' ZIA MAHAMOOD MIRZA, J.---This appeal by leave of the Court is directed against the judgment of a Division Bench of the Lahore High Court dated 24-11-1993 passed in an Intra-Court Appeal holding that the appellant herein "was not qualified to be appointed as a Member/Chairman of the Income Tax Appellate Tribunal because he had not been an Advocate of the High Court for a period of ten years on the date of his appointment as a Judicial Member of the said Tribunal .
2. Relevant facts emerging from the record and not in dispute are that the appellant was enrolled as an Advocate of High Court of Sindh and Balochistan on 21-3-1971. He left Pakistan for Uganda on 10-8-1974 where he joined service as Chief Magistrate on 12-8-1974 which post he held up to 28th November, 1978 and thereafter he worked as Legal Advisor/Secretary of the Uganda Commercial Bank from Ist December, 1978 to 30th May, 1979. Later, he was appointed as Judge of the High Court of Uganda in September/October, 1979 and held that office till February, 1982. He returned to Pakistan in April, 1982 and resumed legal practice and got himself enrolled as Advocate of Supreme Court of Pakistan on 8th June, 1983. In March 1984, he was appointed as a Judicial Member, Income. Tax Appellate Tribunal against a vacancy reserved for merit quota, after selection by the Federal A Public Service Commission and in course of time, he came to be appointed as Chairman of the said Tribunal. His appointment was challenged by Muhammad Siddique, Advocate in the Lahore High Court through a petition filed under Article 199 of the Constitution calling upon him to show under what authority of law he was holding the office of the Judicial Member/Chairman of the Income Tax Appellate Tribunal. Challenge to his appointment was made on the sole ground that at the time of his appointment as Judicial Member, he was not qualified to be so appointed as he did not have ten years standing as Advocate of the High Court which was a mandatory requirement of section 133 of the Income Tax Ordinance, 1979 read with Article 193 of the Constitution. Section 133 (3) of the Income Tax Ordinance provides that. a Judicial Member of the Tribunal shall be a person who has exercised the powers of a District Judge and is qualified to be a Judge of a High Court or who is a person who is or has been an Advocate of a High Court: and is qualified to be a Judge of a High Court. Sub-Article (2) of Article 193 of the Constitution which prescribes the qualifications of a person to be appointed as a Judge of a High Court lays down, inter alia, that a person shall not be appointed as a Judge of a High Court unless "he has for a period of, or for periods aggregating, not less than ten years been, an Advocate of a High Court (including a High Court which existed in Pakistan at any time before the commencing day;)".
3. Writ petition was dismissed in limini by a learned Judge in Chamber on the short ground that it "suffers from laches". On appeal, learned Judges of the Division Bench took the view that illegal occupation of an office is a recurring wrong and a Constitutional petition seeking a direction in the nature of quo warranto cannot be dismissed merely on the ground of delay or laches. On merits, the learned Division Bench repelling the contention of the appellant that he had the necessary standing of ten years as Advocate at the time of his appointment because he was enrolled as Advocate on 21-3-1971 and his name remained on the rolls of the Bar Council as an Advocate even during the period of his service in Uganda, held that the relevant provision of the Constitution which requires that a person in order to be eligible for appointment as Judge of a High Court must have been an Advocate of a High Court for a period of not less than ten years clearly contemplates that he has been in the legal profession and practised as an advocate of a High Court. According to the learned Judges, an Advocate on joining service "obviously gives up the practice and thus cannot claim that during the period of his employment, he remained as an Advocate in the profession of law". Taking this view of the matter, learned Judges held that while computing the period of ten years in terms of clause (a) of sub-Article (2) of Article 193 of the Constitution, the period during which the appellant had remained in service in Uganda has to be excluded with the result that he "was not qualified to be appointed as a Judge of a High Court and consequently not eligible for appointment as a Member/Chairman of Income Tax Appellate Tribunal". Intra-Court Appeal was accordingly allowed by the High Court vide the impugned judgment with the direction that the appellant shall cease to hold the office forthwith.
4. Feeling aggrieved, the appellant approached this Court to seek leave to appeal against the judgment of the High Court contending that the term "Advocate" not having been defined in the Constitution, its definition in the Legal Practitioners and Bar Councils Act, 1973 should have been taken into consideration while interpreting Article 193 of the Constitution. Reference was made to clause (a) of section 2 of the Act of 1973 which defines Advocate to mean "an advocate entered in any roll under the provisions of this Act", and relying on this definition, the appellant sought to contend at the leave stage that he was enrolled as an Advocate of High Court on 21-3-1971 whereafter although he joined judicial service in Uganda, his name was not removed from the roll of Advocates maintained by the Bar Council nor was his membership as an Advocate suspended with the result that his name was borne on the roll of Advocates maintained by Pakistan Bar Council, for more than ten years when he was appointed as Judicial Member of the Income Tax Appellate Tribunal on 8-4-1984. He was, therefore, duly qualified to be appointed as a Judge of the High Court which was the required qualification for appointment as, Member/Chairman of Income Tax Appellate Tribunal. To examine this contention of the appellant, leave to appeal was granted to him by this Court.
