1. MUHAMMAD YAQUB ALI, C. J.-This is a certificated appeal from the order of a Division Bench of the High Court of Sind & Baluchistan, Karachi, dated January 29, 1975, dismissing Constitutional Petition No. 29 of 1975 filed by Mr. Abrar Hassan, the appellant herein, against the Federation and Mr. Justice Abdul Kadir Shaikh, respondents Nos. 1 and 2, respectively.
2. On January 16, 1975, Mr. Justice Tufail Ali Abdul Rahman, the Chief Justice of the High Court of Sind & Baluchistan died and in the vacancy caused thereby, the President appointed the second respondent, a permanent Judge of this Court, as Chief Justice on the terms and conditions appearing in the following Gazette Notification dated 22-1-1975 : "No. F. 1 (1)/74-Al.-In exercise of the powers conferred by clause (1) of Article 193 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to appoint Mr. Justice Abdul Kadir Shaikh, a Judge of the Supreme Court of Pakistan, on deputation, as the Chief Justice of the High Court of Sind & Baluchistan, with effect on and from the date he takes upon himself the execution of his office as such Chief Justice.
3. During the period Mr. Justice Abdul Kadir Shaikh holds the office of Chief Justice of the High Court of Sind & Baluchistan, he will conti--nue to retain his lien on the office of, and seniority as, Judge of the Supreme Court."
4. The appellant is a member of the High Court Bar. He challenged the appointment of the second respondent in a petition under Article 199(1)(b)(ii) of the Constitution requiring him to show under what authority of law he claims to hold the office of Chief Justice. The challenge was made on the ground that the appointment was of a temporary nature, and under Article 196 of the Constitution, only the most senior of the Judges of the Sind & Baluchistan High Court could be appointed by the President as Chief Justice.
5. It was not denied that-Mr. Justice Abdul Kadir Shaikh was qualified to be appointed a permanent Chief Justice under Article 193 but it was urged : (i) that the appointment was of temporary nature since it was provided in the Order of the President that the second respondent was appointed as Chief Justice on deputation and during the period he holds the office of Chief Justice he will continue to retain his lien on the office of and seniority as Judge of the Supreme Court ; and (fl) that as a Judge of this Court be was, under Article 207, precluded from bolding any other office of profit in the Service of Pakistan, if his remuneration is thereby increased or occupy any other position carrying the right to remuneration for the rendering of service. It was claimed that by holding a lien on the office of a Judge of this Court and enjoying the office of a Chief Justice of the High Court of Sind & Baluchistan, the emoluments of the 2nd res--respondent were enhanced.
6. The learned Judges of the High Court proceeded first to examine the nature and legality of the appointment of the second respondent as Chief Justice and found that the appointment was of permanent nature and not as an acting Chief Justice under Article 196. The plea that Article 207 of the Constitution was a bar to his appointment was repelled as the second respondent bad relinquished charge of the office of the: Judge of the Supreme Court and by assuming the office of Chief Justice of the High Court of Sind & Baluchistan. His remuneration had not been increased.
7. The retention, by the second respondent, of lien and seniority as a Judge of the Supreme Court was considered, by the learned Judges to be irrelevant to the legality of his appointment as Chief Justice. The plea that as a permanent Chief Justice of the High Court of Sind & Baluchistan, he could not have retained lien and seniority as a Judge of the Supreme Court, was disposed of with the remark that it was the concern of `their Lord--ships', and the petitioner, as a member of the Bar, had no locus standi to challenge the seniority of the Judges of the Supreme Court. - Finally the learned Judges observed that although they had examined the arguments of the counsel for the petitioner on the assumption that the petition was maintainable, they would make it clear that they did not mean that the petition was maintainable.
8. In support of the appeal we have heard Mr. Mumtaz Hassan at some length. Contrary to the approach made by the High Court, we heard him first on the maintainability of the Writ Petition under Article 199 as, in our view, the legality of the appointment of the second respondent as Chief Justice could be questioned only if the answer to this question was in the affirmative.
9. Article 199 (1) (b) (ii) of the Constitution provides "199.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order- (i)------------------------------------------------------------------
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(b) on the application of any person, make an order-
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(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office ;"
10. 'Person' is defined in clause (5) in the following terms "'Person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, any Court or tribunal, other than the Supreme Court, a High Court, or a Court or tribunal established under a law relating to the Armed Forces of Pakistan ;".
11. A High Court is thus not a 'person' to whom a writ may issue under Article 199 but it was contended by Mr. Mumtaz Hassan that a Judge should be distinguished from the High Court and that while a writ cannot be issued to a High Court, a writ may issue to a Judge of the High Court as an individual. In support of this contention, he relied on the following decided cases Jyoti Prokash Mittar v. The Hon'ble Mr. Justice H. R. Bose, Chief Justice of High Court, Culcutta (AIR 1963 Cal. 484) ; Hirnansu Kumar Bose v. Jyoti Prokash Mittar (AIR 1964 SC 1636) ; Aditya Narain Singh v. Tulshi Prasad Narain Singh and others (AIR 1934 All. 979); Darley v. The Queen ((1885) 69 Rev. Rep. 121) ; Mian Jamal Shah v. The Member, Election Com. Mission, Government of Pakistan, Lahore and others (PLD 1966 SC 1) and Malik Ghulam Jilani v. Mr. Justice Muhammad Gul, Civil Petition for Special Leave to Appeal No. 16-P. Of 1974.
12. The Indian decisions have no relevance in , the present case. In Jyoti Prokash Mittar v. The Hon'ble Mr. Justice H. K. Bose, and Himansu Kumar Bose v. Jyoti Prokash Mittar, maintainability of writ petitions under Article 226 of the Constitution was challenged not on the basis of a bar as is contained in Article 199 of our Constitution but on the ground that a writ of certiorari or mandamus will not lie against an administrative order passed by the Chief Justice of a High Court. The Calcutta High Court held that a writ lies against such an order under Article 226 but no affirmative decision was given on the point by the Supreme Court of India.
13. In Aditya Narain Singh v. Tulshi Prasad Narain Singh and others, an objection was raised in a pending matter that as the vacancy caused by transfer of one of the Judges to the Lahore High Court had not been filled, the Allahabad High Court was not properly constituted. The decision in that case has no relevance but Mr. Mumtaz Hassan relied on it to substantiate his contention that while a writ cannot issue to a High Court, a writ may lie against a Judge. In construing section 101 of the Government of India Act, 1915 which provided that each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think fit to appoint, the learned Judges of the Allahabad High Court remarked "Section 101 further lays down the qualifications of a Judge of a High Court and then contains the proviso that no less than one-third of the Judges of the High Court, including the Chief Justice but excluding the Additional Judges, must be Barristers or Advocates as aforesaid and that not less than one-third must be members of the Indian Civil Service. At least in practice, the proviso has been interpreted so far as meaning that the Chief Justi4e must be a Barrister Judge and that one- third of the total strength of the permanent Judges including the Chief Justice must be Barristers and one-third must b-- members of the Indian Civil Service. The proviso does not in express terms apply to Additional Judges, for it excludes them. We think that a fortiori the proviso does not apply to Officiating Judges appointed by the Local Government. It follows therefore that there is no defect at all if the Officiating Chief Justice happens to be a non --Barrister or an Officiating Judge a non- Barrister or non-Civilian Judge in place of a Barrister or Civil Judge, who has either retired or gone on short leave. There is a distinction between the constitution of a High Court which consists of one Chief Justiceship and a fixed number of puisne Judgeships and the actual group of individual Judges who for the time being constitute the High Court. If the Constitution itself were altered and a Judgeship were abolished which would disturb the requisite proportion, there would certainly be a defect in the Constitution. But if there be a temporary vacancy caused by the retirement, resignation or going on leave of a Chief Justice or a Permanent Judge, the Constitution, in our opinion, would not be illegal."
14. The learned Judges further pointed out that provisions of section 105 of the Government of India Act implied a gap between the appointment of a permanent Chief Justice and an acting Chief Justice. Similarly, there would be a gap between the retirement of a puisne Judge and his successor. A gap between the appointment of a Chief Justice and a puisne Judge did not, therefore, affect the constitution of the High Court within the framework of section 101 of the Government of India Act.
15. The distinction drawn by tae learned Judges of the Allahabad High Court between Judgeship and the actual group of individual Judges who, for ,the time being, constitute the High Court is in the context of the controversy raised in that case, otherwise they did not mean to say that individual Judges were not part of the High Court. The correct position is indeed spelt out by the learned Judges in the sentence `the actual group of individual Judges who, for the lime being, constitute the High Court'.
16. In Darley v. The Queen, The House of Lords held that the office of treasurer of the county of the city of Dublin was an office for which an information, in the nature of a quo warranto, will lie. The decision is "On whatever ground these two last cases were decided, we cannot consider them as authorities to establish the position that a quo warranto information will not lie for usurping an office created by Act of Parliament, when that office is clearly of a public nature. And after the consideration of all the cases and dicta on this proceedings by information in the nature of quo warranto will lie for usurpring any office, whether created by charter alone; or by the Crown, with the consent of Parliament, provided the office be of public nature, and a substantive office, not merely the function, or employment of a deputy or servant held at the will and pleasure of others ; for, with respect to such an employment, the Court certainly will not interfere, and the information will not properly lie.
