' KHALILUR-REHMAN KHAN, J.--This appeal by leave calls into question the orders dated 8th and 29th October, 1995 passed by a learned Judge of the Lahore High Court, Lahore in contempt proceedings initiated by the respondent officer on account of alleged non-implementation of the judgment dated 29th April, 1989, delivered in Writ Petition No,61 of 1985. The respondent officer who filed this Constitution petition had graduated in medicine from the King Edward Medical College, Lahore in 1971 and was appointed as Medical Officer in the Lahore General Hospital, Lahore in May, 1973. He was appointed as Demonstrator in May, 1977 in Forensic Medicine and Toxicology in the King Edward Medical College, Lahore. He obtained diploma in the medical jurisprudence in May, 1978 and thus became qualified to be appointed in the teaching cadre of medical Colleges in the Punjab. He was appointed on 21st June, 1978 as Assistant Professor in basic pay scale No,18 in the Quaid-e- Azam Medical College, Bahawalpur in his own pay scale and while so appointed he had also performed duties of the head of department. In March, 1981, he was appointed on the recommendation of the Punjab Public Service Commission as Assistant Professor on regular basis in the Forensic Medicine and Toxicology in aforesaid College at Bahawalpur. On 20th November, 1981 he was transferred in the same capacity to the Allama Iqbal Medical College, Lahore and was then sent on deputation to the College of Community Medicine, Lahore for doing M. Phil. The respondent officer having been appointed as Assistant Professor much after 25th November, 1977 felt aggrieved of the amendment made in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 vide Notification No,SOR-III-1-6/81 dated 17th October, 1981 so far it prescribed the date of appointment as Assistant Professor as before 25th November, 1977 as the qualifying date for appointment to the post of Professor in the educational cadre of the Medical Colleges. The respondent pleaded in the petition that at the time of the impugned notification, he was serving as Assistant Professor, Forensic Medicine and his rights could not be adversely affected. The appellant Government contested the petition, inter alia, on the ground that writ petition was not maintainable as the question raised primarily pertains to terms and conditions of service of a civil servant and as such jurisdiction of the High Court stands ousted and barred by the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan. The petition along with another petition of a civil servant was however allowed vide judgment dated 29th April, 1989 in the following manner:--- "In the light of the foregoing conclusions, the writ petitions are partly allowed and it is declared that the petitioners are eligible to be considered for promotion as professors in accordance with the regulations of the Pakistan Medical and Dental Council, which have ascendency over the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979."
' The appellant filed Intra-Court Appeal against this judgment but the same was got dismissed as withdrawn saying that a petition for leave is to be filed in this Court. Such a petition was filed but the leave was refused on the ground of limitation.
2. The respondent officer in the meanwhile filed an application for contempt in the Lahore High Court against the appellant and Secretary, SGA&ID, for failure to implement the judgment dated 29th April, 1989. The matter having been examined in the Law and Parliamentary Affairs Department as well as the Health Department, the SGA&ID Department was of the view that the PMDC Regulation having been negated by the Supreme Court in its judgment in Civil Appeal No,46/P/1986, it will not be advisable to process the matter further till the final judgment. The Intra- Court Appeal was got dismissed and C.P.L.A. Was refused by this Court, so a statement was made by the Acting Secretary, Health that working paper of the respondent Officer for appointment as Professor shall be put up in the next meeting of the Provincial Selection Board. The contempt petition Criminal Original No,200/W/1995 was disposed of vide order dated 6-4-1995. Another contempt petition Criminal Original No,442/W/1995 was filed and was disposed of vide order dated 6th July, 1995 as the High Court was informed that promotion case of respondent officer was considered on 5-7-1995 by the Selection Board which has made the recommendation to the competent authority and its order is being awaited. It appears that promotion case of the respondent officer was placed before the Provincial Selection Board and on recommendations of the Board, the competent authority cleared the respondent officer for promotion to the rank of Associate Professor, Forensic Medicine as an Assistant Professor without having been first promoted as Associate Professor could not be promoted as Professor. The Government vide Notification No, SO (Admn-I)8-1/78(P), dated 7-8-1995 promoted the officer as Associate Professor, Forensic Medicine.
