' KHAWAJA MUHAMMAD SAUD, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court passed on 6-10-2001, whereby the writ petition filed by the appellant, therein, challenging the appointment of respondent No,1 as a Chairman of the Azad Jammu and Kashmir Service Tribunal vide Notification No,S&GAD/A-1(40)/2001 dated 18-4-2001, was dismissed in limine.
2. Relevant facts, briefly stated, are that respondent No,1 prior to his appointment as a Chairman Service Tribunal was an Advocate by profession. According to the case of the appellant the said respondent had born on 5-12-1937, as such at the time of his appointment as Chairman Service Tribunal, his age was 63 years 4 months and 13 days. The appellant filed a writ petition in the High Court in which he contended that under subsection (3) of section 3 of Azad Jammu and Kashmir Service Tribunals Act, 1975, (hereinafter to be referred as the Act of 1975), only such person can be appointed as Chairman Service Tribunal who has been or is qualified to be, Judge of a High Court.
According to the appellant only such person can be appointed as Judge of the High Court who is below 62 years of age as no person can retain this office under subsection (5) of section 43 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, (hereinafter to be referred as the Constitution Act of 1974), beyond this age. According to the appellant, respondent No,1 had crossed 62 years age, as such, could not be appointed as Judge of the High Court, therefore, he could not be appointed even as Chairman of the Service Tribunal. The writ petition filed by him in the High Court was dismissed by the High Court in limine, inter alia, on the grounds that before his appointment as Chairman Service Tribunal, respondent No,1 was an eminent Advocate by profession. He has been appointed as Chairman of the Service Tribunal on contract for two years.
He has not been appointed as a Judge of the High Court or entitled to the salary, allowances, privileges etc., admissible to the Judge of the High Court and further that the competent authority is vested with the powers to appoint a person of eminent professional qualification in the relevant field on contract irrespective of the age limit. It is further opined by the High Court that in the light of the order of appointment, respondent No,1 cannot be even treated as a civil servant as defined in the Azad Jammu and Kashmir Civil Servants Act, 1976 and the Azad Jammu and Kashmir Service Tribunals Act, 1975 nor a Judge of the High Court as "defined in section 43 of the Constitution Act, 1974. This judgment of the High Court has been challenged in the present appeal.
3. The appellant who is also an Advocate by profession argued his case himself. According to him, the judgment passed by the High Court is bad in law, illegal and without lawful authority as the High Court has failed to appreciate the law in its true perspective. He particularly attacked para. 3 of the judgment under challenge whereby respondent No,1 was disclosed as an eminent Advocate by profession, qualified and eligible to be appointed' as Judge of the High Court at the time when he was appointed as Chairman of the Service Tribunal. The appellant further argued that on 18-4- 2001, when respondent No,1 was appointed as Chairman Service Tribunal, at that time his age was 63 years, 4 months and 13 days, because admittedly in the record his date of birth is entered as 5- 12-1937. Under subsection (5) of section 43 of the Act of 1974, a person cannot hold the office of Judge of the High Court beyond the age of 62 years. Respondent No,1 who had crossed 62 years age. On account of this infirmity could not be appointed as Judge of the High Court, therefor, he was also disqualified to be appointed as a Chairman Service Tribunal. He further argued that the notification of his appointment was passed by respondents in colourful exercise of jurisdiction beyond legal competence. According to him the High Court wrongly interpreted the relevant provisions, therefore, the judgment of the High Court is liable to be reversed. He supported his contentions by placing reliance upon a case titled Dr. Kamal Hussain and others v. Muhammad Siraj-ul-Islam and others (PLD 1969 SC 42). In this case, the appointments of respondent as Advocate-General was challenged in the light of the provisions contained under Article 94 of the Constitution of Pakistan, 1962, on the ground that the provisions relating to appointments of Judges of the High Court as well as of the Advocate-General are the same, therefore, if the retiring age of a Judge of the High Court is fixed at 60 years, a person who is appointed as Advocate-General cannot continue beyond this age. The facts of this case were that during the absence of Mr. Israr Hussain, Advocate-General East Pakistan, who was engaged before Run of Kach Tribunal at Geneva, one Jane-Alam, a Senior Government Pleader, was given charge of the office of said Advocate-General in addition to his own duties. During the time said Jan-eAlam was incharge of the office of Advocate-General, the elections of East Pakistan Bar Council were conducted. One Muhammad Siraj-ul-Islam, who lost the election, filed a writ of quo warranto under Article 98(2)(b) of the Constitution before the High Court whereby he required from successful candidates to show under what authority of law they were holding the public offices of the elected members of the Bar Council. The main contention was that the entire elections were void as these were convened and conducted by Mr. Jan-e-Alam who had illegally assumed the jurisdiction as ex-officio Chairman of the Bar Council which office he neither held nor was qualified to hold as he was above the age of 62 years. The learned High Court upheld this contention on the ground that Jan-e-Alam was disqualified to be appointed as Advocate-General as according to the record he was above 60 years of age. The reliance in this connection was made to Article 85(1) of the Constitution of Pakistan, 1962 which reads as follows:-- "The Governor of the Province shall appoint a person who is qualified to be appointed as a Judge- of the High Court to be Advocate-General for the Province"..