17. The case of the Registrar of the Bedford Level, Rex v. Corporation of Bedford Level (5 East, 356) and that of a county treasurer, who is the mere servant of the justices in England, Rex v. Justices of Here--fordshire (22 R R 830 (1) Chit. 700), are instances of this latter sort."
18. The objection to the maintainability of the writ petition is based in the ;present case on the bar contained in Article 199 and not on the ;ground that the second respondent holds an office created by the Parliament or that he does not hold a public office. The remarks quoted above have thus no application here.
19. In reply the learned Attorney-General firstly relied on Article 248(1) of the Constitution which provides that the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister, shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any .Act done or purported to be done in the exercise of those powers and performance of those functions, and contended that the order appointing :he second respondent as Chief Justice of the High Court of Sind & Baluchistan was covered by this protection. But there is a proviso to clause (1) of Article 248 which lays down that nothing in that clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province. In the instant case the first respondent is the Federation and not the President of Pakistan. To -overcome the proviso the learned Attorney-General argued that orders passed by the President fall in two categories ; firstly, those which are covered by the blanket protection contained in clause (1) of Article 248 and secondly those which fall within the ambit of the proviso to it. The language .Employed in Article 248(1) is, however, not capable of bearing such an interpretation. The protection contained in it extends to the person of the President, a Governor, Prime Minister etc. And not to any action taken or any order passed by them. The first contention raised by the learned Attorney General has thus little force. '
20. On the main issue the learned Attorney-General argued that a High Court, and individual Judges who constitute the High Court for the time being, are inseparable from each other, and in support of this enunciation, he drew our attention to the following remarks in American Jurisprudence (2nd Edn.), page 98, section. 3 : "Judge as distinguished from Court.-The distinction between the term 'Judge and the term 'Court' is often made and is well recognized. The words are, however, often used interchangeably, and are frequently used in statutes as synonymous and convertible terms, the word 'Judge' often being used when reference is manifestly to Court, and vice versa. In such cases, the word 'Court' has been construed to mean 'Judge' when necessary to carry into effect the legislative intent. Another example of interchangeable use of the word is that the Judge of a Court while presiding over it is, out of courtesy, called 'the Court'.
21. A Court cannot exist without a Judge, and the Judge is thus am indispensable part of the Court, but he is only a part of it."
22. That a Judge and the High Court are interchangeable terms in our Constitution is borne out by the provisions of Article 192(1). It lays down .
23. "192.-(1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as, may be fixed by the President."
24. The Article does not say that there shall be a High Court and the: President shall appoint a Chief Justice and so many other Judges as may be: declared by law or until so declared as may be fixed by the President. On the contrary, it says that a High Court shall consist of a Chief Justice: and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President. There can, therefore,, be no High Court without a Chief Justice and the prescribed number, of Judges.
25. It is relevant in this connection to bear in mind that totality of the jurisdiction conferred on a High Court by Constitution and law is exercised by the individual group of Judges sitting singly or in Benches. In this. Context each Judge is a High Court. That explains why orders, judgments. And decrees passed and summons and warrants issued under the direction of a Judge are expressed in the name of the High Court and not in the name of the individual Judge. One may also refer to Article 201 of the Constitution which lays down that any decision of the High Court shall, to the extent it decides a question of law or is based upon or' enumerates a principle of law, is binding on all Courts subordinate to it. The: The decision rendered by the Judge of a High Court thus carries the. Authority conferred by Constitution and law on the High Court and nor the authority of an individual Judge. To my mind these provisions of the Constitution bring out clearly that the term High Courts and Supreme Court used in clause (5) of Article 199 includes Judges of these respective Courts.
26. The policy of law that no writ will issue to a High Court and Supreme Court is based on sound principles. If one Judge of a High Court were ~5-' to issue a writ to another Judge under Article 199, the Judge to whom the writ is issued, may in exercise of the same jurisdiction nullify the writ This is the logical consequence of the fact that High Courts and them individual groups of Judges are invested with coordinate jurisdiction.
27. There is a historical background and practice of British Court also from which this jurisdiction is borrowed why writs do not lie to Judges of superior Courts. Writs of certiorari, mandamus, prohibition, quo warranto and habeas corpus have their origin in the exercise of prerogative powers of the Crown. They are commonly known as prerogative writs. These writ F issue to persons who act as the agents and servants of Crown in the exercise of its prerogative powers. The reason being that it is only within the sphere of the prerogative that the Crown can act by orders given to its servants. The following useful discussion appears on this subject in Law Quarterly Review (January 1932), Vol. XLVIII, pp. 26-27 "It is by the application of this principle that we can distinguish between the very different clauses of persons who, in a large sense, are persons in His Majesty's service. It is clear that when such persons as mayors, justices of the peace, lord-lieutenants, or sheriffs perform their functions, they are not acting as the agents o: servants of the Crown in the exercise of its prerogative powers. They are performing duties cast upon them by common law or statute, and, subject to that law, they have a large measure of discretion in the manner in which they perform their duties. The performance of their duties is not dependent upon the orders of the Crown ; for, in respect of many of their functions, the matters falling within their competence are matters which it is not within the power of the prerogative to control. It is true, as Maitland pointed out in his Constitutional History, that at the present day many of the ministers of the Crown have large powers conferred upon there by statute, and that in the exercise of these powers they are not acting as the agents of the Crown in the exercise of its prerogative powers. It is true that when acting in the exercise of these statutory powers their position is analogous to those servants of the Crown who do not act as its agents in the exercise of its prerogative powers. But these powers are given to them because they hold for the time being the position of the principal agents through whom the Crown exercise its prerogative powers. The addition of these powers, therefore, does not make them any the less 'persons is His Majesty's service.'
28. It will thus appear that the test whether or not a person is a person in His Majesty's service in the strict sense, or in a loose or general sense, does not depend upon the question whether or not the person is paid by the Crown ; the justices of the peace are unpaid ; but if a Secretary of State agreed to serve without a salary he would be nonetheless a person in the service of the Crown. Nor does it depend upon the question whether the person is appointed and can be dismissed by the Crown. The justices of the peace are appointed and can be dismissed by the Crown ; but that doe; not make them persons who act as the agents of the Crown in the exercise of its prerogative powers. Now, if this test be applied to the Judges of the Supreme Court of Judicature, it is quite obvious that they are not persons in His Majesty's service, nor are their offices in the service of His Majesty. From the very beginning of our legal history they have acted as the interpreters of the law, and as the arbitrators, not only as between subject and subject, but as between king and subject.
29. So far are they from being the agents of the Crown in the exercise of its prerogative powers, that one of their principal functions is to adjudicate upon the legality of the exercise of these powers."
30. In consonance with this historical background. Judges of the Supreme Court and High Courts were, in the 1956 Constitution, excluded from the definition of 'service of Pakistan.' In the Constitution of 1962, a departure was made and the Judges of superior Courts were not specifically excluded and this pattern has been followed in the 1973 Constitution. This, however, does not affect the legal status of Judges. So long as Judges of superior Courts act as interpreters of law and Constitution and decide disputes not only between citizen and citizen, but also between citizens and State and exercise the power to strike down actions of the State as without law authority, they do not fall in the category of agents and servants of the State to whom writs may issue under Article 199. In my view, clause (5) of Article 199 is enacted to achieve this object.
31. Another reason why writs should not issue from one High Court to another High Court and from one Judge to another Judge of the same High Court is that such a course will destroy the traditional high degree r of comity among the Judges of superior Courts which is essential for the smooth and harmonious working of the superior Courts. Observation to this effect will be found in the judgment delivered by the Court in Mian Jamal Shah v. The Member, Election Commission and others. This is one of the cases on which Mr. Mumtaz Hassan relied in the course of his address. The respect and amity which the Judges should extend to each other will certainly be diminished if they were to issue writs to each other.
32. Lastly, as I read the provisions of Article 199, they spell out that a writ v .Ill not issue from one Judge of a High Court to another Judge of the same Court. Article 199 (1) confers jurisdiction on High Courts to issue writs to persons performing, within their territorial juris--diction, functions in connection with the affairs of the Federation, a Province or a local authority. A High Court cannot therefore issue a writ to a persons performing functions in another province. This restriction applies equally in case of High Courts as the Judges who constitute these Courts perform their functions outside the territorial jurisdiction of each other.
33. The exclusion of High Court from the definition of 'person' is, therefore, not intended to debar a High Court from issuing writs to other High Courts. This object is fully served by the primary condition laid down in Article 199 (1). What then is the purpose of clause (5) of Article 199.1 Obviously, not to debar a High Court from issuing a writ to itself It is too absurd to contemplate that a writ could ever issue from the 'High Court of Lahore' to the 'High Court of Lahore'. A more rational view is that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other. There is a weighty reason in support of this view. If this bar is not there then the judgments delivered by individual groups of Judges of High Courts in different ,jurisdictions may in the final event, be challenged, by litigants, under Article 199 as without lawful authority on variety of grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides etc. In this connection ore should bear in mind large number of decisions given by High Courts !n the past interfering with the orders passed by the Tribunals of exclusive jurisdiction such as the orders passed by the Rehabilitation authorities. Custodian of Evacuee Property, Settlement authorities, Revenue Board etc. To which finality was attached by Statute. These precedents will provide ample girth to the jurisdiction of each Judge of the High Courts to quash, under Article 199, Judgments, decrees and orders passed by other Judges of his Court. I do not see how such a result can be avoided if we exclude Judges from the term High Court and Supreme Court in clause (5) of Article 199.