3. The respondent officer filed the third contempt petition (Criminal Original No,760/W/1995) seeking action against the Health Secretary for promoting the respondent officer to the rank of Associate Professor and not to the post of Professor. The appellant Government in its explanation again submitted that the Pakistan Medical and Dental Council under section 33 of P.M.D.C.
Ordinance, 1962, is empowered to prescribe minimum qualifications required of teachers of Teaching Institutions, but in the capacity of civil servants, the teachers of Medical and Dental Institutions are governed by the provisions of the Punjab Civil Servants Act and Rules. It was urged that this view point has been upheld and enunciated by the Supreme Court of Pakistan in the case of Government of N.-W.F.P. v. Muzaffar Iqbal and others 1990 SCMR 1321.
4. The appellant Government in its explanation further submitted that according to the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, promotion to the post of Professor of Forensic Medicine is to be made from amongst Associate Professors in the line possessing requisite qualifications as prescribed in the rules and that the respondent officer has been promoted accordingly to the rank of Associate Professor in compliance with the judgment dated 29-4-1989 and the order dated 12-7-1995 passed in the contempt proceedings.
5. The afore noted explanation appears not to have been considered by the learned Judge of the Lahore High Court as the orders passed do not deal with the explanation and the statements made by the Secretary, Health, appearing under the contempt notice were only noted. The statement made under the pain of show-cause notice was that the case of the respondent officer shall be reconsidered in the light of judgment passed in W.P. No,61 of 1985 and by the Supreme Court for promotion to the post of Professor in Grade-20. The learned Judge of the High Court then passed order dated 8-10-1995 as follows:-- "Mr. Ziaur Rehman, Secretary, Services says that the case of the petitioner shall be reconsidered in the light of judgment passed by this Court in W.P. No,61/1985 and by the Supreme Court for promotion to the post of Professor in Grade 20. A special meeting of the Provincial Selection Board shall be held within 15 days from today to consider the case of the petitioner. The Board may take a decision on implementation of the judgment of this Court in strict sense that promotion of the petitioner may be treated provisional and without prejudice to the stand of the Government to approach the Supreme Court for clarification and the same shall be subject to decision made by the Supreme Court in the matter of clarification.
2. In this view of the matter the notice issued by this Court for contempt of Court is hereby discharged.
3. To come up on 29-10-1995."
' On next date of hearing i,e,, 29th October, 1995, the order passed by the learned Judge reads as under:- "Mr. Ziaur Rehman, Secretary, SGA&I Department, says that the case of the petitioner was placed before the Provincial Selection Board in terms of judgment dated 29-4-1989 passed in Writ Petition No,61 of 1985 and in compliance of order passed by this Court on 8-10-1995 for considering the promotion of the petitioner from Grade 19 to 20 under PMDC Regulation, 1979. Since the petitioner wanted promotion to Grade 20 from 1981, therefore, after considering the dossiers of the petitioner and entries in the service record prior to 1981 the said Board found him not fit for promotion and a summary to that effect is being transmitted to the Governor.
2. The petitioner says that he would seek remedy available to him under the law against the said decision. He further says that without pre judice to his stand and the ailment of the said remedy for claiming promotion from 1981 the case of the petitioner according to the judgment of this Court should be considered for promotion with immediate effect and not retrospectively. The case of the petitioner shall be placed before the Provincial Selection Board for considering the fitness of the petitioner for promotion with immediate effect to grade 20 under PMDC Regulations, 1962.
3. Mr. Ziaur Rehman undertakes that the case of the petitioner for promotion to grade 20 under PMDC Regulations, 1979, with immediate effect shall be placed in the first meeting of the Board to be convened hereafter.
4. The judgment of this Court dated 29-4-1989 passed in Writ Petition No,61/1985 stands complied with, therefore, this petition is disposed of.
' It is pertinent to note that the question of legality or otherwise of the judgment of the High Court which is contrary to the judgment of the Supreme Court was not considered. However the direction to place the case of the respondent officer for promotion to Grade 20 under PMDC Regulations was given and an undertaking of the Health Secretary in this behalf was obtained and recorded. The appellant then filed the petition for leave to appeal challenging the orders dated 8th and 29th October, 1995 and this Court granted leave vide order dated 15th November, 1995.
