RAJA SAEED AKRAM KHAN, C.J.---This consolidated judgment, contains the detailed reasons backing our short order dated 02.09.2021, which reads as follows:- "Since both the appeals are interlinked, hence, we intend to dispose of the same through this consolidated short order. The appeal filed by the Azad Govt. and others is partly accepted and the impugned judgment of the High Court is modified in the following manner:-
(i) The findings recorded by the High Court in paragraph 14 of the impugned judgment that no person shall be appointed as Advocate General without consultation with the Chief Justice of Supreme Court and High Court are set-aside being not in consonance with the relevant Constitutional provisions as well as the principle of law laid down in the case reported as Secretary Ministry of Law and others v. Muhammad Ashraf Khan and others [PLD 2011 SC 7]
(ii) Likewise, the findings recorded by the learned High Court in the impugned judgment pertaining to the principle of parity with the Punjab Government are not sustainable as this Court already dilated upon this proposition in the case reported as Azad Govt. and others v. Sardar Mukhtar Khan and others [2016 SCR 206].
(iii) The Advocate General, being holding the constitutional post is not supposed to be sub- ordinate to the Secretary Law, Justice, Parliamentary Affairs and Human Rights, hence, we are constrained to hold that the Advocate General is authorized to appear '[and defend] each and every case in which the Government is party, without direction of the Secretary Law. He is also authorized to distribute the cases to other Law Officers. The findings recorded by the learned High Court in this regard are fully endorsed.
(iv) It is also observed here that in presence of the Law Officers, being paid from the Government exchequer, there is no occasion for the Government to engage the private counsel to defend the cases in the Supreme Court and High Court, however, in exceptional cases, after consultation with the Advocate General and prior permission of the Court, the private counsel can be engaged for assistance of the Advocate General but it cannot be allowed to make a practice.
(v) Furthermore, the departments in which the Legal Advisors are appointed, are not allowed to engage additional counsel. If the department is not satisfied of the performance of the Legal Advisor, he may be replaced or his terms and conditions may be altered, if so advised.
(vi) Pertaining to the appeal titled Raja lnamullah Khan and others v. Azad Govt. and others, we would like to observe here that the appellants (Raja lnamullah Khan and others) were appointed in the year 2016 in the light of Azad Jammu and Kashmir Law Officers (Terms and Conditions) Act, 2014 (Act I of 2015). They accepted the terms and conditions of appointment and at {{FOOT NOTE}} 1 Corrected by replacing the word "in". {{FOOT NOTE}} the verge of change of Government, they challenged the aforesaid Act before the High Court, hence, their writ petition is badly hit by the principle of laches and they are also estopped by their own conduct, therefore, the argument of Raja Muhammad Hanif Khan, Advocate, with reference to Tayyab Gillani's case is repelled. Consequently, the appeal filed by him is dismissed in toto.
(vii) In the public interest, we also deem it appropriate to observe that due to non-appointment of the Advocate General the cases at large are being delayed, hence, the concerned are directed to make appointment of the Advocate General within a period of one month from communication of this order.
The detailed reasons shall be recorded later on."
2. The case of respondents Nos.1 to 8 in Appeal No.205/2021 is that they are the employees of the office of the Advocate General of Azad Jammu and Kashmir, serving in different capacities. The Advocate General proposed some amendments in the Azad Jammu and Kashmir Advocate General Office Service Rules, 1995, however, vide letter dated 25.03.2016, the appellants, herein, made new proposal for amendment which is contrary to the Rules proposed by the Advocate General. They filed Writ Petition No.1044/2016 in the High Court on 06.04.2016 and prayed for a direction (i) to approve the rules proposed by the Advocate General; (ii) to give powers to Advocate General for distribution of the cases filed against the Government before the High Court and Supreme Court of AJ&K; and (iii) to issue appointment order of Stenographer on the basis of test and interview conducted by the Advocate General as Chairman Selection Committee.
3. The stance of appellants (Raja Inamullah Khan and others), who were serving as Advocate General, Additional Advocate General and Assistant Advocate General, is that in the Constitutions of Azad Jammu and Kashmir and the Islamic Republic of Pakistan, the relevant provisions relating to the office of the Advocate General are similar. Likewise the functions assigned to the Advocate General in Azad Jammu and Kashmir are also similar to that assigned to the Advocate General in the Province of Punjab as well as other Provinces of Pakistan but the pay, perks and privileges are totally different. The High Court of Azad Jammu and Kashmir in the case titled Syed Muhammad Tayya b Gillani and others v. Azad Govt. and others [Writ Petition No.163/2008 decided on 07.04.2009] directed the respondents (therein) to amend the Notification dated 26.06.2007 (pertaining to the pay and privileges of Advocate General and other Law Officers) and other enabling rules on the same lines from the same date on which Punjab Government has allowed the amendments in pay and privileges of the Advocate General, Additional Advocate General and Assistant Advocate General. The petition for leave to appeal filed before this Court was dismissed vide judgment dated 09.09.2009 [which is reported as 2009 SCR 415] and in consequence thereof vide notification dated 15.01.2018 the terms and conditions of the Advocate General and other Law Officers were approved. Resultantly, all the incumbents were paid the arrears of pay and perks, however, the appellants (herein) just to nullify the effect of the aforesaid judgments enacted the Azad Jammu and Kashmir Law Officers (Terms and Conditions) Act, 2014, (Act I of 2015) whereby the terms and conditions as well as pay and perks for the Advocate General, Additional Advocate General and Assistant Advocate General were fixed in discrimination. In the said Act, the respondents introduced sections 7(1) and (2), 10 and 11, which have overridden the effect of judgments of High Court as well as Supreme Court, hence, the same are liable to be set-aside. In the given circumstances, they filed a writ petition before the High Court on 24.12.2020 with a prayer to declare the referred sections ultra vires the Constitution. They also sought a direction to the respondents, therein, to grant the pay, perks, privileges as well as status equal to that of their counterparts in Punjab and Gilgit Baltistan.
