' MIAN SAQIB NISAR, J.--The instant one as also Writ Petitions Nos.1653 of 1999, 4849 of 1990, 26109 of 1998 and 14168 of 1995 raises similar legal question, therefore, the same are being disposed of together.
2. The key proposition involved in all these cases is regarding competency of writ petitions in terms of Article 199 (5) of the Constitution of Islamic Republic of Pakistan, 1973. As in our view, the legality of the actions impugned in these petitions, could only be gone into if the answer qua competency of the petitions was in the affirmative, therefore, we have proceeded to decide this issue first.
3. The common facts involved in all of the cases except W.P. No, 14168 of 1995 are that the petitioners had applied for a licence to practice as an Advocate in the Lahore High Court, under the provisions of section 27(c) of the Legal Practitioners and Bar Councils Act, 1973; this licence was declined to the petitioners by the Punjab Bar Council for the reasons that the Lahore High Court in terms of the aforementioned provisions has not granted the requisite approval, which was a condition precedent for granting exemption. It may be pertinent to state here, that the reason for refusal of approval, in the respective cases are different. Petitioners are aggrieved of the above and have challenged the order/action of this Court, which according to them, is administrative in nature. It has been prayed that the same be declared as illegal and unlawful. The High Court, has been impleaded as respondent through Registrar of the Court, along with Punjab Bar Council.
4. In W.P. No,14168 of 1995, the grievance voiced is, that the petitioner, a junior clerk in the High Court Establishment, was compulsorily retired, whereas persons junior to him were promoted to the post of Senior Clerk. In this petition, inter alia, the "Administrative Judge" and Registrar of this Court have been arrayed as respondents. The relief claimed is, that the order dated 2-7-1991 of this Court, compulsorily retiring petitioner from service, be declared as without lawful authority and jurisdiction. It is further prayed that certain benefits and emoluments depending upon relief, be granted to the petitioner.
5. From the above factual backdrop, it is vivid that in all these petitions, directly or indirectly order/actions of this Court in exercise of its administrative power (not judicial orders) have been assailed. It is for such reasons that the question of competency of these petitions in view of Article 199 (5) of the Constitution has arisen as a fundamental issue.
6. While addressing this Court on the above proposition, Mr. Mansoor Ali Shah, Advocate, by making reference to the provisions of Articles 175, 202, 203 and 208, submitted that this Court has two distinct and distinguishable characters, one, the judicial and the other administrative. He has frankly conceded, that the judicial determination by the High Court cannot be challenged under Article 199. However, he emphatically maintained that the administrative actions/orders of a Judge of High Court are always amenable to writ and sub-Article (5) of the above Article would not operate as a bar against the exercise of such jurisdiction. In order to build up his arguments, learned counsel stated that under Article 175, the High Court exercises such jurisdiction which has been conferred upon it, either by the Constitution or under any law. The Constitution, besides its judicial status also envisages the administrative powers/functions of the High Court. Moreover, there are various laws which empower the High Court to exercise certain jurisdiction, both judicial and administrative. Resultantly, there are two spheres in which the High Court exercises its jurisdiction, one which is clearly identifiable and ascertainable from the constitution viz. Power to make rule under Articles 202 and 208 and the authority of superintendence and control over the subordinate Courts in terms of Article 203. In addition, and in pursuance of rules made under Article 208, on the administrative side, the High Court, also has the power of recruiting, transferring, terminating services of its officers/employees and is further vested with the authority of transfers/postings, etc. Of judicial officers subordinates to it. It is in this context submitted that if while exercising the above powers or performing any other administrative functions, any illegality or error of jurisdiction is committed, then the same can always be assailed before and corrected by this Court in exercise of its judicial functions under Article 199.
7. In support of the above contention, learned counsel has referred to shorter Constitution of India, (Twelfth Edition) by Durga Das Basu, page 577 and had submitted that the administrative order of the High Court could validly be challenged on its judicial side. He has laid much stress on a case from the Indian jurisdiction reported as AIR 1994 SC 2599 the relevant paragraph of this judgment is reproduced as below:-- "The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court on its judicial side to consider the validity of the order passed by the Court High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside.
