' IJAZ AHMAD, J. This judgment will dispose of F.A.O. No,415 of 2009 titled Ch. Anwaar ul Haq Arif Advocate v. The Federation of Pakistan and others Writ Petition No,10608 of 2010 titled Sajjid Hussain Rai, Advocate v. The Federation of Pakistan and others and Writ Petition No,15898 of 2009 titled Muhammad Kamran Advocate v. The Federation of Pakistan, etc. The last two petitions are of the nature of quo warrant.
2. The Federation of Pakistan, Ministry of Law and Justice, Islamabad/respondent No,1 through Federal Public Service Commission of Pakistan (FPSC), respondent No,2 advertised vacancies for the posts of Member Judicial Income Tax Appellate Tribunal (BPS-21) through a consolidated advertisement dated 25-10-2007. The age limit was 42 to 45 yeaRs, The closing date was 27-11- 2007. The FPSC re-advertised the four posts of Judicial Member including the two reserved for those' domiciled in Province of the Punjab, vide its advertisement No,7/2008 dated 3-4-2008 published in the daily newspaper on 6-4-2008. The closing date was 6-5-2008. The age limit was 40 to 50. The appellant, respondents Nos.4 and 5 and the others applied for the two posts reserved for those domiciled in the Province of the Punjab. The appellant and respondents Nos.4 and 5 were amongst those 16 candidates who qualified the written examination. The FPSC, vide letter dated 7- 4-2009 intimated the appellant that he had not been recommended for the appointment. Vide letter dated 6-4-2009, the respondents Nos.4 and 5 were recommended for the appointment as Members Judicial to the Tribunal. Having not been recommended, the appellant filed representation under section 7(3)(a) of Federal Public Service Commission Ordinance, 1977 before respondent No,2. It was rejected, vide letter dated 4-6-2009. The appellant filed a review petition under section 7(3)(b) of the Ordinance ibid and also filed Writ Petition No,13607 of 2009. This Court, vide order dated 3-7-2009, 'directed respondent No,2 to decide the review application within six weeks. Respondent No,2 vide order dated 13-7-2009 dismissed the review petition for the reason that the same had been filed five days beyond the period of limitation and was not accompanied by a fee of Rs,100. At this juncture, respondent No,1 issued notification dated 15-7-2009 appointing respondents Nos.4 and 5 as Members Judicial to the Tribunal. The letter dated 13-7-2009 refusing to proceed with the review petition was challenged by the appellant in F.A.O. No,284 of 2009.
Resultantly, the order dated 13-7-2009 was withdrawn. Vide letter dated 13-8-2009, the appellant was communicated that his review petition would be decided on merits. In view of the issuance of the last mentioned letter, this Court disposed of F.A.O. No,284 of 2009 vide order dated 18-9-2009 directing the respondent No,2 to decide the appellant's review application within three weeks.
Respondent No,2, vide letter dated 3-11-2008, informed the appellant that his review petition had been dismissed on account of being low in the order of merit. In the instant appeal, the appellant impugns the letters issued and the orders passed by the FPSC dated 6-4-2009, 7-4-2009, 4-6- 2009, 3-11-2009 and the notification dated 15-7-2009 issued by respondent No,1.
3. It is argued by the learned counsel for the appellant that on the closing day i,e, 6-5-2008, for making the applications, when the required lower age limit of a Judge of a High Court was 45 years, the ages of the appellant and that of respondents Nos.4 and 5 were as follows:--- {{TABLE}} Name Date of BirthAgeonclosingdate(6-5-2008)
Anwaar ul Haq (appellant) 2-4-1963 45 years 1 month and 2 days Munir Sadiq (respondent No.4) 16-9-1966 41 years 7 months and 20 days Shahid Jamil Khan (respondent No.5)30-4-196642 years and 6 days {{TABLE}} ' Contends that the qualification for appointment of a Member is regulated by the law which is a subjective condition specified in Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973, therefore, inherent disqualification or disability which includes the deficiency in the lower age limit, is not cureable by the passage of time. Relies on "1998 SCMR 2190" titled Farhat Ali Khan v. Ch. Muhammad Siddique and others "PLD 2010 Lahore 160" titled Shazia Munawar v. Punjab Public Service Commission through Secretary, Lahore and "PLD 1996 Lahore 615" titled Shahid Islanz v. NIRC and otheRs, He also relies on the case reported as "PLD 1969 SC 42" titled Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others". In this case, the upper age limit of a Judge has been discussed in case of appointment of an Advocate General of the Province whose age had exceeded 60 yeaRs, He also relies on "PLD 1996 Supreme Court 324" titled Aljehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and otheRs, Regarding the retrospectively of law, relies on "PLD 2006 Lahore 512" titled Lt. General Jamshed Gulzar Chairman FPSC Islamabad and 4 others v. Federation of Pakistan through Secretary Establishment Division Government of Pakistan Islamabad and 2 otheRs, It is further argued that the Commission was not properly constituted and the department was not represented through the Chairman.