4. The learned High Court consolidated both the writ petitions. Through the impugned judgment dated 17.07.2021, the writ petition filed by respondents Nos. 1 to 8 (employees of the office of the Advocate General) has been declared infructuous to the extent of direction for framing the rules and appointment of Stenographer, however, to the extent of prayer clause (ii) it has been declared that it is the sole prerogative of the Advocate General to engage private counsel in high profile cases and law department has nothing to do with the engagement of private counsel. The writ petition filed by the appellants (Raja Inamullah Khan and others) has been partly accepted with a direction to the appellants, herein, to grant the same pay, perks, privileges as well as status equal to the Advbcate General, Additional Advocate General and Assistant Advocate General of the province of Punjab and also to follow the principle laid down by the apex Court of Azad Jammu and Kashmir in Syed Tayya b Gillani's case (supra) and to amend the relevant law accordingly.
5. Mr. Asghar Ali Mallik, Advocate, the learned counsel arguing the case on behalf of the appellants (Azad Government and others) took us through the record and submitted that the impugned judgment passed by the High Court is replete with legal and factual infirmities. According to the principle of law laid down by this Court in the case reported as Pir Ali Jan Shah v . Chairman Municipal Committee and others [1992 SCR 351] only an aggrieved person can file a writ petition.
Despite the fact that the employees of the office of the Advocate General, being having no concern with the powers of the Advocate General to distribute the cases filed against the Government, were not aggrieved persons; thus, the relief sought by them in this regard has been granted against law.
In fact, their entire writ petition was liable to be dismissed as a whole. He further argued that in the other writ petition, the petitioners (therein) prayed for setting aside the provisions of section 7(1) and (2), 10 and 11 of the Act I of 2015 being ultra vires the Constitution as well as judgments of High Court and the Supreme Court. The learned High Court without disturbing the referred provisions of law, directed to amend the same in accordance with Syed Tayya b Gillani's case (supra) and also directed to grant the perks, privileges and status to respondents Nos.9 to 15 as admissible to their counterparties in Punjab, whereas, in the referred case the learned High Court directed for amending the Notification dated 26.06.2007 through which the terms and conditions of the Advocate General and other Law Officers were re-scheduled in line with the notification dated 28.10.2003 issued by the Government of the Punjab for the same purpose. In this state of affairs, the impugned judgment passed by the High Court is nullity in the eye of law. Even otherwise, in view of the principle of law laid down by the Superior Courts in the cases reported as Azad Jammu and Kashmir Public Service Commission v. Mazhar Ahmed and others [2018 SCR 948], Muhammad Tariq Badar v. National Bank of Pakistan and others [2013 SCMR 314] and Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. [PLD 2003 Supreme Court 191], the order granting/refusing the leave does not have precedential value, hence, in such state of affairs reliance on Syed Tayyab's Gillani case cannot be placed. He further argued that the Advocate General and other Law Officers were appointed in the year 2016 for a period of three years in the light of the terms and conditions provided in Act I of 2015. They assumed the charge of relevant post by accepting the terms and conditions but at the end of their tenure, they filed a writ petition on 24.12.2020 while challenging the vires of the Act. In the given circumstances, the writ petition was hit by the principle of laches and estoppel by conduct. In this regard, he referred to the cases reported as Azad Govt. and others v. Haji Summander Khan [1995 MLD 1350] and Azad Govt. and others v. Messrs Spintex Limited [1998 PTD 3200]. The learned counsel further argued that the procedure for appointment to the post of Advocate General is provided under Article 20 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereas, appointment in the office of Judge, High Court is made under Article 43. Both the constitutional provisions are independent but amazingly the learned High Court on the basis of wrong interpretation of law held that no person shall be appointed as Advocate General without consultation with the Chief Justice of Supreme Court and High Court. Even otherwise, no such plea was taken in the writ petition and according to the settled principle of law the relief beyond the pleadings of the parties cannot be granted. So far as the principle of parity is concerned, in view of the dictum laid down in the case reported as Azad Govt. and others v. Sardar Muhammad Mukhtar Khan [2016 SCR 206], the principle of parity with Punjab is no more holding the field. The impugned judgment of the High Court is, therefore, not sustainable and liable to be set aside.