6. Mr. K.M.A. Samdani, Advocate in support of the appeal contended that the orders dated 8th and 29th October, 1995 impugned in this appeal are illegal and unwarranted in law as through these orders a "void judgment" was being implemented. According to the learned counsel for appellant, the judgment dated 29th April, 1989 sought to be implemented by initiating contempt proceedings repeatedly is a mere "nullity in law" as by virtue of Article 212 of the Constitution of Islamic Republic of Pakistan, jurisdiction of the High Court stands barred and ousted to entertain and determine matters pertaining to terms and conditions of a civil servant. The writ petition filed by the respondent officer could not be entertained what to say of issuing the direction as made vide judgment dated 29th April, 1989. The judgment was thus termed as 'null and void'.
' Mr. Samdani, argued that a void order merits to be ignored as and when such an order or judgment is sought to be enforced despite the fact that it has not been formally set aside. He cited Hussain Bakhsh and others v. Settlement Commissioner and others, PLD 1969 Lah. 1039 and Pakistan Gum and Chemicals Ltd. v. Chairman, Karachi Municipal Corporation, PLD 1975 Kar.
495. In the first case it was held that if an order is without jurisdiction and void, it need not be formally set aside and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation. In the second case, it was observed that the order being without jurisdiction, it is a nullity and did not require to be set aside in appeal to controlling authority by the Karachi Municipal Corporation. Learned counsel for the appellant also referred to the following cases decided by the Supreme Court:
(1) Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104: In this case this Court refused to attach finality to an order passed by an authority in excess of jurisdiction and on that account held the order to be 'void.
(2) Khuda Bakhsh v. Khushi Muhammad PLD 1976 SC 208: The order impugned in the case was held to be void, ab initio on account of want of jurisdiction and it was therefore a nullity and could be ignored. It was also observed that such an order did not require to be set aside in appeal or in any other proceedings.
(3) Conforce Ltd. v, S. Ali Shah PLD 1977 SC 599: In this case, distinction between an order suffering from lack of competence of a Court or Tribunal and an order which suffers from other kind of illegality was drawn and pointed out. Mr. Justice Dorab Patel, preferred to use the expressions 'void order or without jurisdiction' only in relation to cases where the Court or Tribunal concerned lacked competence to enter upon the inquiry in question.
(4) Mazhar Hussain Khan v. Government of West Pakistan, 1983 SCMR 40: In this case the impugned orders being palpably against instructions contained in a certain memorandum, were held void, ab initio and so were directed to be ignored.
' Learned counsel for the appellant further urged that the judgment of the High Court being contrary to the law laid down by the Supreme Court in Civil Appeal No,46/P/1986, Government of N.-W.F.P. And another v. Dr. Sh. Muzaffar Iqbal could not be ordered to be implemented and as such the orders passed in contempt proceedings are not sustainable and merit to be quashed.
7. Mr. A.G. Chaudhry, Senior Advocate, in reply submitted that there was no alternative but to implement the judgment dated 29th April, 1989 of the High Court as even petition for leave to appeal was refused by this Court on 11 May, 1994. It was argued that even a void order is required to be set aside formally and order or judgment delivered by the Courts cannot be ignored by dubbing the same as illegal or void judgment. He referred to the Article written by him under the title "void and voidable order" published in PLJ Magazine Section, page 26, wherein, species of jurisdictional defects have been pointed out by reference to different decided cases. Errors such as inconsistency with a statute, failure to follow expressly prescribed procedure, exercise of discretion on wrong grounds or irrelevant considerations, unreasonableness, improper motive, violation of principles of natural justice, have been noted as factors vitiating the proceedings or the orders and falling within the category of jurisdictional errors. It was however noted in the Article that a distinction is made in cases where there is complete lack of jurisdiction and the orders are corum non judice. Mr. Chaudhary argued that the judgment sought to be implemented holds the field and as the leave petition was also dismissed, the judgment has to be implemented and was rightly directed to be implemented by the learned Judge of the High Court. Learned counsel for the respondent officer submitted that as the judgment of the High Court was not interfered with by the Supreme Court, the appeal merits to be dismissed.