4. On the other hand, it is contended by respondent No,4 in person and the learned counsel for respondent No,5 and Mr. Ashraf, Khan, the learned Deputy Attorney General appearing for the Federation of Pakistan that it is a well settled principle of law that a party cannot go beyond its pleadings. The basic grievance of the appellant in this appeal is that the FPSC had conducted the interview in presence of a Departmental Representative who was not the Chairman and was instead a Senior Joint Secretary and thus FPSC OM.No,F.1/20/80-R-IV dated 19-4-1981 was violated, whereas in his representation and the review application the appellant had a different stance altogether. He accepted the nomination of Departmental Representative and sought the recommendation from the same Commission. This somersault disentitles the appellant to have the relief claimed through this appeal; that any violation could only be objected to by the FPSC and none else; that the constitutional petitions seeking the issuance of Writ of Quo Warranto are not maintainable as Muhammad Kamran, the petitioner in Writ Petition No,15898 of 2009 had ended as an unsuccessful candidate in the recruitment process and has filed the petition to satisfy his vengeance. Sajjad Hussain Rai, the petitioner in Writ Petition No,10608 of 2010 is a tool in the hands of Anwaar ul Haq, the appellant. Both these petitions have been filed in combination with the appellant to foster the nefarious designs of the latter. Reliance is placed on "PLD 1969 SC 42" titled Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others "2004 PLC (C.S.) 1328" titled Muhammad Liaquat Munir Rao v Shams-ud-Din and others and "2004 SCMR 1299" titled Dr. Azim- urRehman Khan Meo v. Government of Sindh and another; that on 3-4-2008 at the time of making of the advertisement in question, on 6-5-2008, the closing date and on 15-7-2009, the date of appointment of respondents Nos.4 and 5, the age required for appointment of a Judge of a High Court mentioned in Article 193 of the Constitution was 40 years, respondents Nos.4 and 5 not suffering from any disability and having been placed at the first two top positions in the merit list have rightly been appointed as the Members to the Tribunal; that the post of a Member to the Tribunal is the Service of Pakistan and not the Constitutional post. The age limit prescribed for a Judge does not apply in the case of a Member. In the advertisement, the minimum and the maximum age limit of a candidate has been prescribed independently from the age of a Judge and distinctly from qualifications which are regulated by reference to the qualifications prescribed for a Judge of a High Court in Article 193 of the Constitution; that the law cannot be interpreted in a way which may render Articles 240 and 242 of the Constitution and various provisions of the Acts and the Rules redundant and nugatory. Reliance is placed on "PLD 1996 SC 324" titled Al- Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others; that by having been appointed as members, a vested right has been created in favour of respondents Nos.4 and 5 which make the whole exercise a past and closed transaction on 15-7-2009 i,e, the day of appointment. Such a right cannot be taken away by 18th Amendment in the Constitution. Reliance is placed on "1988 SCMR 715" titled The Chief Land Commissioner Sindh and others v. Ghulam Hyder Shah and others and "1993 SCMR 1905" titled Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and others; that even if there was any deficiency in the required qualification such as the lower age limit, the same has been cured by the passage of time, respondents Nos.4 and 5 do not suffer from the said deficiency.
5. I have heard the learned counsel for the parties, respondent o.4, the learned Deputy Attorney- General and has also gone through the record.
6. The appellant in his representation and the review petition made before the FPSC had not raised any objection regarding the constitution of the commission or the representation of the department and had sought relief from the same commission. Now he is estopped from challenging the constitution of the commission for the first time in this appeal.
7. The closing date for receipt of the applications in the first advertisement was 27-11-2007. In the subsequent advertisement, it was pinned as 6-5-2008. The second advertisement stipulated the qualification and experience as the same i,e, required for being appointed as a Judge of the High Court as given under Article 193(2)(a)(b) and (c) of the Constitution. The advertisement however, fixed the minimum age of a candidate at 40 years and the maximum at 50 years + 05 years general relaxation. The question that needs be resolved is whether respondents Nos.1 and 2 could or could not fix the minimum or maximum age for a Member Judicial different from the one required for a Judge of a High Court under Article 193 of the Constitution after requiring the qualification from a candidate identical to those required for being taken as a Judge; what was tne lower age limit prescribed for a Judge of a High Court on the closing day and on the day of appointment of respondents Nos.4 and 5 as a Members in the instant case and the effect of Clause II of section 69 of the Constitutional (18the Amendment), Act of 2010 whereby in Article 193
(2) the word "Forty" was substituted and shall be deemed always to have been so substituted i,e, the day of 21-8-2002 'The Appellate Tribunal Inland Revenue, former Income Tax Appellate Tribunal is a department of Ministry of Law, Government of Pakistan. The appointments of the Members to the Tribunal are made and regulated in accordance with subsection (3) of section 130 of the Income Tax Ordinance, 2001, the "Appointment, of Income Tax Appellate Tribunal Members Rules, 1988" read with and the instructions issued by respondents Nos.1 and 2 from time to time and with reference to the Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. Under Article 240 of the Constitution of the Islamic Republic of Pakistan, 1973, the appointments to and the conditions of service of persons in the Service of Pakistan shall be determined by or under an Act of Parliament which in the instant case, is the Income Tax Ordinance, 2001. Section 130(3) of the Ordinance, 2001, provides as follows:--- "A person may be appointed as judicial member of the Tribunal, if the person----
(a) "has exercised the powers of the 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."