6. Raja Muhammad Hanif Khan, Advocate, while arguing in the appeal filed by him submitted that the case of the appellants (Raja Inamullah Khan and others) before the High Court was that in Syed Tayya b Gillani's case (supra) the learned High Court has granted the perks and privileges to the Advocate General and Law Officers of the time as admissible to their counterparts in the Province of Punjab but the respondents have enacted sections 7(1)(2), 10 and 11 of Act I of 2015 which is not only ultra vires the Constitution but also against the spirit of judgment of the High Court The respondents have provided non obstante clause in the aforesaid Act which is sheer contempt of Court. In this state of affairs, it was enjoined upon the learned High Court to declare the aforesaid sections ultra vires the Constitution but the relief granted to the appellants is not in line with their prayer clause, hence, the impugned judgment of the High Court is liable to be modified to this extent. He further argued that the Legislature can neither destroy, annul, set-aside, vacate, modify or impair the final judgment of the Court of competent jurisdiction nor the fundamental rights guaranteed under the Constitution can be abridged by Legislation as has been laid down in the case reported as 2013 SCM R 1752 = 2014 PLC (C.S.) 82 (in contempt proceedings against Chief Secretary, Sindh and others). He further added that the appellants have not approached the High Court on the basis of principle of parity rather their claim was that they be treated at equal footing with Punjab and Gilgit Baltistan. Regarding the point of consultation, the learned counsel fairly submitted that he has no objection if the impugned judgment is modified to this extent as the observations made by the learned High Court are without any legal backing. So far as the attraction of principle of laches is concerned, this point has already been resolved in Syed Tayya b's Gillani case. The learned counsel further argued that the appeal filed by the Azad Government and others is totally baseless, hence, the same is liable to be dismissed. In support of his contentions, he referred to the cases reported as Capt. Retd. Abdul Qayyu m v. Muhammad lqbal Khokhar and others [PLD 1992 Supreme Court 184] and Sakhi Muhammad and another v.
Capital Development Authority, Islamabad [PLD 1991 Supreme Court 771]. During the course of arguments, a query was also made to the learned Advocate that his clients have resigned then how they claim the parity with Punjab, he submitted that in case the findings of the High Court are upheld the appellants will be financially benefited.
7. We have heard the arguments of the learned counsel for the parties at great length, spreading over hours, and perused the record with their assistance. First of all, we would like to take up the case of respondents Nos.1 to 8. In their writ petition, they prayed as follows:- "I. It is therefore, prayed on behalf of the petitioners that this Hon'ble Court may very graciously be pleased to issue an appropriate writ by directing the non- petitioners to approve the rules, according to the proposed rules made by the Advocate General Office, providing the equal opportunity of promotion of petitioners being section clerk to the post of Admin Officer and Superintendent, B-17 and the amendment made by the non-petitioners by themselves in derogation of proposed rules made by the Advocate General may kindly be quashed.
II. Directing the non-petitioners to remove the anomaly' while giving the powers to Advocate General for distribution of the cases filed against the government for smooth prosecution of the same before this Hon'ble Court as well as Hon'ble Supreme Court of Azad Jammu and Kashmir.
III. Further directing the non-petitioner No.6 Advocate General to issue the appointment order of Stenographer on the basis of test and interview conducted by him as Chairman Selection Committee and appointing authority in pursuance of advertisement dated 01.01.2015 forth with.
Any other relief which is just and proper may kindly, also be provided to petitioners throughout in the interest of justice."
Admittedly, the Rules had been framed and the appointment of Stenographer had been made, hence, to this extent, the writ petition filed by respondents Nos.1 to 8 has become infructuous, which has rightly been declared so by the learned High Court. The stance of Mr. Asghar Ali Mallik, Advocate, is that the writ petition filed by respondents Nos.1 to 8 was liable to be dismissed in toto because, being employees, they have nothing to do with the distribution of the cases by the Advocate General. We have no cavil with the argument of the learned counsel for the appellants that only an aggrieved person can file the writ petition, however, we ourselves are going to dilate upon the matter of distribution of the cases by the Advocate General in the latter part of this judgment, hence, at this stage no observation in this regard is required.
8. The office of the Advocate General finds place almost in all the countries and Constitutions of the world irrespective of the Presidential or Parliamentary System of the Government. In Azad Jammu and Kashmir, the office of the Advocate General is established under Article 20 of the Constitution, which runs as follows:- "20. Advocate General.--(1) The President shall appoint a person, being a person qualified to be appointed a Judge of the High Court to be the Advocate General for Azad Jammu and Kashmir.
(2) It shall be the duty of the Advocate General to give advice to Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Government.
(3) The Advocate General shall hold office during the pleasure of the President.
(4) The Advocate General may, by writing under his hand addressed to the President resign his office.
(5) The person holding the office as advocate General immediately before the commencement of the Constitution shall be deemed to be the Advocate General, appointed under the Constitution."
A cursory look at the above quoted constitutional provisions would reveal that the President shall appoint a person, being a person qualified to be appointed a Judge of the High Court to be the Advocate General for Azad Jammu and Kashmir. The learned High Court in the impugned judgment has held that no person shall be appointed as Advocate General without consultation with the Chief Justices of Azad Jammu and Kashmir and High Court and that all other Law Officers and Legal Advisors shall be appointed by the Government in consultation with the Advocate General. The wisdom behind such observations as assigned by the High Court is that the qualification for the post of the Advocate General is same as that of the Judge of the High Court and for appointment of the Judge of the High Court consultation with the Chief Justice of Azad Jammu and Kashmir and that of High Court is mandatory. The learned High Court has relied upon Article 43(2-A) of the Constitution wherein it is provided that the eligibility criterion for the Advocate General and that of Judge of the High Court is same. We are afraid such observations of the High Court are offending the clear constitutional provisions. A Court of law has to observe the law as it is B and not as it should be. The correct position is that the Advocate General is appointed under Article 20 of the Constitution, whereas, Judge of the High Court is appointed under Article 43. Both the statutory provisions are independent. Since Article 20 of the Constitution itself does not envisage consultation by the President with the Chief Justice of Azad Jammu and Kashmir and Chief Justice of High Court in the matter of appointment of Advocate General, hence, the learned High Court wrongly read the same into the said Article.