8. The question of legality and efficacy of a void order as distinguished from voidable order and its annulment or disregard by treating the same as a nullity came to be considered by this Court earlier also. These questions naturally give rise to the considerations, whether the Court or Tribunal which is required to disregard the order is a Court of general or limited jurisdiction. This Court has examined different aspects of this very question in many cases and all these cases require to be examined from the particular situation prevailing in each case. In the particular circumstances, learned Judge in the case of Muhammad Swaleh, PLD 1964 SC 97 observed "it should be remembered that if an order be a nullity, then every Court before whom it is brought is not only entitled but bound to ignore it. The observation made in the Privy Council case of Yousaf Ali Mullah Noor Bhoy v. The King, PLD 1949 PC 108, being pertinent are reproduced: "But if the orders were a nullity there was nothing to appeal against. It may well be that the Government if embarrassed by the orders of acquittal, might have applied to the High Court to quash them. In this connection reference may be made to the decision of the House of Lords in Crane v. Director of Police Prosecutions, (1921) 2 A.C. 299; (90 L.J.K.B., 1160). But the omission of Government to take such a step, which was not incumbent, could not convert an order made without jurisdiction into an order passed by Court of competent jurisdiction. Some emphasis was laid on the conduct of the Government of Bombay in appealing against the orders passed by the learned Magistrate, under section 517, Cr.P.C. It may be that the High Court ought not to have entertained such appeals, but no question as to the validity of the orders made in these appeals is before the Board. It was rightly conceded by Mr. Page that the action of the Government of Bombay in appealing against the orders made by the Magistrate under section 517 could not operate by way of estoppel to confer jurisdiction upon the Magistrate which he did not otherwise possess."
' This Court in the case of Muhammad Fazil v. Chief Settlement Commissioner, PLD 1975 SC 331, besides pointing out the distinction between "void and voidable order" considered the question whether a tribunal of special or limited jurisdiction as distinguished from an ordinary Court of general jurisdiction has the power to recall, rescind or treat as a nullity order obtained from it or any other authority by practising fraud. The observations made at page 340 read:--- "If an order obtained by fraud is voidable, the question then is in what kind of proceedings can it be set aside or avoided. As stated by Robinstein in 'Jurisdiction and Illegality', the validity of a decision or order can be challenged either directly by way of proceedings specially designed by law for the purpose of having such a decision set aside, reversed or modified; or by way of collateral attack in which the Court is not asked to invalidate the disputed decision but in which the existence of this decision is relevant to the issue facing the Court. In such collateral impeachment the contention generally is that the impugned decision is a nullity in the eye of law and can be disregarded by the Court before which it is sought to be relied upon by one party' or the other."
' Again in respect of collateral impeachment of a void order it was observed: "However, in the matter of collateral impeachment of such an order, the position appears to be different. Whereas, a superior Court or a Court of general jurisdiction has the power to disregard, as nullity, an order obtained by fraud or collusion, or on the ground of want of jurisdiction in the Court or authority making it, such a power is not available to a tribunal which either acts in an administrative capacity, or enjoys only a special or limited jurisdiction in a defined sphere."
' In case of Sharif Ahmed flashmi v. Chairman, Screening Committee 1978 SCMR 367 Mr. Justice Durab Patel after noticing cases on the question whether a void order is always to be struck down observed: "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order, regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. It is described as void because it is so illegal that it does not exist in the eye of the law but this does not alter the fact that it was passed and by describing it as void, Courts cannot alter the fact that the order was passed. And an 'order' which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Munir, C.J., with usual lucidity I say so with respect in Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104: where Munir, C.J., observed at page 117: 'And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded' ."
This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
This qualification is very important and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
(See this Court's judgment in C.As. 150 and 166 of 1970, Jalalud Din and others v. Mst. Noor Sain and others) and (Jalalud Din and others v. Shamasud Din and others) respectively. Similarly in Ghulam Mohiud Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if he has been guilty of laches".
' Hamoodur Rehman, C.J., in the case of Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236, after noticing the dictum laid down in the case of the Chittagong Chamber of Commerce and Industry v. C.S. Ltd., PLD 1970 SC 132, to the effect that "an illegal order has to be avoided by challenging it in proper proceedings and until it is set aside, it cannot be ignored, observed: "This is no doubt correct, but it is also now well-established that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on 'jurisdiction and illegality' taken any action 'beyond the sphere allotted to the tribunal by law and therefore outside the area within which the law recognizes a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well-established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful."