We find, therefore, no merit in what may be termed the preliminary objection to the maintainability of the appeal."
8. Learned counsel further relied upon the case reported as Muhammad Mohsin Siddiqiue v.
Government of West Pakistan PLD 1964 SC 64 and stated that the order of the Administrative Judge of the High Court was challenged in the writ and the question involved was, whether such an order could be so assailed. Writ was disallowed by the Division Bench. But an appeal before the Honourable Supreme Court was accepted, the order was set aside and the proceedings/actions against the appellant (in that case) were quashed.
' On the strength of above, it is submitted that the order passed by this Court under section 27(c) of the Legal Practitioners and Bar Councils Act, 1973, in refusing to grant the requisite approval to the petitioner for exemption. Is an administrative order and sub-Article (5) would not come in the way to challenge such an order. Besides, it is also the petitioners' case. That in pursuance of the above provision, the Administrative Judge of thii Court acts as the "persona designata" and not as a High Court, consequently, his action/order are not immune in writ.
9. In Writ Petition No,14168 of 1995, by making reference to the High Court, Establishment (Appointment and Conditions of Service) Rules, it is empathetically stated, that under the said rules undoubtedly, the Administrative Judge, has acted as a "persona designata", therefore, in view/ of the judgments even from our own jurisdiction such an order could be impugned under Article 199.
10. Mr. Hamid Khan, the order learned counsel, who had argued on behalf of the petitioners, also candidly conceded that no writ would be competent against any judicial order of this Court. But he was discreet in answering to a question, if the same would be competent against an administrative order and stated that if such an order flowed from the administrative/executive functions of the High Court itself, perhaps the writ would not be tenable, but if a Judge of this Court acts under any other law in an administrative capacity, the position would be otherwise. More or less, his contention also is that writ against the Judge of the High Court, would lie if he acts as a persona designata under the law.
11. However, Mr. Hamid Khan, has taken a different stance, vis-a-vis the role of this Court while acting under section 27(c) (ibid) which according to him, is not one in its "administrative capacity", but of a consultative nature. He has relied upon the various provisions of the Legal Practitioners and Bar Councils. Act, 1973 particularly, sections 10 (1) (b), 2, 7(c), 34(a), 37(a), 37(2)(3), 41(4) 42(2), 44(1) and 45, and argued that the role of the High Court or its Judges under the said law has different shades, but under section 27(c), it is precisely consultative. He by relying upon the case reported as Al-Jehad Trust. Etc. v. Federation of Pakistan, etc. PLD 1996 SC 324, stated that the consultative status of the High Court can always be subjected to the judicial review. In order to elucidate his submissions, he has drawn our attention to the meaning of the word "approval" appearing in section 27(c) by reference to Black's Law Dictionary, 5th Edition and the case reported as Aftab Ahmed Khan Sherpao v. Sardar Farooq Ahmed Khan Leghari and others PLD 1997 Peshawar 93. As the word connotes "consent," "sanction" "granting," etc., therefore, according to him, it is purely consultative in contrast to administrative.
12. In addition to the above, Mr. Hamid Khan, Advocate has also made reference to Article 199(1)(c) and stated, that for the purpose of enforcement of fundamental rights any aggrieved person may make application on which a direction in writ can be issued to any person or "Authority." According to him, the provisions of sub-Article (5) of Article 199 only excludes "Person" from the ambit of writ jurisdiction and not the Authority, which is a conscious omission, therefore, when an order which is administrative in nature, has been passed by the High Court and violates any fundamental right of a citizen, a writ would be competent, because then the High Court would be acting as an "Authority" and not as a person.
13. In pursuance of a notice issued by this Court under the provisions of Order XXVII-A Khawaja Saeed-uz-Zafar, learned Deputy Attorney-General put his appearance, while the High Court was represented by Mr. Azam Rasool, Advocate and for the respondent, learned Additional Advocate- General was before us. They have resisted the propositions propounded by the petitioners' side and forcefully submitted, that irrespective of the fact whether this Court acts in either of its judicial, administrative or in consultative capacity, it is immune from a writ under Article 199 of the Constitution.
