SYED MANZOOR HUSSAIN GILANI, J.---The petitioner through this writ petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act; 1974 seeks the quashment of the appointment of respondent No.4 as a Judge of the High Court and a direction to respondent No.2 for a fresh advice for appointment of petitioner by revising the earlier advice sent in favour of. Respondent No.4.
2. The brief facts which led the petitioner to file the present petition are that respondent No.4 (to be referred hereinafter as respondent) was appointed as Judge of the High Court under Notification No.3/19/95 A.D. Dated 29-11-1995, Respondent entered into his office on 7-12-1995 when he took the oath The petitioner alleges that respondent was basically a practising lawyer at Rawatakot who acquired allotment of evacuee property in Hajira and Rawalakot areas and managed to get huge amount out of the property as compensation of the land left by the Hindus and invested the money in real estate in Islamabad. The petitioner further alleges that respondent on shifting his place of business to Muzaffarabad procured the assignment of Principal Prosecutor against the politicians in the despotic rule of then President of Azad Jammu and Kashmir General Hayat Khan. The petitioner further alleges that respondent got first appointment as Chairman Service Tribunal on 2- 6-1985 on the wrongful recommendation of the Chief Justice of the High Court and was removed from the office of Chairman Service Tribunal vide Notification No.Admin/S.II/ST (14)/89, dated 1-8- 1989. According to the petitioner respondent was again appointed as Custodian Fvacuee Property vide Notification No.Admin/S.II/A-5/90. Dated 30-9-1990 and thereafter transferred as Secretary Law. Vide Notification No.Admin/A--1(28)/S.V/90, dated 2-10-1990. The respondent, according to the petitioner, was performing the function of Secretary Law, Justice and Parliamentary Affairs at the time of his elevation as Judge of the High Court and, according to the petitioner, had ceased to be an Advocate after the appointment as Chairman. Service Tribunal and then as Custodian Evacuee Property and his subsequent transfer as Secretary Law. According to the petitioner, respondent alongwith him appeared in the test for the post of Sub-Judge before the Public Service Commission. Where in the petitioner qualified the test, while respondent failed to qualify the test and the petitioner while topping the list, was appointed as Sub---Judge on 23-12-1969. The petitioner further alleges that the members of the Judicial Department have been completely denied the right of appointment as Judges in the High Court and the last person who was appointed as Judge of the High Court from the cadre of Judicial Officers was Sardar Muhammad Ashraf Khan who has since retired as Judge of the Supreme Court. According to the petitioner, the denial of the right of appointment as a Judge in the High Court to the members of the Judicial Service has caused worst kind of frustration and amounts discrimination and jeopardises the right of equality granted to the citizens of the State under the Constitution. According to him, the denial of these rights has adversely affected the career of the Judges of subordinate judiciary and has caused a lot of frustration as well as lack of initiative in the members of the Judicial Department.
The petitioner further alleges that according to his information, respondent was placed at No.2 in the service group next below his name in the panel sent to respondent No.2 for advice. According to the petitioner, as respondent never enjoyed the status of a Judicial Officer, he could not be placed in the category of service group for his appointment as a Judge of the High Court, nor could the Chairperson of the Council advise the appointment of respondent as Judge of the High Court.
The petitioner also alleges that the appointment of respondent has been made on the recommendations of Acting Chief Justice of the High Court which is violative of the Constitution.
3. The respondents were ordered to file the para-wise comments upon the petition filed by the petitioner. All of them have filed the separate parawise comments upon the petition. It is admitted in the comments filed by all the respondents that respondent was an Advocate of the High Court qualified to be appointed as Judge of the High Court when he was appointed' as Chairman of Service Tribunal and later on as Custodian and Secretary Law. It is also admitted in the comments that respondent has been appointed on the basis of recommendations of the Chief Justice of the High Court and Chief Justice of Azad Kashmir and on the advice of Kashmir Council. It is unanimously denied in all the comments that the appointment of respondent has been made out of the service group/Judicial Officers, however, respondent No.2 in his comments has stated that respondent was rightly included in the service group because being eligible to be appointed as a Judge of the High Court in his capacity of Advocate and Pleader as provided by section 43(3)(a) of the Constitution. He also served as Chairman of the Service Tribunal, Custodian of Evacuee Property, Ad hoc Judge of the Supreme Court and Secretary Law of Azad Kashmir. It is further stated that he was not considered for appointment as a Judge as Judicial Officer. It is further stated that it is not necessary that at the time of appointment as a Judge, one should be an Advocate, but it is the requirement of the Constitution that a person should have been an Advocate for a period or periods aggregating not less than ten years. It is also stated in the comments that no quota is fixed in the Constitution for Judicial Officers to be appointed as Judge of the High Court. The comments filed on behalf of the President, Azad Jammu and Kashmir through its Secretary state that a panel was sent to the Council by President on the basis of consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court without preferring any in the panel, over the other.
