SAIDIJZZAMAN SIDDIQUI, C.J.--- The above-mentioned Constitutional petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan (hereinafter to he referred as 'the Constitution') have been filed by eleven former Judges of High Court of Lahore, Peshawar and Karachi, to challenge their removal from their respective offices as Judges of the High Courts in implementation of judgment of this Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324 (hereinafter to be referred as 'the Judges' case).
2. To understand the present controversy, it is necessary to briefly state here the background of the Judges's case. In the year 1994, the then Federal Government of Pakistan, appointed twenty additional Judges at a time against the vacancies existing in the Lahore High Court vide notification dated 4.8.1994. The appointments of these twenty additional Judges wee made after consultation with the then Acting Chief Justice of Lahore High Court and the then Chief Justice of Pakistan. Similar appointments of additional Judges of High Court were also made in the High Court of Sindh and Peshawar by the then Federal Government in consultation with the respective Acting Chief Justice of the High Courts and the Chief Justice of Pakistan, 1993, 1994 and 1995. It may be mentioned here that prior to the appointment of twenty Judges in the Lahore High Court in August, 1994, the Government had declined to confirm additional Judges of High Courts of Lahore and Sindh, appointed by the previous Government, on completion of their period as additional Judges, which was resented by the members of the bar. The appointment of twenty Judges in the Lahore High Court in August 1994 in this background was not received well in the public and the legal circles, and were described as politically, motivated and not on merits. In this backdrop, AlJehad Trust, a social organisation, headed by Habib-ul-Wahab-ul-Khairi, a practicing lawyer of this Court, filed a direct petition before this Court under Article 184(3) of the Constitution, wherein besides challenging the appointment of an Acting Chief Justice of Pakistan instead of permanent Chief Justice and various other issues relating to appointment, transfer and removal of Judges of the superior Courts were raised. Mr. Habib-ul-Wahab-ul-Khairi also filed a petition hearing No. 875 of 1994 in the Lahore High Court under Article 199 of the Constitution directly challenging the non- confirmation of 8 additional Judges of High Court and appointment of 20 additional Judges of the High Court. The above writ petition tiled by Al-Jehad Trust through Habib-ul-Wahab-ul-Khairi before the Lahore High Court was heard alongwith two other similar writ petitions Nos. 9893 and 10186 of 1994, and these were dismissed by a learned Division Bench of that Court by judgment dated 4.9.1994. Against the above judgment of the learned Division Bench of the High Court of Lahore, leave was granted in Civil Appeal No. 805 of .1995 filed by AlJehad Trust. The above appeal, alongwith direct/Constitutional Petition No. 29 of 1995 was heard by a bench of this Court consisting of five learned Judges for days together and by a detailed judgment dated 20th March 1996 while interpreting various Articles in the Constitution relating to superior judiciary, it laid down the parameters for appointment, transfer and other matters relating to superior judiciary of Pakistan. At this stage, we may also mention that on conclusion of the hearing of Judges' case, the Court fixed 20th March, 1996 as the date for announcement of the judgment. The Federal Government on 19th March, 1996 issued a notification appointing Rao Naeem Hashim Khan, Amir Alam Khan, Talat Yaqub, Muhammad Asif Jan, Zahid Husain Bokhari, Nasira Javed Iqbal, M. Javed Butter, Riaz Hussain, Karamat Nazir Bhandari and Rana Muhammad Arshad Khan, as Judges of the Lahore High Court and they were also administered oath of their offices on 19.3.1996. The short order in Judges' case announced by this Court on 20th March 1996 reads as follows:- , "For reasons to he recorded later, we pass the following short order.
2. In these two cases some appointments of Judges in the Superior Judiciary are challenged and called in question on the ground that they have been made in contravention of the procedure and guidelines laid down in the Constitution, and in this context we are called upon to examine in detail the relevant Articles pertaining to the Judiciary specified in Part VII of the Constitution to render an authoritative decision on the question of interpretation of such Articles in the light of other co- related Articles.
3. Pakistan is governed by the Constitution of Islamic Republic Pakistan, 1973, preamble of which says that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and independence of Judiciary fully secured. It also provided that the Muslims shall he enabled to ordain their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qura'an and Sunnah. The Preamble in reflection of the Objectives Resolution which is inserted in the Constitution as Article 2A as substantive part of the Constitution by P.O. No. 14 of 1985. Article 2 of the Constitution states in unequivocal terms that Islam shall he the State religion of Pakistan. Part IX of the Constitution contains Islamic Provisions in which 'Article 227 envisages that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. The Institution of Judiciary in Islam enjoys the highest respect and this proposition is beyond any dispute. The appointments of Judges and the manner in which they are made have close nexus with independence of Judiciary.
4. In the provisions relating to the Judicature in the Constitution, -Article 175 provides that there shall be a Supreme Court of Pakistan, a High Court of each Province and such other Courts as may be established by law. Sub-Article (2) thereof provides that no Court shall have any jurisdiction save as is or may he conferred on it by the Constitution or by or under any law. Sub-Article (3) provides that the Judiciary shall he separated progressively from the Executive within fourteen years from the commencing day. After expiry of the stipulated period; this Court has given judgment in the case of . Government of Sindh v. Sharif Faridi and others (PLD 1994 SC 105), and held on the subject of independence of Judiciary as under:- "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 for any reason: and That the Judiciary is independent of the Executive and Legislative, and has jurisdiction, directly or by way of review, over all issues of a judicial nature."
