' 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 No, 7 and 8 as Judges of High Court alongwith the Notification No LD/AD/372-412/2011 dated 24.02.2011, whereby, Respondents No, 7 and 8 has been appointed as judge of High Court may kindly be declared illegal, against the constitutional previsions, 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 No, 1 to 6 my 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 No, 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 is 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 No, 4 to 6, under the direction and authority of Law Department of AJK dated 29.10.2015 filed by Mr. Abdul Rashid Abbasi, Advocate and Respondents No, 7 & 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 No, 7 & 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. Sy ed Zahid Hussain Shah, Law Draftsman, appeared on behalf of Respondents No, 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 No, 7 & 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 Courts 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 No, 7 & 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 constitution have come to the Court for the supremacy of law and independence of judiciary and they have no mala fide or personal grudge leading to the filing of the instant writ petition. The learned counsel, while referring to the letter written by the Hon'ble Chief Justice High Court Azad Jammu and Kashmir on 22.02.2011 contended that the said letter cannot be termed as {{BLUR PAGE}} recommendation/consultation and the same is only an official letter written in response of some query niade by the President of Azad Jairirriti and Kashmir which does not fulfill the requirement of consultation provided in the Constitution. It was further contended by the petitioner that the petition has been filed bona-fidely, whereas the impugned appointment of Respondents No, 7 & 8 is the glare example of mala fides of the respondents. While concluding his arguments the learned counsel/petitioner contended that the material brought on record d by him and the points raised in the arguments constitute sufficient cause for the admission of the petition and issue of rule nisi to meet the ends of justice, therefore, he petition be admitted for regular hearing. In support of his claims/stance on different points, the learned counsel referred and relied upon the following case law:--
1. PLD 1993 SC 324
2. 2012 SCR 213
3. 2001 SCR 97,
7. Sardar Iftikhar Ahmed Ran, Advocate/Petitioner No, 3, eppeering in perscn, as well a on Ixelialf of Petitioner Nu. 2, while zmptingri-upporCng the: rink:lin:ens-a ad'eo.Rieed by the Petitioner No 1, added that serious law points as well as interpretation of the term "consultation" in light of the con,ii itution on well as judge made law on the point is involved in the case in hruid wIlich can only be resolved in regular hearing, after admission of the instant Writ petition therefore, the pr.Titien be admitted for regular hearing and referred the following cases law:-
1. PLD 2013 SC 268.
2, PLD 2014 123.
3. 2013 NILD 4
4. 2011 YLR 2850 J. 2007 SUM 507.
6. 2013 scri 12.
7. 1997 SCR 5.
8. 2011 SCR 595.
9. 1993 SCR 88.
10. AIR 1994 SC 268. 11, 2003 SCR 88.
8. Sardar Muhammad Khurshid Khan, Advocate, Petitioner No, 2, also appeared in person and adopted the arguments advanced by Petitioners No, 1 & 3.
9. Mr. Abdul Rashid Abbasi, Advocate, the learned counsel appearing on behalf of Respondents No, 5 to 8, while controverting the stance of the petitioners, argued that writ of quo-warranto cannot be issued against a person who is not holding any public office and in the instant case, private- Respondent No, 8 is neither holding any public office nor is going to hold any such position therefore, the writ of quowarranto to his extent is not competent and is liable to be dismissed at the earliest. The learned counsel maintained that if the contents of the petition are considered in light of the prayer made therein, the instant writ petition is not a writ of quo-warranto rather the same is writ of certiorari and only an aggrieved person can invoke such jurisdiction whereas the present petitioners are not aggrieved persons, hence, they are not competent to file the instant writ petition. The learned counsel, while arguing on laches submitted that the private-respondents have been elevated in early 2011 whereas, the writ petition has been filed in October 2015, i.e, after elapse of more than 4/5 years which is badly hit by laches. The learned counsel maintained that even if, for the sake of arguments the date of knowledge, as claimed by the petitioners i.e, 15.04.2015 and attested copy of which has been received by the petitioner on 25.05.2015 is admitted, even then, the instant writ petition, having been filed on 16th October, 2015 is hit by laches. The learned counsel contended that the petitioners applied to the President Secretariat for attested copies of the record whereas the requisite copies were available with the Law Department which is obvious from the contents of script, addressed to Petitioner No, 1, dated 15.10.2015 but the petitioners did not opt to apply therein and if, applied no proof in this regard has been placed before the Court therefore, the contention of the petitioners to the extent of non-issuance of attested copies is baseless. The learned counsel seriously, agitated that in this eventuality, the petition is not entertain-able as the copy of the impugned notification dated 24.02.2011 is a Photostat, annexed with the petition, which is not admissible. The learned counsel maintained that the instant writ petition has been filed with mala fide intention and as a counter blast of a decision rendered by the Respondent No, 7 whereby the elevation of some judges of Shariat Court of Azad Jammu and Kashmir was declared illegal hence, was nullified. The instant writ petition under the passion of revenge has been filed, therefore, the instant writ petition, having been filed with mala fide intention is liable to be buried in the first instance. While discussing the merits of the case the learned counsel claimed that the process of consultation stood completed before the issuance of notification under challenge and the authorities, consultees had submitted their purposeful, meaningful and effective recommendations before the issuance of the impugned notification, hence, the process of elevation was completed under law and no violation of any law or constitution has been committed. The learned counsel argued that even if, it is assumed that some irregularity was committed, even then the whole process cannot be termed as illegal and resultantly cannot be nullified on the basis of irregularities. Referring to Sain Mullah's case the learned counsel contended that the record placed before the Court by the petitioners in the instant writ petition is not sufficient for admission of the instant writ petition and requested for dismissal of the petition with exemplary costs and referred the following case law:-
1. 1994 MLD 397
2. PLD 1963 SC 123.
3. PLD 1963 SC 203.
4. 2012 SCR 213.