5. We have heard the appellant in person and Mr. Muhammad Nawaz Abbasi, A.S.C. For the respondents. The appellant reiterated his contention raised at the leave stage and relying upon the definition of 'advocate' in the Legal Practitioners and Bar Councils Acts of 1965 and 1973 (which is identically worded in both the enactments) submitted that any person who gets himself enrolled as an Advocate of the High Court and his name remains on the roll of advocates maintained by the Provincial Bar Council, for a period of ten years irrespective of the fact whether he has actually practised the legal profession or not becomes qualified for appointment as a Judge of the High Court and consequently as Judicial Member of Income Tax Appellate Tribunal. According to the appellant, in order that a person should become eligible for appointment as Judge of a High Court in terms of Sub-Article (2) of Article 193 of the Constitution, he has to be an Advocate of a High Court for a period of not less than 10 years which requirement, in his submission, is satisfied if the name of that person is borne on the Roll of Advocates for the requisite period of 10 years and it is not necessary for him that he should also have been actually practising as an Advocate for the period. Proceeding on these premises, the appellant argued that on the admitted facts that he was enrolled as an Advocate of High Court on 21-3-1971 and his name even during the period of his service in Uganda remained on the Roll of Advocates of High Court maintained by the Provincial Bar Council of Sindh, he satisfied the Constitutional requirement of being an Advocate of the High Court for a period of not less than 10 years at the time of his impugned appointment in the year 1984 and as such he was duly qualified for appointment as Judge of the High Court and consequently for appointment as Judicial Member/Chairman of Income Tax Appellate Tribunal.
According to the appellant, it was not the requirement of Article 193 of the Constitution that he must also have practised as an Advocate, of the High Court for a period of 10 years or more. To support his submissions, the appellant sought to rely upon (1) Malik Ghulam Jilani v. Mr. Justice Muhammad Gul (1978 SCM R 110), (2) Mr. Zulfikar All Bhutto v. The State (PLD 1978 SC 40), (3) State of Asian v. Horizon Union and another (AIR 1967 SC 442), (4) Prof. Chandra Parakash Agarwal v.
Chaturbhuj Das Parikh and others (AIR 1970 SC 1061), (5) Hari Shankar v. Sukhdeo Prasad (AIR 1954 All. 227). In the first mentioned case, a High Court Judge was appointed as Judge of this Court which appointment was challenged on the ground that he had not actually worked as Judge of the High Court for 5 years with the result that he was not equipped with sufficient experience to be considered for elevation to the Supreme Court. The contention was repelled by this Court with the observation that it was not borne out from the language employed in Article 178 (2) of the Interim Constitution (1972) which in terms only laid down that person has to be a Judge of High Court for a period of 5 years and not that he should also have functioned or worked as such Judge. It was further held that it was as a Judge of the High Court that he was appointed Secretary, Ministry of Law and Parliamentary Affairs which was permissible under the Constitution and as such he continued to be a judge even when serving as Secretary, Ministry of Law and Parliamentary Affairs, It was also observed with reference to the Constitutional provisions that a Judge of High Court holds office until he attains the age of sixty-two years unless he sooner resigns or is removed from Office. In this view of the matter, it was held that as the learned Judge (whose appointment was called in question ) "had neither attained the age of sixty-two years, nor resigned, nor was he removed from the Office of a Judge during the period he served as Secretary, Ministry of Law and Parliamentary Affairs, he continued to be a Judge of the High Court" and was, therefore, qualified to be appointed a Judge of this Court under Article 178 (2) (A) of the Interim Constitution.
' In the second case reported in PLD 1978 SC 40, a permanent Chief Justice of a High Court was appointed as a whole-time Governor of a Province and a contention was raised that thereby he had ceased to hold the Office of Chief Justice affecting the constitution and continuity of the High Court. Rejecting this contention, it was held by this Court that a Judge of High Court which term includes the Chief Justice does not cease to hold Office unless he retires on attaining the age of superannuation as prescribed in Article 195 of the Constitution; or he resigns or is removed from his Office or he dies. A situation was, however, visualized when a Judge may be deemed to have vacated his Office and that was where he accepts another substantive and permanent Office, although without formally tendering his resignation from his judgeship. It was thus held that "by his temporary appointment as Acting Governor, the Chief Justice has not vacated the office of the High Court". In AIR 1970 SC 1061, appointment of an Advocate as a Judge of the High Court was challenged on the ground that though he was enrolled as an Advocate more than 20 years ago but since he had all along been practising at Benaras and not in the High Court, he could not claim to be one who "has for at least 10 years been an Advocate of a High Court" within the meaning of Article 217 (2) (b) of the Constitution. Repelling this contention, it was held by the Supreme Court of India that the expression "An Advocate of a High Court" in Article 217 meant an Advocate whose name has been enrolled as an advocate of a High Court, no matter whether he practised in the High Court itself or in Courts subordinate to it or both.
