' SARDAR ABDUL HAMEED KHAN, J.--- The supra titled writ petition has been filed under section 44 of AJ&K Interim Constitution Act, 1974, whereby the petitioner has sought the following relief:-- "It is therefore, very humbly prayed that by accepting the writ petition an appropriate writ may kindly be issued in the following manner:-
(a) That the advice of respondent No.1 regarding elevation of respondents Nos.7 and 8 as Judges of High Court along with the notification No.LD/AD/372-412/2011 dated 24.02.2011, Whereby, respondents Nos.7 and 8 has been appointed as judge of High Court may kindly be declared illegal, against the constitutional provisions, and against the judgments of Superior Courts as without consultation of relevant consultees, may kindly be declared as ab initio void and the same may kindly be set aside by vacating the office held by the respondent No.7.
(b) The Honorable respondent No.7 may kindly be asked that under what authority of law he is holding the office as Judge of the High Court against the constitutional provisions, moreover, the respondents Nos.1 to 6 may kindly be asked that under what authority of law they have issued Notification No.LD/AD/372- 412/2011 dated 24.02.2011.
(c) That the respondent No.8 has been retired but on the basis of illegal notification benefited the pension, and other privileges as judge of High Court for which he cannot be deserved, which need recovery from respondent No.08 and in this regard all facilities render to him are liable to be cancelled as without lawful authority. Any other relief which is deemed fit and proper may kindly be awarded."
2. Precise facts leading to the filing of the instant writ petition, as per claim of the petitioners are that respondents Nos.7 and 8 were elevated as Judges of the High Court of Azad Jammu and Kashmir vide notification No.LD/AD/372-412/2011 dated 24.02.2011. It is stated that the appointments have not been made in accordance with the provisions of law, as Section 43(2)(a) of the Interim Constitution Act, 1974 provided consultation of Chief Justice of the Supreme Court of Azad Jammu and Kashmir and the Chief Justice of Azad Jammu and Kashmir High Court. It is alleged that in the proposal submitted by the Chief Justice of High Court of Azad Jammu and Kashmir, the name of respondent No.7 was not included, whereas, that of the Hon'ble Chief Justice of Azad Jammu and Kashmir, did not contain the name of respondent No.8, therefore, the notification of appointment of both the learned Judges is ab-initio void and liable to be declared as such. It also stated that the letter written by the Chief Justice of High Court of Azad Jammu and Kashmir cannot be termed as 'recommendation, proposal or consultation' and the notification issued in furtherance, thereof, is also void ab initio.
3. Respondents were summoned for filing comments and the needful has been done, accordingly and separately. Respondents Nos.4 to 6, under the direction and authority of Law Department of AJK dated 29.10.2015 filed by Abdul Rashid Abbasi, Advocate and respondents Nos.7 and 8, in their comments have refuted the claims of the petitioners in toto and have stated that the consultation; as per the requirement of the Constitution was made, as is evident from the Letter written by the Chief Justice of High Court of Azad Jammu and Kashmir to the President of Azad Jammu and Kashmir dated 22.02.2011. It is also stated that the writ petition is hit by laches coupled with the fact of mala fide, as the same has been filed after elapse of more than four years and the petitioners are estopped by their conduct to file the petition, as they have been appearing before the private respondents Nos.7 and 8 for a long period, therefore, they have no right to call in question the authority of the respondents.
4. In the comments on behalf of respondent No.4, (President Secretariat), filed by Manzoor Hussain Raja, signed by Addl. Secretary, President Secretariat, it has been stated that in the recommendation sent by the Chief Justice of High Court, name of respondent No.7 was not included, whereas, the recommendation submitted by the Chief Justice of Azad Jammu and Kashmir did not contain the name of respondent No.8.
5. Syed Zahid Hussain Shah, Law Draftsman, appeared on behalf of respondents Nos.1 to 3 and sought time for engaging counsel and filing comments, however, the needful was not done by Respondents No.1 to 3, therefore, preliminary arguments were heard.
6. Mr. Ahmed Nawaz Tanoli, Advocate, petitioner No.1, appearing in person, reiterated the grounds taken in the petition and argued that the appointments of respondents Nos.7 and 8 have not been made in accordance with the provisions of section 43(2-A) of the Interim Constitution Act, 1974. The learned counsel maintained that under the above section, for elevation of Judges of Superior Court has been provided which postulates that consent/recommendation of both the Chief Justices is mandatory, whereas in the case in hand the name of private-respondent No.7 was not :included in the panel submitted by the Chief Justice High Court and likewise the name of private-respondent No.8 was not recommended by the Hon'ble Chief Justice Supreme Court, hence, the elevation of both the above respondents was in contravention with the mandatory provision of the Constitution.
The learned counsel contended that the petitioners applied before the President Secretariat for attested copies of the recommendations, advice of the Chairman Azad Jammu and Kashmir Council, Notification of appointment of respondents Nos.7 and 8 and other correspondence but the same were not provided by the said Secretariat and the affidavit to that effect has been annexed with the petition. The petitioner/learned counsel, while arguing on laches maintained that the petitioners got the knowledge about the illegalities in the elevation on 15.04.2015, .When a resolution was passed by the Bar Council Secretariat hence, the petition has been filed well within time. While discussing the allegation of mala fide in filing of the writ petition the learned counsel contended that they being custodians of the