9. The similar proposition regarding consultation in the matter for appointment of Advocate General came under consideration before the Supreme Court of Pakistan in the case reported as Secretary Ministry of Law v. Muhammad Ashraf Khan [PLD 2011 Supreme Court 7]. In the referred case, Muhammad Ashraf Khan, petitioner, filed a writ petition before the High Court while challenging the appointment of Additional and Assistant Advocate Generals. His writ petition was accepted by the Lahore, High Court and it was held that in future the Governor of Punjab shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General for the Province with prior consultation with the Chief Justice of High Court. In appeal, the matter came up before the Supreme Court of Pakistan. The Hon'ble apex Court through an authoritative judgment held that the requirement of consultation cannot be read into Article 140 of the Constitution (which is a pari materia constitutional provision). It is suffice to refer here the relevant part of the judgment as follows: - "9. We have heard the learned counsel for the parties and have also perused the impugned judgment.
10. At the outset, it is necessary to mention that the impugned judgment essentially rests on the premise that an Additional Advocate General or an Assistant Advocate General performs functions, .which are performed by the Advocate General of a Province and given the significance of the functions of that office, the appointment of Additional Advocate General and Assistant Advocate General, and even that of the Advocate General itself ought to be made disregarding personal and political considerations. This led the High Court to pass the directions that the Government of the Punjab/Secretary Law will determine, in consultation with the Chief Justice/High Court the posts of Additional Advocates General and Assistant, Advocates-General, and that the Governor of the Punjab shall appoint the Advocate General, Additional Advocates General and Assistant Advocates Generat in consultation with the Chief Justice/High Court. The ground pressed in support of the above view was the "requirement of consultation" under the provisions of Article 140 and Rules 1.5 and 1.18 of the Law Department Manual (1938). As rightly pointed out by the learned counsel for the appellant, Article 140 does not envisage requirement of consultation by the Governor with the Chief Justice while making the appointment of Advocate General. The fact of the matter is that the notification dated 19-10-1993 provided that the Government may, in consultation with Lahore High Court, appoint an Additional Advocate General or an Assistant Advocate General, but the requirement of such 'consultation' was done away with by notification dated 3-11-1994. The learned counsel for the appellant vehemently contended that the aforesaid notification was brought to the notice of the learned High Court, but the factum of omission of the word 'consultation' therein was not taken note of in the impugned judgment, though the learned High Court, in para. 10 of the impugned judgment, did refer to 'subsequent notifications' to say that the other conditions of appointment, such as requirements of being a citizen of Pakistan, being not less than 40 years of age, being enrolled as Advocate Supreme Court, etc., were not expressly amended thereby.
11. The learned Judges of the High Court having held, in Para 14 of the impugned judgment, that consultation under Article 140 of the Constitution and Rules 1.5 and 1.18 of the Law Department Manual (1938) could not be construed in the manner it was done in terms of Article 193 of the Constitution, proceeded to issue directions to the Government/ Governor of the Punjab to deter the number of posts and make future appointments to the posts of Advocate General, Additional Advocate General and Assistant Advocate General, in consultation with the Chief Justice/High Court. As noted earlier, Article 140 does not envisage consultation by the Governor with the Chief Justice/High Court in the matter of appointment of Advocate General, the reference to Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 24) was absolutely off the mark. By no stretch of imagination could Rule 1.18 of the Law Department Manual (1938), as amended by the notification dated 19-10-1993, which provided for consultation, by the Governor with the Lahore High Court Lahore in the matter of appointment of Additional Advocate General or Assistant Advocate General, be made applicable to the appointment of the Advocate-General of the Province, which was a constitutional office and was governed by the express provisions of the Constitution. Further, as noted earlier, the said notification was superseded by the notification dated 3-11-1994. It is a clear case of non-reading of the relevant legal instruments.
12. The learned counsel for the appellant relied upon the case of Manehdra Nath Rai v. Virendra Bhatia (supra) to contend that consultation with the Chief Justice of the High Court in the matter of appointment of a Judge of High Court could not be made a requirement in the matter of the appointment of Advocate General. In the said case, the Allahabad High Court, while dealing with the issue held as Under:- "The argument that the provision of Sub-clause (1) of Article 217 of the Constitution should be followed in the matter of appointment of Advocate General is wholly misconceived. Article 217 of the Constitution deals with the appointment and conditions of the office of a Judge of a High Court.
The consultation with the Chief Justice of the State in the matter of appointment of a Judge of the High Court cannot be made a requirement in the matter of the appointment of Advocate-General.
The appointment of Advocate General is not governed by the aforesaid Article which falls in Chapter-V Part-6 of the Constitution whereas Article 165, which deals with the appointment of Advocate General for the State falls in Chapter II of Part 6. The scheme of the Constitution for the appointment of Advocate General as well as for appointment of a Judge of the High Court is totally different."
13. The issue of reading the qualifications of a Judge of High Court as referred to in the provision relating to appointment of Advocate General was also dwelt upon in the Indian jurisdiction in the case of G.D. Karkare v. T.L. Shevde (AIR 1952 Nagpur 330), which was approved by a Constitutional Bench of the Indian Supreme Court in the case Atlas Cycle Industries Ltd. Sonepat v. Their Workmen [1962 Supp.(3) SCR 89]. In the above Karkare's case (supra), it was held as under;- "(26) What the first clause of Art.165 insists is that the Governor shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate General for the State. The qualifications for the appointment of a Judge of a High Court are prescribed in the second clause of Art.217. It is true that the first clause of Art 217 says that a Judge of a High Court "shall hold office until he attains the age of 60 years". The real question then is whether this provision is to be construed as one prescribing a qualification or as one prescribing the duration of the appointment of a Judge of a High Court. As the provision does not occur in the second clause, it can only be construed as one prescribing the duration of the appointment of a Judge of a High Court.