34. I, however, do not mean to say that if a Judge has reached the age of superannuation or is otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at law against him. His capacity to hold the office can be questioned in proper proceedings, but not by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not qualified to hold the office may be brought before this Court on the ground that it is not a judgment delivered by the High Court or it may be challenged on the ground that the High Court not properly constituted because a judgeship is vacant.
35. The doctrine of de facto on which this Court relied in Mr. A. M. K. Leghari is also not attracted in the present case. The issue raised in that case was somewhat different. Under Article 178 of the 1962 Constitution Mr. Leghari was to retire from the civil service of Pakistan on attaining the age of 60 years. By the 4th and 5th Amendments Article 178 was modified and in pursuance to it Mr. Leghari was retired before attaining the age of 60 years. He challenged the vires of the Amending Act on the ground that some of the members of the Parliament who had voted in favour of the Amendments were, under Article 103, disqualified from being elected as members. Before Article 178 was amended, the disqualification imposed by Article 103 had been removed by the Third Amendment Act, 1965. It was contended by Mr. Leghari that the law removing the disqualifi--cation was ultra vires of the Constitution, because the members who were disqualified had taken part in the voting on the Bill. The validity of an earlier law was thus challenged collaterally to sustain the contention that the later law by which Article 178 was amended, was invalid. The observations in that case are, therefore, confined to its own facts. They certainly do not lay down that if a person, not qualified to hold the office of Judge of a High Court or Supreme Court, usurps that office, the judgments delivered by him cannot be challenged because he is a de facto Judge.
36. There are remarks in paragraph 246 of Volume XLVI of the American Jurisprudence, 2nd Edition, that "Generally, a de facto Judge's title or right to the office can be determined only in quo warranto proceedings or informa--tion in the nature of a quo warranto at suit of the sovereign, and cannot be questioned in the case before him or in a collateral proceeding. These observations are based on the laws which govern the jurisdiction of different States in U. S. A. They mostly deal with City Courts, Magistrate Courts, Police Courts and State Courts. There is no mention in these remarks of the Judges of the Federal Court of Appeal or the Judges of the Supreme Court of U. S. A. These remarks, too, do not mean to lay down that a judgment delivered by a de facto Judge cannot be set aside on the ground that he is not qualified to perform the judicial functions of his office. On the contrary, the discussion is concluded by the following statement.
37. "It has, however, been held that although a writ of prohibition isnot the proper remedy to test the authority of a special Judge or a de facto Judge, a Court may, within its discretion, choose to determine the authority of such a Judge in a prohibition proceeding. It has also been held that a defect in the authority of a Judge by way of lack of judicial authority is jurisdictional and can be raised for the first time on appeal despite the de facto doctrine and may also be raised in a collateral proceeding."
38. Instances are not wanting in which judgments delivered by Courts below are set aside by Courts of appeal on the ground that the value of the subject-matter of the lis was beyond the monetary jurisdiction of the presiding officer or on the ground that the cause of action had accrued outside his territorial jurisdiction. If that be so then it is begging the question that a judgment delivered by a person not competent to hold the office of a Judge of a High Court cannot be challenged in appellate proceedings on the ground that he was not qualified to hold the judicial office.
39. It may also be pointed out that the remarks in section 246 of the American Jurisprudence reproduced above apply to cases in which the judgment delivered by a de facto Judge is not brought under challenge in an appeal or by any oilier remedy provided by law. The rule in section 246 is based on a salutary consideration that unless a judgment or decree is appealed from before a proper forum within the prescribed period of time, the rights secured under them by litigants become final and cannot be challenged subsequently on the ground that there was a defect in the authority of the Judge. If this were not so, then the rights of citizens will always remain in jeopardy for reasons over which litigants have no control. For example the Judge might have failed to conform to a condition precedent of his appointment or there may have been want of power in- the appointing authority under a law before the same is held to be unconstitutional.
40. I will now deal with another objection taken to the interpretation 1 have placed on Article 199 (5) namely, that it will debar the High Court from issuing a writ of habeas corpus to a Judge if he were to wrongfully confine his servant or any other person. As I see the ouster in clause (5) of Article 199 is in relation to exercise or purported exercise of judicial functions by a Judge of the High Court and Supreme Court. A writ of habeas corpus may therefore issue to a Judge if he wrongfully confines another person because the act complained of is not even remotely relatable to the performance of his judicial functions. A writ of quo warrawo will not, however, issue for production of a prisoner convicted at the bar of a de facto Judge. The interpretation I have placed on clause (5) of Article 199 does not, therefore, throw a cloak of absolute protection on Judges of superior Courts. In their private capacity, they are like all other citizens amenable to laws of the land and but for the bar contained in clause (5) which is based on sound policy of law, their right to office would be equally open to challenge by a writ of quo warranto.
41. Lastly, Mr. Mumtaz Hassan drew our attention to the judgment of the Court in Malik Ghulam Jilani v.
42. Mr. Justice Muhammad Gul in which the capacity of one of the Judges of this Court was questioned in a writ under Article 199. The writ was dismissed by the High Court in limine and the Petition for Special Leave to Appeal was dismissed by this Court. No occasion, therefore, arose in that case for the respondent to invoke the bar contained in Article 199 (5). As one of the Judges who disposed of that petition, I can vouchsafe it that the exclusion of `Supreme Court' from the definition of person in clause (5) of Article 199 did not occur to the mind of any one of us when we heard arguments in support of that :petition. The decision in the case of Malik Ghulam Jilani v. Mr. Justice Muhammad Gul is, therefore, not an authority, one way or the other on which the appellant can rely in this case.
43. At the conclusion of the arguments, the Court asked the Attorney--=General to inquire from the Ministry of Law, Government of Pakistan, as to what was the intention of the Government in preserving the lien of -the second respondent on the judgeship of this Court and seniority if he was being appointed under Article 193 as the permanent Chief Justice of the Sind & Baluchistan High Court. In reply the Ministry his sent the following communication : "(a) Mr. Justice Abdul Kadir Shaikh, respondent No. 2, was appointed to serve as permanent (and not acting) Chief Justice of the Sind & Baluchistan High Court and the intention of the Government was not to recall him back to the Supreme Court.
(b) The Judges of the Supreme Court and High Courts are not Government servants or civil servants within the purview of the Fundamental Rules, Civil Service Regulations and the Civil Servants Act, 1973. Therefore, the words 'on deputation', 'lien' and `seniority' appearing in the Notification No. F. 1 (1)/74-Al dated the 22nd January, ,975, have not been used in their connotation as applic--able to Government servants and civil servants as in the aforesaid Rules, Regulations and Act."
44. The answer given by the Ministry supports the view advanced by the learned Attorney-General that the second respondent has been appointed :permanent Chief Justice of the Sind & Baluchistan High Court under Article 193 of the Constitution and not as an Acting Chief Justice under ,Article 196.
45. The words 'on deputation' occurring in the first part of the Notification No. F. t (t)/74-Al dated 22nd January 1975, and the whole o M the second paragraph to the effect that the second respondent will continue to retain his lien on the office, and seniority as, Judge of the Supreme Court are thus surplusages. This squarely meets the objection taken by the .Appellant to the validity of the second respondent's appointment as Chief Justice of the Sind & Baluchistan High Court. We are not sure, however, ;if it is realized that the reply sent by the Ministry of Law is tantamount to saying that the second respondent has vacated the office of a Judge of the Supreme Court It is doubtful whether the second respondent accepted his appointment as permanent Chief Justice of the Sind & 83luchistan High Court in the knowledge that such a consequence will follow. The words 'on deputation' used in the first paragraph of Notification No. F. 1 (l)/ 74-AI dated 22nd January 1975, and the second paragraph to the effect that 'he will continue to retain his lien and seniority as a Judge of the Supreme Court' were calculated to induce the belief that he will be holding the two posts side by side in a permanent capacity. I am afraid that such .a belief will be mistaken as the holding of one permanent post precludes the incumbent from holding another post in a similar capacity. This principle is embodied in Fundamental Rules, Civil Service Regulations and Civil Servants Act that the incumbent of a permanent post will hold lien .On it while holding another post on deputation. In the present proceedings we are, however, not called upon to determine what is the impact of the appointment of the second respondent as the permanent Chief Justice of the Sind & Baluchistan High Court on his appointment as a permanent Judge of this Court. It is clearly his choice to opt for one or the other office.
46. For the foregoing reasons I have come to the conclusion that the writ filed by the appellant to question the validity of the second respondent' appointment as Chief Justice of the Sind & Baluchistan High Court did not lie under Article 199 of the Constitution. The appeal is, accordingly, dismissed but without making any order as to costs.
47. SALAHUDDIN AHMAD, J.-I have had the advantage of perusing the-- judgment proposed to be delivered by my Lords the Chief Justice and Muhammad Gul J., and I agree with the order proposed by my Lord the: Chief Justice but for different reasons.
48. With due difference to my Lord the Chief Justice I am very clear in my mind that an information in the nature of quo warranto or in other words a, constitution petition under Article 199(l)(b)(h) of the Constitution of the Islamic Republic of Pakistan lies in the present case.