Similar comments are furnished by the Secretary Law stating that the panel sent to the Council Secretariat was based on the consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court and it was in fact a list of the eligible candidates qualified for being appointed as Judge of the High Court without any distinction of service or Advocates class or any inter se preference.
4. Respondent No.4, however, has filed detailed comments which besides including the above factual and legal position of the case, states that he remained Pleader from Z4-1-1964 to 6-2-1967 and an Advocate of the High Court from 7-2-1967 to the date of joining the service as Chairman, Service Tribunal i.e. 2-6-1985. It is further stated by respondent that he was enrolled as an Advocate on 7-11-1975 and remained as an Ad-hoc Judge of the Supreme Court from 6-3-1985 to 21-5-1985 and again from 16-11-1986 to 15-12-1986. It is further stated in the comments by respondent that the criteria for appointment as a Judge of the High Court is laid down in the Constitution and no Service Rules for such an appointment are framed afresh. The respondent being qualified for the appointment was rightly appointed on the advice of the Council; and High Court has no power, to substitute its wisdom for the discretion and the powers vested in the Council and the President. It is further stated in the comments that there is no quota fixed for any service group or Advocates for appointment as a Judge in the High Court, neither is the office meant for promotion of any service class. It is further stated by the respondent that he was granted the status equivalent to, the status of a Judge of the High Court on 1-7-1988 when the (petitioner) was hardly in B-19. The respondent has further stated that he was twice appointed as Ad hoc Judge in the Supreme Court once before his appointment as the Chairman Service Tribunal and again in 1986. It is further stated that the status of the Chairman of Service Tribunal and Secretary Law is equal to that of the Judge of the High Court. Respondent has attacked upon the qualification, conduct and attitude of the petitioner as well, which is not relevant for the disposal of the petition hence not to be reproduced. Respondent also filed the additional comments when the petitioner was allowed the amendment in the petition, whereby a plea was taken that the respondent was recommended by the Acting Chief Justice of the High Court and such a recommendation/consultation being violative of the Constitution, the appointment of respondent is without lawful authority. In the additional comments, respondent has stated that the Acting Chief Justice of the High Court who had recommended him for appointment as Judge of the High Court was senior most Judge of the High Court, who later on became permanent Chief Justice of the High Court, thus there is no infirmity in the recommendations made by the Acting Chief Justice. It is also stated in the additional comments that he was recommended twice earlier for Judgeship firstly by Sardar Muhammad Ashraf Khan as Acting Chief Justice in 1988 and then by Mr. Abdul Majeed Mallick, the then Chief Justice in 1993. The respondent has further stated that as the appointment of a Judge in the High Court is made on the advice of the Azad Jammu and Kashmir Council which is very' predominant factor in the appointment of the Judges and the respondent having been thrice recommended by the Chief Justice of Azad Jammu and Kashmir whose views get primacy, his appointment is lawful as a Judge of the High Court.
5. We have heard the petitioner in person as well. The petitioner during the course of arguments raised the following points:-- That the respondent at the time of his appointment as a Judge of the High Court was never a Judicial Officer nor an Advocate, thus was not qualified to be recommended nor eligible to be appointed as a Judge of the High Court; and That at the time of appointment of respondent as a Judge of the High Court, the office of the Chief Justice of High Court was manned by Acting Chief Justice who recommended respondent for appointment and as an Acting Chief Justice, he was not authorized to recommend him.
The petitioner cited in this behalf the famous case decided by the Supreme Court of Pakistan reported as "Al-Jehad Trust through Raeesul Majahideen Habib-ul--Wahab-ul-Khairi and 6 others v. Federation of Pakistan and 27 others" PLD 1996 SC 324 (Hereinafter to be called as Judges case).
The alternate argument of the petitioner is that as no judicial officer has been appointed as a Judge of the High Court, the provisions of the Constitution are frustrated and the members of the subordinate judiciary are not equally treated and are discriminated. The petitioner further contended that the competent authority is bound to record reasons when a person out of the panel is picked for appointment, while no reason is recorded for the appointment of respondent out of the large panel.
6. We have considered the arguments advanced at bar, perused the para--wise comments filed by the respondent, the personal file of the respondent and have gone through the report of the Judges case referred above. Before discussing the points raised by the petitioner, the scheme of appointment of the Judges and the Acting Chief Justice in the High Court as regulated by the Azad Jammu and Kashmir Interim Constitution Act, 1974 may be reproduced here: "43. High Court.--(1) There shall be a High Court for Azad Jammu and Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such members of other Judges as may be prescribed by an Act of the Assembly.
