MAMOON RASHID SHEIKH, J.---As per the array of parties the instant petition has been filed by the High Court Bar Association Rawalpindi through Taufiq Asif, its President and the members of the Executive Committee. Para-1 of the petition, however, maintains that the petitioner is the Executive Committee of the High Court Bar Association Rawalpindi for the year 2013-2014. I, therefore, propose to treat the petition as having been filed by the said Executive Committee which shall collectively be referred to as "the petitioner" hereinafter.
2. The petition calls into question the order dated 21-2-2014 whereby the learned Executive Committee of the Punjab Bar Council (respondent No,1) has held as under:-- "3. The contention raised by the appellants need consideration. We hereby admit the appeal for regular hearing and suspend the order 20-2-2014 of the Election Board and postpone the election till the next date of hearing as the Executive Body of the Bar Association had become factious Officio (sic) after constitution of Board, hence for running the affairs of the High Court Bar Association there is need to appoint a suitable person as Care Taker President for running the affairs of Bar Association. Accordingly in the larger interest of the High Court Bar Association, Rawalpindi, Sheikh Zamir Hussain, Senior Advocate Supreme Court of Pakistan, is appointed as Care Taker President of Lahore High Court Bar Association, Rawalpindi Bench Rawalpindi, to run the affairs of the Bar Association, further requested to record of the Election Board be requisitioned and to take control of whole election process and to produce the said record before the Executive Committee of the Punjab Bar Council on 1st March, 2014.
4. The office is directed to convey this order immediately either through fax or telephonically to the Election Board as well as to defunct President of Lahore High Court Bar Association Rawalpindi Bench, Rawalpindi, and the Secretary of the Bar Association is directed to affix/paste this order on the Notice Board of the Bar Association immediately."
3.At the outset the learned principal counsel for the petitioner, who happens to be the President of the High Court Bar Association, Rawalpindi, for the year 2013-2014, has been required .To establish the petitioner's locus standi and the maintainability of the petition in view of the fact that the tenure of the office bearers of the High Court Bar Association Rawalpindi, including the Executive Committee (the petitioner), for the year 2013-2014 ended on 22-2-2014, therefore, by virtue of the provisions of Article 10 of the Constitution of the High Court Bar Association Rawalpindi, 1981, the said office bearers have ceased to hold office. Article 10, ibid, is being reproduced hereunder for ease of reference.
"10. President, Senior Vice President, Vice President, Secretary General, Additional Secretary (Women) Joint Secretary, Library Secretary, Finance Secretary and Auditor and five other members of the Executive Committee shall be elected at the Annual General Meeting of the members and shall hold office for one year.
Provided if no election is held before the expiry of one year of their office, the existing office bearers shall cease to hold office.
Provided that the election of the office bears of the Association held in February, 1981 shall always deemed to have been held under the provisions of this Constitution. "(Emphasis supplied)
4. The learned principal counsel for the petitioner submits that the impugned order is void ab initio as respondent No, 1 did not have any jurisdiction in the matter. Contends that upon addition of "Rules 175-G to 175-K in Chapter XII-A" of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, by virtue of the Pakistan Legal Practitioners Bar Councils (Second Amendment) Rules, 2013, candidates contesting the Bar Council elections are required to meet the following criteria with effect from 1-1-2014:- "175-G. Election dates of Bar Associations:--- For the purpose of creating uniformity in holding of elections to different Bar Associations and in order to avoid exercise of dual right of vote by an Advocate, the elections to the District/Tehsil/ Taluka Bar Associations in different provinces will be held on one and the same day. Likewise the elections of different High Court Bar Associations throughout the Province shall also be held on the same day as under:-
(a) Punjab: The election to the District/Tehsil Bar Associations in the Province of Punjab shall be held on 2nd Saturday of January each year whereas the election of each of the High Court Bar Associations in Punjab shall be held on last Saturday of February each year.
(a) Sindh (c)
(c) Other offices i.e Finance Secretary/ Library Secretary Executive Committee 3 years (c)
(d) Khyber Pakhtunkhwa
(e) Balochistan: 175-H, Code of conduct for contesting Election for Bar Association:--
(a) No contesting candidate or his supporter shall canvass for votes through advertisements, pla- cards, stickers and posters.
(b) No meal/lunch/dinner by a contesting candidate or his supporter will be given to voters directly or indirectly in connection with election campaign.
(c) It shall be the pre-requisite that contesting candidate for an office of Bar Association is purely a professional practising Advocate and is member of the Bar Association concerned for not less than three years having active length of practice as under:- Post Length of Practice President (i) 10 years in case of Tehsil/Taluka Bar Association; and (ii) 15 years in case of District and/or High Court Bar Association.
Vice-President (i) 7 years in case of Tehsil/Taluka Bar Association; (ii) 10 years in case of District Bar Association; and (iii) 12 years in case of High Court Bar Association.
Secretary (i) 5 years in case of Tehsil/Taluka Bar Association; (ii) 7 years in case of District Bar Association and (iii) 10 years in case of High Court Bar Association Other offices i.e. Finance Secretary Library Secretary/Members, Executive Committee3 years Explanation: -- To
(i) meet the requirement being of a professional practising Advocate the candidate shall file certified copies of powers of attorney at least of 15 cases as per year relating to preceding 3 years; and
(ii) The length of practice as mentioned above means practice as an Advocate of Subordinate Courts for contesting election against an office of the District/Tehsil/Taluka Bar Association and practice as an Advocate of the High Court for contesting election for an office of the High Court Bar Association."