5. We have examined in detail the special characteristics of our present Constitution in conjunction with its historical background and Islamic Provisions while being fully cognizant of the powers of this Court to interpret the Constitution keeping in view the "Doctrine of Trichotomy of Powers", and have heard in a detail with utmost patience not only the learned counsel appearing for the parties, but also the most senior counsel as amicus curiae, representatives of the Bar Associations of the Supreme Court and High Courts and the individuals who requested for hearing them on the subject of interpretation of provisions of the Constitution relating to the judiciary. The valuable assistance rendered by all of them is very much appreciated.
6. Article 177 of the Constitution envisages that the Chief Justice of Pakistan shall he appointed by the President, and death of the other Judges of the Supreme Court shall he appointed by the President after consultation with the Chief Justice. As against this, fair appointment of Acting Chief Justice of Pakistan, Article 180 provides that when the office of the Chief Justice of Pakistan is vacant or he is absent or unable to perform the functions of his office, the President shall appoint the most senior of the other Judges of the Supreme Court to act as the Chief Justice of Pakistan.
We are not going into the question of interpretation of these two provisions in the light of contention that criterion of the most senior Judge in the appointment of Acting Chief Justice he impliedly read in the appointment of the Chief Justice of Pakistan for the reasons firstly that in Constitutional Petition No. 29 of 1994, which is directly tiled in this Court, appointment of Acting Chief Justice was challenged on the ground that when there was clear vacancy after retirement, instead of Acting Chief Justice, the incumbent should have been appointed on permanent basis being the most senior. During pendency of the petition, permanent Chief Justice of Pakistan was appointed and, therefore, the petitioner did not press the prayer to that extent vide C.M.A. 541-K of 1996, dated 10th March, 0996. Secondly, proper assistance by the learned counsel on this point was also not rendered. Thirdly the cases are pending in which the same subject-matter is involved. For such reasons, we do not consider it proper to go into the question of interpretation of these two provisions.
7. Our conclusions and directions in nutshell are as under:-
(1) The words "after conclusions" employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should he effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the -Chief Justice of Pakistan and the Chief Justice of High Court as to the fitness, and suitability of a candidate for Judgeship is entitled to he accepted in the absence of very sound reasons to he recorded by the President/Executive.
(ii) That if the President/Executive appoints a candidate found to be unfit and unsuitable for Judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not he a proper exercise of power under the relevant Article of the Constitution.
(iii) That the permanent vacancies occurring in the offices of Chief Justice and Judges normally should he filed in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should he filed in within 90 days no permanent basis.
(iv) That no ad-hoc Judge can he appointed in the Supreme Court while permanent vacancies exist.
(v) That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to he considered for appointment as the Chief Justice and in the absence of any concrete and valid reasons to he recorded by the President/Executive, he is entitled to be appointed as such in the Court concerned.
(vi) An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of Constitutional and, therefore, mandatory Constitution requirement of consultation is not fulfilled by consulting an Acting Chief Justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.
(vii) That Additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while they are acting as Additional Judges, acquire legitimate expectancy and they are entitled to be considered for permanent appointment upon the expiry of their period of appointment as Additional Judges and they are entitled to be appointed as such if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan in the absence of strong valid reasons/reasons to be recorded by the President/Executive.
(viii) That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in the Federal Shariat Court under Article 203-C of the Continuation without his consent is violative of Article 209, which guarantees the tenure of office. Since the former Article was incorporated by the Chief Martial Law Administrator and the later Article was enacted by the Framers of the Constitution, the same shall prevail and, hence, such an appointment will he void.
(ix) That transfer of a Judge of one High Court to another High Court can only be made in the public interest and not as a punishment.
(x) That the requirement of 10 years' practice under Article 193(2)(a) of the Constitution relates to the experience/practice at the Bar and not simpliciter the period of enrolment.
(xi) That the simpliciter political affiliation of a candidate for Judgeship of the superior Courts may not he a disqualification provided the candidate is of an unimpeachable integrity, having sound knowledge in law and is recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan.
(xii) That it is not desirable to send a Supreme Court Judge as an Acting Chief Justice to a High Court in view of clear adverse 'observation of this Court in the case of Abrar Hassan v. Government of Pakistan and others (PLD 1976 SC 315 at 342).
(xiii) That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory, any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would he invalid.
(a) That permanent Chief Justices should he appointed in terms of the above conclusion No. (iii) in the High Courts where there is no permanent incumbent of the office of the Chief Justice.
(b) That the cases of appellants Nos. 3 to 7 in Civil Appeal o. 805 of 1995 (i.e. Additional Judges who were dropped) shall be processed and considered for their permanent appointment by the permanent Chief Justice within one month from the date of assumption of office by him as such.
(c) That appropriate action he initiated for tilling in permanent vacancies of Judges in terms of above conclusion No. (iii).
(d) That ad hoc Judges working at present in the Supreme. Court either he confirmed against permanent vacancies against permanent vacancies in terms of Article 177 of the Constitution within the sanctioned strength or they should he sent back to their respective High Courts in view of above conclusion No. (iv).