(a) -------------------------------------
(b) -------------------------------------
(c) -------------------------------------
(2) ------------------------------------- (2-A) A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation: (a)With the Chief Justice of Azad Jammu and Kashmir; and
(b) Except where the appointment is that of Chief Justice with the Chief Justice of the High Court.
(3) (A person shall not be appointed) as a Judge of the High Court or Advocate-General unless-- (a)he has for a period, or for periods aggregating, not less than ten years, been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan: Provided that the term 'High Court' herein shall include a High Court or an equivalent Court that existed at any time before the 14th day of August, 1974; or
(b) he has for a period of not less than ten years held a Judicial Office out of which not less than three years shall have been as District and Sessions Judge.
(4) Before he enters upon his office, the Chief Justice of the High Court shall make before the President, and an other Judge of the High Court shall make before the Chief Justice, an oath in the form set out in the First Schedule.
(5)-----------------------------------------
(6) -----------------------------------------
(7) -----------------------------------------
(a) -----------------------------------------
(b) -----------------------------------------
(8) -----------------------------------------
(9) ----------------------------------------- 43-A. Acting Chief Justice.--At any time when:---
(a) the office of Chief Justice of High Court is vacant; or
(b) the Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the senior most of the other Judges of the High Court to act as Chief Justice."
7. The scheme of the Constitution, stated above, visualizes that the order of appointment of a Judge in the High Court shall be issued after the approval of the President when he is so advised by the Council on the basis of consultation with the Chief Justice of Azad Kashmir and the Chief Justice of High Court (if it is not the appointment of Chief Justice himself. The common practice which has been in vogue is that when the appointment of a Judge in the High Court is required, the Chief Justice is requested by the Government/President to furnish the panel of the persons qualified and eligible to be appointed as a Judge of the High Court. The learned Chief Justice send the panel of the persons qualified and eligible for such appointments to the Government or to the President to process the case who send it to the Council for its approval. The Council out of the list furnished by the honourable Chief Justices and forwarded by the President, advise the appointment of the Judge or Judges as the case may be, on which the formal Government Notification is issued by the Law Secretariat of Azad Jammu and Kashmir Government after approval/order of the President. The eligibility, integrity, suitability. Fitness and becomingness of a person to be appointed as a Judge of the High Court is and has to be assumed, when the learned Chief Justices include a qualified person in the list of the persons eligible and suitable for appointment as a Judge. The individual characteristics and qualities of a person recommended by the Chief Justices are rarely discussed and ordinarily a person concurrently included in the list by the Chief Justices is assumed to be possessing all the qualities for being appointed as a Judge and the' competent authority has to act accordingly. It is opined in the Judges case by the learned Chief Justice of Pakistan, Justice Syed Sajjad A.I Shah as follows: "... The Chief Justice of the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such Advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight.
'Consultation' in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness' or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive.
If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as a Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word ' consultation' is used, which is different from 'consent', opinion of the Chief Justice can be ignored. If the opinion of the Chief Justice is ignored, then the President/Executive should give reasons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest."
8. There may of course be an occasion where any of the dignatory concerned with the appointment of a Judge may have his own reservations regarding a nominee on the basis of his knowledge in view of his field of functioning e.g. The opinion of Chief Justice regarding the professional competence, conduct, integrity, fitness, suitability, uprightness etc. Of a person proposed by Government/President or the Council and latter's information regarding the character, antecedents, loyalty to the State etc. Regarding the nominee of Chief Justice. Justice Manzoor Hussain Sial in the Judges case uncomprehending the situation has opined as follows: "... The Chief Justice of the High Court and the Chief Justice of Pakistan if give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to this opinion. The extended meaning given to the word 'consultation' is mainly for the reason that it secures the independence of Judiciary. The due deference is to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of High Court due to their exalted position as envisaged in Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone. In Government of Sindh v. Sharaf Faridi PLD 1994 SC-105 this Court while dealing with the subject of independence of Judiciary held-- 'that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reasons; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.'
This object can only be achieved if Judges of integrity having sound knowledge in law are appointed on the basis of the expert opinion given by the Chief Justice of the High Court concerned and the Chief justice of Pakistan. The word 'consultation' used in the relevant Article of the Constitution relating to Judiciary must be read in its context and being a mandatory requirement has to be effective, meaningful, purposive and consensus-oriented, to have best persons appointed as Judges of the superior Courts and to secure the independence of Judiciary."
Under such circumstances the consensus has to be worked out amongst them, as the nominee after appointment is entrusted with the task of upholding the Constitution, rule of law and ideological frontiers of the State visualized by the Constitution and law; he becomes the justice of the nation and State; and his judgments become law and property of the nation and State.