Under Rule 3 of the Appointment of Income Tax Appellate Tribunal Members Rules, 1988, "a candidate must possess the educational qualification and the experience and must be within the age limit mentioned against the post concerned in the Schedule to the SRO-5(I)/98 dated 5-1- 1998. The schedule sets the limit of the age of a Member between 42 to 50 yeaRs, The advertisement sets the age limit at 40 to 50 yeaRs, The Constitution however sets different lower age limit. Article 193(2) of the Constitution provides as follows:--- "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, and---
(a) he has for a period of, or for periods aggregating, not less than ten years been, an advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day).
The aforesaid lower age limit was enhanced from the initial 40 years to 45 by the amendment made through the LFO, 2002 dated 21-8-2002 which was validated by the Constitutional 17th Amendment Act, III of 2003. In pursuance of the proclamation of the Emergency on 3rd day of November, 2007, Article 193(2) of the Constitution was amended vide Provisional Constitutional Order No,6 of 2007 dated 14-12-2007 and the lower age limit of a Judge of High Court was reduced from 45 to 40 yeaRs, There is selective borrowing of provisions of Article 193(2) of the Constitution of Islamic Republic of Pakistan. Similar but less selective borrowing from this Article .Of the Constitution has also been made in case of the appointment of the Attorney General of Pakistan and an Advocate-General for the Province under Articles 100 and 140 of the Constitution. In these Articles, the reference has been made to the qualification required for appointment of a Judge of Supreme Court of Pakistan and a Judge of High Court, respectively. A person to be appointed to either of these offices is to possess the qualification of a Judge of the Supreme Court or the High Court as the case may be but that does not mean that he shall also not be suffering from disqualification or the disabilities envisaged in respect of a Judge. Reliance is placed on "PLD 2011 SC 7" titled Secretary Ministry of Law, Parliamentary Affairs and Human Rights, Government of Punjab and others v. Muhammad Ashraf Khan and otheRs, The judgments "1998 SCMR 2190" referred by the learned counsel for respondents Nos.4 and 5 being earlier, will yield to this esteemed judgment. AIR 1983 Rajasthan 149 titled Dr. Chandra Bhan Singh v. State of Rajasthan and others AIR 2004 Allahabad 133 titled Manendra Nath Rai and another v. Virendra Bhatia and othersare also relied. In the instant case, the advertisement made by respondent No,2 sets a minimum and maximum age limit of a candidate separately and distinctly from the age required in case of a Judge and from other qualifications and the disqualifications borrowed from Article 193 of the Constitution. It cannot be said that a candidate for being appointed a Member Judicial must be of the same minimum age that is required in case of a Judge. This advertisement, the SRO and the Rules ibid also set a maximum age limit at 50 for a Member which is not so set for a Judge. This also lends support from my view that minimum age required is not the one which is provided for a Judge under Article 193 of the Constitution. Thus, it can safely be held that the question of age has been reserved and separated in case of a Member from a Judge.
8. The appointments in question relate to the service of Pakistan and fall under Article 240 of the Constitution and are regulated by section 130 of the Income Tax Ordinance, 2001. The appointments against these posts are made by the Federal Public Service Commission as prescribed in Article 242 of the Constitution. The law cannot be interpreted in a way which may render Articles 240 and 242 of the Constitution and the provisions of Ordinance, 2001 and the Income Tax Appellate Tribunal Member Rules, 1988 redundant and nugatory. Reliance is placed on "PLD 1996 SC 324". On the closing day i,e, 6-5-2008 and on the day of appointment of respondents Nos.4 and 5 i,e, 15-7- 2009, .The lower age limit of a Judge was:40 years as the Constitutional 17th Amendment Act, III of 2003 was in vogue. The 18th Amendment Act, 2010 of 20th April, 2010 was yet to come. The selection of respondents Nos.4 and 5 as Members Judicial, their ages, being 41 years 7 months 20 days and 42 years 6 days respectively, were in accordance with the Rules of 1988, Income Tax Ordinance, 2001 and Article 193 of the Constitution The appointments of respondents Nos.4 and 5 on 15-7-2009, have become past and closed transaction. The punitive application of law has to be prospective and not retrospective. Reliance is placed on "1988 SCMR 715" titled The Chief Land Commissioner Sindh and others v. Ghulam Haider Shah and others and "1993 SCMR 1905" titled Molasses Trading and Export (Pvt.) Limited v. Federation of Pakistan and otheRs,
9. For what has been discussed above, it is held that respondents Nos.4 and 5 were appointed in accordance with law. This appeal lacks the merit. It is, hereby, dismissed. The constitutional petitions of the nature quo-warrant are also dismissed for the reasons given above.