(e) That the cases of the appointees of the Federal Shariat Court be processed and the 'same he brought in line with the above conclusion No. (viii); and (0 That upon the appointment of the permanent Chief Justice in the High Courts where there is no permanent incumbent or where there are permanent incumbents already, they shall process the cases of the High Courts' Judges in terms of the above declaration No. 13 within one month from the date of this order or within one month from the date of' assumption of office by a permanent incumbent whichever is later in time and to take action for regularising the appointments/confirmation of the Judges recently appointed/confirmed inter cilia of respondents Nos. 7 to 28 in Civil Appeal No. 805/95 in the light of this short order. In like manner, the Chief Justice of Pakistan will take appropriate action for recalling permanent Judges of the Supreme Court from the High Courts where they are performing functions as Acting Chief Justices and also shall consider desirability of continuation or not , of appointment in the supreme Court of Ad Hoc/Acting Judges.
Resultantly, the direct petition and the appeal captained above are allowed in the terms and to the extent indicated above."
3. Reasons for the above short order were recorded subsequently by three learned Judges of the bench separately. On the opinion rendered by Sajjad A.I Shah C.J. (as he then was) in the case, the other three learned Judges recorded the following notes:- . "I have recorded my separate reasons copy of which sent of H.C.J. H1 (5) and they HJ (6). The latter two agreed with me and signed the same with me on 24.3..1996. I adhere to my above reasons.
(Sd.)
AJMAL MIAN, J.
I also agree with the above reasoning Sd./ FAZAL ILAHI KHAN, J.
I also agree with above reasoning and have also recorded additional reasons.
Sd./ MANZOOR HUSSAIN SIAL, J.
Similarly, on the opinion record by Ajmal Mian, J. (as he then was) which was also signed by Fazal Ilahi Khan and Manzoor Hussain Sial, JJ. Manzoor Hussain Sial, J. Added the following note: "I agree with the judgment of my learned brother HJ (2) but would like to add, my reasons thereto.
Sd./ MANZOOR HUSSAIN SIAL, J.
It is, therefore, quite clear that the opinion recorded by both Sajjad A.I Shah, C.J. And Ajmal Mian, J. In the Judges' case are to be treated as the judgment of this Court. In the above-stated background, we now proceed to examine the contentions of the learned counsel for the petitioners and the learned Deputy Attorney General in the above petitions. The learned counsel for the petitioners have raised the following contentions in support of the above petitions:
(i) That the short order pronounced by the Court in Judges' case on 20th March, 1996, is the only order which was subscribed by tour out of five learned Judges of the bench and therefore, this order alone could be considered as the judgment of the Court in the case;
(ii) That the separate reasons recorded by the three leaned Judges of the bench subsequently, cannot be treated as the judgment of the Court and anything said in those reasons which is not to be round in the short order is to he ignored;
(iii) That in terms of the short order of the Court, the respective Chief Justices of High Courts were required to process the cases of only the recently appointed/confirmed Judges for regularisation and therefore, this process could not be extended to de-confirm or nullify the appointments of the Judges;
(iv) that the petitioners were de-confirmed or the appointments were nullified by the Government without hearing them and as such as the action of Government nullifying their appointments as Judges of the High Court offended against the principles of natural justice;.
(v) That some of Judges were coerced by the authorities to tender their resignations and as such these resignations he declared invalid and inoperative;
(vi) That the petitioners could only he removed from their offices by following the procedure prescribed under Article 209 of the Constitution;
(vii) (vii) that the removal of the petitioners from the office of Judges of the High Court in the above manner amounted to a stigma and as such the petitioners were entitled to he heard;
(viii) That one of the petitioners (Ch. Mushtaq Ahmed Khan) was treated in a discriminatory manner inasmuch as that his batch is mates were transposed as appellants/petitioners in the Judges' case and were given relief of reinstatement but his case was differently treated though circumstances in all these cases were identical; and
(ix) That in some cases the reasons given for removal of the petitioners was the result of misreading of the record' which vitiated the order of removal of petitioners from service; The learned Deputy Attorney General in reply to the above contentions of the petitioners submitted as follows:
(a) That the short order and the reasons recorded in support of the short order subsequently by the learned Judges of the bench are to be read together while giving effect to it;
(h) That the conclusions recorded in the short order of the case are in the nature of adjustment in rem, the directions given therein are judgment in personam while the reasonings are the roads to the destination. Therefore, all three are to be read together to achieve the purpose and object of the decision;
(c) That the reasons recorded by Chief Justices of the High Courts and the Hon'ble Chief Justice of Pakistan regarding competency or otherwise of a candidate for Judgeship if accepted by the Executive/President, were not justiciable and therefore, the same cannot be challenged on the principle of audi-alteram partem;
(d) That some of the petitioners approached this Court after considered delay and having acquiesced in the action and therefore, they could not he allowed to challenge the action of the Government now;
(e) That the direction given by this Court in the Judges' case for processing and regularisation of the cases of recently appointed/confirmed Judges did not mean that the Hon'ble Chief Justices while processing such cases had to take only such steps as were necessary to regularise the appointment and they could not recommend their removal or non-confirmation as Judges of the High Courts; (0 That some of the petitioners having resigned from their offices as Judges of the High Court were not entitled to file the present petitions and re-agitate the matter, and
(g) That reference to recently appointed/confirmed Judges in the short order did not mean only those. Judges who were appointed within the close proximity of the date of the short order.