5. 2001 SCR 530.
6. 1996 SCR 211.
7. 1995 SCR 259.
8. 1997 SCR 381
9. PLD 1993 SC (AJK) 12,
10. PLD 1989 SC 168,
11. PLD 1991 Lhr.420
12. 1983 CLC 2734,
13. PLD 1967 Lhr. 223,
14. AIR 1965 Allahabad, 151,
15. 1993 SCR 27
10. Mr. Manzoor Hussain Raja, the learned counsel appearing on behalf of Respondent No, 4, while arguing the case, in the light of comments filed by the President Secretariat stated that the name of Petitioner No, 7 was not present in the recommendation/panel submitted by the Chief Justice of High Court whereas, the recommendation made by the Hon'ble Chief Justice Azad Jammu and Kashmir did not contain the name of Respondent No, 8.
11. The arguments in the instant case were heard on 05.11.2015 and the Order was reserved, however, on 13.11.2015 Mr. Bashir Ahmed Mughal, Advocate, filed Vakalatnama on behalf of Respondents No, 1 to 3 and adopted the arguments advanced by Mr. Abdul Rasheed Abbasi, the learned counsel for Respondents No, 4 to 8.
12. We have heard the learned counsel for the parties, gone through the record of the case in light of the case law, referred and relied upon by the parties and the other case law, as well and given our anxious thought to the controversy involved in the case.
13. It may be stated that the respondents have raised a preliminary objection regarding the maintainability of the instant writ petition under Art. 87(2) of QSO, 1984 read with Rule 32(2) of the AJ&K High Court Procedure Rules, 1984. It has been argued by the learned counsel for the respondents that the petitioners did not approach the proper forum for certified copies of the impugned notification and annexed just a Photostat copy of the impugned order hence, the writ is not maintainable for this sole ground.
14. It may also be stated that the instant writ petition is at a preliminary stage, which had to be admitted for regular hearing but the parties have raised lengthy arguments, which persuaded us to consider the points raised by the petitioner in view of the importance of the controversy before issue of rule nisi, including the above objection regarding non-filing of the certified copies of the impugned 'notification.
15. It is obvious that the petitioners are not aggrieved persons in stricto-senso, hence, they cannot file the writ of Certiorari and the same has been admitted by the petitioners while arguing that the prayer clauses are to be read in juxtaposition and in this way, the writ petition may be treated as writ of quo-warranto, therefore, the Court would like to resolve the controversy to the extent of writ of quo-warranto. In case of writ of quo-warranto, it is not necessary to be an aggrieved person.
Reliance is placed on 1998 PLC (C.S)1229, wherein, in case titled Azhar Hussain Chaudhry v. Govt. Of AJ&K, it has been observed: "7. The other point raised by the learned counsel for the respondents that the petitioner is not an aggrieved person, is also not found to have any substance in it as the petition for issuance of writ of quo warranto has been filed and for filing of the petition in the nature, does not require the petitioner to be an aggrieved person. It is necessary to mention that the following conditions may be satisfied for issuance of a writ of quo warranto:-
(1) In order to maintain a petition for quo warranto, the petitioner has to satisfy that the office in question must be of public nature that is, it involves a delegation of some of the sovereign functions of the Government, executive or judicial, to be exercised by him for public benefit.
(1) It is essential for issue of a quo warranto that the respondent must be holding the office.
(2) That the office must have been of substantive in character i.e must be an independent and not one discharging duty or like servant at will.
(3). That the respondent must not be legally qualified to hold that office or to remain in office or he has not been appointed in accordance with law or is a usurper.
(4) Every subject has an inherent right in seeing that public duties are performed by those who are competent to exorcise them. The relator though having no personal interest in the matter can maintain writ of quo warranto. He must not do so mala fide or instrument of others.
(5) The prayer in quo warranto generally is to call upon the alleged usurper of public office to show or to prove his authority to hold the same and issue injunction to the person not to.Act there and declare his office as vacant.'
' The condition to be an aggrieved person for filing the writ petition is not required for the purpose of filing a writ petition in the nature of quo warranto under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. Therefore, in the present case, the point also merits not consideration."
16. So far, as the relief sought by the petitioners to the extent of Respondent No, 8 is concerned, it may be observed that Respondent 1 No, 8 was serving as District and Sessions Judge before his elevation as the Judge of High Court. The said respondent remained performing his duties for more than four years and stood retired on superannuation and he is neither holding any public office at the time of institution of the petition nor is going to do so, therefore, the writ of quo warranto, to his extent is not competent because there are certain conditions for issuance of writ of quo-warranto as listed in above referred case law, one of which is the possession of office disputed. In the case of private Respondent No, 8 (the Hon'ble Judge) admittedly is not holding the office at the time of institution of the petition, hence, no writ lies, rather, the question of issuance of rule nisi does not arise. In the support of this view, PLD 1963 SC 203, case titled, 'Masud ul Hassan v. Khadim Hussain' decided by full bench of the apex Court of Pakistan, headed by Hon'ble Mr. Justice A.R. Cornelius, (CJ), their Lordships have observed as under: "(d) Writ--Quo-warranto-When issued. The now obsolete writ of quo-warranto was in its nature an information lying against a person who 'claimed or usurped an office, franchise or liberty' and was intended 'to enquire by what authority he supported his claim in order that the right to the office may be determined.' It was necessary for the issue of the writ that the office should be one created by the State, by charter or by statute, and that the duty should be of a public nature. It was necessary also that the respondent should be in possession of the office."