49. Respondent No. 2 was a permanent Judge of the Supreme Court of Pakistan until his appointment as Chief Justice of the High Court of Sind &--Baiuchistan at Karachi by the President of Pakistan by a Notification dated the 22nd of January 1975. The appellant is an Advocate of the said High Court, and he ors a petition under Article 199(i)(b)(ii) of the Constitution challenged before that Court the validity of the appointment of the respondent as its Chief Justice. A Division Bench of the High Court including. Its senior most puisne Judge dismissed the petition on merits as well as on the ground that it was not maintainable. The learned Judges of the High Court. Were of the view that the appointment of respondent No. 2 as Chief Justice of the High Court was of a permanent nature, and it was valid, and that the: remuneration of the respondent not having been increased by such appoint--ment it did not fall within the mischief of Article 207 of the Constitution. The learned Judges were further of the opinion that the petition was not maintainable. The High Court, however, gave the requisite certificate --for appeal under Article 185(2)(f) of the Constitution, and hence this certified. Appeal before us.
50. Mr. Mumtaz Hussain, learned counsel appearing on behalf of the appellant, has contended that the constitution petition was maintainable before the High Court. He has also contended that whatever may be the language of the said Notification of appointment, respondent No. 2 was in, fact appointed as an Acting Chief Justice under Article 196 of the Constitu--tion. And inasmuch as he was not the most senior of the other Judges of the. High Court, his appointment was not legal.
51. It is convenient to take the second contention first. The Notification of appointment which has already been quoted in the judgment of my Lord the --Chief Justice ex facie shows that the appointment in question has been made --under Article 193 of the Constitution under which a Chief Justice of a High-- Court is appointed permanently. Article 196 of the Constitution which provides for appointment of Acting Chief Justice of a High Court finds no mention at all in the Notification nor has the appointment been described as an acting one. Ibis question, however, need not detain us any further in view of the clarification since given by the Ministry of Law and which has been quoted in the judgment of my Lord the Chief Justice. The clarification makes it clear that respondent No. 2 has been appointed permanently as the Chief Justice of the High Court and that there is no intention of recalling him back to the Supreme Court. There is, therefore, no substance in this con--tention.
52. As regards the first contention, I entirely agree with the view expressed on ft by my learned brother Muhammad Gut J. On the plain language of Article 199 (1)(b)(ii) I find no difficulty in holding that the appellant has lacus standi to maintain the petition and that the petition is maintainable against respondent No. 2. Article 199(5) is no bar to the maintainability of such a petition against a Judge of a High Court in his individual capacity a distinct from his act in the capacity of a Court or as Member of the Court. It is not disputed that the office of the Chief Justice of a High Court is public office. The relevant provisions of Article 199 of the Constitution are to follows:- "199.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) -------------------------------------------------------------------------------------- ----..
(b) On the application of any person, make an order-
(i) --------------------------------------------------------------------------------------- ---..
(ii) requiring a person within the .Territorial. Jurisdiction of the Court holding or purporting to hold a public office to show under what. Authority of law he claims to hold that office;
(5) In this Article, unless the context otherwise requires,- `person' includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan;"
53. The opening words "unless the context otherwise requires" must be kept in mind while interpreting clause (5), The words "Judge of a High Court" and "a High Court" are not always synonymous or interchangeable. The following extract from 46 American Jurisprudence, 2nd Edn., section 3, page 98 supports this view: "The distinction between the term 'Judge' and the term 'Court' is often made and is well recognized.
54. The words are, however, often used interchangeably, and are frequently used in statutes as synonymous and convertible terms, the word `Judge' often being used when reference is manifestly to a Court, and vice versa. In such cases, the word `Court' has been construed to mean 'Judge' when necessary to carry into effect the legislative intent. Another example of interchangeable use of the words is that the Judge of a Court while presiding over it is, out of~ courtesy, called 'the Court'. , A Court cannot exist without a Judge, and the Judge is thus an indispens--able part of the Court, but he is only a part of it."
55. The bar contemplated under clause (5) of the Article is, inter alit, against a High Court as such and not against a Judge of a High Court in his individual capacity apart from his function as a Court. Tie present petition does not seek any writ against the act or order of a Judge of a High Court as; a Court, but questions his authority or right to act as such Judge. While the former is not permissible under Article 199, the latter is. It seems now well settled that this is the only way permitted to challenge the appointment of a Judge made in contravention of the clear provisions of the Constitution laying down meticulously the qualifications of such appointment. The language of Article 199(1)(b)(ii) is plain and unambiguous, and it entitles any Person to seek information in the nature of quo warranto against a person holding or purporting to hold a public office. The provisions of the Consti--tution are clear and need no support from decisions of any other country which either has no written Constitution, or has a written Constitution, which does not make the point clear and beyond dispute. Nevertheless, the follow--ing extract from 46 American Jurisprudence 2nd Edn , section 246 supports the view that information in the nature of quo warranto lies in such a matter and that the validity of the appointment of such a Judge cannot be challenged in a collateral proceeding:- "Generally, a de facto Judge's title or right to the office can be determined only in a quo warranto proceeding or information in the nature of a quo worranto at suit of the sovereign, and cannot be questioned in the case before him or in a collateral proceeding. Thus, generally, his title and authority may not be questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act, or in a stilt to enjoin him from performing the duties of his office, or in a habeas corpus proceeding to procure the release of a person convicted of crime before him."
56. As to the locus stands of the appellant the Constitution itself is quite clear and entitles `any person' to make the application under Article 199(t)(b)(d). Even in the case of an unwritten Constitution it has been held that a stranger and a member of the public acting in good faith can apply for a writ of s quo warranto. Vide R. v. Speyer ((1916) 1 K B 595), wherein at page 609 it has been observed that such remedy is available to private persons.
57. In India which has a written Constitution but which is silent on the particular point, a writ of mandamus was issued against a Chief Justice of a High Court on a Constitution petition made by a Judge of that Court. Vide Jyoti Prokash v. H. K. Bose C. J. (AIR 1963 Cal. 483). This decision was later set aside by the Supreme Court of India on merit, but the Supreme Court did not say that the petition was not maintainable.
58. Reverting to the maintainability of the petition, Article 192(1) is neither relevant nor affords any guidance in this matter. Take the case of a person who is not a citizen of Pakistan, appointed through inadvertence or delibera--tely as a Judge of a High Court in utter disregard of the express provisions of Article 193(2), which, inter alia, provides that a person shall not be appointed a Judge of a High Court unless he is a citizen of Pakistan, etc. It is difficult to conceive that such an appointment cannot be challenged or remedied, and the mischief is allowed to be perpetuated. Or is it left to the off-chance o an aggrieved litigant questioning the particular Judge's act as manifested in the decision of his case, and thus incidentally furnishing an occasion to challenge the validity of the Judge's appointment? The learned Attorney-- General has rather bluntly said that there is no remedy against such an un--constitutional appointment. I am definitely of the opinion that such un- T .Constitutional appointment can be challenged and remedied only by way of a Constitution petition under Article 199(1)(b)(ii) of the Constitution and not in any collateral proceeding. This view receives support though indirectly from a decision of this Court in Civil Petition for Special Leave to Appeal No. 16-P -of 1974 (Malik Ghulam Jilani v. Mr. Justice Muhammad Gul). In this case, also, the appointment of a Judge of the Supreme Court was challenged on .a Constitution petition, and neither the High Court nor this Court before which the matter ultimately came up for decision ever held that the petition itself was not maintainable. The mere fact that the question of the main--tainability of the petition was not specifically raised in it by any party is no reason for thinking that either the High Court of this Court had not applied its mind to the question and took it for granted that the petition was main--tainable. The case was of course, decided on merit, but this does not, in .Any way, affect the relevance of the case on the point now in issue before this Court.
59. The case of Salahuddin v. Frontier Sugar Mills Limited (PLD1975SC244) also lends -support to this view. In the case under report it has been observed as follows:- , "The reason for enabling 'any person' as distinguished from an 'aggrieved party', to apply for a writ of quo warranto is that the inquiry relates to a matter in which the public are interested, namely, legality and sanctity of a public office, and not the enforcement of individual rights or redress of individual grievances.
60. The term 'public office' is defined in Article 290 of the Interim Constitu--tion as including any office in the Service of Pakistan and membership of an Assembly. The phrase 'Service of Pakistan' is defined, in the same Article, as meaning any service. Post or office in connection with the affairs of the Federation or of a Province and includes sod All-- Pakistan Service, any defence service and any other service declared to be a Service of Pakistan by or under Act of the Federal Legislature or of a Provincial Legislature but does not include service ac a Speaker, Deputy Speaker or other member of an Assembly. Reading the two definitions together, it becomes clear that the term 'public office', as used in the Interim Constitution, c3 much wider than the phrase 'Service of Pakistan', and although it includes any office in the Service of Pakistan, it could not really refer to tile large number of posts or appointments held by State functionaries at various levels in the hierarchy of Government.