However, if in the equally placed nominees in the list/panel of the qualified persons, there is unaminity amongst all concerned in the process, any of the persons from the panel may be appointed.
9. Two categories of the persons have been visualized by the Constitution who are eligible to be considered for appointment as a Judge in the High Court:
(i) Advocates; and
(ii) Judicial Officers.
As for the Advocates are concerned, one who has been an Advocate or a Pleader of the High Court for a period or periods aggregating not less than ten years, is qualified to be appointed as a Judge in the High Court and a Judicial Officer with ten years' service, out of which he must have been a District and Sessions Judge for three years, is qualified to be appointed as a Judge in the High Court.
10. There is a marked and visible distinction in professional practice of Advocates and service of the Judicial Officers qualified to be appointed as a Judge in the High Court. As for the Judicial Service is concerned, a person must have been in the continuous service of ten years with the experience of a District and Sessions Judge provided in the Constitution, while in case of Advocate, the aggregate period of Advocacy or Pleadership amounting to ten years qualifies one for the slot. The absence of word "aggregate" in the case of Judicial Service in the provision, suggests the continuous service of ten years for judgeship, while the inclusion of word "aggregate" in the case of Advocate does not exclude a person who has ten years' actual practice as Advocate even though not continuous, but complete in aggregate.
11. Respondent was admittedly not in the Judicial Service in the manner prescribed by the Constitution as he has not served as a District and Sessions Judge for three years anywhere, thus he stands ousted from the category of Judicial Officers.
12. It is clear from the perusal of the personal file of the respondent maintained by the High Court (copy of his complete bio-data duly attested by the Deputy Registrar and verified by us is placed on record and marked as (Annex---CR) reveals that he was enrolled as a Pleader on 23-1-1964 and as an Advocate of the High Court on 7-2-1967 and as an Advocate of the Supreme Court on 7- 11-1975 and inducted in Government service as Chairman Service Tribunal on 2-6-1985. As an Advocate of the High Court, respondent has been on the roll of High Court for more than 18 years whereafter he was appointed in the service of Government in different capacities and at the time of his appointment he was serving as Secretary Law to the Government of Azad Jammu and Kashmir.
13. The question raised in the petition and agitated at bar by the petitioner is that the respondent is disqualified from being considered as an Advocate and not qualified to be appointed as a Judge of the High Court as he was not an Advocate when appointed as Judge. The words used in subsection (3) of section 43 of the Constitution are, prima facie, clear enough to state that an aggregate period which should not be less than ten years as Advocate qualify a person to be appointed as a Judge in the High Court, if he is otherwise eligible and considered of the level by the Chief Justices, President and the Council. The word "aggregate" is defined in the Chambers 20th Century Dictionary as "to collect into a mass or whole: to amount to: to accumulate: formed of parts that combine to make a whole: a total: a collection of elements having a common property that identifies the collection" The Oxford English Dictionary defines the word "aggregate" as follows: "Aggregate" 'Constituted by the collection of many particles or units into one body, mass, or amount; collected, collective, whole, total. A cause is the sum or aggregate of all such accidents...
As concur to the producing of the effect propounded. Every such belief represents the aggregate of all past-experience. A multitude considered as One Aggregate. To gather into one whole or mass; to collect together, assemble; to mass;'
The word "aggregate", thus includes in itself the interruption and discontinuance of practice and its resumption and following up continuously or by intervals. It is the collective and sum total of the total period which has to be counted. The interruption or discontinuance in the practice after the completion of ten years of period as an Advocate or Pleader does not disqualify or wash away the qualification already earned by an Advocate to be appointed as a Judge of the High Court. The words "has been" means the 'present perfect' not the 'present continuous' Advocacy. At the time of appointment, the person is required to have perfected the ten years' practice as an Advocate. The words used in the section visualize and convey the sense that ten years' experience as an Advocate is a qualification earned in legal practice. If a person, as respondent in the present case, after having undergone the legal practice as Advocate for 18 years and Pleader as three years, is appointed as a Judge in the High Court on the basis of his qualification of Advocacy earned before his appointment in other offices of the Government, he does not stand disqualified simply for not being in actual legal practice at the time of his appointment as a Judge, if he is appointed on the basis of aggregated legal practice, preceding his appointment in different Government offices.