17. The relief to the extent of recovery of perks and privileges, obtained by the Respondent No, 8 can also not be granted in view of observation made in above para. This view of the Court is fortified by M. Younas Tahir's case, (2012 SCR 213), referred and relied upon by both the parties, wherein, it has been held as under: "Appellants (Judges) were appointed through notification and on annulment of said notification, benefits derived by appellants could not be ordered to be paid back on the basis of de-facto doctrine as they had validly done the acts and performod functions under the colour."
18. So far, as the contention of the learned counsel for the Respondents No, 5 to 8 regarding mala fides of petitioners is concerned. It may be stated that the fact of being an associate of some of removed judge may hardly be a ground to term the instant petition prima facie, a mala fide action.
The petitioners being members of bar; are responsible members of legal fraternity, who have categorically stated, that the petition has been instituted for the supremacy of law. For more elaboration, Para No, 1 of the writ petition is reproduced, hereunder:- "1. That the petitioners are First Class State Subject of Azad Jammu & Kashmir and Advocates of High Court of Azad Jammu & Kashmir and being member of Bar Association always interested and working for the betterment of the Public at Large and for the Rule of Law, moreover, the petitioners being professionals Endeavour for the independence of judiciary in Azad Jammu & Kashmir for administration of justice."
19. Keeping in view of the above. We are not persuaded to embark upon the enquiry of mala fides alleged against the petitioners but at the same time we cannot leave unattended, the fact, that the petitioners have been appearing before the Respondents No, 7 & 8, as lawyers, who were holding the posts for a long time and there was no complaint against, them, therefore, the petitioners may not be absolved of establishing prima-facie bona-fides of the instant petition, filed after a long period of silence. Otherwise, the issue of writ of quo-warranto would be vexatious one. This view of the Court is supported by AIR 1965 Allababad 151, in the case titled..Ba/ji Nath v. The State of U.P.
Relevant Para 10 is reproduced for convenience' sake:- "(10) The petitioner however, is not necessarily entitled to the issue of writ of quo-warranto as Article 226 of the Constitution is discretionary. In nature. These are circumstances in this case, which in my view, favour the exercise of my discretion in favour of opposite Party No,
3. It will in my opinion vexatious to issue a writ of quo-warranto in this case as Sri Ishwar Saran has been holding the office of the Superintendent of Education since 1956 and the Municipal Board of Allahabad or the Nagar Mahapalika seems to have no complaint against him. It will, therefore, not be proper to disturb the existing position."
20. So far as the objection raised by the respondents regarding laches is concerned. In case titled Syed Sadaqat Hussain Shah and 4 others v. Azad Jammu and Kashmir Government and 3 others, the apex Court of Azad Jammu and Kashmir, has observed in Para 12 of the report as under: "12. Similarly, the other objection that Azhar Hussain Chaudhry was not an aggrieved person within the meaning of Section 44 of the Interim Constitution Act is also devoid of any legal force as a writ of quo warranto does not require the petitioner to be an aggrieved person. The substance of the writ petition filed by Azhar Hussain related to a writ of quo warranto. However a declaration has also been sought in the same writ petition. Which is also interlinked and interwoven with the writ of quo warranto.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxx XX.XXXXXXXXXX.XXXXXXXXXXXXXX "It may also be pointed out that in a writ of quo warranto the question of mere laches hardly matters and is not at all fatal unless it is actuated by malice which is not found in the present case."
' Similarly, in Case titled Mujahid Hussain Naqvi v. Justice Retired Basharat Ahmed Sheikh, [PL 2002 AJ&K 49], Page 77: ' We have no quarrel with the proposition that mere delay does not disentitle any informer from seeking relief in a writ of quo warranto, and similarly the petitioner need not to be an aggrieved person but the writ of quo-warranto is held by the Superior Courts, cannot be issued as a matter of course on sheer technicalities by a doctrinaire approach. The Court is competent to test the bona fides of the relators to see as to whether he has approached the Court with clean hands and for supremacy of law."