61. This view seems to have held the ground throughout. As summed up by Ferris (Extraordinary Legal Remedies, 1926 Edition, page 145), 'a public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust -conferred by public authority for a public purpose, embracing the ideas -------of tenure, duration, emolument and duties. A public officer is thus to be distinguished from a mere employment or agency resting on contract, to which such powers and functions are not attached . . . . The determining factor, the test, is whether the office involves a delegation of some of the sovereign functions of Government, either executive, legislative or .Judicial, to be exercised by the holder for the public. Benefit. Unless his powers are of this nature, he is not a public officer'."
62. That the respondent's impugned appointment cannot be challaned collaterally is also supported by the following extract from Cooley's Constitutional Limi--tations 8th Edition, Vol. II, pages 1357- 1358:- "No one is under obligation to recognize or respect the acts of an in--truder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, ---and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties This is an important principle, which finds concise expression. In the legal maxim that the acts of officers de facto cannot be questioned collaterally."
63. On the view that I have taken a pertinent question arises whether there is any provision under the Constitution which prevents respondent No. 2 from holding the office of the Chief Justice of the High Court. Article 207 of the Constitution which is relevant in this regard is reproduced below:- --'207.-(1) A Judge of the Supreme Court or of a High Court shall not--(a) hold any other office of profit in the service of Pakistan if his remu--neration is thereby increased;"
64. Article 179 which also has a bearing on the question provides that a Judge of the Supreme Court shall holdoffice until be attains the age of sixty-five: years, unless he sooner resigns or is removed from office in accordance with the Constitution. Similarly Article 195 of the Constitution provides that a. Judge of a High Court shall hold office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with the Constitution.
65. It is not disputed that the respondent has neither attained the age of sixty-five years nor has he resigned nor removed from office in accordance with the Constitution. In these circumstances the question that calls for consideration is whether the acceptance by respondent No. 2 of the office of the Chief Justice of the High Court operates as resignation from the office of a Judge of the Supreme Court by conduct. Invariably when a Judge of the High Court is appointed as a Judge of the Supreme Court he ceases to be a Judge of the former and comes to occupy only one office, viz., the office of a Judge of the Supreme Court. In such a case he does not resign from the office of a Judge of a High Court, but his conduct in accepting the office of Judge of the Supreme Court amounts to his resignation from the forms office. Conversely respondent No. 2 must be held to have elected to hold the office of the Chief Justice of the High Court after having resigned from the -office of a Judge of the Supreme Court. On this interpretation the impugned -appointment of respondent No. 2 does not fall within the mischief o Article 207(p)(a) of the Constitution for two reasons. First, because respon--dent No. 2 holds only one office i.e. That of the Chief Justice of the High Court of Sind & Baluchistan. Second, because his remuneration as the Chief Justice instead of having increased has decreased by Rs. 100 per month. In this context I kept in mind the rule of interpretation of the Con--stitution, namely, the provisions in it entailing disabilities should be strictly construed.
66. There is no question of the respondent holding the two permanent offices of a Judge of the Supreme Court and the Chief Justice of the High Court, for such a situation is neither contemplated under the Constitution nor is it factually true as is evident from the aforesaid reply of the Ministry of Law, Government of Pakistan. Even otherwise the holding of the two offices simultaneously will lead to confusion for the terms and conditions of they two are different as regards age of retirement, remuneration, pension, etc. I am not unmindful of the fact that on several occasions in the past a Judge of this Court in addition to his own duties was appointed temporarily as Chief Election Commissioner or as Chairman or Member of some Commis--sion or Tribunal, but these were purely temporary arrangements, and the particular Judge could always be recalled to or could himself resume his duties as Judge of the Supreme Court.
67. There is another aspect of the case. The appellant is a private person, .And the onus lay heavily on him to show that the respondent had no right to hold the office of the Chief Justice of the High Court. This onus the appellant has failed to discharge. On the contrary, he conceded that the respondent was duly qualified under the Constitution to be appointed as the Chief Justice of the High Court. The following observations in the case of Masudul Hassan v. Khadim Hussain (P LD1963SC203), support my view on the onus:- "It is well-settled that when the writ is moved by a law officer on behalf of the State, it is for the respondent to establish his legal right to reten--tion of the office in question. But where a private petitioner seeks the writ, the burden of proving that the respondent does not have the right to hold such office is placed upon the petitioner. On the evidence adduced before the High Court, it was clear that there was left a reasonable doubt as to the validity of the order of dismissal, and although on the face of it, it had the quality and effect of dismiss--ing Khadim Hussain from his post, nevertheless the case was not one in which the Court would exercise its power of granting relief which is confined to-
(a) issuing an injunction to a person holding the office not to act therein;
(b) where necessary, to declare the office to be vacant.
68. Therefore, it seem to me that even if the case had been dealt with as if the prayer were for a writ of quo warrato the petition was liable to be dismissed on the ground that the petitioner had failed to establish beyond reasonable doubt that Khadim Hussain was disqualified from being a member."
69. Besides, the issue of a writ of quo warranto is discretionary with the High Court. If in the facts and circumstances of the case the Court refused to issue it I am unable to find any fault with it. The propriety of maintaining comity amongst the members of the superior judiciary is not a rule of law, and certainly cannot out weigh the imperative necessity of correctly inter--preting the Constitution. It must be left to the good sense of the gentlemen who are members of the superior Courts to behave in a manner which their high office requires.
70. Before parting with the matter I should like to observe that the appoint--ment of the respondent, a permanent Judge of the Supreme Court, as Chief Justice of a High Court is unprecedented. For the first time a Judge of the Highest Court of the land is appointed a Judge of a High Court, which occupies a lower position in the hierarchy of Courts in Pakistan. Such -appointment, even if permissible, may not always be beneficial to the interests of the judiciary or the people at large, and should not be regarded as a healthy precedent.
71. I would, accordingly, dismiss the appeal but without any order as to costs.
72. ANWARUL HAQ, J.-While I respectfully agree with my Lord the Chief Justice and my learned brothers Salahuddin Ahmed J., and Muhammad Gul J., that the present appeal be dismissed, leaving the parties to bear their own costs, I would like to add a few observations of my own on the two important questions arising in this case, namely :-
(a) Whether an information in the nature of quo warranto lies in a cage of the present kind ; and
(b) What is the nature of the appointment of Mr. Justice Abdul Kadir Sheikh as the Chief Justice of the High Court of Sind & Baluchistan, that is to say, permanent or temporary/acting ; and is it permissible under the Constitution 7 There can be no two opinions as to the public nature of the office held by a Judge or the Chief Justice of a High Court or the Supreme Court, and accordingly a writ of quo warranto would ordinarily lie under clause (b) (i) J-- of Paragraph (1) of Article 199 of the Constitution on the application of am person. As pointed out in the case of Salahuddin v. Frontier Sugar Mills Ltd (PLD 1975 SC 244) "the reason for enabling `any person' as distinguished from an `aggrieved party' to /apply for a writ of quo warranto is that the inquiry relates to a matter in which the public are interested, namely, the legality and sanctity of a public office, and not the enforcement of individual rights or redress of individual grievances." However, the question is whether such proceeding. Are barred by virtue of the definition of `person' as given in Paragraph (5) of Article 199, which definition excludes the Supreme Court as well as the High Court from its purview.
73. It seems to me that the intention of the Constitution-makers is tot exclude, from the writ jurisdiction of the High Court, all actions, acts and orders made by the High Court or the Supreme Court, or by any Judge there--of in the exercise of the functions and powers of his office, but the immunity would not extend to the actions of a Judge in his private or individual capacity, in which capacity he continues to be amendable to the laws of the land like any other citizen.
74. In proceedings for a writ of quo warranto against a Judge, relief can, a stated by this Court in Masoodul Hassan v. Khadim Hussain (PLD 1963 SC 203) take the form of either an injunction restraining the Judge from performing the functions of his judicial office as a member of the High Court or the Supreme Court ; or, where necessary, to declare his office to be vacant. It will be seen that in either case the writ will affect the functioning and the constitution of the Court concerned. It cannot, therefore, be said that such a writ would merely be directed against the Judge in his individual capacity, or that it would in--validate only the order of his appointment made by the President of Pakistan. This being the effect of such proceedings, I consider that they are barred in view of the definition of `person as contained in Paragraph (5) of the relevant Article of the Constitution.
75. During the arguments at the Bar, an apprehension was expressed that, on such an interpretation, a situation might arise where a patently unconsti--tutional or illegal appointment on the High Court may have to be countenanced, in the absence of quo warranto proceedings, for the reason that it is well-settled that the appointment of a defacto Judge cannot be challenged in collateral proceedings. Reliance for this proposition was placed on certain observations appearing in Paragraph 246 of Vol. 46 of the American Juris--prudence (2nd edition), as well as remarks made by this Court in Farzand Ali v. West Pakistan (PLD. 1970 SC 98). It was submitted that we should abstain from placing an interpretation, on Article 199 of the Constitution, which would deprive the citizen of a remedy which is admittedly available in case of other holders of public offices.
76. I think this objection has been, if I may say so with respect, adequately dealt with in the opinion proposed to be delivered by my Lord the Chief Justice. He has rightly pointed out that the remarks contained in Paragraph 246 of the American Jurisprudence, referred to above, do not, in the first place, concerned Judges of the Federal Court of Appeal or Judges of the United States Supreme Court ; and secondly that the discussion in the said Paragraph itself concludes with the words that "it has also been held that a defact in the authority of a Judge by way of lack of judicial authority is jurisdictional and can be raised for the first time on appeal despite the de facto doctrine and may also be raised in a collateral proceeding."