4. Before considering the above contentions, it would he appropriate to first decide the plea of the petitioners that only short order dated 20th March, 1996 in Judges' case is to he treated as the order of the Court and that the reasons recorded subsequently by the learned Judges separately are to he ignored while implementing the direction of the Court, We are unable to subscribe to this view. The short order in a case is the summary of the findings of the Court while detailed reasons are elaboration of that summary. Unless there is any conflict between the short order and the detailed reasons, both are to he read together to understand the real import and scope of the judgment. We have carefully gone through the short order and the detailed reasons recorded in support of the short order by Sajjad A.I Shah, C.J. And Ajmal Mian, J. And are of the view that there is no conflict between the short order and the detailed reasons recorded subsequently by the learned Judges of the bench in support of the short order. We are, therefore, of the view that the short order dated 20th March, 1996. And the reasons recorded in support thereof by the learned Judges (Sajjad All Shah, C.J. And Ajmal Mian, J) subsequently are to be read together to give effect to the judgment in Judges' case.
5. The contentions raised by the learned counsel for the petitioners in support of the above petitions may he divided in two broad categories for the sake of convenience. The first category includes the contentions which are common to all the above petitions. In the second category, fall the pleas which are peculiar to individual cases. We will, therefore, first deal with the contentions which are common in all the above petitions. Broadly speaking, these- are three main contentions.
The first contention, that the direction given by this Court in Judges' case to the respective Hon'ble Chief Justices of the High Courts for processing and regualrisation of the cases of the recently appointed/confirmed Judges, did not mean that the Hon'ble Chief Justices of the High Courts while processing these cases could also recommended their removal or non-confirmation as Judges of the High Courts. It is contended vehemently that the word 'regularisation' did not cover within its meaning, the recommendations for de- confirmation or removal from the office of Judgeship. The second contention common in all the above petitions is, that the removal/de-notification of the Judges by the Government in pursuance of the recommendations of the Chief Justice of the High Courts and the Chief Justice of Pakistan, was opposed to the principles of natural justice and as such the action taken by the Government in this behalf is liable to be struck down as without jurisdiction and void. The third contention common in all these cases is, that a Judge once appointed could only be removed in accordance with the provisions of Article 209' of the Constitution, whereas the petitioners were removed/denotified without following procedure prescribed under Article 209 of the Constitution. It is, accordingly, contended that the removal of the petitioners from their respective offices as Judges of the High Court was unconstitutional and void. We will take up the above three contentions in the same order in which they are raised.
The first common contention is that the word 'regularisation' used in paragraph (t) of the short order did not mean or permit the Hon'ble Chief Justices of the High Courts to recommended removal or non-confirmation of the Judges. It is ..Contended that the word regularisation' means to make regular which could not he interpreted to mean refusal to make regular. It is -argued on behalf of the petitioners that the only defect discoverable in the appointment/confirmation of the petitioners as Judges of the High Court was - that they were recommended for appointment/confirmation by the Acting Chief Justices instead of permanent. Chief Justices and therefore, this defect in their appointment could he regularised in terms of the short order dated 20th March, 1996 by making the same recommendations by the permanent Chief Justices of the.
Respective High Courts. The .Argument on its face may appear to he attractive but it cannot stand scrutiny in terms of the judgment of this Court in Judges' -case. We have already reproduced earlier the short order in Judges' .Case. Conclusion. No. Xiii recorded in the short order declared the appointments/confirmation of the Judges of the High Court made by the Government of the Judges of the High Court made by the Government. In consultation with the Acting Chief Justices violative of the mandatory provision of the Constitution and therefore, invalid. This conclusion when read with direction 'No. (0 of the short order made it clear that this invalidity in the process of consultation in - making the appointment/confirmation of the Judges, was to he removed by a fresh processing of the cases by the permanent Chief Justices keeping in view the provisions of Article 193 of the Constitution. Therefore, if the Hon'ble Chief Justices of the High Courts and the Chief Justice of Pakistan in that process were of the opinion that any of the incumbents was not lit for appointment or confirmation or lacked the qualification prescribed in Article 193 of the Constitution for appointment as a Judge of the High Court, they were entitled to express their opinion accordingly, within the scope of direction No. (t) of the short order.
The second contention of the petitioner common in the above cases is, that petitioner's .Removal/non-confirmation as Judges of the High Court was violative of the principles of natural justice as they were not heard or given any hearing by the Chief Justices before recommending their removal/denotification. The appointment of an additional Judge of the High Court is for a special period. Such appointment, therefore, comes to an end on expiry of the period mentioned in the notification appointing the additional Judge of the High Court, unless the period is further extended or the appointment is converted into a Judge of the High Court. Therefore an additional Judge ceases to hold the office it' the period specified in the notification appointing him as an additional Judge is not extended. In such - an eventuality, he cannot claim hearing before expiry of the period mentioned in the notification. However, this Court in its judgment in Judges' case observed that additional Judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while such Judges are performing functions as additional Judges, they acquire a legitimate expectancy and they are entitled to he considered for permanent appointment on expiry, of their period as additional Judges if they are recommended by the Chief Justice of High Court concerned and Chief Justice of Pakistan. The above conclusions recorded in the short order were explained in the opinion rendered in the Judges' case by Ajmal Mian, J. (as he then was) as follows:- "If we were to read carefully sub-clause (9) 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 (h) 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 from 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 justifiable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not? It is matter of subject satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan."
