SHARIF HUSSAIN BOKHARI, J.-----This writ petition was dismissed in limine on 19-4-1995 by our short order. This detailed order is in continuation of the short order dated 19-4-1995 which shall also form part of this order.
2. The relevant facts are that the petitioner who is a citizen of Pakistan, has challenged the appointment of his Lordship Mr. Justice Ch. Muhammad Ilyas (respondent No.1) as Acting Chief Justice of this Court on the following main grounds:
(i) That under Article 195 of the Constitution of the Islamic Republic of Pakistan, 1973, the retiring age of a Judge of the High Court is fixed at 62 years. He argued that the `Judge' as defined in Article 260 of the Constitution, includes the Chief Justice of the Court. Therefore, according to the petitioner, no person can be appointed as Acting Chief Justice of the High Court who has crossed this age limit, i.e. Who is above 62 years. In this respect, he has submitted that respondent No.1 was admittedly born on 1-10-1931, therefore, was more than 62 years of age at the time of his appointment as Acting Chief Justice of this Court;
(ii) That Article 196 of the Constitution envisages the appointment of Acting Chief Justice only in emergency situations. Since no emergency situation existed, respondent No.1 ought not to have been appointed as the Acting Chief Justice;
(iii) That the appointment of respondent No.1 as Acting Chief Justice by respondent No.2 was mala fide;
(iv) That by assuming the charge of Acting Governor during the absence of the Governor of Punjab, respondent No.1 could not resume the charge as Acting Chief Justice without fresh order of appointment. Similarly, respondent No.1 went abroad on 19-3-1995 and during his absence Mr. Justice Ijaz Nisar took the charge of the office of Acting Chief Justice after taking oath, but on return from abroad, respondent No.1, without obtaining fresh order of appointment and without taking oath; resumed the charge as Acting Chief Justice which, according to the petitioner, is against the letter and spirit of Article 261 of the Constitution.
3. After hearing the petitioner and going through the relevant provisions of the Constitution we are of the considered view that this writ petition merits dismissal at (mine stage, for the reasons hereinafter stated.
4. Article 195 of the Constitution fixes the retiring age of a Judge of the High Court at 62 years, unless he sooner resigns or is removed from the office is accordance with the Constitution. Article 195 reads as under:-- "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."
However, the retiring age of a Judge of the Supreme Court is 65 years under Article 179 of the Constitution, which is reproduced below:-- "A Judge of the Supreme Court shall hold office until he attains the age of sixty-five years, unless he sooner resigns or is removed from office in accordance with the Constitution."
5. Under Article 196 of the Constitution, "At any time when---(a) the office of Chief Justice of a High Court is vacant, or (b) the Chief Justice of a High Court is absent or is unable to perform, the functions of his office due to any other cause, the President shall appoint one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court, to act as Chief Justice".
6. It is, therefore, clear that under Article 196 of the Constitution any of the learned Judges of the Supreme Court can be requested by the President to act as Chief Justice of a High Court. As observed above, retiring age of a Judge of the Supreme Court is fixed at 65 years under Article 179 of the Constitution of Pakistan. It follows that whenever an Acting Chief Justice of a High Court happens to be a Judge of the Hon'ble Supreme Court, he can act as the Chief Justice of a High Court until he attains the age of retirement under Article 179 of the Constitution. Admittedly, respondent. No.1 is an Honourable Judge of the Supreme Court of Pakistan, therefore, Article 195 of the Constitution is not attracted in his case, instead his age of retirement would be 65 years in accordance with Article 179 of the Constitution. The only qualification under Article 196 is that he should be a Judge of the Supreme Court. Respondent No.1 Could, therefore, competently be appointed by the President as Acting Chief Justice of this Court, as long as he is a Judge of the Supreme Court of Pakistan.
7. It is the case of the petitioner himself that respondent No.1 is the Hon'ble Judge of the Supreme Court, therefore, the notification issued by the Ministry of Law and Parliamentary Affairs on 26-6- 1994 appointing him as Acting Chief Justice of this Court is in accord with the letter and spirit of Article 196 of the Constitution.
8. Respondent No.1 took oath of office as Acting Governor and also went abroad during the month of March, 1995 and that in his absence, on all these occasions, the other Hon'ble Judge of this Court took oath of the office and worked as Acting Chief Justice, therefore, according to the petitioner, respondent No.1 could not resume the office of Acting Chief Justice without getting fresh appointment and taking fresh oath.
9. This argument of the petitioner is contradicted by the notification itself which states that respondent No.1 shall act as Chief Justice of this Court "until further orders". This order was issued by the President of Pakistan in the exercise of his powers under Article 196 and shall remain in the field so long as it is not withdrawn, rescinded or modified by him. Accordingly, after temporary relinquishment of the charge as Acting Chief Justice to act as the Governor of the Province and/or returning from abroad, respondent No.1 was not required to obtain fresh order of his appointment or to take fresh oath of office before resuming as Acting Chief Justice.
10. It may be pointed out that all the aforesaid points were considered by us in Writ Petition No.4392 of 1995 which was decided on 11-4-1995. Similar points were also decided by another learned Bench of this Court in Habib-ul-Wahab AI-Khairi and others v. Federation of Pakistan and others (PLD 1995 Lah. 27). There is thus no substance in the contentions raised by the petitioner in this Constitutional petition.
11. The petitioner also contended that vide order, dated 26-6-1994 issued by respondent No.2, the then Chief Justice Mian Mahboob Ahmad was transferred to the Federal Shariat Court, but the office of the Chief Justice did not fall vacant, as he did not join that Court. This argument of the petitioner is also fallacious, inasmuch as on the transfer of Mr. Justice Mian Mahboob Ahmad (as he then was) to the Federal Shariat Court, he stood retired on his refusal to accept the appointment of Judge of the Federal Shariat Court. In this context, reference is made to clause (5) of Article 203-C of the Constitution, which is as follows:--- "A Judge of a High Court who does not accept appointment as a Judge shall be deemed to have retired from his office and, on such retirement, shall be entitled to receive a pension calculated on the basis of the length of this service as Judge and total service, if any, in the service of Pakistan."
12. Thus, on the retirement of Mian Mahboob Ahmad as the Chief Justice of this Court, in accordance with the aforementioned provisions of the Constitution, the office of the Chief Justice of this Court fell vacant, which vacancy had to be filled in accordance with Article 196 of the Constitution. Accordingly, the President of Pakistan made a request. To respondent No.1; a learned Judge of the Hon'ble Supreme Court, to act as Chief Justice of this Court, as provided under Article 196 of the Constitution.
13. This writ petition is also frivolous and mala fide, inasmuch as even prior to its institution almost all the points raised herein were taken up and decided by this Court in Writ Petition No.4392 of 1995, decided on 11-4-1995 and in Habib-ul-Wahab Al-Khairi's case, referred to above. Thus to reagitate the same points, which were decided earlier by this Court, shows mala fides of the petitioners.
14. We, therefore, hold that the notification dated 26-6-1994, impugned herein, was validly made and issued and that respondent No.1 competently holds the office of Acting Chief Justice of this Court. This writ petition, therefore, fails and is hereby dismissed in limine.