14. However, it does not mean that a person by virtue of his simple enrolment as an Advocate or Pleader of High Court for a period or periods aggregating more than ten years is also eligible for such an appointment. It is the actual practice and experience at bar, not the period of his enrolment only which is meant by the provisions of the Constitution. It is held in the Judges case by Justice Sajjad A.I Shah, the learned Chief Justice of Pakistan that: "Under Article 193, the qualifications are specified for appointment as Judge of a High Court. One requirement is that an Advocate is eligible to be elevated only when he has been advocate of the High Court for ten years. The question as to whether it is necessary that such advocate must have put in ten years of active practice in the High Court or mere enrolment is sufficient. We are of the view that for this requirement ten years' active practice in the High Court is necessary and mere enrolment as advocate of the High Court is not enough if the advocate concerned has not practised in the High Court but has been doing some other job or business and was not in active practice, "
15. Justice Ajmal Mian has opined as follows in the Judges case in this behalf: "If we were to read carefully sub-clause (a) of clause (2) of Article 193 of the Constitution, it becomes evident that 10 years' period referred to in sub-clause (a) thereof relates to experience and not the period of enrolment. Under clause (b) thereof not less than 10 years' period is provided for civil servants for being eligible for consideration for appointment as a Judge of the High Court and out of the above 10 years, it has been provided that for a period of not less than three years, he must have served as or exercised the functions of a District Judge in Pakistan. The above sub- clause (b) speaks of actual experience in service and, therefore, if it is to be read with sub-clause (a), it becomes evident that sub-clause (a) also refers to the experience. In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by sub-clause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan".
While Justice Manzoor Hussain Sial has opined as follows: "The eligibility of an advocate for appointment as Judge of the High Court, as envisaged under Article 193 of the Constitution is that he has for a period of, or for periods aggregating, not less than ten years, beer an advocate of a High Court. The question arises whether the period of ten years is to be construed from the date of his enrolment alone or that he is required to put in 10 years' practice as an Advocate. Whereas sub--clause 2(b) of Article 193 prescribes a period of not less than 10 years to be a Member of a civil service prescribed by law, and has, for a period of not less than three years served as or exercised the functions of a District Judge in Pakistan, to become eligible for appointment as Judge of the High Court. It, therefore, necessarily follows that this clause has to be read with clause (a) and experience of a particular period in the profession is necessary for the Advocate to become eligible for the appointment of a High Court the suitability of the advocate on the basis of the experience for appointment as Judge of the High Court shall, however, has to be determined by the Chief Justice of the High Court, who has to initiate the panel of the candidates for appointment as Judges of the High Court to the Chief Justice of Pakistan for ultimate recommensation for the appointment of suitable persons as Judges of the High Court.
Mere enrolment of an advocate for a period of 10 years is therefore not sufficient to make him eligible for his appointment as Judge of the High Court."
16.The continuous practice of respondent as Pleader from 24-1-1964 to 6-2-1967 and as an Advocate of the High Court from 7-2-1967 to 2-6-1985 qualified him to be appointed as a Judge in the High Court and interruption in legal practice on account of being in the service of the Government at the time of his appointment does not debar or disqualify him for appointment as Judge in the High Court. The contention of the petitioner that the respondent not being in actual and continuous practice as Advocate when he was appointed as the Judge of the High Court, is devoid of substance.
17. However, the contention of the respondent as stated in the comments that he was appointed as ad hoc Judge of the Supreme Court for a few months; and thereafter as Chairman of the Service Tribunal, Custodian and Secretary Law, later three being equal in status to the Judge of the High Court do not confer any right to be treated him as a Judge of the High Court neither can so be deemed. A person appointed in accordance with the procedure laid down in the Constitution is a Judge of the High Court and he only can be so deemed, not a person irrespective of the fact what pay, terms and conditions he is showered with. The appointment by the Government of a person in different offices under the nomenclature or styled in the way to be said as equal to the status of the Judge of the High Court, is a misnomer, and against the spirit of the Constitution. No such appointment confers any right in a person to be considered or appointed as a Judge in the High Court. It is not the status which the Government gives to a person, but the knowledge of law, capability and integrity evaluated by the Chief Justices on the basis of their first hand knowledge dealing with an Advocate or Pleader with ten years' actual practice which qualify a person for appointment as a Judge in the High Court and when appointed with this background in accordance with the provisions of the Constitution, one is said to be a Judge of the High Court.
18. Service in any Government office, however, exalted it might be does not confer or create any right in anybody for being considered for appointment as a Judge in the High Court, neither has such high appointment anything to do with his office of judgeship, as the judgeship in the High Court starts from the date when he is actually appointed as such in accordance with the procedure of the Constitution and enters in the office after the oath of office is administered.
19. The word "has been or is qualified to be a Judge of the High Court" used in some sub- Constitutional laws as a requirement for appointment against some office, does not mean that a person appointed to that office can be deemed or treated as a Judge of the High Court or appointed as such without fulfilling the requirements of Constitution. What it means is that in view of the nature of responsibilities visualized by the law, a person of the qualification level, maturity and experience becoming of a Judge of the High Court, should be appointed to that office. It will remain a service under the Government and to be governed by the service laws applicable to the Government servants. Any order designating a person equal in status or with the terms and conditions of a Judge of High Court, under a sub-Constitutional law, is a subversion of Constitution.