(Underlining is ours)
21. Keeping in view the discussion in above paras regarding the controversy of mala fides and laches, it is obvious that laches per see is no ground for dismissal of a writ of quo-warranto and mala fides are not apparent but the matter of fact remains that the Court can also not ignore the application of this principle if the prevailing circumstances are such, which militates against the bona-fides of the petitioners. The Court has reached the conclusion that the petitioners, after having a long sleep of more than 4/5 years, are worried about the supremacy of law and the independence of Judiciary, without any plausible explanation thus, inordinate delay in challenging the elevation of Respondents No, 7 & 8 without prima facie bona-fides is not justified. The mode of appointment of these respondents have been challenged, against whom, there was no complaint during the whole period after their elevation. So this sole fact/circumstance militates against the bona-fides of the petitioners, (learned members of Bar) coupled with the fact of not even approaching the concerned office for obtaining certified copies of the impugned notification. This observation of the Court is supported by a case reported as (PLD 1991 Lahore 420) in case titled `Syed Ali Raza Asad Abidi v. Ghulam Ishaque Khan, President of Pakistan, wherein, a writ, of quo- warranto was sought against President of Pakistan, on the ground that the non-petitioner has not be elected as President on the death of General M. Zia-ul-Haq, in the manner provided by the Constitution of Pakistan. Relevant report is reproduced herein below: "16. Adverting now to the last contention raised on behalf of the petitioner, it may be observed that there can be no dispute with the proposition that laches would not generally apply in cases of quo- warranto but then the Court can also not ignore the application of this principle if the attendant circumstances are such which militate against the bona fides of the petitioner. The election o f Respondent No, 1 to the office of the President of Pakistan was held on 12th December, 1988 and in pursuance of that election, Respondent No, .1 took oath of his Office on 13th of December, 1988 and is performing his functions as President of Pakistan since then. The attempt of the petitioner at such a belated stage to call in question the validity of the said election and as a consequence the validity of the acts of the President, as already observed above, is bound to create confusion and chaos which in national affairs must be avoided as far as possible, especially when no ground exists for holding that the election of the President held on 12th of December, 1988 suffered from any legal ultimitly . The circumstances which float manifestly on the surface warranted an explanation from the petitioner about the 'delay this petition. Nothing at all has been urged today to explain the inordinate delay of 2-1/2 years from the date of the questioned election of the President and more than one year even from 20.03.1990, in filing this petition. This is yet another valid basis for refusing to entertain this petition."
22. Another objection regarding estoppels, has also been raised by the learned counsel for the respondents. In this regard, it may be observed that the record of the case reveals that, according to the version of the petitioners, they got knowledge of the fact on 15.04.2015, when a resolution was passed by the Bar Council. If the claim of the petitioners, is admitted, even then, they have been appearing before the answering Respondent No, 7 till late September, 2015, (as admitted by Petitioner No 1 during his arguments. Hence, it is obvious that the bona fides of the petitioners is not spelt out from the record, thus, they are estopped by conduct to challenge the appointment of Respondefnts No, 7 & 8 apart from the supra mentioned facts of the case rather, it may safely be concluded that the petitioners have not come to the Court with clean hands. However, keeping in view the nature of the writ petition, being that of quo, warranto, we opt to resolve the controversy on merits as discussed and observed in above paras. This view of the Court is fortified by AIR 1975 Orissa 60 in case titled Giridhari Mohapatra and others v. Reghunath Jew and others decided by Justice B.K Patra and S Acharya JJ, wherein, it has been observed as under: "7. In the present case we are satisfied that: the petitioners have suppressed material facts in the writ petitions and have not made a full disclosure of the factual act relating to the lands in question. Certain facts alleged in the writ petitions do not represent the correct state of affairs and have been stated in such a way it would mislead the Court as to the true facts of the case. It is also quite evident that the petitioners obtained the order Annexure I from the Collector by suppression of material facts. On the above view of the matter the petitioners have disentitled themselves to get any relief from us in these writ petitions. We therefore, refuse to proceed any further to examine the merits of these writ petitions."
23. Now, adverting to the moot point in the controversy in hand, regarding consultation of the two Hon'ble Chief Justices for elevation of the judges of the superior judiciary. In this regard, we have scanned the record available on the file and the case law, referred by the 1 carned counsel for the parties. As the resolution to the extent of Respondent No, 8 has already been passed, therefore, the case shall be considered, only to the extent of Respondent No,
7. On an application, moved on behalf of the petitioners, the record of the case; including the official correspondence has been perused on this preliminary stage to meet the ends of justice. A glance perusal of the record reveals that his Excellency, the President of AJ&K, on 22.02.2011 wrote a letter to the Hon'ble Chief Justice of High Court, whereby his opinion/consultation was sought. The relevant text of the above- said, script is reproduced, hereunder: "I, therefore, seek your consultation/opinion on the matter of appointment of Mr. M. Tabbassum Aftab Alvi as Judge of the High Court as stipulated by Section 43(2-A) of the Interim Constitution Act, 1974."
24. It is obvious that the Hon'ble Chief Justice, High Court of A.J&K was consulted on the matter, in writing through script dated 22.02.2011 and the Hon'ble Chief Justice moved his recommendation/ opinion on the same date; contents of which, for the sake of convenience, are reproduced, hereunder: "In response of the letter of your Excellency dated 22nd February 2011, it is stated that Mr. M.
Tabassum Aftab Alvi, Advocate qualifies for appointment as a Judge of the High Court and there is nothing against him in the official record."
25. The above letter, was written by the Chief Justice of High Court, addressed to the worthy President of Azad Jammu and Kashmir, in response to above referred letter of the President of AJ&K, containing the words 'Consultation/opinion, which cannot be termed as a simple letter, specially, in the circumstances, when, the proceedings for, elevation of judges in the High Court were in process. Whereas, no other reason of seeking such clarification from the Chief Justice of the High Court has been brought on record by the petitioners, therefore, the argument that the said recommendation is only a Letter is not tenable. While concluding this point, it may be observed that in the instant case, the petitioners in the first instance have to show that in view of the given facts of the case, the non-petitioners are not holding the offices under the authority of law, but the petitioners miserably failed to discharge this burden. Hence, rule nisi cannot be issued as a matter of routine. To substantiate this conclusion of ours, relevant-excerpts from 1993 SCR 27, case titled Woor ul Ameen v. Sardar Muhammad Abdul Qayyum Khan and another, are usefully reproduced, hereunder:- "(c) Writ of quo warranto. It is for the petitioner in the first instances to show that in 'view of the given facts of the case, the non-petitioner is not holding the office under the authority of law--If he initially makes out his prima facie case, the burden of proof will shift to the opposite side but if material facts are not pleaded by the petitioner on which he bases his claim or the same are not sufficient enough to make a prima facie case, it cannot be said that a rule of nisi can be issued as a matter of routine."