77. In this connection, I am also in respectful agreement with the view expressed by the learned Chief Justice that the order appointing the res--respondent as the Chief Justice of the High Court of Sind & Baluchistan is rot immune from attack, in proper proceedings, in spite of provision contained in clause (1) of Article 248 of the Constitution which provides that the President, a Governor, the Prime Minister, a Federal Minister etc. Shall not be answerable to any Court for the exercise of powers and performance of B functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions. His Lordship has rightly pointed out that there is a proviso to this clause which lays down that "nothing in this clause shall be construed as restraining the right of any person to bring appropriate proceedings against the Federation ,or a Province--', and that in the instant case the first respondent is the Federation and not the President of Pakistan. It would seem, therefore, that it is not incorrect to say that if quo warranto proceedings are held to be not maintainable in respect of the judicial office held by a Judge of the High Court, then the citizen would have no remedy to challenge an unconstitutional - or illegal appointment.
78. In support of the bar against the maintainability of quo warranto pro--ceedings of the present kind, the learned Attorney-General had also placed reliance on the principle that there was imperative need for maintaining the traditional high degree of comity among the Judges of superior Courts, which would be endangered if they were to issue writs to one another. He drew our pointed attention to the observations made in this behalf by Cornelius, C. J. In the case of Mian Jamal Shah v. Election Commission (PLD 1966 SC 1) to the effect that it would indeed be ludicrous for the Judges of the High Court to be issuing writs to themselves, and that quite apart from the aspect of ludicrous--ness there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the superior Courts which could be urged, in support of such a provision."
79. On behalf of the appellant it was submitted that the need for preserving ,comity among the Judges of the superior Courts could at best be described as a principle of law, which could not be permitted to derogate from the true meaning of the relevant constitutional provision. The reply to this argument .Appears to me to be two-fold :-
(a) That the principle in question is being invoked only as an aid to interpretation, by explaining the purpose underlying the exclusion of the High Courts and the Supreme Court from the definition of 'person' as given in Paragraph (5) of Article 199 of the Constitution, and not in derogation of the true meaning of the said provision ; and
(b) That if effect is to be given to the other principle prohibiting a challenge to the position of a de facto Judgein collateral proceedings. Then considerations underlying that principle ought to be weighed and considered side by side with the imperatives of maintaining comity among the Judges of the superior Courts, a requirement essentially in the public interest and not for the benefit of the Judges themselves.
80. The observations made by Cornelius C. J., to which reference was made by the learned Attorney- General are indeed highly relevant in this behalf. It is interesting to note that these considerations were recently highlighted by a Full Bench of the Lahore High Court, consisting of seven Judges, in Mujibur Rehman Shami v. A Judge of the High Court (PLD 1973 Lab. 778), while examining the question whether a petition for contempt of the High Court could be maintained against a Judge of that Court itself. The learned Judges concluded that such a petition could not be maintained as besides other considerations, it would be destructive of the traditional respect and comity existing among the Judges .Of the superior Courts.
81. Taking, therefore, a comprehensive view of the matter, I am in respectful agreement with his Lordship the Chief Justice that the bar contained is Paragraph (5) of Article 199 applies to the issuance of writs in respect of a orders, actions and acts of a High Court or the Supreme Court, and the Judges thereof in the exercise of their functions as such Judges, and also to any proceedings which seek to restrain them from performing their judicial functions or holding their offices as such.
82. The bar, however, does not apply to matters concerning the Judges of these Courts n their private or individual capacities, which continue to be governed by the laws of the land as in the case of other citizens.
83. Turning now to the second question, the nature of the appointment held by the respondent as Chief Justice of the High Court of Sind & Baluchistan has been made clear by the reply sent to this Court by the Ministry of Law, Government of Pakistan, namely, that he has been appointed to serve as permanent (and not acting) Chief Justice of the said High Court, and the intention of the Government was not to recall him back to the Supreme Court. This categorical statement by the Federal Government sets at rest the controversy whether the appointment was under Article 193 of the Consti--tution or under Article 196 thereof. It was conceded at the Bar that, apart from the argument resting on his Lordship's retention of lien and seniority etc. As a Judge of the Supreme Court, he was fully qualified. Under the Constitution to hold the appointment of the Chief Justice of the High Court.
84. The learned Chief Justice has rightly remarked that in view of the categorical statement made by the Federal Government regarding the nature of the appointment of Mr. Justice Abdul Kadir Sheikh as the Chief Justice of the High Court, the portions of the appointing notification regarding his deputation and the retention of his lien and seniority on the Supreme Court are mere surplusages.
85. However, I cannot help observing that the statement made by the Ministry of Law to the effect that "the Judges of the Supreme Court and the High Courts are not Government servants or civil servants within the purview of the Fundamental Rules, Civil Service Regulations and the Civil Servants' Act, 1973. Therefore, the words on deputation. Lien and seniority appearing in the Notification No. F. 1 (1)/74-A(. Dated the 22nd of January 1975 have not been used in their connotation as applicable to Government servants and civil servants as in the aforesaid Rules, Regulations and Acts", is not very illuminating. It is indeed correct that the appointments of Judges of the High Courts and the Supreme Court are regulated by the Constitution itself and the Judges are not regarded as civil servants within the purview of the relevant rules and regulations, and it would follow, therefore, that in their case there would ordinarily be no occasion for invoking the terminology applicable to government servants. If, however, in any peculiar situation these terms are used and an order is made by the President of Pakistan on the lines made in the present case, I cannot see what other meaning can be given to these terms except the one obtaining under the Fundamental Rules or the Civil Service Regulations etc. The terms 'deputation', 'lien', and 'seniority' have a definite connotation in these rules, a connotation which is well-known and well-recognised in Government quarters. If indeed the intention of the Ministry of Law was to use these terms in a sense different from the one D obtaining under Fundamental Rules and Civil Service Regulations, they would have been well advised to indicate the same. The Ministry has not, however, chosen to do so.
86. The next question is whether it is possible under the Constitution for a person to be a permanent Judge of the Supreme Court and at the same time to hold a similar position on one of the High Courts. Having regard to the scheme of the Judiciary as contained in Part VII of the 1973 Constitution, it is clear that the answer to this question must be in the negative.
87. The Constitution provides for the setting up of Provincial High Courts and a Supreme Court of Pakistan, the latter being at the apex of the judicial hierarchy in the country, and competent to hear appeals from the judgments and orders made by the High Courts, as well as by Administrative Tribunals established under Article 212 of the Constitution. The Provincial High Courts and the Administrative Tribunals are, therefore, inferior in status and position to the Supreme Court of Pakistan. We also find that the terms and conditions of service of the Judges of the High Courts are different from those of the Supreme Court in matters of remuneration as well as age of super-- annuation, apart from minor differences in the matter of leave, pensions and travelling allowances etc. It follows, therefore, that the Constitution does not contemplate simultaneous membership of bath the Courts, except in two clear situations spelt out in Articles 181 and 182 of the Constitution, which provide for the temporary appointment of High Court Judges as acting on ad hoc Judges of the Supreme Court. On such appointment the High Court Judges continue to hold their substantive appointment on tile High Court concerned.
88. It is true that Article 207 of the Constitution permits a Judge of the Supreme Court or of a High Court to hold any other office of profit in the service of Pakistan if his remuneration is not thereby increased, but this per--mission clearly proceeds on the basis that the Judge concerned continues to hold substantively his position on the Supreme Court or the High Court concerned, and the other office of profit is clearly to be in the nature of a temporary appointment or assignment as the case may be. This article can, in no sense, be construed as permitting a Judge of the Supreme Court or of a High Court to hold any other office in a substantive or permanent capacity, in addition to his Judgeship. It is an established principle, not requiring any elaborate reasoning or argument that a person cannot hold two substantive offices at the same time, as such a situation would lead to confusion and un--certainty as to his true position in the official hierarchy, and also as to the , terms and conditions of his service, and the ambit of his jurisdiction and powers. Further, such a situation would be destructive of the principle o the separation of the Judiciary from the executive and the Legislature, and would also constitute a serious erosion of the independence of the Judiciary, which the Constitution has taken pains to preserve and promote. It follows: therefore, that Article 207 of the Constitution is intended only to permit Judge of the Supreme Court or of a High Court to undertake only temporary assignments outside his normal duties, and that provided that his re--muneration is not increased thereby.
89. On the conclusion reached by me as to the mutually exclusive member--ship of the Supreme Court and the Provincial High Courts, except as permitted by Articles 181 and 182 of the Constitution, it would appear that Mr. Justice Abdul Kadir Sheikh would be deemed to have vacated the office of the Judge of the Supreme Court held by him prior to his appoint--ment as the permanent Chief Justice of the High Court. However, as observed) by his Lordship the Chief Justice, it is doubtful whether he accept: d his new C assignment in the knowledge that such a consequence will follow.
90. The portions of the appointing notification showing him on deputation, and also seeking to maintain his lien and seniority on the Supreme Court were indeed calculated to induce the belief that he would be holding the two posts side by side in a permanent capacity. In the circumstances, such a belief having be induced by a solemn order of appointment made by the Head of the State, it appears to me that Mr. Justice Abdul Kadir Sheikh should have the option, even at this stage, to choose one or the other of the two offices in question.
