SYED MANZOOR HUSSAIN GILANI, J.---The petitioner through this petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 has challenged the vires of the rules known as "Azad Jammu and Kashmir Secretaries Service Rules, 1992".
2. When the case was fixed for arguments on 26-6-1996, the learned Advocate-General placed on record a Notification of the Government dated 21-5-1996, whereby the rules referred above dated 24-2-1992 are superseded by the above-referred Notification of the Government. Under the amended Notification, the grievance of the petitioner stands redressed as the post of Secretary Law is to be filled in by transfer of a Grade-20 officer against the post and a District and Sessions Judge and a Draftsman in B-20 is also eligible to be appointed against the post
3. In view of the above-amended Notification, the merits of the petition need not be discussed as the petitioner now qualifies to be appointed against the post hence the petition has -become infructuous as the rules have been superseded.
4. However, on perusal of the impugned rules, we have noticed rule 4(2) authorizing the appointment against the post of Secretary Law, by: "The transfer or ex officio appointment of a Judge of High Court or an officer of equivalent status in the case of Secretary, Law and Parliamentary Affairs."
5. Irrespective of the fact that the rule is now withdrawn and replaced by the new rules, we are surprised to note that how a rule has been enacted under section 23 of the Civil Servants Act, 1976, whereby a Judge of the High Court is subjected to the provisions of the Civil Servants Act, 1976 and made liable to be posted as Secretary Law by transfer. The Civil Servants Act, 1976 or any other law than the Constitution, does not apply to the Judges of the superior Courts, thus any rule or law made by the Assembly cannot affect the substantive provisions of the Constitution, under which the Judges of the superior Courts are appointed or liable to be removed. The terms and conditions of the Judges of the High Court are regulated by the Constitution and no subordinate law or rule can alter these terms and conditions by any mode of legislation except the amendment in the Constitution itself. The impugned rules or any other law through which a Judge of the High Court is made liable to be transferred and posted against any of the posts in the service of the Government, is against the Constitution and void and no Judge is bound to comply with any order made under any such law or rule, and under the oath of his office, is bound to ignore the order. A Judge of the High Court is a creation of the Constitution and only a person appointed as a Judge of the High Court according to the Constitutional provisions can be said to be the Judge of the High Court. Sub-Constitutional law can create the office of the Judge of the High Court or its equivalent in status neither can any person be styled as Judge of the High Court, unless one is appointed as such. The words "has been or is qualified to be a Judge of the High Court" finding place in some sub-Constitutional Statutes or rules, do not mean that person appointed against the office becomes a Judge of the High Court or equal to his status. It simply means that a person possessing the qualifications prescribed for appointment of a Judge of the High Court is eligible to be appointed against the post in view of the nature and responsibilities of the job and maturity and integrity of the person. Any such attempt to appoint a person designating him as a person equivalent in status and with the terms and conditions of Judge of the High Court, is a subversion of the Constitution, as well as law regulating the appointment in the civil service. Dealing with a similar proposition where 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 of Ghulam Mustafa Mughal v. The Azad Government and others (1992 M LD 2083) laid down an illuminating rule of law in an appeal which otherwise had become infructuous, as the appointment orders as Additional Judges in the High Court of the persons under challenge, were rescinded. The Supreme Court agreeing with the submission of the learned Advocates in the case that when substantial questions of law of public importance are involved the Courts of ultimate jurisdiction decide the matters on merits. The Supreme Court held at page 144 as follows: "An additional Judge of High Court is a creation of the Constitution Act and a sub-Constitutional provision 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 the Constitution shall be deemed to be non-existent ab initio".
6. Besides the Constitution being mutilated through such an attempt, the Civil Service Law is also undermined. Under the law regulating Civil Service of Azad Jammu and Kashmir, the cadre of service structure is categorised in different grades i.e. Grade-1 to Grade-22 and the method and mode of induction in the service is also regulated by the rules made under the law. The novel category of the service i.e. "officer of equal status of Judge of High Court or with the terms and conditions of Judge of High Court" does not fall in any category of the services in Azad Jammu and Kashmir. A person is either a Judge of the High Court or not, and similarly, a person is in the service of Azad Jammu and Kashmir in Grade-1 to Grade-22 or not; and if a person is a Judge or in any cadre of service in the Government, he has to come through the process of rule of law regulating the service and stay in such a service according to the standard of law regulating the service.