(The underlining is by as to supply emphasis)
The last common contention of the petitioners in these cases is that a Judge once appointed in the High Court could not be removed, except in accordance with the provisions contained in Article 209 of the Constitution. The scope of Article 209 of the Constitution was examined in the case Asad A.I v. Federation of Pakistan (PLD 1998 SC 161) at length and the following unanimous conclusions were recorded:- "80. At this stage, we may also deal with another argument advanced by Mr. Abdul Hafeez Pirzada, the learned counsel for respondent No. 2, in this behalf. Mr. Abdul Hafeez Pirzada, very vehemently argued that the only method provided under the Constitution to remove a Judge of the superior Court from his oftice is, to initiate proceedings against him before the Supreme Judicial Council as provided under Article 209. Of the Constitution Article 209 of the Constitution referred by the learned counsel reads as under:-
209. (I) There shall he a Supreme Judicial Council of Pakistan, in this Chapter referred to as the Council.
(2) The Council shall consist of
(a) the Chief Justice of Pakistan:
(h) the two next most senior Judges of the Supreme Court; and
(c) the two most senior Chief Justices of High Courts.
Explanation.-- For the purpose of the clause, the inter se seniority of the Chief Justices of the High Court shall be determined with reference to their dates of appointment as Chief Justice otherwise than as Acting Chief Justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as Judges of any of the High Courts.
If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then-
(a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Curt who is next in seniority below the Judges referred to in paragraph (h) of clause'(2), and
(h) If member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.
(4) If, upon any matter inquired into by the Council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the Council to the President shall be expressed in terms of the view of the majority.
(5) If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court--
(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of misconduct, the President shall direct the Council to inquire into the matter.
(6) If, after inquiring into the matter, the Council reports to the President that it is of the opinion--
(a) that the Judge is incapable of performing the duties of his office or has been guilty of misconduct, and
(b) that he should he removed from office, the President may remove the Judge from office.
(7). A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.
(8) The Council shall issue a Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts."
81. With due deference to the, learned counsel, firstly, the right to move the Supreme Judicial (SJC) against a Judge of the superior Court under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer- a case of the Judge of the superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of Supreme Judicial Council to hold an enquiry against the Judge of a superior Courts arises only when a reference is made to it by the President in this behalf. Fourth, the enquiry by the Supreme Judicial Council against the Judge of a superior Court under Article 209 ibid, is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if they, is to be taken by the President on the advice of the Prime Minister or the Cabinet. It is, therefore, quite clear that besides the fact that the Supreme Judicial Council itself cannot grant any relief to a person aggrieved by the illegal and unconstitutional appointment of a Judge of the superior Court, the invalidity and unconstitutionality of the appointment of a Judge of a superior Court are outside the purview of the enquiry under Article 209 of the Constitution, because such an appointment has no nexus 'either with the mental or physical incapacity of the Judge to perform properly, the duties of his office or with the misconduct of the Judge concerned. Therefore, the remedy provided under Article 209 of the Constitution cannot be equated with the proceedings tiled under Article 199(1)(b)
(ii) of the Constitution to challenge the unconstitutional appointment of a Judge of the superior Court. The reason for keeping the question of validity or constitutionality of the appointment of a Judge of superior Court outside the purview of the enquiry under Article 209 of the Constitution is obvious, as validity of such appointment is open to be challenged before the High Court under Article 199 of the Constitution in appropriate proceedings."
(The underlining is by us to supply emphasis)
6. Having dealt with the above three contentions which are common in the above petitions, we now take up the individual petitions to examine the remaining relevant contentions in each separately.
At this stage, we may mention that in some of the above petitions, the petitioners contended that although they were not aware of the exact recommendations of the Chief Justices of the High Courts and that of Chief Justice of Pakistan but they understand that the Chief Justices of the High Courts and the Chief Justice of Pakistan, had recommended their confirmation as Judges of the High Courts but contrary to these recommendations they were not confirmed or allowed to continue as Judges of the High Courts. The petitioners further jointly contended that at no stage, they were informed about the grounds on which they were found unfit to hold the office of the _ Judge of the High Court and as such their non-confirmation as Judges of the High Court was against the principle of natural justice.
7. In view of the preceding discussion, the petitions were neither entitled to he informed about the recommendations made by the respective Hon'ble Chief Justices of the High Courts and the Hon'ble Chief Justice of Pakistan, in their cases regarding their suitability or otherwise for continuation/confirmation as Judges of the High Courts, nor they were entitled to be heard in respect of such recommendation. However, in order to satisfy ourselves that the petitioners were de-notified by the Government as Judges of the High Court in accordance with the recommendations of the respective Chief Justices of the High Courts and the Chief Justice of Pakistan, we have consulted the official record and are satisfied that President/Executive had acted in accordance with recommendations of the respective Chief Justices of the High Courts and the Chief Justices of Pakistan, in de-notifying the appointments of the petitioners as Judges of the High Courts and in no case the de-notification of the petitioner was contrary to the recommendations of the Chief Justices of High Court and the Chief Justice of Pakistan. We now proceed to make up each petition separately to examine it on merits and to decide the remaining contentions in these cases insofar they are applicable to each of these cases, Const. Petition No. 49 of 1996: The petitioner, Ch. Mushtaq Ahmed Khan, was appointed as additional Judge of Lahore High Court, for a period of two years alongwith 8 others vide notification dated 26th August, 1992. On expiry of the period of two years, he tenure of Ch. Mushtaq Ahmed Khan was extended for a further period of one year vide notification dated 28th August, 1994. Before expiry of the extended period of his tenure, Ch. Mushtaq Ahmed Khan was appointed as the Judge of the Lahore High Court vide notification dated 1st June, 1995 His appointment as Judge of the Lahore High Court was de-notified by the Government on 30.9.1996.