91. With these observations, I agree that the appeal be dismissed as proposed by his Lordship the Chief Justice.
92. MUHAMMAD GUL, J.-I had the advantage of perusing the judgment proposed to be delivered by my Lord the Chief Justice and I agree that the appeal be dismissed leaving the parties to bear their own costs. But my reasons are different.
93. In my humble view, and I say so with great respect, that on a proper construction of Article 199 of the Constitution and on a general principles which are well settled, an information in the nature of quo warranto, on the allegation made in the case, does lie. This appears to be the only proper remedy against a Judge of a superior Court if by a mischance arising from an oversight or otherwise, who not being qualified or is disqualified to be a Judge, is so appointed.
94. Article 199 in so far as it is material to the case reads s- "129.-(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-
(a) on the application of any aggrieved party, make an order- (i)--------------------------------------------------------------- (ii)---------------------------------------------------------------
(b) on the application of any person, make an order- (i)---------------------------------------------------------------
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office ; or (iii)--------------------------------------------------------------- (iv)---------------------------------------------------------------
(5) In this Article, unless the context otherwise requires,- "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government. And any Court or Tribunal, other than the Supreme Court, a High Court or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan ; It is clear from a plain reading of -clause (1) above, that in the cases covered by sub-clause (a) ibid. The High Court has jurisdiction to issue a writ or order of appropriate kind "on the application of any aggrieved person". Sub-clause (a) provides for writs or orders in the nature of prohibition, mandamus and certiorari. In sharp contract with the opening words of sot-clause (a), as respect cases falling under sub-clause (b) ibid., the High Court has jurisdiction to issue writs or orders ;n the nature of habeas corpus and quo warranto "on the application of any person". In the instant case, the appellant, though himself not an. Aggrieved person, seeks writ of quo warronto against respondent 2, to show under what authority he holds the office of the Chief Justice of the High Court of Sind & Baluchistan, which indubitably is a high "public office" within the meaning of paragraph (ii) of sub-clause (b) above.
95. Recently in Salahuddin v. The Frontier Sugar Mills (PLD 1975 SC 244) this Court had occasion to explain the reasons enabling any public spirited person as dis--tinguished from soy aggrieved person to apply for a writ of quo warranto. The object is to secure "the legality and sanctity of a public office" and not redress of individual grievance. It will also be instructive to refer to the celebrated case of Rex v. Speyer ((1966) 1 K B 595) relied upon by the appellant's learned counsel. It was held in that case that a private relator could exhibit information for a writ of quo warranto to challenge the appointment of two members of the Privy Council by the King. The Attorney-General (who later became Lord Birkenbead and the Lord Chancellor) and the Solicitor General appearing for the Clerk of the Privy Council and the Secretary of State for Home Affair:, raised various objections why a quo warranto would not lie in that case. The objections were repelled out of hand.
96. Avong, J., was "surprised" that the law officers of the crown should raise any technical objection to a decision on the legality of the two appointments on the merits, and observed that it was difficult to imagine a question "more fit" for determination by the Court. Lord Chief Justice Reading stated : "it would seem strange that the Court by refusing the remedy should perpetuate illegality." This case was noticed with approval by this Court in Masudul Hassan v; Rhadim Hussain (PLD1963SC203). In this respect the jurisdiction exercised here is similar to that exercised by the High Court in England. I will presently revert to clause (5) of Article 199 which was canvassed by the learned Attorney-General in support of the conners proposition which has found favour with my lord the Chief Justice.
97. It should never be forgotten that the Constitution bas set out with great particularity the qualifications for the appointment of Judges of the Superior Courts: So also the inhibitions and limitation attaching to them, while they remain and cease to be such Judges. See for instance Articles, 197, 179, 182, 193, 195, 200 and 207 of the Constitution. These provisions are vitally, connected with the status, dignity and independence of the Superior Judiciary in the Country, and have not been inserted in vain. Therefore, any breach of non-observance of these provisions has always been regarded as justiciable. The cases of Joti Prakash Mitten Adita Narain Singh and Malik Ghulam Jilani, noticed in the judgment of my Lord the Chief Justice are some of the cases in point.
98. That the information was validly exhibited in this case, for a writ of quo warranto, also finds strong support in the statement of law in para--graph 246, American Jurisprudence Vol. 46, noticed in the judgments of my lord the Chief Justice and my learned brother Salahuddin Ahmad J. It stated in the paragraph that the right or title or a de facto Judge "can be determined only in quo warranto proceedings -------and cannot be questioned in the case before him or in a collateral proceedings". This aspect of the matter in my humble opinion stands concluded by this Court's judgment in Farzand Ali v. West Pakistan (PLD1970SC98). In that case the Constitutionality of the Third, Fourth and the Sixth Constitutional Amendments to the 1962 Constitution was assailed on the ground that from among the members of the then National Assembly, 33 persons who voted in favour of the amendments were disqualified to be members of the National Assembly under Article 103 as it originally stood and therefore the aforesaid three Constitutional amendments, which empowered the Government, Inter alia, to send Civil Servants on compulsory retirement under certain circumstances were invalid not being passed by the prescribed majority of validly elected members. Therefore, the resultant action taken by the Government against the appellants was vitiated. The counter argument on behalf of the Government was two-fold. First, that the concerned 33 persons were declared as duly elected members of the National Assembly and therefore, their membership could not be assailed on account of any disqualification suffered by them during the pre-election period otherwise than by election petitions as provided in Article 171 of that Constitution read with relevant provisions of the National and Provincial Assemblies (Elections), Act, 1964 (Act VII of 1964) (repealed). Secondly, the elections of 33 persons concerned having gone unchallenged, could not now be questioned in collateral proceedings, constituted to impugn the orders of compulsory retirement of the appellants in that case. The first part of the argument was repelled by this Court with the following obser--vations: "There is no reason, why relief by way of quo warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualifica--tion is a continuing one which debars a person not only from being elected to an office but also from holding that office."
99. The second limb of the argument was however, accepted with the following observation :- "There is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(b) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals whose interests may have been affected by the legislative measures enacted in the meantime."
100. The conclusion in the second part of argument rested on the legal maxim "that the acts of officers de facto cannot be questioned collaterally." See Coolley's Constitutional Limitations, 8th Edition, Part 2 at page 1357. The rationale of the maxim as explained by the learned author is to preserve "order and regularity and to prevent confusion in the conduct of public business." The principle laid down and accepted by this Court in Farzand Ali's case in my humble view extends also to the instant cue.
101. It would now be convenient to consider whether by virtue of clause (5) which expressly excludes the Supreme Court, a High Court and a Court Martial from the definition of "persons", with a view to exempting these institutions or bodies from the writ jurisdiction of a High Court under the Article, would by implication also exempt the Judges or officers who man these Courts? It is perfectly true that there cannot exist a Court without Judge and indeed Judges are structural components of Courts. It may also be conceded readily that that the terms Judge and Court are often ,used interchangeably as synonymous. But this is not to say that the distinction between a Judge as an individual and the Court as seat of justice as an institution is completely obliterated. The two remain distinct entities, and the distinction is manifest even in the excerpt from the American Jurisprudence relied upon by the learned Attorney-General and reproduced in the judgment of my Lord the Chief Justice. Generally speaking a Judge is properly identi--fied with the Court, in relation to something done in exercise of tote jurisdiction of the Court. Otherwise his personality remains distinct and separate from the Court. As individual, he remains subject to the laws of the land like the rest of the citizenary, save when expressly exempted. Therefore. I regret to be unable to subscribe to the broad proposition canvassed by the learned Attorney-General that a Judge is to be completely identified with the Court, for the purpose of saving provision in clause (5) of Article
199. Iii my humble opinion a Judge becomes synonymous with the Court only when he acts in exercise of the jurisdiction of the Court: the synonymity does not go beyond that, and the saving clause must be read as confined in relation to order or judgment by a Judge in exercise of the jurisdiction of the Court. It would, if I may say so with respect be unreasonable to extend it to the person of the Judge completely and for all purposes. For instance, if a Judge were to illegally confine his domestic servant for misbehaviour, a writ of habeas corpus would certainly lie against the Judge. Here the act complain--ed of is not that of a Judge but is of an incensed master who happens to be a Judge, and the exception cannot reasonably extend to such an act. If on the other hand a Judge were to try and convict his domestic servant and commit him to prison, in exercise of the jurisdiction of the High Court, he will be acting as a Court and writ of habeas corpus will not lie because of saving as clause (5).
102. A reference to Article 248 (1) and 41 (6) of the Constitution will make the matter still clearers. The former provision protects inter alts, the President from being "answerable to any Court" in relation to the exercise of powers and performance of functions of his office. The Constitution --makers did not consider this saving provision sufficient to protect the President from a writ of quo warranto.
103. Hence the provision in Article 41(6) of the Constitution it reads :- "The validity of the election of the President shall not be called in question by or before any Court or any other authority."
104. In the absence of a similar blanket provision in the Constitution in relation to the Judges of the Superior Judiciary, a writ of quo warranto would be available to question the title or right of a Judge. On the interpretation canvassed by the learned Attorney-General Article 41(6) would be atiose. But it would be wrong to attribute redundancy to any provision of the Constitution. That apart there is a heavy preponderance of authority that an information in the nature of quo warranto lies against a person why claimed or usurped a public office franchise or liberty. That being the law, on general principles of interpretation, very strong reasons would be required to except Judges of superior Courts from that rule of law.