26. The file also speaks that all the proceedings, regarding consultation and advice etc. Were completed before the issuance of the impugned notification and both the consultees/authorities are consistent on their stand, therefore, it cannot be said that the names of private respondents were not submitted by one or the other consultee. Even otherwise, for the sake of arguments, if it is admitted that some irregularity regarding time and mode of consultation has been committed, even then, the same can be termed as irregularity committed on the part of the authority and a party cannot be penalized for the act, which was not under its control or in his knowledge. There is plethora of judgments of the superior Courts of the State as well as the Courts of Pakistan, supporting this view of the Court. For the sake of brevity, some precedents from Indian jurisdiction as well as from Pakistan jurisdiction are reproduced. In case titled 'M. Manohar Reddy and Anr v.
Union of India and Ors' reported as [AIR 2013 SUPREME COURT 7951, is reproduced, herein below:-
(A) "Constitution of India, Arts. 217, 226--High Court Judge-Appointment Consultative process-- Deficiency--Cannot be attributed for non-consideration of fact unknown to appointee as well as any of constitutional authorities engaged in consultative process.
' The consultative process undertaken by constitutional authorities for appointment of High Court Judge cannot be said to be faulty or incomplete for not considering a fact that was not known to any one of the authorities engaged in the consultative process. Thus where neither the appointee at the time he was considered for appointment as High Court Judges was aware of pendency of criminal case against him nor the State or Central Govt. Or the High Court or Supreme Court collegia were aware about the same his appointment cannot be faulted on ground of deficient consultation. No writ of quo warranto can be issued against him.
' In case it comes to light that some material facts were withheld by the person under consideration or suppressed at his behest then that may be a case of fraud that would vitiate the consultative process and consequently the appointment resulting from it. But in case there was no suppression and that fact comes to light a long time after the person appointed has assumed the office of a Judge and if the members of the two Houses of the Parliament consider the discovered fact sufficiently serious to constitute misbehaviour and to warrant his removal, then he may still be removed from office by taking recourse to the provisions of Art. 124(4) or Art. 217 read with Art. 124(4) as the case may be. In case, however, the fact was unknown and there was no suppression of that fact, a writ of quo-warranto would certainly not lie on the plea that the consultative process was faulty."
27. Similar plea has been set at naught by the apex Court of Pakistan, in case titled Muhammad Rafique & 2 others vs. Muhammad Pervaiz & 2 others, 2005 SCMR 128, decided by Justice Faqir Muhammad Khokhar, J.
"6. We have heard the learned counsel for the parties at length and have also perused the available record. The petitioners were appointed, pursuant to the advertisement in the press, after selection by the District Recruitment Committee headed by the Deputy Commissioner/Chairman.
No serious defect in the appointment of the petitioners was shown from record which was brought by the Assistant Director, Local Government Narowal. The Respondent No, 1 filed writ petition after a period of five years when the petitioners had already been confirmed in their appointments after successful completion of probation period. The writ petition suffered from gross laches without there being any justifiable explanation. Some minor irregularities, if any, in the appointment of the petitioners were not sufficient for issuance of writ of quo warranto against the petitioners."
28. The identical controversy has been resolved by this Court in case titled Ghulam Mustafa v. AJK Govt. And others, [NLR 1991 Civ. 724]. Relevant portions of the report are reproduced hereunder:- "17. At the very outset of this order, we may observe that there are two points needing resolution in the light of the lengthy arguments of the learned counsel for the parties, who admittedly worked very hard and cited numerous authorities. The crux of the controversy in the light of the pleadings of the parties and the arguments addressed by the learned counsel is:-
(a) Whether the writ petition is maintainable keeping in view the bar contained in Section 44(5) of the constitution Act; and
(b) Whether the order of appointments of the Respondents No, 3 to 5 as Additional Judges of the High Court are in accordance with the Constitutional provisions.
27. It is clear from RS/1 that in fact the Advice of the Azad Jammu & Kashmir Council was conveyed to the President, of Azad Jammu & Kashmir by the Secretary Azad Jammu & Kashmir Council on 5th of September, 1990. On this Advice, the President on the same date, wrote that orders be issued in the light of the Advice. He also wrote a note that he had discussed the matter with the Chief Justice for the appointment of Respondent No, 3 as Additional Judge. Therefore, the order of appointment of Respondent No, 3 as Additional Judge of the High Court is in conformity with the Constitutional provisions.