(28) The provision that every Judge of a High Court "shall hold office until he attains the age of sixty years" has two aspects to it. While in one aspect it can be viewed as a guarantee of tenure during good behaviour to a person appointed as a Judge of a High Court until he attains the age of sixty, in another aspect it can be viewed as a disability in that a Judge cannot hold his office as of right after he attains the age of sixty years.
(29) We say as of right because under Art. 224 a person who has retired as a Judge of a High Court may be requested-to sit and act as a Judge of a High Court. The attainment of the age of sixty by a person cannot therefore be regarded as 'a disqualification for performing the functions of a Judge.
But the learned counsel for the applicant tried to distinguish between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act as a Judge under Article 224.
The distinction between the case of a person qualified to be appointed a Judge of a High Court under Article 217 and the case of a person requested to sit and act under Article 224 is not with respect to the qualifications for performing the functions of a Judge, but with respect to the matters provided by Articles 221, 222, 223, etc. In the language of the Constitution a Judge does not lose the qualifications prescribed in the second clause of Article 217 on the attainment of the age of sixty years. A person who attains that age cannot be appointed as a Judge not because he is not qualified to be so appointed within the meaning of the second clause of Article 217, but because the first clause of that Article expressly provides that a Judge shall hold office until he attains the age of sixty years.
(30) If the provision in the first clause of Article 217 viewed as a guarantee of tenure of office until the age or sixty is not available to the Advocate General because he holds office during the pleasure of the Governor, we see no compelling reason why the same provision construed as a disability should be made applicable to him. We are, therefore, of the view that the first clause of Article 217 cannot be read with the first clause of Article 165 so as to disqualify a person from being appointed Advocate General after the age of sixty years."
14. In the recent case of State of Uttaranchal v. Balwant Singh Chaufal decided on 18th January, 2010, the Indian' Supreme Court after considering all the earlier judgments on the point, held that the issue has been fully settled that the Advocate General for the State can be appointed after he/she attains the age of 62 years while the Attorney General for India can be appointed after he/she attains the age of 65 years.
15. The issue of application of qualifications of Judge Supreme Court to the Attorney-General for Pakistan was considered in our own jurisdiction in the case of Hamid Sarfraz (supra) wherein this Court held as, under:-- "Mr. Mahmud Ali Qasuri referred us to Article 207 of the Constitution in an effort to show that as a person appointed as Attorney-General had to be one who was qualified for appointment as a Judge of the Supreme Court, therefore, he could be deemed to be under the same disability as has been placed by the Constitution on a Judge of the Supreme Court in the matter of accepting another assignment carrying the right to remuneration. The argument is clearly misconceived, as merely prescribing a certain qualification for appointment as Attorney-General for Pakistan does not mean that he would be governed by the same disability as applies to a Judge of the Supreme Court. The correct position is that the Attorney-General functions under Article 100 of the Constitution, which gives him the right of audience in all Courts and Tribunals in Pakistan in the performance of his duties. Clause (3) of the same Article also contemplates that it shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government. It appears to us, therefore, that irrespective of Mr.Sharifuddin Pirzada's submission that he is functioning as the Federal Law Minister not under the 1973 Constitution, but under an ad hoc arrangement made by the President and Chief Martial Law Administrator, the Attorney-General could be required to undertake extra duties in terms of Article 100 of the Constitution and for that reason alone he would not cease to be the Attorney-General, nor would he lose his right of audience in all Courts and Tribunals of Pakistan. It is, therefore, erroneous to suggest that by being assigned the extra functions of looking after the portfolio of Law and Parliamentary Affairs, Mr. Sharifuddin Pirzada stands disqualified from appearing in this Court as Attorney-General."
16. In the light of the above discussion, since Article 140 of the Constitution itself does not envisage consultation by the Governor with the Chief Justice/High Court in the matter of appointment of Advocate- General, the learned High Court wrongly read the same into the said Article, and the appointment of Additional Advocate General and Assistant Advocate General being governed by the rules made by the Governor, the requirement of consultation could not be read into the rules so made unless it was explicitly provided therein. In the instant case, the Government of the Punjab, by making an amendment in the Law Department Manual (1938), vide notification 19-10-1993, provided such a consultation, but subsequently vide notification dated 3-11-1994 done away with it, which position was not altered later. We also uphold the contention of the learned counsel for the appellant raised in the light of the law laid down in the case of 1-famid Sarfraz (supra) that a person appointed as Advocate General has to be one who is qualified for appointment as a Judge of the High Court, but that does not mean that he also does not suffer from the disqualifications or disabilities envisaged in respect of the office of Judge. It is clear that such a person cannot be deemed to be under the same disability as has been placed by the Constitution on a Judge of the High Court in other respects."
We have nothing to add in the aforesaid except to say that there was no occasion for the High Court to itself imagine the word 'consultation' in Article 20 of the Constitution merely on the flimsy ground that the qualification of Advocate General and that of Judge High Court is same, hence, the procedure for appointment would also be the same. It 'is a settled principle of law that the Courts while interpreting the provisions of the Constitution/statute can neither add nor subtract anything from any provision. Reliance is placed on the case reported as Tabassum Arif v. Azad Govt. and others [2013 SCR 134], wherein it has been held that: - "6. I have also considered the argument of the learned counsel for the petitioner that there is ambiguity in the rules and the High Court should have ordered for amendment in the rules. It may be observed that the Courts have to interpret the law as it is and not as it should be. The Courts cannot add or subtract anything in the law. This view is fortified by the cases reported as Raja Muhammad Sohrab v. AJ&K Govt, and others [2002 PLC (C.S.) 1138] and Muhammad Resham Khan v. Azad Jammu and Kashmir Govt. and others [2004 MLD 884].