Dealing with the similar proposition when Additional Judges of the High Court were authorized by a sub-Constitutional legislation to be appointed under an amendment in the Courts and Laws Code, 1949, the Supreme Court of Azad Jammu and Kashmir in the case reported as Ghulam Mustafa Mughal v. Azad Government and others 1992 M LD 2083 held as follows: .. An additional Judge of High Court is a creation of the Constitution Act and a sub-Constitutional provisions cannot create another category of Additional Judges as was attempted to be done by the Ordinance mentioned above. The Ordinance was an obvious attempt to amend the Constitution Act and it is unfortunate that it should have been promulgated at all. It is satisfying to note that it was withdrawn. The Ordinance being ultra vires of the Constitution shall be deemed to be non-existent ab initio."
20. The outcome of the above discussion is that the respondent being otherwise qualified to be appointed as a Judge in view of his qualification of Advocacy, his alleged status equal to Judge of the High Court as Chairman Service Tribunal, Custodian of Evacuee Property and Secretary Law has no nexus with this present incumbency, as those offices neither fall in the judicial service nor in the legal practice visualized by the Constitution.
21. The second contention of the petitioner as argued at Bar and raised the pleadings through amendment is that the appointment of respondent is made on the basis of recommendations of the Acting Chief Justice of the High Court which is held not to be in accordance with the provisions of Constitution in the Judges case referred above. There is no doubt that a golden principle of law has been laid down in the Judges case by the Supreme Court of Pakistan whereby independence, authority, dignity and integrity of the judiciary is ensured by the interpretation of the Constitutional provisions regarding the appointment of the Judges in the superior Courts under which the recommendations of the Chief Justices of the High Courts and Supreme Court, as the case may be, shall ordinarily have primacy over the executive discretion. The time old executive practice of keeping on Acting Chief Justices in the High Courts and Supreme Court and obtaining recommendations from them for appointment of the Judges in the superior Courts did cast doubt and aspersions upon the independence of judiciary and working of the judicial system. The permanency in the nature of the head of institution, a consultee of fundamental importance appointment of Judges is a sine qua non for the smooth sailing, uprightness and independent working of the institution. But the circumstances and the relevant provisions of Constitution under which the respondent was appointed on the recommendations of Acting Chief Justice are different from those under which the Judges in the superior Courts in Pakistan, particularly in Punjab and Sindh were appointed and declared as un-Constitutional.
22. The provisions of the Constitution in Azad Jammu and Kashmir governing the appointment of Acting Chief Justice are almost totally different from the corresponding provisions of the Pakistan Constitution except the eventualities. Under which the Acting Chief Justice can be appointed, Both are reproduced below: "43-A. Acting Chief Justice.--At any time when:- Azad Kashmir
(a) The office of Chief Justice of High Court is vacant; or
(b) The Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the senior most of the other Judges of the High Court to act as Chief Justice."
Article 196 of the Constitution of Pakistan, 1973 states: "196. Acting Chief Justice.--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. "
23. A perusal of the report of the Judges case particularly notes 16 and 17 of Justice Ajmal Mian's opinion shows that the Judges of the Supreme Court of Pakistan were appointed as Acting Chief Justices in the High Courts of Lahore and Karachi who recommended the names of different persons for appointment as the Judges in the High Courts and in some cases it is perceived from the perusal of the judgment that some appointments were made without the recommendations of Chief Justice of Pakistan which were held to be un---Constitutional by the Supreme Court and it was rightly held so. In Azad Kashmir, as stated above, it is only the most senior of the other Judges of the High Court who can be appointed as Acting Chief Justice. Thus it is the most senior of the other Judges who in fact is the prospective Chief Justice and by any stretch of imagination and interpretation, he is the only person who can be appointed as permanent Chief Justice, as, even the temporary arrangement excludes the executive discretion of appointing any of the other Judges of the High Court (except the senior most) or a Judge of the Supreme Court, as the permanent Chief Justice of High Court as under the Pakistan Constitution. In the case in hand, the Acting Chief Justice of the High Court who recommended the name of respondent was the senior most of the other Judges of the High Court, who later on became the permanent Chief Justice and he administered the oath of office to the respondent. There was no difference in the recommendations of the Acting Chief Justice of the High Court and the Chief Justice of Azad Jammu and Kashmir regarding the fitness of the respondent's name for being appointed as a Judge. The rule of law laid down in the Judges case, therefore, does not strictly apply in this case as in that case, as said above, the offices of the Chief Justices of the High Courts in Karachi and Lahore were occupied by the Judges of the Supreme Court as the Acting Chief Justices of High Courts.