A study of various cases decided by this Court would show that before a person can be permitted to invoke the discretionary powers of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality then the extraordinary jurisdiction ought not be allowed to be invoked PLD 1973 SC 236(258); likewise in the case of Begum Shamsun Nisa v. Said Akbar Abbasi and another, PLD 1982 SC 413, it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all circumstances and it would have been proper exercise of its discretion, if it had not interfered with the order of the Chief Settlement Commissioner in that case even if it felt that the order of the Chief Settlement Commissioner whereby he rendered the order of the Settlement Commissioner as null and void, was not strictly legal". Again this Court refused to intervene where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice. See Gul Muhammad v. Addl. Settlement Commissioner, 1985 SCMR 491; Nazim Ali etc. v. Mustafa Ali etc., 1981 SCMR 231; Wali Muhammad and others v. Sheikh Muhammad and others, PLD 1974 SC 106; Meraj Din v. Director, Health Services, 1969 SCMR 4; Tufail Muhammad v. Muhammad Ziaullah Khan, PLD 1965 SC 269; Azmat All v. Chief Settlement and Rehabilitation Commissioner, PLD 1964 SC 260. The object of the superior Courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view, it may in equity set aside or annul a void judgment or enjoin enforcement by refusing to intervene in the circumstances of the case before it.
9. The plea that the judgment dated 29th April, 1989 of the High Court which was sought to be implemented by initiating contempt proceedings is a "void" judgment may now be examined. It will be recalled that the validity of amendment made in the Service Rules pertaining to the promotion in the higher rank/post was challenged. Learned Judge despite observing that ordinarily the questions of validity or otherwise of the service rules and of promotion of civil servant fall within the purview of Service Tribunal, but to be considered for promotion is a legal vested right of a civil servant which could be enforced through writ petition. Learned Judge on the question of efficacy of the PMDC Regulations as against the Service Rules enforced by the Punjab Government concluded: "It is, therefore, concluded that the regulations made by the Pakistan Medical and Dental Council under section 33(2) of the Pakistan Medical Council Ordinance, 1962, have ascendency over the rules of 1979 made by the Provincial Government in purported-exercise of its powers under section 23 of the Punjab Civil Servants Act, 1974 and thus the regulations made by the Pakistan Medical and Dental Council shall prevail and the Provincial rules to the extent of repugnancy shall be deemed to be void."
' In view of the fore noted conclusions the declaration made and the direction passed by allowing the writ petition partly vide judgment dated 29th April, 1989 read as under: "It is declared that the petitioners are eligible to be considered for promotion as professors in accordance with the regulations of the Pakistan Medical and Dental Council Regulations which have ascendency over the Punjab Health. Department (Medical and Dental Teaching Posts)
Service Rules, 1979."
10. These very questions were agitated earlier before' this Court in the case of Government of the N.-W.F.P. v. Dr. Sh. Muzaffar Iqbal and others, C.A. 46/P/1986, decided on 30-4-1988. It was held that "law has since been well-established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date. It was further observed that "the respondent was claiming protection of the terms and conditions not of his service but that of the higher post. He could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding. The High Court was in error in considering that the terms and conditions of the appointment of the Professor were the terms and conditions of his appointment who was holding the next below post of Associate Professor. The rules read with schedule will bear it out that the terms and conditions related to a higher post with which the respondent could have some connection only on being promoted or appointed and not prior to it. This matter has been reiterated in Muhammad Inshaullah's case and subsequently in Habib Bank Ltd. And others v.
National Industrial Relations Commission and others, C.A. No,316/1987; PLD 1988 SC 362. The respondent could claim no vested right nor could a change in the recruitment rules of the higher post can be said to operate against him retrospectively". As regards the efficacy or ascendency of the PMDC Regulations and the Service Rules, the conclusion recorded by this Court reads "the respondent being a civil servant, the terms and conditions of his service are not governed by the Regulations made by the Pakistan Medical and Dental Council but by the N.-W.F.P., Civil Servants Act and N.-W.F.P., Civil Servants (Appointment, Promotion and Transfer) Rules, 1975. It is by incorporation of the qualifications in the rules that the civil servants like the respondent and other could claim to be governed by it and not independently of any such incorporation". The other judgment of this Court on the question of jurisdiction of the Service Tribunal to examine the validity of Service Rules and Notifications and the eligibility for promotion to higher posts is the case of Muhammad Anis v. Abdul Haseeb, PLD 1994 SC 539. It was held that "the above matters pre- eminently fall within the exclusive jurisdiction of the Tribunal and therefore the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it".