In the case titled Raja Muhammad Sohrab v. AJ&K Govt, and others [2002 PLC (C.S.) 1138] it was observed as under:- " .... It is a settled principle of law that in order to interpret the provisions of a statute or rules, the Courts are not supposed to add or subtract anything in the relevant provisions. Even no word can be held to be redundant."
In another case titled Muhammad Resham Khan v. Azad Jammu and Kashmir Govt. and others [2004 MLD 884] it was observed as under:- "It is a settled proposition of law that the Courts are meant to interpret the law; they are not supposed to add or subtract anything in the relevant provisions of law."
10. The impugned judgment of the High Court essentially rests upon the principle of parity. The learned counsel for the appellants (Raja Inamullah Khan and others) stated before us that the claim of appellants is not based upon the principle of parity with Punjab rather, they have claimed equality. It appears that the learned counsel has attempted to divert our attention by using a synonymic word of equality' with the same intention. The prayer clause of their writ petition reveals that they have demanded the same pay, perks, privileges as well as status equal to that of holder of post of Advocate General in Punjab and Gilgit Baltistan. The relief granted to them is also to the same effect. As in view of the principle of law laid down in the case reported as Azad Govt. and others v. Sardar Muhammad Mukhtar Khan [2016 SCR 206], the principle of parity with the Punjab is no more holding the field, hence, the claim of the appellants in this regard is faulty. In this state of affairs, the learned High Court fell in error of law while granting relief to the appellants on the basis of parity with Punjab.
11. The appellants have also attempted to base their case on the principle of equality before law.
The examination of the impugned judgment also reveals that this ground prevailed in the High Court. Having due regard to the opinion of the learned High Court, we are unable to affirm the same as the principle of equality before law has to be applied among the equals. It is celebrated principle of law that the principle of equality before law shall apply among the equals otherwise, the whole system shall collapse. If the equal treatment of law is applied without legal condition, it would mean that everyone has right to claim occupation of any office or demand for any type of terms and conditions without any restrictions imposed by law. In order to appreciate the merit of the argument of the learned counsel for the appellants regarding equality with Syed Muhammad Tayya b Gillani and others, it is necessary to refer the background in which they were granted the pay, perks and privileges with effect from the date on which Punjab Government had allowed amendments in pay and privileges of the Advocate General and other Law Officers. It is apt to mention here that Syed Muhammad Tayyab Gillani, the then Assistant Advocate General and other Law Officers filed a writ petition before the High Court on 17.08.2008. Their claim was that the notification dated 26.06.2007, relating to determination of their terms and conditions, be amended so as to bring it in conformity with the notification dated 28.10.2003 pertaining to the terms and conditions of Advocate General and Law Officers of Punjab. Through judgment dated 07.04.2009 their writ petition was accepted and the respondents therein were directed to amend the notification dated 26.06.2007 and other enabling existing rules on the same lines by giving effect from the same date when the Punjab Government had allowed the amendments in pay and privileges of the Advocate General, Additional Advocate General and Assistant Advocate General of Punjab. This judgment was assailed before this Court by way of filing a petition for leave to appeal, however, the same stood dismissed vide judgment dated 09.09.2009. It is worth mentioning here that it has never been held by the High Court or this Court in the referred judgments that in future whenever there will be increase in pay and privileges of the Advocate General in Punjab, the same would be ipso facto adapted in Azad Jammu and Kashmir. Admittedly, the case of Syed Muhammad Tayyab Gillani's was based upon the notification dated 28.10.2003 issued by Punjab Government, hence, the appellants cannot claim equality with them on the ground that the Punjab Government has revised the terms and conditions of Advocate General and Law Officers, hence, they are also entitled to be treated equally in the light of Syed Muhammad Tayya b Gillani's case (supra). The relief granted to the petitioners in that case, does not make it an absolute rule or principle of perpetuity. It is the Government which has domain to determine the terms and conditions and pay and privileges of any post or office keeping in view the nature of job load of work, number of people assigned for the job, economic and financial condition of the State, amongst others. The parity may be also adjudged keeping in view the comparative quantum of responsibilities and assignments.
12. Even otherwise, the relationship between the Advocate General and the Government is essentially that of an Advocate and a client in relation to his appearance on the Courts and arguing the case before the Courts on behalf of the State. Therefore, his pay, perks and privileges have to be settled by the Government which may be increased or reduced. In case, the terms and conditions so settled are not acceptable to the Advocate General or Law Officers they have an option to resign but claiming enhancement of the remuneration by filing a writ petition is not justified.
13. It is also very amazing that sections 7(1), (2), 10 and 11 of Act I of 2015 are holding the field. The learned High Court without disturbing the same has granted relief to the appellants and declared them entitled to same pay, perks and privileges as well as status equal to their counterparts in Punjab.
