain Statute is incorporated by a general reference. Laws including the adopted provisions do not remain static and issues crop up when the adopted provisions are amended in the earlier Statute.
The question whether subsequent amendments in such adopted provisions either by specific incorporation or by a general reference would be ipso facto read into the latter has been a subject of judicial comment. In Bayaya v. Gopikabai and another (AIR 1978 SC 793), the Court was of the view as follows:- ' Broadly speaking, legislation by referential incorporation falls in two categories: First,' where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second where a statute incorporates by general reference the law concerning a particular subject as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to conclude all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This [principle of construction of a reference statute has been neatly summed up by Sutherland, thus: ' A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.
' Vide, Sutherland's Statutory Construction, Third Edition, Article 5208, page 5208).
' Corpus Juris Secundum also enunciates the same principle in these terms: ...Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof... The reference will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute.
18. In a rather instructive Judgment of the Lahore High Court in Pakistan International Airlines Corporation v. Chairman, Punjab Labour Appellate Tribunal, Lahore (PLD 1979 Lahore 415), the rule of interpretation in this context was summed up as follows:-- "37. The rule of interpretation to be inferred from all the references quoted above is:
(a) when a statute adopts a part or all of another statute by specific or descriptive reference, the adoption takes the statute as it exists at that time and the adopted, provisions with necessary adaptation if any became a part of the adopting statute as if it was written down in it;
(b) any subsequent addition to or modification of the adopted statute, can be included in the - adopting statute only if so expressly or impliedly provided in the adopting statute;
(c) when particular sections of an earlier statute are expressly incorporated into a later statute the other sections of the earlier statute may be referred to in order to resolve any ambiguity or obscurity that may arise in its interpretation of that section;
(d) when the adopting statue refers to law generally which governs a particular subject, the reference in such a case includes not only the law in force at the date of adopting Act but all subsequent laws on the particular subject referred to, in so far as they are consistent with the adopting law;
(e) when Legislature in adopting the procedural provision of another Act, made substitutions in certain instances, it will be inferred that in matters not specified no substitutions were intended."
19. In a recent Judgment of the Supreme Court of India dated 11-1-2011 passed in Messrs Girnar Traders v. State of Maharashtra and others (Civil Appeal No,3703 of 2003 and Civil Appeal No,292 of 2011), a similar view was taken and it was held as follows:- "Reference to an earlier law in the latter law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i,e,, by incorporation. In the case of legislation by reference, it is fictionally made a part of the latter law.
We have already noticed that all amendments to the former law, though made subsequent to the enactment of the latter law, would ipso facto apply and one finds mention of this particular aspect in section 8 of the General Clauses Act, 1897. In contrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them pat of another and in such cases subsequent amendments in the incorporated Act could not be treated as part of the incorporating Act. Ultimately, it is the expression and/or the language used in the new law with reference to the existing law that would determine as to under what class of referential legislation it falls".
11. The law laid-down in the case of Rana Aamer Raza Ashfaq (supra) apparently is applicable to the case in hand in that Article 193(2) of the Constitution seems to have been incorporated by general reference in the provision of section 130(3) of the ITO, 2001, thus providing the qualification, for appointment of a person as a Judicial Member of the ITAT, one who should qualify to be a Judge of a High Court, the prescribed age for which is not less than 45 years. Thus it becomes essential and mandatory that the person who seeks appointment to an office of Judicial Member of the ITAT should have an age not less than 45 years, the one provided under Article 193(2) of the Constitution. In the face of such qualification being read in section 130(3) of the ITO, 2001, the provision of age limit for appointment of a Judicial Member of the ITAT as provided in the advertisements was altogether beyond the mandate of law and thus was not applicable. Both respondents Nos.4 and 5 admittedly were less than 45 years of age.
12. It seems that the learned High Court while dealing with the matter before it, omitted to take into consideration the above aspect, facts and circumstances and the applicable law on the subject and thus proceeded to pass Judgment, which is not supportable in law. Consequently, Civil Appeal No,841 of 2012 is allowed so also Civil Petition of 2012 is converted into appeal and is allowed. The impugned Judgment dated 2-7-2012, is set aside and the recommendation letter dated 6-4-2009 of the Federal Public Service Commission for appointment of respondents Nos.4 and 5 and the notification dated 15-7-2009, appointing respondents Nos.4 and 5 as Judicial Member (ITAT) is held to be without lawful authority and of no legal effect and are accordingly set aside. The Federal Public Service Commission is directed to undertake fresh exercise for appointment of Judicial Members of (ITAT) now Appellate Tribunal Inland Revenue at the earliest so that the posts do not remain vacant to the detriment of the litigants.