7. A Judge of the High Court is appointed by the President on the, advice of the Council after consultation with the Chief Justices and only that person can be recommended by the Chief Justices, advised by the Council and appointed by the President who has undergone actual practice of law as a Pleader or Advocate of the High Court for at least ten years. Thus a definite criterion is laid down prescribing the qualification and a high level board of dignitaries for appointment against the high slot. A Code of Conduct for the observance and method of the removal from the service is also prescribed by the Constitution. Similarly, Selection Committee, Selection Board and Public Service Commission is assigned the functions for appointment in the Government service from B-1 to B-22 prescribing qualifications, experience etc. For appointment with the rules for their promotion, reversion, removal and other terms and conditions etc. While the novel class of service i.e. The "appointment with the terms and conditions of the Judge of the High Court or equal to the status of a Judge of High Court" is free of all such conditions and requirements of rule of law, which is a negation of the Constitution and law which a service requires to be regulated by law by the Government and brought in conformity which the existing set-up of service structure in vogue in the State as discussed above.
7-A. A Judge of the superior Court, who is appointed on the advice of the council by the President after consultation with the Chief Justices, cannot be transferred or divested of the office of judgeship by any authority of the Government whether under the legislation or rule, as such, a transfer amounts to his removal, which is not permitted save in accordance with the due process provided under the Constitution. The Supreme Court of Pakistan in the famous Judges' case reported as "Al-Jehad Trust through Raeesul Mujahideen Habib-ul---Wahab-ul-Khairi and 6 others v. Federation of Pakistan and 27 others (PLD 1996 SC 324) has held the transfer of Chief Justice or a Judge of the High Court in the Federal Shariat Court of Pakistan as unconstitutional, even though the Federal Shariat Court is brought under the Constitutional ambit through addition of Chapter 3- A in the Constitution. Mr. Justice Sajjad Ali Shah the learned Chief Justice of Pakistan recording his opinion has held as follows:-- "Article 200 of the Constitution contemplates transfer of Judges from one High Court to another by the President after 'consultation' with the Chief Justice of Pakistan and the Chief Justice of both the High Courts. No such consultation is necessary if the transfer is for to years. It appears that this transfer can be allowed if it is in the public interest and is not by way of punishment.
Article 209 of the Constitution relates to the composition of the Supreme Judicial Council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. Sub-Article (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. Sub-Article (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitution --makers. Subsequently, Chapter III-A setting up the Federal Shariat Court was inserted in the Constitution vide P.O. No. 1 of 1980 providing in Article 203-C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding to years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If Judge or Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter III-A inserted in the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this Chapter shall have effect notwithstanding 'anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions in the final analysis is tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorised to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be uncooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. We are not striking down provisions (4), (4-B) and (5) of Article 203-C as void being inconsistent with Article 209 but we do say that, keeping in view the rules of interpretation, if there is choice between to forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the constitutionality of Article 203-C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament. In support of the proposition, reliance can be placed on the case of Fazlul Quader Chowdhry v. Muhammad Abdul Haque (PLD 1963 SC 486) and Hakim Khan v.
Government of Pakistan (PLD 1992 SC 595)."
While Justice Manzoor Hussain Sial discussing the provisions of Chapter 3-A of yd his opinion as follows:-- "The perusal of these provisions of the Constitution makes it abundantly clear that the President is empowered to appoint a Judge of the High Court under Article 203-C of the Constitution, as Judge of the Federal Shariat Court, for a period of to years without his consent, but for a period exceeding to years with his consent, after consultation with the Chief Justice of the High Court (except where the Judge himself is the Chief Justice). Similarly under clause (4-b) the President may at any the by order in writing modify the terms of the appointment of a Judge, assign to him any other office, require him to perform any other functions as he deems fit and to pass any other order as he may consider appropriate in the matter. Clause (5) further stipulates that if the High Court Judge does not accept appointment as Judge of the Federal Shariat Court, he shall stand retired from his-- office.
Whereas Article 209(1) contemplates constitution of a Supreme Judicial Council of Pakistan and its functions. The Supreme Judicial Council is empowered to recommend removal of a Judge from his office for being incapable of properly performing his duties by reasons of his physical or mental incapacity or for being guilty of misconduct. Clause (7) thereof guarantees the tenure of his office and mandates that he shall not be removed from his office except as provided under that Article.