14. Another important aspect of the matter is that the appellants II were appointed in the year 2016 for a period of three years in the light of Act I of 2015. Section 7 of the referred Act provides Pay and Allowances admissible to the Law Officers. Subsection (2) of this section provides that a Law Officer appointed shall be deemed to have accepted the above terms and conditions including pay, allowances etc., and shall not be eligible for any enhancement or different terms and conditions. By accepting the aforesaid terms and conditions, the appellants kept performing their duties and completed the initial term of appointment. The tenure of their appointment came to an end on 09.10.2019, however, they were directed to keep working till further orders. At the verge of change of the Government, the appellants filed a writ petition and challenged the provisions of aforesaid Act, hence, their writ petition is badly hit by the principle of laches. On one hand, by accepting the terms and conditions of their service under the statutory provisions the appellants kept performing their duties and on the other hand they challenged the same, hence, they acquiesced to the terms and conditions of their appointment Notifications, so now they are estopped by their conduct to file the writ petition: In this state of affairs, their appeal is without any substance, hence, is dismissed in toto.
15. We have also observed that in several provisions of Act I of 2015 a non obstante clause that ""notwithstanding any judgment of Supreme Court or High Court" has been provided which on the face of it appears to be a contempt of Court, however, as on merits the appellants have got no case at all we are not intended to indulge ourselves in this controversy, however, the concerned are directed to look into the matter otherwise serious action under law shall be taken.
16. The Advocate General, being holder of the constitutional post, has to perform different vital functions. The purpose of creating this office as stated by BASU in his book which he referred to from the report of Joint Parliamentary Committee, on the Government of India Act, 1935, reads as follows:- "It is not part of our intention to suggest that the office of the Advocate General should, like that of the law officers here, have a political side to it. Indeed, our main object is to secure for the Provincial Governments legal advice from an officer, not merely well-qualified to tender such advice but entirely free from trammels of political or party associations, whose salary would not be notable and who would retain his appointment for a recognized period of years, irrespective of the political fortunes of the Government or Governments with which may be associated during his tenure of office" (Constitution of India by BASU I Vol. F, page 5).
The principal function of the Advocate General is to provide independent legal advice to the Government and to represent the Government in the superior Courts. Another very vital unwritten function of the Advocate General is to work as a bridge between the Government and the Courts.
The duties of the Advocate General may be summarized as follows:-
(i) He tenders his advice on issues and matters which are referred to him by the Government or different departments of the Government;
(ii) He represents the Government in cases wherein the Government is party.
(iii) He assists the Superior Courts as a Law Officer in all cases of Public Importance, particularly, where interpretation of constitutional points is involved;
(iv) He also prosecutes contemners in cases of contempt of Courts; and
(v) He protects public rights in cases of public nuisance and also protects public charities.
Syed Shabbar Raza Rizvi, the then sitting Advocate General, Punjab, in his article "Role and Functions of the Advocate General " has listed the following obligations and duties of the Advocate General:-- "(i) Under High Court Rules and Orders, copy and notice is given to the Advocate- General in all criminal matters including, appeal and bail matter.
(ii) Under Supreme Court Rules, Order IV, the Advocate General shall have precedence over all other advocates and senior advocates in the Court. Under Order XXVII, the Attorney-General is to conduct the proceedings in contempt cases, the Advocate General performs the same function in the High Court. In this capacity he acts as Law Officer of the Court.
(iii) Under Legal Practitioners and Bar Councils Act, 1973, the Advocate General is the Chairman of the Punjab Bar Council. The functions of the Council are to admit persons as advocates on the roll, to prepare and maintain a roll, of such advocates of the Province and to admit persons as Advocates of High Court. To entertain and determine cases of misconduct, to safeguard the rights etc. of advocates, to suggest law reforms, to conduct the election of its Members and arrange free legal aid to the indigent litigants.
(iv) Under sections 91 and 92 of Civil Procedure Code, cases of public nuisance and public charities are instituted and conducted by the Advocate General.
(v) Under Order XXVII (A) of the Civil Procedure Code if in a case of any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney General and to the Advocate General. In this role, he does not represent a party, instead, he assists Court earnestly to the best of his professional abilities as its Law Officer.
(vi) Under section 495 of Criminal Procedure Code, the Advocate General acts as a Prosecutor and under section 265-L of the same Code the Advocate General may refuse to prosecute against the accused.
(vii) Under the Mental Health Ordinance, 2002 the care of properties of persons who are mentally retarded are looked after by the Advocate General particularly litigation relating to such property is conducted by the Advocate General."
The "Instructions for the Management of the Legal Affairs of the Government of the Punjab Law Department Manual (LDM), 1938" enumerates the duties of Advocate General as under: "(a) The Advocate General will advise on any case relating to the initiation of criminal proceedings by the State or executive action by the Punjab Government under the law and on any other legal matter that may be referred to him by the Punjab Government or the Law Secretary. It will also be his duty to advise upon any matter on which his advice is required by the Governor, acting in his discretion.
(b) He will represent the State or will arrange for the representation of the State, at all stages in all criminal cases in the High Court, as well as Supreme Court and in quasi criminal matters. The Punjab Government may direct that owing to the special importance of the case, the Advocate General shall himself represent the State.
(c) He will appear or arrange for the appearance of Law Officer/State Counsel, in the following civil cases:
(i) Cases in the High Court and Supreme Court to which the Punjab Government is a party or cases relating to the affairs of the Punjab Government to which the Federal Government is a party.
(ii) Cases in the High Court and Supreme Court to which officers serving under the Punjab Government are parties and which the Punjab Government has decided to conduct on behalf of such officers.
(iii) Cases in the High Court and Supreme Court in which either the Punjab Government or such officers are directly interested but in which Government considers itself to be sufficiently interested to render it advisable to conduct the case on behalf of some third person.
(iv) Appeals from the cases referred to above.