The additional contention of the petitioner-in this case is, that he was recommended for appointment as an additional. Judge of Lahore High Court by the permanent Chief Justice of Lahore High. Court and as such his case did not fall within the mischief of condition number xiii and direction number (f) of the short order in the Judges' case. It is further contended that under direction number (f) of the short order in Judges' case, only the cases of the recently appointed Judges of the High Courts were to be processed and regularised and as the petitioner was appointed in 1992 and was confirmed in June, 1995 long before the date of judgment in the Judges' case, his case could not he re-opened under direction number (t) of the Judges' case. It is also contended that other Judges of Lahore High Court who were appointed alongwith the petitioner in 1992 and were not confirmed were transposed as appellants in the Judges' case and were granted relief by way of confirmation as Judges of the Lahore High Court under the orders of this Court while the. Petitioner was denied that relief through he was a confirmed Judge.
The petitioner is a senior advocate of this Court and has a lucrative practice. We, therefore, enquired from -him during the course of the arguments if he was really interested in seeking his restoration as Judge of Lahore High Court. He very candidly stated that the real purpose of this petition is to vindicate his honour and he will he satisfied and will not seek restoration to the office of the Judge, if his de-notification is declared.
The case of the petitioner is distinguishable from the cases of the other Judges of Lahore High Court who were not confirmed/de-notified as the Judges of the High Court of Lahore. The petitioner was appointed as the additional Judge of Lahore High Court vide notification dated 26.8.1992 on the recommendations of Mian Mahhooh Ahmed, Chief Justice, who was the permanent Chief Justice of Lahore High Court. Therefore, to the extent that the initial appointment of the petitioner did not suffer from any Constitutional infirmity the argument appears to he correct. However, his tenure as additional Judge of High Court was extended for one year on 28.6.1994 on the recommendation of the Acting Chief Justice of Lahore High Court (Mr. Justice Muhammad Ilyas) and the then Chief Justice of Pakistan (Mr. Justice Sajjad All Shah). Similarly, the confirmation of the petitioner as a judge of Lahore High Court, was also made on the recommendations of the Acting Chief Justice of Lahore High Court (Mr. Justice Muhammad Ilyas). Therefore though the initial appointment of the petitioner as the additional Judge of Lahore High Court did not suffer from any Constitutional infirmity, his confirmation as the Judge of Lahore High Com fell within the mischief of conclusion number xiii of the short order in the Judges' case, and accordingly, his case needed fresh processing and regularisation within the scope of direction number (t) of the short order in Judges' case.
The petitioner has contended that his case was not covered within the meaning of the expression "recently .Appointed Judges" used in direction number (t) of the short order in Judges' case. We have already reproduced the short order in Judges case earlier in this judgment. The expression used in direction number (t) of the short order is "Judges recently appointed/confirmed". The effect of direction number (t) of the short order was explained in Para number 87 of the judgment of Sajjad A.I Shah, C.J. (as he then was) as follows: "The meaning and scope of "consultation" now laid down by us and the powers of Acting Chief Justices in connection therewith would affect only such appointments which have been made by the present Government and this exercise would not go beyond that. We are leaving it open that the appointments made with "recommendations" of the Acting Chief Justices in the High Courts can he reviewed and steps can he taken by the permanent Chief Justices to regularise them if this can he done on the basis of merit within thirty days from the date when the permanent Chief Justices are appointed in the High Courts and taken oath. Regularisation shall take place as contemplated under Article. 193 of the Constitution."
The petitioner's confirmation as the Judge of Lahore High Court having taken place on the recommendation of Acting Chief Justice, it was not a valid confirmation within the meaning of conclusion number xiii of the short order and as such the petitioner's case required processing and regularisation in terms of direction number (t) of the short order in Judges' case.
We have gone through the official record and noticed that the Chief Justice of Lahore High Court (Mr. Justice Khalil-ur-Rehman Khan) and the then Chief Justice of Pakistan (Mr. Justice Sajjad A.I Shah) did not recommend the name of petitioner for confirmation as a Judge of the Lahore High Court. As observed earlier by us, the recommendations of the Chief Justice of High Courts and the Chief Justice of Pakistan are not justifiable, therefore, no relief can be granted to the petitioner in the circumstances. However, as the petitioner's confirmation as a Judge of Lahore High Court on 1.6.1995 was rendered invalid by force of the judgment of this Court in the Judges' case, he shall be deemed to have not been confirmed as a Judge of the Lahore High Court and shall be entitled to practice before that Court.