' On appeal the Supreme Court recalled the writ issued by the High Court without deciding this point as to whether on account of his age above 60 years the said Jan-e-Alam was disqualified to be appointed as Advocate-General. The judgment was set aside on the ground that the case in the light of surrounding circumstances was filed for the benefit of defeated candidates, therefore, while making the following observations, the appeal was accepted and the order of the High Court was set aside:-- "In the present case, considering all the circumstances, I cannot escape the feeling that Mr. Siraj- ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members of the Council was duly notified on the 20th of December, 1966. They have been in office discharging their duties since the 1st of January, 1967. The writ petition in the High Court was filed 9 months later on the 12th of September, 1967. The alleged disqualification of the appellants and the two respondents which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circunistances, I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court. Mr. Khundker, the learned counsel for the respondents has also contended that since the High Court has exercised its discretion in favour of the respondents, this Court should stay its hands and not interfere with that discretion. This Court does not and will not interfere where the High Court has exercised its discretion on sound judicial principles, but it will certainly intervene where it finds that the discretion has been exercised: in a manner which diverts the law into wrong channels by the formation of conclusions which are unsustainable in law.
' In the result, I would accept this appeal and recall the writ issued by the High Court. The respondents will bear the costs of the appellants in this case".
' This judgment has distinguishable features and has nothing common with the facts of the present case. It shall be discussed in detail in the coming part of this judgment.
4, Appellant Mr. Mujahid Hussain Naqvi, strenuously argued that section 43 of the Constitution Act of 1974 should be read alongwith section 3 of the Act of 1975. According to him, the culminating effect of both these provisions of law, if read together, would be that a person not qualified under subsection (5) of section 43 of the Act of 1974, to act as Judge of the High Court is also disqualified to act as Chairman of the Service Tribunal. According to the appellant if respondent No,1 could not be elevated as Judge of the High Court he is equally disqualified to act as Chairman of the Service Tribunal. He further argued that respondent No,1 by accepting less terms and conditions as Chairman Service Tribunal, in fact has tried to take undue benefit to which under law he is not entitled.
5. On the other hand Mr. Abdul Rashid Abbasi, the learned counsel for the respondents, argued that respondent No,1 has not been elevated as a Judge of the High Court nor has been given the same terms and conditions which under the Constitutional provisions are allowed to a Judge of the High Court. According to the learned counsel only such person can be appointed as Chairman Service Tribunal who fulfils other qualifications which have been laid down under the provisions of the Constitution Mt of 1974 for a Judge of the High Court. So far as the age is concerned, it is not the part of the qualification. He further argued that under the provisions of the Constitution Act of 1974, a person beyond 62 years of age cannot remain in office as a Judge of the High Court, however, a sitting Judge or even a retired Judge can be appointed as Chairman Service Tribunal which shows that a person can retain his posting as Chairman Service Tribunal beyond 62 years of age, therefore, if a person who otherwise is qualified to be appointed as Judge of the High Court but has crossed 62 years of age, can still be validly appointed as Chairman of the Service Tribunal. The learned counsel for the respondents further submitted that under the provisions contained in the Service Tribunals Act, 1975, besides a sitting Judge of the High Court, a retired Judge of the High Court or anyone out of persons possessing qualification to be appointed as Judge of the High Court, can be appointed as Chairman Service Tribunal. This shows that a person can retain his posting as Chairman Service Tribunal beyond 62 years of his age if he otherwise is qualified to be appointed as Judge of the High Court. The reliance was placed on a case titled G.D. Karkare, v. T.L.
Shevde and others (AIR 1952 Nagpur 330). In this case the appointment of respondent as Advocate-General was challenged on the ground that he had crossed the age of 60 years. While dismissing the writ petition it was laid down that all the provisions relating to a Judge of the High Court cannot be made applicable to the Advocate-General. It was finally opined in the light of first clause of Article 217 of the Indian Constitution, whereby it is laid down that a Judge of the High Court shall hold office until he attains the age of 60 years and this provision cannot be construed as one prescribing a qualification but the duration of the tenure for Judge of the High Court. It was finally opined that appointment -of respondent as Advocate-General is not bad because he possessed the qualifications which are laid down under the Constitution for the appointment of a Judge of the High Court. The learned counsel also placed reliance upon another authority from Indian jurisdiction titled Atlas Cycle Industries, Ltd. Sonepat v. Their Workmen (AIR 1962 SC 1100). In this case the appointment of Shri Avtar Narain Gujral Advocate as Industrial Tribunal for Punjab was challenged on the ground that the said Advocate was over 60 years of age, therefore, as Judge of the High Court cannot retain his office beyond 60 years, he was, thus also disqualified to be appointed as Industrial Tribunal for Punjab. It was finally resolved that age is not the part of the qualification, therefore, both qualification and age have been separately given place in the Constitution of India. It was further opined that a Judge of the High Court can be appointed out of the persons who possesses the qualification laid down under the Constitution but after. Becoming a Judge such person cannot hold office beyond 60 years of age. This provision is not for the holder of any other office, therefore, it was held that the age of a person to retain his office as such cannot be included as his qualification. The factor of age can be seen in the light of the office to which he is appointed. If a person having qualification laid down under the Constitution is appointed as a Judge of the High Court he cannot retain this office beyond 60 years.