(d) He will personally appear when so required, before the High Court in references from subordinate courts to which the Punjab Government is a party or which can otherwise be heard.
(e) He will appear himself or arrange for the conduct of civil cases of the nature described above in the other civil courts of Lahore.
(f) He will also be expected to appear in any civil or criminal cases outside Lahore when specially desired to do so by the Punjab Government or by the Law Secretary.
(g) He will attend the legislative assembly when required to do so by Government [PLD 2014 Lah.
5911."
The functions of like nature have to be performed by the Advocate General of Azad Jammu and Kashmir as enumerated in the AJ&K Law Department Manual, 2016. In view of the importance of functions to be performed by the Advocate General, it is mandatory that there should be some yardsticks in respect of appointment of the Advocate General. Article 20 of the Constitution provides that a person qualified to be appointed a Judge of the High Court shall be appointed as the Advocate General for Azad Jammu and Kashmir. The qualification provided under Article 43 of the Constitution for appointment of a Judge of the High Court is that he should have been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan L for a period aggregating, not less than ten years. The expression --has been an advocate of the High Court" should be taken to mean "has been practicing before the High Court". It is to be assessed whether an advocate who handles very few briefs in a year could be said to be actually practicing.
In our estimation, while making appointment to the post of Advocate General the concerned should have to assess the ability of the advocate, the volume of his practice etc.
16. Furthermore, the Advocate General is the principal Law Officer of the Government. It is his duty to advise the Government in the legal and constitutional matters and perform other duties of the legal character. He has the right to sit, take part and speak in the proceedings of the Assembly or any of its committees as envisaged under Article 26(2) of the Constitution. He has right of audience before all the Courts. The most trusted person possessing the qualification of the Judge, High Court is appointed as the Advocate General. No tenure or duration of the office of the Advocate General is prescribed like a Judge of the High Court rather he can hold the office even after the age of 62 years. Possessing the qualification to be appointed as a Judge of the High Court, prima facie, means that the Advocate General must be of the level of a Judge of the High Court by virtue of his knowledge, conduct, caliber, etc.
17. We have also noticed that besides Advocate General, a large number of Law Officers are appointed by the Government. Despite the fact that they are being paid from the public exchequer, the private counsel are also engaged by the Government in several cases. In our estimation, if the government contends that none amongst its law officers is capable of handling the cases then the question would arise why incompetent persons have been appointed. In such a scenario the public suffers twice, firstly, they have to pay for incompetent law officers, and secondly, they have to pay again for the services of competent counsel the government engages. The public exchequer is not there to be squandered in this manner. The State must protect the belongings and assets of the State and its citizens from waste and malversation. The Supreme Court of Pakistan in the case titled Rasheed Ahmed v. Federation of Pakistan [PLD 2017 SC 121] has held that:- "17. A private litigant has the right to engage the services of any advocate, subject to the advocate agreeing to such engagement, and pays for his/her services. However, the Federal Government and the provincial governments have a host of law officers who are paid out of the public exchequer. If a government contends that none amongst its law officers are capable of handling cases then the question would arise why have incompetent persons been appointed. In such a scenario the public suffers twice, firstly, they have to pay for incompetent law officers, and secondly, they have to pay again for the services of competent counsel the government engages.
The public exchequer is not there to be squandered in this manner. This Court has observed that the State must protect, ""the belongings and assets of the State and its citizens from waste and malversation" (Muhammad Yasin v. Federation of Pakistan, PLD 2012 SC 132, at 143B). This Court had also taken strong exception to the Government of Sindh and the Inspector General of Police, Sindh engaging the services of a private counsel for three million rupees instead of the Advocate General and law officers from his office (Mahmood Akhtar Naqvi v. Government of Sindh 2015 SCMR 810, at 820E)."
It is, therefore, observed that in presence of the Law Officers, being paid from the Government exchequer there is no occasion for the Government to engage a private counsel to defend or prosecute the cases in the Supreme Court and High Court. However, in exceptional cases having State and Government level constitutional importance or involving complex technicalities of some particular fields, after consultation with the Advocate General and 'prior permission or the Court the private counsel can be engaged to assist the Advocate General but it cannot be allowed to make a practice.
18. Likewise, the departments in which the Legal Advisors are appointed, are not allowed to engage additional counsel. If the department is not satisfied with the performance of the Legal Advisor, he may be replaced or his terms and conditions may be altered, if so advised.
19. It has been noticed by us time and again that in a number of cases, the Advocate General has shown his inability to argue the case on the ground that he has not been directed so by the Secretary Law, Justice, Parliamentary Affairs and Human Rights. Such a practice is highly deprecated. The Advocate General is holding the constitutional post, hence, he is not supposed to be sub-ordinate to Secretary Law. Even otherwise, it is the Advocate General who is a fit person to decide the matter of distribution of the cases amongst the Law Officers and not the Secretary Law.
In this state of affairs, we are constrained to hold that in future the Advocate General is authorized to appear and defend each and every case in the Supreme Court and High Court without any direction by the Secretary Law. He is also authorized to distribute the cases amongst the Law Officers. Here it is clarified that the cases filed against the Government, shall be distributed amongst the Law Officers by the Advocate General, however, sanction to file the appeal shall be issued by the Law Department in the name of the Advocate General who shall distribute the cases amongst the Law Officer as he deems appropriate. In this regard, if any amendment in the relevant law is required, the concerned are directed to take necessary steps. However, the Secretary Law, is still the head of the department as provided under the law.
The aforesaid are the reasons for which we have passed short order, reproduced hereinabove, on 02.09.2021.