Const. Petition No. 59 of 1997; The petitioner in this case was appointed as the additional Judge of Lahore High Court alongwith 19 others on 4..8.1994 for a period of one year. On 1st of June, 1996, he was appointed as the Judge of Lahore High Court. Since the appointments of the petitioner as the additional Judge and the Judge of the Lahore High Court were made after consultation with the Acting Chief Justice of Lahore High Court, these appointments were invalid in terms of conclusion number xiii of the short order in Judges' case. The appointment of petitioner, therefore, required processing and regularisation in accordance with the direction number (0 of the short order. The petitioner, however, resigned from his office as the Judge of Lahore High Court on 18.6.1996. The petitioner having resigned from his office as a Judge of Lahore High Court, cannot now challenge his de-notification as a Judge of the Lahore High Court. The petitioner, however, is right is contending that he cannot he declined the right of practice before the Lahore High Court as his confirmation as Judge of the Lahore High Court was rendered invalid under conclusion number xiii of the short order in the Judges' case. We, are accordingly, of the view that though the petitioner is not entitled to the relief of reinstatement, he is entitled to practice as an advocate before the Lahore High Court.
Const. Petitions Nos. 47/96, 50/96. 24/98 & 44/98: The petitioners in petitions Nos. 47/96, 50/96 and 44/98 were appointed alongwith 17 others as additional Judges of Lahore High Court vide notification dated 4th of August, 1994 for a period of one year. Similarly, the petitioner in Constitutional Petition No. 24/98 was also appointed alongwith 4 others as an additional Judge. Of Lahore High Court for a period of one year vide notification dated 9th October, '1995. The petitioners in Petitions Nos. 47/96, 50/96 & 44/98 were later appointed as Judges of Lahore High Court on 19th March, 1996, a day .Before the announcement of the judgment in the Judges' case. It is an admitted position that the petitioners were appointed as additional Judges or as Judges of Lahore High Court after consultation with the Acting Chief-Justice of Lahore High Court. In view of the conclusion No. Xiii of the sort order in the Judges' case, the appointments of the petitioners were rendered invalid and their cases were required to he processed for regularisation in terms of direction No. (0 of the short order. We have consulted the record maintained in respect of the appointment of the petitioners and find that none of the petitioners was recommended for retention/confirmation as a Judge of the High Court by the Chief' Justice of the Lahore High Court or the Chief Justice of Pakistan. We have already held that the recommendations of the Chief Justices of the High Courts and that of Chief Justice of Pakistan are not justifiable in Court and therefore, in view of our above findings, the de-notification of the petitioners is not open to any exception. The petitioners are, accordingly, not entitled-to any relief in the present proceedings.
Const. Petitions Nos. 7 & 25 of 1998: The petitioners in the above petitions were appointed as additional Judges of Peshawar High Court vide notification dated 9th October, 1995 for a period of one year. By virtue of the decision of this Court in the Judges' case, their appointment was rendered invalid as they were appointed as additional Judges after consolation with Acting Chief Justice of Peshawar High Court. The cases of the petitioners were, accordingly, required to be processed and regularised in terms of direction number (0 of the short order in the Judges' case. The petitioners were not recommended for retention/confirmation as Judges of the High Court by the permanent Chief Justice of Peshawar High Court and Hon'ble Chief Justice of Pakistan. The petition were, accordingly. Informed by the Governor, NWFP, vide his latter dated 7th August, 1996 that they were not recommended for appointment as Judges of the High Court as they did not possess the required experience. They were asked by the Governor, NWFP, to supply the necessary details if they so desired. The petitioners in the above petitions, however, resigned from their offices as Judges of the High Court in response to the letter received by them from the Governor, NWFP. The petitioner in Constitution Petition No. 7 of 1998 has contended before us that he was forced to resign by the Governor and therefore, his resignation should not be taken into consideration. The contention cannot be accepted as there is no material on record before us to hold that the petitioner was forced by the Governor, NWFP, to resign from the office of Judge of the High Court. The Governor NWFP had issued identical letter to the other additional Judges' of the Peshawar High Court who were affected by the judgment of this Court in the Judges case but none of them complained that the Governor NWFP prevailed upon them to resign from the office of Judge of the High Court. Apart from it, the petitioner was allegedly forced to resign from the office of Judge of High Court in August, 1996. But he kept quite until 25th of April, 1998 when he tiled the present petition and for the first time, raised this contention. The petitioner in Constitutional Petition No.. 25 of.1998, also resigned from the office of Judge of Peshawar High- Court like petitioner in Const. Petition No. 7 of 1998. He has not alleged that he was forced by the Governor NWFP to resign from his office. We otherwise find it difficult to believe that the Governor, NWFP who had issued identical letters to all the Judges who were not to he confirmed in pursuance of the order of this Court in Judges' case, would have forced the petitioner in Constitutional Petition No. 7 of 1998 to tender his resignation.
The petitioner in the above two petitions having already tendered resignation from their offices as Judges of the High Court, cannot be allowed to turn offices as Judges of the High Court, cannot be allowed to turn round and challenged the same after a period of about two years. Apart from it, as earlier pointed out by us, the recommendations of the Chief Justice of the High Court and that of the Chief Justice of Pakistan are not justifiable in any Court and therefore, if the petitioners were not confirmed or allowed to continue as Judges of the High Court in pursuance of the recommendations of the Chief Justice of Peshawar High Court and the Chief Justice of Pakistan, they cannot question such recommendations in the present proceedings. The petitioners are, therefore, not entitled to any relief in the present proceedings.