11. The judgment of the Supreme Court in the case of Dr. Sh. Muzaffar Iqbal supra, appears not to have been brought to the notice of the learned Judge of the High Court. Had it been noticed the declaration made and the direction issued would not have been made and issued for the reason that the law declared by the Supreme Court by virtue of Article 189 of the Constitution of Islamic Republic of Pakistan is binding on all Courts and authorities in Pakistan. The judgment dated 29-4- 1989 passed by the Lahore High Court in W.P. No,61/1989 in view of the dictum laid down to the contrary by the Supreme Court is a judgment per incuriam. Halsbury's Laws of England, Fourth Edition, Volume 26 in paras. 577-578, has commented on the "judgment per incuriam" as under: "A decision is given per in curiam when the Court has acted in ignorance of a previous decision of its own or of a Court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow; or when it has acted in ignorance of a House of Lords' decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. A decision should not be treated as given per incuriam, however, simply because of a deficiency of parties, or because the Court had not the benefit of the best argument and, as a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority."
The judgment of the High Court is not only judgment per incuriam having been passed contrary to the judgment of the Supreme Court but is also without jurisdiction as the High Court had wrongly assumed jurisdiction in the case, which did not vest in it in view of the provisions contained in Article 212 of the Constitution.
12. This brings us to the question of implementation of the judgment dated 29-4-1989 of the High Court which judgment as held above is a "judgment per incuriam" which was sought to be enforced by initiating contempt proceedings. The question is whether indictment for disobedience to a judgment per incuriam can be obtained or in other words can a person be found guilty of disobedience of an order which is nullity in the eyes of law. On this question cases cited in Haisbury's Laws of England 4th Edition, Volume 9, para. 55, are "R. v. Hollis 1819, 2 Stark. 536; R. v.
Soper 1825, 3 B & C 857". Wherein it was held that "a person cannot be found guilty of disobedience to an order of justices if the order was made in a matter in which they had no jurisdiction". The comments recorded at page 100 of Volume 17, Corpus Juris Secundum on the subject may be reproduced as under: "In proceedings to punish for contempt for violation of, or failure to obey, a decree or order, various matters have been held to constitute good defences. Thus it has been a good defence in such proceedings that the decree or order is indefinite and uncertain or that the act required to be performed would be nullity."
' On the same principle, learned Judge of the Division Bench in the case of Abdul Haleem v. Qurban Hussain PLD 1965 Lah. 570 observed, "it is true that presumption attaches to orders of superior Courts that they are with jurisdiction but no such presumption attaches to an order of subordinate Court. In the circumstances, Mir Bahadur Ali, Superintendent of Police, did not commit any contempt of Court by disobeying the order which had no legal force". Again Munir C.J., in the case of Mian Sultan Ali Nanghiana v. Nur Hussain PLD 1949 Lah. 301 F.B., held that order staying proceedings before the Election Commission being without jurisdiction was void and that being so no contempt of High Court was committed by the members by disobeying it.
13. Seen in the light of dictum laid down in these cases the appellant Government was right in pointing out to the High Court that its judgment being contrary to the judgments of the Supreme Court and the law laid down by it cannot be got implemented by invoking power of contempt of the Court. Learned Judge of the High Court without adverting to this question, insisted unfortunately on the implementation of the direction issued in the judgment. The implementation of the judgment would have amounted to acting contrary to law laid down by this Court. The promotion to which the respondent officer was legally entitled had been made by issuing the necessary notification promoting and appointing him as Associate Professor, thus further insistence to promote him to the post of Professor would be illegal. The justice having been done, initiation of contempt proceedings any further and the orders dated 8th and 29th October, 1995 requiring the appellant Government to act contrary to law are unwarranted in law. Both the orders are accordingly held to be illegal and unwarranted and are quashed. The appeal is, therefore, accepted. Parties to bear their own costs.
…and 94 more citing cases