24. The working system of the appointment of Judges in Azad Kashmir has also to be kept in view under the circumstances. Here, the case is processed at the level of Chief Justices and Azad Kashmir Government, which also includes the President as well for this purpose, and then sent to the Council for advice which is headed by the Prime Minister of Pakistan as its Chairman/Chairperson. Due to the preoccupation of the Chairperson in the national and international affairs of Pakistan, it definitely takes time to attend the affairs of Azad Kashmir. We are in know of the fact that present Acting Chief Justice of the High Court being the most senior of the other Judges is still Acting as Chief Justice since the retirement of his predecessor in March this year, while under the rule of law laid down in the Judges case, the matter of his permanent appointment had to be completed within 30 days, which have since expired. The acting nature of appointments of Chief Justices in Pakistan is finalized by appointment of most senior of the other Judges as Chief Justices within the period stipulated by the Supreme Court verdict, but as said above, perhaps due to preoccupation of the Chairperson of Azad Jammu and Kashmir. Council, the spirit of rule of law still waits implementation here. Same happened with the retired Chief Justice, however, the Judges case ruling was not in field then. In this background of the matter, the respondent cannot be punished for inaction of the executive agency, when the judicial and executive agencies of Azad Jammu and Kashmir had completed their task of concurrently recommending the respondent.
25. Besides above, the rule of law laid down in the Judges case is restricted by the Court itself, as it records "to the appointments made during the present Government and this exercise would not go beyond that". Moreover, the Judicial precedents apply prospectively not to the cases past and closed as held in the Judges case. However, the future appointments shall be governed by the Judges case ruling notwithstanding any exigency.
26. In the additional comments filed by the respondent much stress is laid upon the fact that the respondent was recommended thrice: first by Sardar Muhammad Ashraf Khan, Acting Chief Justice in 1988 when the Chief Justice of the High Court was appointed as ad hoc Judge in the Supreme Court; secondly by retired Chief Justice Abdul Majeed Mallick in 1993 when he was Chief Justice, and thirdly by Chief Justice retired Sherzaman Chaudhry in 1994 when he was Acting Chief Justice of the High Court. The Court is only to see whether respondent stood recommended by the Chief Justices before his appointment or not; it is immaterial who was the Chief Justice or the Acting Chief Justice in the High Court or Supreme Court. Transactions which are past and closed, cannot be reopened under the new circumstances.
27. The respondent has through the additional comments recorded the following para.: -- "The Supreme Court of Pakistan has declared the recommendation of Acting Chief Justice as invalid only in those cases where the permanent Chief Justices were temporarily sent to Supreme Court as ad hoc Judges or to the Shariat Court of Pakistan. It was unfair because there was a doubt that the permanent incumbents were shifted from the High Court with a purpose to get recommendations for the appointment of Judges in the High Court from the person appointed on the acting basis as Chief Justice of the High Court."
The above para. Referring to Judges case is factually incorrect and Constitutionally misperceived.
None of the learned Judges who wrote the famous judgment in the Judges case has recorded recommendations of Acting Chief Justice as invalid on the ground where permanent Chief Justice was temporarily sent to the Supreme Court as ad hoc Judge. What is held in the Judgment is that transfer or appointment of a sitting Chief Justice of High Court or a Judge thereof in Federal Shariat Court without his consent is violative of the Constitution. Supreme Court being the highest Court of the State, appointment of a Judge of High Court or Chief Justice thereof in the Supreme Court, if qualified to be a Judge of Supreme Court, is not violative of the Constitution or mala fide, as a Judge of High Court or Chief Justice so appointed is elevated in status, pay, powers and tenure etc, be it the ad hoc or permanent appointment in the Supreme Court. It would, however, be unfair and un-Constitutional if most senior of the other Judges of the High Court is not appointed to act as Chief Justice of High Court if sitting Chief Justice of the High Court is appointed as Judge, whether permanent or ad hoc, of the Supreme Court. The words of subsection 8-A(b) of section 42 of Azad Kashmir Constitution allow the appointment of sitting Chief Justice of High Court as Ad hoc Judge in the Supreme Court while the provisions of Article 182 (b) of Pakistan Constitution, prima facie, do not allowso. The relevant provisions are reproduced below: Azad Kashmir: "42 (8-A).--If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any other reasons it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Azad Jammu and Kashmir may, in writing:--
(a) ------------------------------------------------
(b) with the approval of the President and except in the case of Chief Justice, with the consent of the Chief Justice of High Court, require a Judge of that court, who has held office as such Judge for a minimum period of three years"
(to attend sitting of the Supreme Court as ad hoc Judge ) Article 182 (b) of Pakistan Constitution: "182. Appointment of ad hoc Judges.--If at any time it is not possible for want of quorum of Judges of the Supreme Court to hold or continue any sitting of the Court, or for any, other reason it is necessary to increase temporarily the number of Judges of the Supreme Court, the Chief Justice of Pakistan may, in writing,--
(a) ------------------------------------------------
(b) with the approval of the President and with the consent of the Chief Justice of a High Court, require a Judge of that Court qualified for appointment as a Judge of the Supreme Court, to attend sitting of the Supreme Court as an ad hoc Judge for such period as may be necessary and while so attending an ad hoc Judge shall have the same power and jurisdiction as a Judge of the Supreme Court."