14. Analyzing the submissions made by both sides, we find that the judgments relied upon by the petitioners from the foreign jurisdiction have no application to or nexus with the instant cases, firstly, because there are no analogous or parallel provisions in the Indian Constitution on the subject and secondly, as admitted by both the counsel for the petitioners that even if the provisions of sub-Article (5) were not there, still not writ would lie against the judicial order of this Court. This also is the view of the Indian Supreme Court where provisions pari materia to sub- Article (5) of our Constitution are not available, meaning thereby that the true purpose of this sub- Article is more pointed towards protecting the non-judicial actions/orders/steps of this Court, rather than its judicial orders. Mr.Mansoor Ali Shah laid considerable emphasis on the case reported as PLD 1964 SC 64 to contend that our apex Court had also interfered in the orders of the Administrative Judge of the High Court, which was passed by a Division Bench, on a reasoning of competency. Therefore, no immunity to such order can be claimed. On the deeper analysis of said judgment we find no force.In this contention. The judgment clearly contemplates, that the order originally 'passed and assailed, which was the foundation of the case was quasi-judicial in nature, though passed in exercise of administrative function. The Administrative Judge in the High Court did not express any positive view on the case, but came to the conclusion that the retention of Mr. Mohsin Siddiqui, in the Judicial Department would be of no useful purpose. According to the said judgment, even the order admitting the appeal, was founded on the assumption that what was sought by the petitioner in that case, was not for quashment of order of Administrative Judge, but of the proceedings before the District Judge, which had resulted in an order of his removal from service from the relief granting para. Of its judgment, it is undoubtedly, clear that by allowing appeal, it was directed that the writ should be issued from the High Court quashing the proceedings before the District Judge, throughout. In no way, it was held or could be conceived, that the order of the Administrative Judge was declared or held to be amenable to writ jurisdiction.
This judgment was based upon the principle, that if the basic order is void, and declared to be so, any further proceedings or order based thereon would have no effect.
14. The contention from the petitioners' side that the administrative function of the High Court can be subjected to writ, can lead to ludicrous situations which can be well illustrated ' According to Article 199(5) which is reproduced below: (5) In this Article, unless the contest otherwise requires-- " 'person' includes anybody politic or corporate any authority of or under the control of the Federal Government, or of a Provincial Government, and any Court or Tribunal, other than the Supreme Court, a High Court, or a Court or Tribunal established under a law relating to the Armed Forces of Pakistan;"
It is clear that the Supreme Court of Pakistan has also been excluded from the definition of the word "person" clubbed, together with the High Court. Undoubtedly, it is inconceivable that the order of the Supreme Court on its judicial side can be challenged before the High Court in writ, irrespective of sub-Article (5). Now if the interpretation of the petitioners that administrative order of the High Court can in writ be challenged is accepted, the same rule would also apply to the Supreme Court, situation may arise where a full Court of the apex forum takes a non judicial decision than on the basis of above reasoning a Single Judge of this Court may issue writ to quash the same which would be just preposterous. This also applies to the administrative decision taken by the Full Court of a High Court, particularly, when the same Judge/Judges are party to such a decision. There can be numerous examples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rules made by the Supreme Court, under Article 191 and by the High Courts, under Articles 203, and 208 are not safe from attack and may become subject of every day's litigation leading to a hazardous situation.
16. To our mind the judicial orders of the Supreme Court and the High Court on jurisprudential plane, were already protected from the exercise of writ. It is only the administrative/executive or consultative functions/orders and acts which in fact have been saved under this sub-Article. By plain reading of sub-Article (5) and by applying settled rules of interpretation, High Court cannot be deemed to be conferred with two distinct characters i.e one judicial, which is immune from writ, and the other administrative which is amenable to the writ.
17. Where a Judge of the High Court, acts as a Court, for and on behalf of the Court, it is the Court by itself and has complete and absolute immunity, which is not dependent on the kind of jurisdiction he exercises. It is for this reason, that when a Judge of this Court acts as a Company .Judge under the Company Laws, or as a Judge dealing exclusively with the bank cases under relevant law he acts as High Court though conferred with a special power to decide the case of a particular nature.
His orders are not amenable to the writ.