' In the second case from Indian jurisdiction reported in AIR 1967 SC 442, the question raised was whether an Additional District Judge who had not actually worked as such Judge for a period of three years could validly be appointed as Presiding Officer of an Industrial Tribunal under section 7-A (3) (aa) of Industrial Disputes Act, 1947. Supreme Court of India with reference to the said provision which in terms laid down that a person shall not be qualified for appointment as the Presiding Officer of Industrial Tribunal unless "he has, for a period of not less than three years, been a District Judge or an Additional District Judge", held that to satisfy the requirement of this provision, it was not necessary that he must have actually worked as an Additional District Judge for a period of three years, It was observed that the officer while officiating as Registrar of the High Court continued to hold the office of Additional District Judge and as such he held the post of an Additional District Judge for over three years and was, therefore, qualified for appointment under section 7-A (3) (aa). In the last-mentioned case cited by the appellant; viz. AIR 1954 All. 227, appointment of a Member of the Election Tribunal was challenged on the ground that he did not have 10 years standing as an Advocate of the High Court though he had practised as a lawyer for 16 years before his enrolment as an Advocate. High Court took the view that the relevant provision of the Representation of the People Act providing for appointment of one of the Members of the Tribunal by selection out of "a list of Advocates of that High Court who have been in practice for a period of not less than ten years,..." could be interpreted to mean that the person selected is an Advocate and that he has put in practice as a lawyer for a period of not less than ten years,
6. Survey of the cases cited by the appellant quite clearly shows that they proceeded on their own facts and the Constitutional and legal provisions involved therein and in any case they are of no help to the appellant as in none of these cases; it has been held that even when an Advocate abandons legal practice, joins service in the country or abroad and is thus no more in the legal profession, he would still be deemed to be an Advocate for all intents and purposes merely because his name has remained on the roll of Advocates. In fact, the case reported in PLD 1978 SC 40 rather goes against the proposition canvassed by the appellant as it has been observed therein that even a Judge of the High Court who does not cease to hold the office unless he retires or resigns or is removed from his office would be deemed to have vacated his office if he accepts some other substantive and permanent office though without formally tendering his resignation from judgeship. The appellant on his own showing had left Pakistan for Uganda on 10-8-1974 where he joined service as Chief Magistrate on 12-8-1974 and was later appointed as Judge of the High Court of Uganda in September 1979 which office he held up to February 1982. In the circumstances, the appellant could not legitimately claim that while he was doing service in Uganda, he also continued to be an Advocate .
7. Reference at this stage may also be made to the relevant provisions of the Rules governing the Legal Practitioners to which our attention was drawn by the learned counsel appearing for respondents. Rule 74 of Legal Practitioners and Bar Council Rules, 1969 provided that an Advocate may apply for suspension of his certificate when he intends to discontinue his practice in order to carry on business or to join some other profession or vocation or he may even apply that his name be altogether removed from the roll of Advocates. Similar provision was repeated in Rule 50 of Sindh Balochistan Legal Practitioners and Bar Councils Rules, 1975 though the word `shall' instead of 'may has been used in the first part of that rule making it obligatory for an Advocate to apply for suspension of his licence if he discontinues his practice in order to carry on business or to join some other profession or vocation. Rule 175 of Pakistan Legal Practitioners and Bar Council Rules, 1976 prohibited the Advocates from carrying on any other profession or business or being active partners in or salaried officials or servants in connection with any such profession or business.
8. On the basis of the provisions afore-referred, it was argued by the learned counsel for the respondents that the appellant should have got his licence suspended and/or his name removed from the roll of Advocates after he had proceeded abroad and joined service in Uganda . It is an admitted position that the appellant took no steps to get his licence suspended or his name removed from the roll of Advocates while he was serving in Uganda. That being so, the appellant having omitted/failed to do what he was required by law to do, he cannot be permitted to take benefit of his own omission so as to contend that because his licence was not suspended and his name not removed from the roll of Advocates, he should be deemed to have continued as an advocate. In our considered view, the appellant on his joining service in Uganda had ceased to be an Advocate.
9. It is not in dispute that if the period during which the appellant remained in service in Uganda is excluded, he had not been an Advocate of the High Court for a period of ten years when he applied for appointment or was appointed as Judicial Member of Income Tax Appellate Tribunal. He was, therefore, not qualified for appointment as a Judge of the High Court in terms of Article 193 (2) of the Constitution and consequently he was not qualified for appointment as Judicial Member of Income Tax Appellate Tribunal. In this view of the matter, the impugned judgment of the High Court is unexceptionable.
10. Upshot of the above discussion is that we find no merit in this appeal which is accordingly dismissed but with no order as to costs.