28. The third contention of the petitioner that no judicial officer has been appointed as a Judge in the High Court since long, as such they are treated unequally which amounts to discrimination, is not justiciable. Being a judicial officer with the experience stipulated in the Constitution is a qualification for being considered for appointment as a Judge of the High Court, not a right to be so appointed and the same is equally good for the Advocates with the prescribed qualification.
Appointment as a Judge in the High Court is not a promotion to be claimed as a matter of right by the senior Judicial officers or senior Advocates. It is the power of the competent authority to appoint any person as a Judge if he is recommended by the Chief Justice of High Court and Supreme Court and advised by the Council. However, if the competent authority appoints a person not qualified, or not recommended by the Chief Justices or if the Council advises the appointment of a person not recommended by the Chief Justices and not qualified, the matter is justiciable and appointment is liable to be quashed as held in the Judges case.
29. All the three requirements visualized by the Constitution are fulfilled in the case of appointment of respondent i.e. The concurrent recommendations of the Chief Justices, advice of the Council and the order of the President. What has to be probed into in a writ of quo warranto is illustriously laid down in the case of Manzoor Hussain Gilani v. Sain Mullah and others (PLD 1993 SC (AJ&K) 12): "In a writ of quo warranto, the concerned office-holder is calledUpon to show under what authority of law he was holding the office and he, in answer, has to show his appointment order, the law tinder which the same was made, the competency of authority which made the appointment and the same was made in accordance with law directly related to the appointment in question.
It may be stated that it is well-settled principle of law that the superior Courts insist that in case of writ of quo warranto which is purely a discretionary matter, the Court should closely scrutinise the averments made in the writ petition before issuing notice and it should not be issued as a matter of routine. We find support in cases reported as Dr. Kamal Hussain v. Muhammad Siraul Islam PLD 1969 SC 42 and Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K)
41. In case titled Kh. Noorul Amin v. Sardar Muhammad Abdul Qayyum Khan PLA No.90 of 1991, this Court had the occasion to examine the principles which should be kept in mind while issuing a rule in a writ of quo warranto it was observed that a rule nisi cannot be issued as a routine. The following observations are relevant: "If initially, he makes out his prima facie case, the burden of proof would shift to the opposite side but if the material facts are not pleaded by the petitioner on which he bases his claim or the same are not sufficient enough to make a prima facie case in favour of the petitioner, it cannot be said that a rule nisi can be issued as a matter of routine. The non-petitioner would be called upon to show that he was holding the office under what authority of law could arise only if, in the first instance, the petitioner makes out a prima facie case that he was not so holding the office. The two cases from Indian jurisdiction, cited by Kh. Noorul Amin do not lay down any different rule-- "
30. The present case being filed by an aspirant for the office of judgeship of High Court on account of his being qualified for the appointment and being recommended so by the Chief Justice, against the person, who is appointed as a Judge from the same panel, we thought it proper to call for the para-wise comments from the concerned authorities, besides the real respondent in the case, in view of the directions of the Supreme Court in the above-referred case i.e. PLD 1993 SC (AJ&K) 12, wherein it is held that: "The view of the High Court might have been different if before admitting the writ petition for hearing, a notice under sub-rule (3) of rule 33 of the High Court Rules would have been issued to the appellant and an opportunity had been afforded to the appellant as to why the writ petition should not be admitted for regular hearing. Keeping in view the nature of the functions of a Judge of a superior Court, it is all the more necessary to adhere to the spirit of the aforesaid rule in case of a writ of quo warranto. Needless to say, in our society if notices of quo warranto are issued against Judges of a superior Court as a matter of routine, it is likely to encourage the vexatious proceedings against the Judge so as to harass them rather than seeking redress of genuine grievances. In light of the above conclusions, we are of the opinion that the High Court was not justified in issuing the notice in the case. "
31. After perusal of the para-wise comments of the concerned respondents and compassionate consideration of the case, we feel advised not to admit the petitioner for regular hearing for the above-stated reasons. The petition is, therefore, dismissed in limine.