18. In this behalf the following passage from the case reported as PLD 1976 SC 135 can be reproduced with advantage: "However, the question is whether such proceedings are barred by virtue of the definition of 'person' as given in paragraph (5) of Article 199 which definition excludes the Supreme Court as well as the High Court from its purview. It seem that intention of the Constitution-makers is to exclude, from the writ jurisdiction of the High Court, all actions/acts and orders made by the High Court, or the Supreme Court or by 'any Judge thereof in the exercise of the functions and powers of his office."
From the above, it is clear enough that all actions, acts and orders made by the High Court or the Supreme Court or any Judge thereof in exercise of the powers and functions in the office, cannot be subjected to the writ. It may be pertinent to state here that the Division Bench of this Court, in a case reported as Messrs Nusrat Elahi, etc. v. The Registrar, Lahore High Court, etc. (1991 MLD 2546 (Lahore) while considering the question of the like nature, had come to the conclusion that even the administrative order of the High Court, passed in respect of its employees cannot be challenged by filing Constitutional petition.
19. In a recent judgment reported as Muhammad Ikram Chaudhry, etc. v. Federation of Pakistan, etc. (PLD 1998 SC 103), almost the entire case-law on the subject has been considered, discussed and summarized as under: "There seems to be unanimity of view among the superior Courts on the question that a High Court or the Supreme Court cannot in exercise of its Constitutional jurisdiction under Article 199 of the Constitution interfere with an order passed by another Judge or another Bench of the same Court."
20. Similarly, in Malik Asad Ali, etc. v. Federation of Pakistan, through Secretary, Law and Parliament Affairs, Islamabad PLD 1998 SC 161 it has been held in unequivocal and clear terms that: "While the orders passed by a Judge, in exercise of the jurisdiction of the Court, cannot be called in question under Article 199 of the Constitution, the act. Of a Judge performed in his personal capacity did not enjoy this protection. This difference between the Judge acting as a Court and a Judge in his personal or individual capacity is not only real but is necessary to preserve."
' It has been further held that: "The actions of the Judge which relate to the performance of his duties and functions as a Judge of the Court or as a member of the Court cannot be brought under challenge under Article 199 of the Constitution before the High Court. Only such actions of a Judge of superior Court are amenable to the jurisdiction of the High Court under Article 199 of the Constitution, which he performs in his personal capacity having no nexus with his official functions as a Judge of the Court."
It is, thus, abundantly clear that if the order of a Judge of this Court is ir in terms of his official duty as a Court, obviously, no question of its challenge through the writ jurisdiction would arise. Under section 27(c) of the Legal IF. Practitioners and Bar Councils Act, 1973, the requisite approval is to be obtained from the High Court not from any individual Judge of the Court so mentioned by designation or otherwise, not even from any Judge performing duties of an "Administrative Judge."
The order passed is always of the High Court, not by a Judge having a character different than of a High Court.
21. Now attending to the arguments pertaining to "persona designata", it may be stated that if due to distribution of work, a Judge has been assigned duty to act as a High Court, for the purpose of section 27(e), it cannot be said that such person is "persona designata". The expression "persona designata" has not been defined in our statute books. However, according to its meaning given in "Law Lexicon with Legal Maxims" (Second Edition) page xxiv and in the Hand book of Legal Terms and Phrases, page 531, respectively it means:-- "A person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filing a particular character."
"The expression 'persona designata' means a person described in the status or legal instrument by his official designation, and the function may be judicial or otherwise. If the function is a judicial function, then he is a Court, though he is described not as Court but by official designation. There is no real antithesis between the expression' persona designata' and 'Court' in other words, even a persona designata may be a Court. Whether he is a Court or not depends upon his power and the functions which he has to discharge."
22. In the instant cases, under section 27(c), no individual Judge has been mentioned by name or designation to act as a person for the grant of necessary approval, rather the mention of the High Court conspicuously dispels any such impression. Thus; the argument that any Judge acting on behalf of the High Court to exercise power under section 27(c), acts as "persona designata" is not impressive or well-founded.