5. Further submits that several candidates contesting the various Offices of the High Court Bar Association Rawalpindi for the year 2014-2015 were disqualified by the Election Board of the High Court Bar Association Rawalpindi (respondent No,3) as they did not meet the above criteria. As per Rule 7-E of the Election Rules as contained in Appendix-IV of the Constitution, ibid, an appeal against the decision of respondent No,3 lies to the Executive Committee of the High Court Bar Association, Rawalpindi. A number of disqualified candidates filed appeals which are still pending.
In the meantime, however, the impugned order was passed by respondent No,1, therefore, depriving the candidates their right of appeal and in turn also depriving the Executive Committee (the petitioner) the right to hear the appeals.
6. Further submits that the applicability of the afore-referred amendments in the Rules, ibid, is sub judice before the learned Pakistan Bar Council, as also before the learned Islamabad High Court.
Notwithstanding the above pendency of the matter the amended Rules, ibid, have been made applicable to the elections of various High Court Bar Associations in the Punjab which is exemplified by the fact that previously at the Bahawalpur and Multan Benches of the Lahore High Court High Court Bar Association elections were not held in the month of February, however, this year the said elections have been held contemporaneously at the Principal Seat and all Benches of the Lahore High Court, on 22-2-2014. This goes to show that the amended Rules, ibid, have been accepted by the High Court Bar Associations in the Punjab, therefore, respondent No,1 in passing the impugned order has acted illegally and with material irregularity.
7. Contends that by virtue of the provisions of section 9(1)(i) of the Legal Practitioners and Bar Councils Act, 1973, respondent No,1 is bound to comply with the directions given by the learned Pakistan Bar Council. Similarly the provisions of Rule 184(1), (2) & (4) of the Pakistan Legal Practitioners and Bar Councils Rules, 1976, require that respondent No,1 should conform to the directions given by the learned Pakistan Bar Council. In having passed the impugned order respondent No,1 is in violation of the above provisions.
8. Contends that the appellants before respondent No,1 had a right of appeal nor respondent No,1 was invested with the jurisdiction to declare the petitioner as functus officio.
9. Further contends that through the impugned order the petitioner was illegally stopped from performing its functions before expiry of its tenure. Relies on "Julius Salik v. Returning Officer and 27 others" (1989 CLC 2499), "Anjum and 2 others v. Mst. Sufaidan and 3 others" (PLD 1989 Lahore 103), "Shah Muhammad v. Shafey Ali Khan and others" (1988 MLD 956) and "Abdul Wahid and another v.
Din Muhammad and others" (PLD 1982 Lahore 168) to contend that an elected person cannot be restrained from performing his duties in accordance with the law.
10. Also contends that an elected person who has been stopped from performing his functions before the end of his tenure can be restored to the office to perform his functions. Relies on the judgment reported as " Mian Muhammad Nawaz Sharif vs. President of Pakistan and others" (PLD 1993 SC 473).
11. Submits that there is no provision under the Constitution, ibid, for appointment of a caretaker.
12. Contends that the impugned order is mala fide and discriminatory inasmuch as on the one hand respondent No,1 has directed that the High Court Bar Association Rawalpindi's election be not held on 22-2-2014, whereas on the other hand in case of the Islamabad High Court Bar Association's elections respondent No,1 through order dated 21-2-2014 has directed that the elections cannot be postponed as the day to day affairs of the said Bar Association cannot be left unattended. The petitioner's fundamental right under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, has been violated.
13. Also contends that the impugned order was passed on 21-2-2014 thereby depriving the petitioner from functioning during the last two days of its tenure. Prays that the impugned order may be set aside and till such time elections are held the present petitioner be allowed to function as a caretaker body.
14. I have considered the arguments of the learned counsel for the petitioner which although are quite extensive vis-a-vis the question of the legality or otherwise of the impugned order yet they do not address the issue that once the tenure of the 2013-2014 office bearers of the High Court Bar Association, Rawalpindi (including the petitioner). Was over then in what capacity can they claim to continue to remain in office as Article 10 of the Constitution, ibid, contains an express bar in respect thereof.
15. Reference by way of analogy may be made to the judgments reported as "Sajjad Ahmad Bhatti v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others" (2009 SCMR 1448) and "Federation of Pakistan through Secretary Establishment Division v. Shahid Hayat and another" (2010 SCMR 169) wherein it was, inter alia, held that the retirement age of a civil servant cannot be postponed for the reason that the person remained on an erratic posting for a certain period or that he was prevented from discharging his official duties for any cause including suspension or forced leave.
16. It would, therefore, follow that tenure of the petitioner cannot be extended in any circumstances in view of the provisions of Article 10 of the Constitution, ibid, and the principle of law as laid down by the Hon'ble Supreme Court in the cases cited herein above.
17. The learned counsel has similarly been unable to establish that the petitioner has a vested right to continue in office to hear the appeals of the disqualified candidates.
18. In view thereof I find that the petitioner does not have the locus standi to bring the instant petition.
19. Under the circumstances without dilating upon the vires or legality or illegality of impugned order I hold that the instant petition is not maintainable and is dismissed accordingly in limine with the observation that respondent No,1 shall endeavour to decide the appeal pending before it with reasonable dispatch.