29. In case titled Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 Kar. 408, it has been observed as under: "37. The definition of the word 'consultation' given in the Constitution is; shall, save in respect of appointment of judges of the Supreme Court and High Courts, means, discussion and deliberation which shall not be binding on the President. This definition in the first place provides consultation by means of discussion and deliberation in the case of appointment of Judges in the Supreme Court and High Courts and secondly provides saving clause which as a rule is construed to exempt something from immediate interference or destruction. In , understanding Status Cannons of Construction, Second Edition S.M. Zafar at page 114 the learned author has stated thus: "Therefore saving is a provision, the intention of which is to narrow the effect of the enactment to which it refers so as to preserve some existing legal rule or right from its operation"
30. So far, as the question of the incapability/qualification of the private respondents is concerned, it may be observed that the petitioners, themselves have not raised any objection in this regard, rather they have called in question, the mode of elevation and the process, thereof. However, in Para No, 5 of the petition it has been averred that "The Respondent No, 7 is known in field as having knowledge of service matters not in other fields of litigation." In this regard we may observe that the petitioners have admitted the fact that Respondent No, 7 has been a well known and well reputed lawyer. Moreover, the law does not postulate any condition of experties in each and every field of law, for elevation of a Judge. Moreover, the apex Court of Azad Jammu and Kashmir, while deciding Bashir Mughal's case, 2014 SCR 1385, has also commented upon the appointment/ consultation/qualification and eligibility of the private respondent among other judges of the High Court. In para 52 of the report, their Lordships on the apex Court have pleased to observe as under: "52. We are conscious of the fact that the implementation of this judgment without issuance of direction for taking immediate steps will create vacuum, which will surely result into adversely affecting the interest of the public at large whose cases are pending before the Shariat Court.
Therefore, the Government and other concerned authorities are directed to immediately under proviso of sub-section (2) of Section 3 of Act, 1993, appoint the judges of the High Court, (who have already been appointed with consultation of the Chief Justices) as judges of the Shariat Court.
However, the number of such judges may be determined with consultation of the Chief Justice of the Shariat Court as required according to the volume of work."
31. After being aware of the above observation , of the apex Court relating to the appointment of the Judges of High Court, it hardly leaves any room to question the legality of the appointment of private Respondents No, 7 & 8 or to distinguish the observation of the apex Court in the light of provision of Section 42-B of the Interim Constitution Act, 1974.
32. In view of the above, it may safely be concluded that any irregularity in the process of consultation or expertise only in one field of the law or the question of capability of a judge of superior judiciary are not sufficient grounds for issuance of writ of quo-warranto. We may refer a case, from Indian Jurisdiction, titled S.P Gupta and others vs. President of India and others, reported as AIR 1982 SC 149, wherein, the apex Court of India has observed as under:- "(iv) Appointment and extension of term of Additional Judges.
' All Judges agree that consultation. With constitutional functionaries must be meaningful and result oriented and that the proposal can emanate from any of the constitutional functionaries. It is also unanimously agreed that none of the constitutional functionaries can exercise veto in this matter.
' On question whether the opinion of the Chief Justice of India enjoys primacy over the other constitutional functionaries, Gupta, Tulzapurkar and Pathak, JJ, held that primacy should be given to the opinion of the Chief Justice of India. However, the majority consisting of Bhagwati, Desai, S.M.F. Ali and . Venkataramiah, JJ. Held against primacy."
' In case titled P.L. Lakhanpal vs. Ajit Nath Ray, Chief Justice of India. New Delhi and others" AIR 1975 Delhi 66 the like controversy has been discussed and resolved. Relevant portions of the report are reproduced, herein below:- "20. Another facet of the preliminary objection relates to the allegations of mala fide made in the petition. It will bear repetition to state that the preliminary objection is on the assumption and not admission that the appointment of Justice A.N. Ray was mala fide. It is indisputable that mala fide action is no action in the eye of law. But to my mind, the mala fides of the appointing authority or, in other words, the motives of the appointing authority in making the appointment of a particular person are irrelevant in considering the question of issuing a writ of quo-warranto. It is a writ, as I have stated, of a technical nature. It is issued against a usurper of an office or, in other words, against a person who holds an office without any authority from the person who is entitled to make an appointment to that office. What works in the mind of the appointing authority in appointing a particular person is irrelevant and does not fall to be considered in a proceeding of quo-warranto and in determining the title of the person who has been appointed."
' Again in the same para, it has been observed as under: "I am of opinion that question of alleged motive and purpose supposed to constitute the background for the order of appointment of the first respondent are wholly foreign to the scope of the present proceedings before us. As observed by Ldrd Denning in his Hamlyn Lectures on Freedom under the law: 'No one can suppose that the executive will never be guilty of the sins that are common to all of us.
You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do.'
' Acts of favourtism by way of back-door appointment and deviations from fair play and justice are not uncommon features in the administration of any Government in any country. But the jurisdiction of the Courts is not the role of a sentinel on the qui vive to guard against the vagaries of the State executive. Prerogative writs which this Court can issue under the terms of Article 226 of the Constitution have got their strict limits which have to be adhered to.
' The province of this Court in a quo warranto proceedings is to determine whether there has been usurpation of a public office and not to search the conscience of the appointing authority to ascertain his motive. It is, therefore, not necessary for me to say anything more than that the impugned order of the appointment of the first respondent has not transgressed any rule, regulation or law to afford a foundation for the issue of relief in a qua warranto proceedings."
33. So far as the contention of the petitioners regarding independence and impartiality of the Judiciary, (as incorporated in Para No, 8 of the petition) is concerned, we are also in agreement with the contention of the petitioners to the extent of independence and impartiality of the Judiciary, however, we may observe that no such allegation has been leveled by them against the private respondents and for sake of arguments, if there lies some allegation, then, another proper form for the purpose is available to the petitioners. In this context, we may refer that the independence of Judiciary is the common object of every country but to secure this goal, the methods and modes are different It may also be stated that the mode of elevation of judges of superior judiciary, is different in different countries of the world. In order to elaborate the process/mode of appointment of the judges of Superior Judiciary some provisions from the constitutions of different countries (reported from the--Constitutions of the world) are usefully reproduced.