Clause (8) of the Article provides that the Supreme Judicial Council shall issue Code of Conduct to be observed by the Judges of the superior Courts.
It is significant to point out that the Federal Shariat Court was constituted by addition of Chapter 3- A in the Constitution by the Chief Martial Law Administrator in 1980, that is long before the introduction of the Eighth Amendment in the Constitution. This Court was established under the cover of the Martial Law and did not fit in the scheme of the existing Courts, it cannot possibly be equated with High Court. The appointment of a Judge or Chief Justice of High Court, as Judge of Federal Shariat Court, is therefore not a transfer from one High Court to another, rather operates as his removal from office in the High Court and his fresh appointment in another Court with lack of security of tenure and risk of the modification of his terms of appointment he enjoyed as Judge or Chief Justice of the High Court. It may be observed that there are several instances where Chief Justices and Senior Judges of High Courts, not liked by the Government in power, were appointed as most junior Judges of Federal Shariat Court, who otherwise by length of period served in the High Courts were senior to all Judges of Federal Shariat Court including the Chief Justice. In one case, the Chief Justice of the Federal Shariat Court, who earned displeasure of the appointing authority, was made an Officer of Special Duty in a Ministry, which position he declined to accept and stood retired.
The abovementioned instances go to show that Federal Shariat Court as used by the Government in power, as rightly said by Mr. Fakhruddin G. Ebrahim, amicus curiae, a 'dumping ground' for the High Court Judges, and according to Mr. Yahya Bukhtiar, learned Senior Advocate, the High Court Judges were sent to Federal Shariat Court as punishment. The Chief Justices and Judges of High Court feel reluctant to accept appointment as Judges of Federal Shariat Court, but they have no option, in case of their refusal to accept the appointment, they stand retired.
The close examination of the abovementioned to provisions of the Constitution reveals that there is irreconcilable conflict between them. The accepted principle of interpretation is that where there is conflict between the to provisions, the entire provisions of the Constitution are required to be read as a whole, and the basic features of the Constitution taken into consideration.
The consideration which weighed with the Court more heavily in holding that the appointment of a sitting Chief Justice or a Judge thereof in the Federal Shariat Court under Article 203-C, without his a consent, being violative of Article 209, was that-the provision of the Constitution which corresponds more closely to and gives effect to dominant intent of the Constitution will have to be preferred in its application,, to that provision which detracts from that intent and spirit undoubtedly, Article 209 guarantees the tenure of office of a Judge and explicitly secures the independence of Judiciary, which is dominant intent of the Constitution, whereas Article 203-C militates against the security of tenure and independence of Judiciary, therefore, must yield to the provisions of Article 209 of the Constitution. The introduction of Article 203-C in the Constitution by the Chief Mamial Law Administrator, as against Article 209 which was enacted by the framers of the Constitution was merely one of the considerations, to hold that, Article 209, which promotes security of tenure and independence of Judiciary must prevail. In its application over Article 203-C, which detracts from the intent and spirit of the Constitution namely to fully secure the independence of Judiciary by inter alia providing full security of tenure to the Judges.
The appointment of sitting Chief Justices and Judges of High Courts, as Judges of Federal Shariat Court without their consent therefore, being violative of the provisions of Article 209 of the Constitution will be j void. I may not be misunderstood to have held that Article 203-C is void. It is only the action taken thereunder viz. The appointment of Judges of High Courts in Federal Shariat Court, being violative of Article 209 of the Constitution is declared void."
8. There is no such provision in Azad Kashmir Constitution analogous to the provisions incorporated through Chapter 3-A in the Pakistan Constitution. Thus not only transfer of any Judge of the High Court to any other office is ultra vires the Constitution, but a law made contrary to the Constitution is equally In exceptional cases however, ex officio or additional charge of an office in the State creates under the Constitution compatible with the status of a Judge, may be assigned to him under unavoidable circumstances in public interest, if the consent to hold it in addition to his office of judgeship e.g. Chief section Commissioner, Chairman, Service Tribunal and Chairman, Public Service Commission.
10. A perusal of the amended Notification reveals that a juristic sense has at some level prevailed with the executive by taking notice of the unconstitutionality of the relevant rules and the same stand repealed/superseded and in the words of Supreme Court in the above-noted case. It is satisfying to note that it is withdrawn."
11. The petition stands disposed of with the above observations.