105. I am also of the view and I say so with the greatest respect, that it would not be right to lay down that to preserve the high degree of comity in the Superior Judiciary, the plain meaning of Article 199
(1) (ii of the Constitution should be curtailed or abridged. Maintenance of comity among the Superior Judiciary is at the highest, a rule of propriety and not . a -rule of. ,law .And therefore cannot erode a constitutional provision mere so when It is germane to the jurisdiction of the High Courts. It is also important to observe that quo warranto has never been a writ of right. The Court may in exercise of its discretion, refuse it, if the application is not bona fide or is made for a collateral purpose. Therefore, Court would not grant leave to a relator to file quo warranto information as a matter of course, simply because, a doubt as to legal validity of title to a public office or franchise is shown. Rather the Court will take into consideration the circumstances of the application and the consequences which are likely to follow should the information be granted. c. f.: Masudul Hassan v. Khadim Hussain (PLD 1963 SC 20,1). I am therefore of opinion that on the facts in the circumstances of the case, application for quo warranto would lie and rightly entertained by the High Court.
106. Coming to the case, it was conceded by Mr. Mumtaz Hussain the appellant's learned counsel that vacancy in the office of the Chief Justice of the High Court of Sind & Baluchistan was permanent and the second respondent was qualified for appointment. It was not contested either that the appointment of the second respondent as the Chief Justice in the High Court was made by the competent authority namely the President after observing the procedural requirements. Learned counsel however, submitted that the appointment was vitiated because respondent 2 immediately prior to his appointment as the Chief Justice was a permanent Judge in the Supreme Court and that though before assuming the office as the Chief Justice he relinquished the charge of Supreme Court judgeship, he had not actually resigned the latter office. Reliance was placed on the phraseology of the gazette Notification of the 22nd January 1975 describing the respondent's appointment as she Chief Justice "on deputation" and also allowing him to retain lien and seniority as the Supreme Court Judge. On the wording of the notification it was stressed that respondents continued to be Judge of this Court and therefore his appointment as the Chef Justice was purely temporary and acting. On these premises it was sought to be argued further that in effect the appointment of the second respondent as the Chief Justice of the High Court was under Article 96 which according to the Constitutional requirement should have gone to the most senior puisne Judge in the High Court which the second respondent was not, at the material times. This in nut-- shell was the argument to assail the second respondent's appointment as the Chief Justice. It was however, not controverted that ex-facie the notification does not say that respondent is appointed as acting Chief Justice. But according to learned counsel that is the inevitable conclusion, if the notification dated 22-1-1965 is read as a whole.
107. The learned Attorney-General on the other hand stated categorically that the respondent's appointment as the Chief Justice of the High Court was permanent made under Article 193 of the Constitution notwithstanding that he was allowed to retain lien and seniority as the Supreme Court Judge. It was however, stressed that there was 7o intention to recall him to the Supreme Court.
108. After conclusion of arguments in the case, on a query made through the learned Attorney-General, the Ministry of Law and Parliamentary Affairs also sent a communication, confirming what was earlier stated at the Bar by the Attorney General. In this communi--cation an Attempt was also made to explain the reasons underlying the use of expression "deputation", "lien", and "seniority" in the Gazette Notification of 22-1-1975. The explanatory paragraph reads:- "The Judges of the Supreme Court and High Court are, not Govern--ment servants or civil servants within the purview of the Fundamental Rules, Civil Service Regulations and the Civil Servants Act, 1973. Therefore, the words 'on deputation', 'lien' and 'seniority' appearing in the Notification No. F. 1 (1)
109. 74-Al dated the 22nd January, 1975, have not been used in their connotation as applicable to Government servants and Civil servants as in the aforesaid Rules, Regulations and Act."
110. Unfortunately none is wiser by the above explanation and the matter remains as nebulous as before. However, that may be, the fact remains, that the appointment of respondent 2 as the Chief Justice is not expressly stated to be acting appointment, which consistent with the general practice should have been so stated, had the intention really been to make acting appointment.
111. The question therefore is whether the notification of 22-1-1975, can be so construed by necessary implication?
112. On this aspect of the case, it was stressed by learned counsel for the appellant that there was nothing whatever. To show that respondent 2 had resigned his judgeship in the Supreme Court, before he took oath of office as the Chief Justice in the High Court. From this it was sought to be argued that respondent 2 still continued to be a Supreme Court ledge, notwithstanding that he had also taken oath of office as the Chief Justice of the High Court. Both being substantative office created by the Constitution therefore the argument was that respondent 2 must be deemed to have been appointed acting Chief Justice under Article 196 of the Constitution and further that since respondent 2 was not then the senior puisne Judge in the High Court, his appointment as the Chief Justice, contravened Article t96 and there--fore was unconstitutional. On this part of his argument, Mr. Mumtaz Hassan strongly relied upon the judgment of this Court in C. P. S. L. A. No. 16-P of 1974 (Malik Ghulam Mani v. Mr. Justice Muhammad Gul) in which the view earlier taken by a Special Bench of Lahore High Court in Rao Muhammad Ashfaq Khan v. Mr. Justice Mushtaq Hussain was approved and it was held, inter alia, that a sitting High Court Judge while he undertook the office of Secretary, Ministry of Law and Parliamentary Affairs in the Central Government, continued to remain a Judge in the High Court, unless he had resigned his judgeship.
113. I have considered the argument with care, but find it without substance. Indeed there is no analogy between the case of Malik Ghulam Jilani and the instant case. It is a common knowledge that with the exception of three or for appointments in the Supreme Court and its predecessor, the Federal Court, all appointments in these Courts were made from among the sitting Judges in the High Court each of whom without exception took oath of new office without formally resigning judgship in the High Court. Yet all these years, nobody has even thought of canvassing the proposition that such judges in the Supreme Court or as the case may be, the Federal Court also retained judgships in the High Court. Rather the uncontested position has throughout been that each such Judge upon relinquishment of office in the High Court and taking oath of new office served his office in the High Court completely and must therefore be deemed to have resigned judgship in that Court. On a parity of reasoning the same is the position in the instant case. Respondent 2 by relinquishing his office in the Supreme Court and on taking oath of his new office must be deemed to have resigned judgship in the Supreme Court. Indeed since -respondent 2 relinquished his judgship in this Curt a permanent appoint--ment has been made in his place. Incidentally, the Judge so appointed was also a sitting Judge in the High Court who consistently with the practice referred to above took oath of office in this Court without formally resigning judgship in the High Court.. It would be ridiculous to suggest that the Judge appointed in this Court in place of respondent 2 not having resigned judg--ship in the High Court continued to remain a Judge in that Court also. But -for the fact, that the movement in the instant case is in the reverse direction, ,in principle the position remains precisely the same.
114. The question whether respondent 2 has been appointed permanent Chief Justice in my opinion is essentially and of intention and on the material placed before us, I have no doubt in my mind, that he was so appointed The result is that on taking oath as the Chief Justice in the High Court he must be deemed to have resigned judgship in this Court as soon as be demitted that ofce. It must not be forgotten that we have to adjudge the validity of the respondent's appointment under the Constitution which is not to be construed on any narrow or pedantic sense. In interpreting -the Canadian Constitution, the Privy Council observed in A. G. For Ontario v. .A. B. For fannada (1912 AC 571) as follows:- "If the text says nothing, then it is not to be presumed that the Constitution withholds that power altogether. On the contrary it is to be taken for granted that the power is bestowed in some quarter, unless it is extraneous to the statute itself, or otherwise clearly repug--nant to its sense."
115. 'The facts in the cases of Malik Ghulam Jilani and Rao Muhammad Ashfaq Khan were entirely different. In each of those cases, on a request in writing by the President addressed to a sitting High Court Judge, he undertook the office of the Law Secretary in the Central Government on the express condition that the period spent in performing the function of the Law Secretary shall be treated as "actual service" as defined in Article 2(b) of the High Court Judges (Leave, Pension and Privileges) Order 1970 or as the case may be, the High Court Judges Order, 1937. The .Office of the Law Secretary is at best a ministerial office and not a substantative office under the Constitution like that of a Judge requiring any oath of office. The Judges Orders of 1937 and 190 expressly provided for temporary undertaking of function by a High Court Judge other than those of a Judge on a request by the President on the express condition referred to above as to the treatment of service during the interregnum. Therefore, it is wholly fallacious to draw any analogy between the two precedent cases of Malik Ghulam Jilani and Rao Muhammad Ashfaque Khan and the instant case.
116. For all the foregoing reasons I hold that the appointment of respondent 2 .As Chief Justice of the High Court of Sind & Baluchistan is perfectly valid and would dismiss the appeal on merits. This is however, subject to the rider that the direction in toe Gazette Notification of the 22nd January 1975 enabling respondent 2 to retain lien and seniority as Judge in this Court is wholly unmeaning and of the effect. The appointment of respondent 2 as the Chief Justice being permanent, his separation from the Supreme Curt judgship was complete and therefore there was no occasion or question of his retaining lien or seniority in the Supreme Court. If ever he were to revert to this Court that would be a fresh appointment and not in continuation of his previous appointment.
ORDER OF ME COURT
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