AFGHANISTAN: 123.JUDICIARY ' With observance of the provisions of this Constitution, the rules related to the structure, authority, and performances of the Courts, and the duties of judges are regulated by law.
127. JUDICIAL IMPEACHMENT
(1) When more than one-third of the members of the House of the People [Wolesi Jirga] demand the trial of the Chief Justice, or a member of the Supreme Court due to a crime committed during the performance of duty, and the House of the People [Wolesi Jirga] approves of this demand by a majority of two-thirds votes, the accused is dismissed from his post and the case is referred to a special Court.
132. Appointment of Judges.
(1) Judges are appointed with the recommendation of the Supreme Court and approval of the President.
(2) The appointment, transfer, promotion, punishment, and proposals to retire judges are within the authority of the Supreme Court in accordance with the law.
(3) The Supreme Court shall establish the General Administration Office of the Judicial Power for the purpose of better arrangement of the Administration and judicial affairs and insuring the required improvements.
BANGLADESH "95.APPOINTMENT OF JUDGES
(1) The Chief Justice and other Judges shall be appointed by the President.
(2) A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and-
(a) has, for not less than ten years, been an advocate of the Supreme Court; or
(b) has, for not less than ten years, held judicial office in the territory of Bangladesh; or
(c) has such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court."
UNITED KINGDOM:- "4 6. LEGAL SYSTEM IN GENERAL
(1) Although Britain is a unitary State, England and Wales, Scotland and Northern Ireland all have their own legal systems, with considerable differences in law, organization and practice. However, a large amount of modern legislation applies throughout Britain. The law is divided into criminal law and civil law; the later regulates the conduct of people in ordinary relations with one another. The distinction between the two is reflected in the procedures used, the Courts in which cases may be heard and the sanctions which may be applied."
47. JUDICIARY IN GENERAL
(1) The judiciary is independent of the executive; its judgments are not subject to ministerial direction or control. The Prime Minister recommends the highest judicial appointments to the Crown.
(2) the Lord Chancellor is head of the judiciary, except in Scotland. His responsibilities include Court procedure and the administration of Courts."
AUSTRALIA:- CHAPTER III THE JUDICATURE
71. The Judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal Courts as the Parliament creates, and in such other Courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.
72. The Justices of the High Court and of the other Courts created by the Parliament
(i) shall be appointed by the Governor-General in Council:
(ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, prayed for such removal on the ground of proved misbehavior or incapacity."
KOREA:- ARTICLE 104
(6) The Chief Justice of the Supreme Court shall be appointed by the President with consent of the National Assembly.
(a) The Supreme Court Justices shall be appointed by the President on the recommendation of the Chief Justice and with the consent of the National Assembly.
(b) Judges other than the Chief Justice and the Supreme Court Justices shall be appointed by the Chief Justice with the consent of the conference of Supreme Court Justices.
U.S.A.
APPOINTMENT ' All the Judges are appointed by the President and with the advice and consent of the Senate. The Constitution prescribes no qualifications for the judge. Hence, the President is free to appoint any one for whom senatorial confirmation can be obtained. The rule of "senatorial Courtesy does not limit the choice of the President. From its very inception, an attempt has been made almost invariably to select men of high prestige and outstanding ability. Though sometimes appointments have also been made to repay political debts, to show deference to a particular section of the country or even to provide representation for a political party which would not otherwise be represented, even then the caliber of the men selected has been, in general, high.
CONSTITUTION OF INDIA, 124 .Establishment and constitution of supreme Court.
(1) XXXXX
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal (On the recommendation of the Natioanl Judicial Appointments Commission referred to in Art 124-A] and shall hold office until he attains the age of sixty five years.
ARTICLE 217 APPOINTMENT AND CONDITIONS OF THE OFFICE OF A JUDGE OF A HIGH COURT:-
1. Every judge of a High Court, shall be appointed by the President by warrant under his hand and seal [on the recommendation of National Judicial appointments Commission referred to in Art. 124-AL and [shall hold office, in the case of an additional or acting judge, as provided in Art. 224, and in any other case, until he attains the age of (62 years) provided that:-
(a) A judge may, by writing under his hand addressed to the President, resign his office;
(b) A judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a judge of the Supreme Court.
34. In the light of the above, it may be observed that in some of the Developed and Developing Countries of the world, the appointments of the judges of the Superior Judiciary are made; either by the Parliaments or by any other political institution but the dignity and integrity of the Judges prevails in these societies and in case of some exception, the proceedings are initiated in proper forums.
35. As far as the question of non-maintainability of the writ petition on the ground of annexing of unattested copies of the impugned notification is concerned. In this regard, we have perused the record which reveals that the Petitioner No, 1 applied for certified copies of the documents i.e, advice and notification of appointment of. Judges dated 24.02.2011 before the President Secretariat.
The record further reveals that the President Secretariat vide script Bearing No, 4245/2015 dated 15.10.2015, categorically advised the petitioner to approach the law department for obtaining the requisite certified copies. There is nothing on record to assert that the petitioners approached the proper forum and their request was turned down. Therefore, we are in agreement with the contention of the learned counsel for the respondents that under Art. 87(2) of Qanoon-Shahadat Order, 1984 read with Rule 32(2) of the AJ&K High Court Procedure Rules, 1984, such petitions do not merit consideration and are liable to be struck down in the first instance. A reference tan be made to case titled Saira Bashir Butt v. Azad Govt. And others v. Azad Govt. And 7, others, [2015 SCR 631].