Const. P. 39 of 1998: The petitioner in the above petition was appointed as additional Judge of Peshawar High Court vide notification dated 13.12.1993 alongwith 3 others. He was later appointed as Judge of Peshawar High Court after consultation with the Acting Chief Justice of Peshawar High Court. His appointment as an additional Judge and as a Judge of a Peshawar High Court having been made after consultation with the Acting Chief Justice of Peshawar Nigh Court, was rendered invalid as a result of conclusion No. Xiii of the short order in the Judges' case. The case of the petitioner was, accordingly, required to be processed short order in the Judges' case. The petitioner was not recommended for retention as a Judge of Peshawar High Court either by the Chief Justice of Peshawar High Court or by the Chief Justice of Pakistan during the process of regularisation. He was, however, informed by the Governor, NWFP, that as he did not possess 10 years active practice, therefore, he could not he confirmed as a Judge of Peshawar High Court. He was also given the option to resign from the office of the Judge of the High Court if he so desired but he did not accept this .Suggestion. The petitioner contends that the ground for his removal from the office of the Judge of Peshawar High Court that he did not possess the requisite 10 years active practice, was the result of misreading of the date of his enrolment as 6.2.1989 which was actually 8.2.1979. , To this extent, this contention of the petitioner appears to be correct. However, from the record, it appears that the petitioner was otherwise not recommended either by the Chief' Justice of Peshawar High Court-or by the Chief Justice of Pakistan for retention as a Judge of Peshawar High Court. Apart from it, the petitioner admitted before us that after he was de-notified as Judge of Peshawar High Court, he was recommended for appointment as the additional Judge of Peshawar High Court in April, 1997 by the Chief Justice of Peshawar High Court to which he consented. He was once again considered and recommended by the Chief Justice of Peshawar High Court in 1998 for appointment as an additional Judge of the High Court to which also he consented. In these circumstances, the petitioner cannot he permitted now to challenge his de-notification as the Judge of Peshawar High Court. We are, however, of the opinion that de-notification of the petitioner in September, 1996 as a Judge of the Peshawar High Court should not come in the way of his fresh appointment as a Judge of that Court if he is again recommended for that office in accordance with the law specially for the reasons that after his de-notification two successive Chief Justice of the Peshawar High Court at different times, recommended him for appointment as the additional Judge of the Peshawar High Court. With these observations, we decline to grant any relief in the present proceedings.
Const. Petitions No. 43 & 44 of 1996: The petitioner in the above two petitions were appointed as additional Judges of high Court of Sindh by notification dated 6th of June, 1994 for a period of one year after consultation with the Acting Chief Justice of Sindh High Court. They were later confirmed as Judges of High Court of Sindh by notification dated 31st May, 1995 after consultation with Acting Chief Justice of that Court. Their case were re-processed for regualrisation in view of the judgment of this Court in Judges' case and they were not recommended for being retained as Judges of the High Court of Sindh with the result their appointments as Judges of the High Court were de-notified on 30th of September, 1996. They have challenged their de-notification in the present proceedings.
We have consulted the record maintained in respect of the appointment of Judges of High Court of Sindh and find that both the petitioners were not recommended by the permanent Chief Justice of High Court of Sindh as well as learned Chief Justice of Pakistan and as a result of these recommendations their appointments were de-notified. As we have already held in these cases that the recommendations of the Chief Justice of a High Court and that of the Chief Justice of Pakistan are not justicable, no relief can be granted to the petitioner in the present proceedings as they were not recommended for retention/confirmation as Judges of the High Court. It may also be added here that is sofar petitioner in petition No. 44/96 is concerned, he has already attained the age of superannuation i.e. 62 years and therefore, for this reason too, he cannot be granted any relief now.
8. As a result of above discussion, all the above-mentioned petitions are dismissed.
RAJA AFRASIAB KHAN, J. [Disagreed with proposed judgment of C.J.] --- I have the privilege to peruse the proposed judgment rendered by the Hon'ble Chief Justice of Pakistan. After hearing the learned counsel for the parties and perusing the record, I have come to the conclusion that there is no other option for me but to uphold the view already expressed by me on the controversy.
Reference in this behalf may be made to Habib-ul-Wahab AI-Khairi and others v. Federation of Pakistan and others (PLD 1995 Lah. 27). I, therefore, with utmost respect, cannot agree with the proposed judgment of the Hon'ble Chief Justice.
MUHAMMAD BASHIR JEHANGIRI, J.-- [Dissenting partially). While generally agreeing with the conclusions arrived at by the Honourable Chief Justice in a well-considered judgment, I am constrained to add a few lines as I look at the cases of two de-notified Judges, namely, Ch. - Mushtaq Ahmad and Mr. Salim Dil Khan which are distinguishable at least on factual plane and should have been looked at differently if not sympathetically. The judgment in Judges' case no doubt was a land-marks in the annals of judicial history: But it was the implementation of the judgment which left much to be desired.
Such cases were obviously the outcome of violation of the principle of natural justice, namely, saudi alteram partem which superior Court quote in their judgments day in and day out.
I am, therefore, reluctantly constrained to add that the case of Ch. Mushtaq Ahmad could have been dealt with in more equitable setting in order to vindicate his honour and repute even by allowing pension if it was due to him on the basis of length of service on the Bench and addition of some more pacifying remarks in his favour.
I have decided to refrain from making further observations in the case of Mr. Salim Dil Khan as some relief has been impliedly granted to him, namely, qua his eligibility for his re-elevation to the Bench.