' Even from the letter issued by the Registrar of this Court, (containing different reason in each case). Which reads as under: "Sir, ' I am directed to refer to your Letter No,1270 Pb.BC/Ent., dated 17-2-1998, on the subject noted above, and to say that the Chief Justice and Judges have been pleased to observe: 'SHOULD ADHERE TO THE PRESCRIBED PROCEDURE BY WORKING IN A BUSY CHAMBER TO HAVE THE LICENCE AND ATTAIN EXPEREIENCE.'
' Enrolment file in original` and other papers are returned herewith, please acknowledge and receipt. Your obedient servant DEPUTY REGISTRAR (ADMN.) for REGISTRAR."
It is clear that the power exercised under section 27(c) and the order conveyed to the petitioner through this letter, is not some personal act of an individual Judge of the High Court but an act of the Court.
25. In Writ Petition, No,14168 of 1995, the argument that as the Administrative Judge has been defined under relevant rules and the action impugned is of such Judge, therefore, he acts as persona designata and amenable to the writ, is also devoid of any force. Reason being that such Administrative Judge does not act in his unofficial or personal capacity, but performs function for and on behest of the Court and acts as a High Court.
26. The arguments of Mr. Hamid Khan, learned counsel that according to the different provisions of the Legal Practitioners and Bar Councils Act, 1973, the High Court, acts as a consultative forum and not as a Court, therefore, the writ would be competent, is not well-conceived. May it be, any function of the High Court, executive, judicial, or even consultative, the basic point to be noted is, whether the act or the order is of the High Court or otherwise. If it is so, irrespective of the nature of jurisdiction, no writ would lie. The case reported as PLD 1996 SC 324, referred to by the learned counsel, in. The facts and circumstances, has no relevance. Firstly, in the said judgment, the scope of Article 177 and Article 193, of the Constitution, were considered, wherein the consultative role of the respective Chief Justices, was being examined. Here, the question is quite different. It may be pertinent to state here that the Legal Practitioners and Bar Councils Act, 1973, from its closer study, itself creates a distinction between the High Court and the role of a Judge of the High Court, when he is a part of different Committees constituted thereunder
27. The other arguments of Mr. Hamid Khan, that under the provisions of Article 199(1)(c), the expression "Authority" is distinct from the "person" within the contemplation of Article 199(5), therefore, whenever the question involved is regarding the enforcement of fundamental rights and violation is attributed to the 'High Court, writ would be competent. This submission has been well answered by the Deputy Attorney-General, that Article 199, has I fact conceived the High Court as a "person" not as a Authority. It is for the reason that the expression "person" has been specifically and separately define Besides; if the argument of learned counsel for the petitioner is accepted, would mean that even the judicial orders passed by the High Court alleged to in violation of fundamental rights, could be challenged in the writ calling the High Court as "Authority". This is in sharp contradiction of the earlier argument' of learned counsel that no writ can lie against the judicial order passed by the High Court.
28. The final submission from the petitioners' side that as no other/further remedy is available to them, therefore, the provisions of sub-Article (5) should be construed in a way, permitting the invocation of writ, cannot be allowed because, if this sub-Article is interpreted as suggested by the learned counsel it would tantamount to reading into the Constitutional provisions something which is not permissible under the law. Reference can be made to the cases reported as PLD 1997 SC 426 and PLD 1997 SC 32.
29. It may also be stated that no writ can be held to be competent if otherwise it is untenable only on account of the fact that the petitioners have no remedy. View of the Honourable Supreme Court on this point as envisaged by PLD 1998 SC 103, is undoubtedly clear: "The factum that the aggrieved party may have no other legal remedy simpliciter will not bring his case within the purview of Article 199 of the Constitution, if, otherwise. It does not fall within its compass."
30. Before parting, we may, however, observe that the Court may consider the desirability of providing some methodology for reconsideration of the cases by a larger number Judges if an order under section 27(c) has been passed by a Single Judge. Likewise, the remedy of appeal can also be provided to the employees of this Court by making necessary amendment in the rule for the cases like the one forming background of Writ Petition No,14168 of 1995.
In view of the above, holding that the writ petitions are not competent under the provision of sub- Article (5) of Article 199 of the Constitution, we u hereby dismiss the same with no order as to costs.