Hence, the instant writ petition is not maintainable at its preliminary stage, however, as said above in view of the lengthy arguments of the parties, this Court decided to consider all other points raised and other aspects of the case at pre-admission stage.
36. Now, remains the question as to whether the petition can be admitted for regular hearing or not? We may observe that an identical writ petition titled Sain Mullah Advocate v. Syed Manzoor Hussain Gillani was admitted for regular by this Court vide judgment dated 29.07.1992, which was challenged before the Supreme Court of Azad Jammu and Kashmir by way of appeal and the apex Court, vide its judgment dated 13.01.1993, reported as [PLD 1993 SC(AJK)12] accepted the appeal and dismissed the writ petition in limine. Relevant observation of the apex Court lies at page 24 of the report, which reads as under: "The view of the High Court might have been different if before admitting the writ petition for hearing, a notice under sub-rule (3) of Rule 33 of the High Court Rules would have been issued to the appellant and an opportunity had been afforded to the appellant as to why the writ petition should not be admitted for regular hearing. Keeping in view the nature of the functions of a Judge of a superior Court, it is all the more necessary to adhere to the spirit of the aforesaid rule in case of a writ of quo warranto. Needles:, w say, in our society if notices of quo warranto are issued against, judges of a superior Court as a matter of routine, it is likely to encourage the vexatious proceedings against the judges so as to harass them rather than seeking redressal of genuine grievances. In light of the above conclusions, we are of the opinion that the High Court was not justified in issuing the notice in the case.
' We find no force in the contention of the learned counsel for Respondent No, 1, Sh. Abdul Aziz that the High Court should be allowed to decide the case and the points raised in the case may be attended to if and when an appeal is brought to this Court. We had the occasion to observe in an unreported case titled Sardar Sikandar Hayat Khan v. Syed Ghulam Mujtaba Bukhari (Civil Misc.
Nos.7&8 of 1990, decided on 15.05.1990) that the: "The High Court is a Court created by the Constitution and it is primarily the High Court which is clothed with the powers of issuing writ petitions. It is only after the High Court has become functus officio that normally a case is called up by this Court. But it cannot be denied that this Court has the powers to interfere at an earlier stage and pass any suitable order, where a case is made out. If there was any doubt on this point it has been set at rest by a judgment of this Court in a case titled Qazi Bashir Ahmed v. Amjad Ali, Civil Appeal No, 13/1988."
37. Before parting with the case, it may be observed that there are two application on file; one for arraying the Chief Justice of High Court in line of respondents, while the other for summoning the record of the High Court. In this regard, we have perused the relevant record, which, being highly secret, needs not to be publicized, therefore, the application for summoning of record stands consigned to record.
38. So far as the application for impleading the Chief Justice of High Court in line of respondents is concerned, this application, in view of the proposed conclusion also needs no deliberation, hence, stands consigned to record.
39. Rest of the case law, referred by the learned counsel for the parties having no direct relevancy with the case in hand, in its peculiar fact and circumstances, has not been discussed in detail.
40. In the light of the above discussion, reproduced Constitutional/legal provisions as well as the precedent case law and in the light of record, when considered in juxtaposition with the contents of the pleadings of both the parties, this Court has been persuaded by the case law from foreign jurisdiction and guided/convinced by the case law from Pakistan Jurisdiction and followed the principles laid down, therein, as well as the cases decided by this Court and the last and least being fully bound by the dictum of the Apex Court of AJ&K discussed above, We unanimously hold as under:--
1. The writ petition is not entertain-able on the sole ground of non-filing of certified copies of the impugned notification/order as required under law.
2. The panel, proposal, consultation, recommendation, discussion , deliberation, advice and notification of appointment, all resulted in taking oath of the Hon 'ble Judge/Respondent No, 7, thereafter, he assumed the charge of his office/Court. This is whole process of elevation appointment which is to be seen in juxtaposition. Thus, any irregularity or non-compliance of the process before or after one or other does not amount to an illegality. For the sake of arguments, at the best it may be termed as an irregularity which cannot render the whole process or appointment order asillegal or unconstitutional, hence, no case of admission for regular hearing of the instant writ petition has been made out. The elevation/appointment of private Respondent No, 7 is in accordance with the provisions of Section 43(2-A) of the Interim Constitution Act, 1974.
3. Though the name of Respondent No, 7 was not included in the panel forwarded by the Hon'ble Chief Justice of High Court but His Excellency, the President of AJ&K, (The Appointing Authority) sought recommendation/ consultation of the Hon'ble Chief Justice of High Court, thus, the conditions of discussion, deliberation, consultation, and recommendation have been duly fulfilled, and the constitutional requirement stood complied with in letter and spirit. Hence, no illegality/fault has been found in the impugned appointment order. It is added that the universal principle of qualification of a Judge that 'Judge should be a thorough gentleman and if he knows the law, it will be his additional qualification' is also found fulfilled in the case of Respondents No, 7 & 8, thus, the Court is satisfied not to admit the petition for grant of writ of quo-warranto.
4. As far as the prayer of the petitioners to the extent of Respondent No, 8 is concerned. In the light of paras 16 & 17 supra, the petition also merits dismissal.
5. We are unanimous to hold that neither the relators/petitioners have succeeded to establish prima-facie bona fides nor the case for admission is made out, hence, issue of rule nisi is not warranted in the instant case rather it may be a vexatious one.
41. In the light of above resolutions, it is held that the above writ petition fails to make out the case for admission, hence, stands dismissed in limine. The file shall be a part of the record after due completion.