6. According to the learned counsel for the respondents, a retired judge of the High Court can be appointed as Chairman of the Service Tribunal, therefore, a person who possesses the qualification for his elevation as Judge of the High Court can validly be appointed as Chairman of the Service Tribunal even if he has crossed 62 years of age.
7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. The moot point in the present case is whether respondent No,1 was not qualified to be appointed as Chairman of the Service Tribunal simply on the ground that he was over 62 years of age on the date when he was appointed as such. This objection can be attended to in the light of the provisions contained in the Service Tribunals Act, 1975, and subsection (3) of section 43 of the Constitution Act, 1974. Before attending this proposition, it appears useful to state that Service Tribunal has been established in Azad Jammu and Kashmir under section 47 of the Constitution Act of 1974, for the decisions of the disputes relating to the terms and conditions of service ice of persons employed in connection with the affairs of the Government and for matters connected therewith or ancillary thereto. The Service Tribunal consists of a Chairman and a Member. The dispute in the present appeal is about the private respondent who has been appointed as Chairman Service Tribunal. As interpretation of subsection 3(a) of section 3 of the Service Tribunals Act, 1975, is involved, therefore, the same is reproduced below:-- "(3) A Tribunal shall consist of
(a) A Chairman, being a person, who is or has been, or is qualified to be, Judge of the High Court".
8. Under this clause only such a person can be appointed as Chairman Service Tribunal who has been or is qualified to be a Judge of the High Court. The private respondent admittedly was or is not Judge of the High Court. The qualifications which have been prescribed under the Constitution Act, 1974, for the appointment of Judge of the High Court or Advocate-General are laid down under subsection 3 of section 43 of the Constitution Act, 1974, which provisions are reproduced in extenso:-- "(3) A person shall not be appointed as a Judge of the High Court or Advocate-General unless--
(a) he has for a period, or for periods aggregating, not less than ten years, been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan: Provided that the term 'High Court' herein shall include a High Court or an equivalent Court that existed at any time before the 14th day of August, 1947; or
(b) he has for a period of not less than ten years held a Judicial Office out of which not less than three years shall have been as District and Sessions Judge".
9. The appellant has no dispute that respondent No,1 was lacking ten years practice as an Advocate of the High Court. His objection is only that at the time when he was appointed as Chairman Service Tribunal, he could not be appointed as Judge of the High Court as at that time, he had crossed 62 years of age. This objection has been raised by him in the light of subsection (5) of section 43 of the Constitution Act, 1974, which for the convenience of reference is reproduced below:-- "(5) The Chief Justice or a Judge of the High Court shall hold office until he attains the age of sixty- two years unless he sooner resigns or is removed from office in accordance with law: Provided that the President may appoint a Retired Judge of any High Court of Pakistan to be the Chief Justice or a Judge of the High Court for a period not exceeding three years and such person shall hold office till he attains the age of sixty-five years".
10. We agree with the appellant that under this provision of the Constitution Act, there is implicit prohibition against appointment of a person as a Judge of the High Court who has attained the age of 62 years, because under subsection (5) of section 43 of the Constitution Act, 1974, the Chief Justice or a Judge of the High Court can retain his office till he attains the age of 62 years. It is important to note that qualification for the appointment as a Judge of the High Court or Advocate- General has been jointly provided under subsection (3) of section 43 of the Constitution Act, 1974, whereas duration of office has been fixed only for a Judge of the High Court. Under subsection (5) of section 43 no duration has been fixed for an Advocate-General. Almost the identical provisions containing joint qualification for the appointment of the Judge of the High Court and Advocate- General, stood incorporated in the Constitutions of Pakistan and India. In both the Constitutions the duration of the office stood separately provided for a Judge of the High Court leaving Advocate- General, therefore, it cannot be said that as qualification has been jointly provided for the appointment as Judge of the High Court and Advocate-General, therefore, Advocate-General cannot hold his office beyond 62 years. The appointment of one T.L. Shevde who was appointed as Advocate-General of the State of Madhia Pradesh was challenged in the High Court of Nagpur through Writ Petition No,76 of 1950 instituted on 27-11-1950, on the ground that he had crossed 60 years of age which is fixed for a Judge of the High Court to retain his office, therefore, his appointment was bad. Lengthy arguments were addressed and lot of case law was cited and discussed but it was finally resolved that qualifications for the appointment of a Judge of the High Court and Advocate-General have been fixed under the same clause of the Constitution whereas duration of the office of a Judge of the High Court alone has been fixed in a separate clause. It was finally laid down that a specific provision in the Constitution must be given effect to without any limitation and it was held that duration has been fixed only for a Judge of the High Court, it cannot be made part of the qualification and deprive the respondent, T.L. Shevde Advocate, from the office of Advocate-General merely on the ground that at the time of his appointment as Advocate- General he had crossed 60 years of age which is fixed for a Judge of the High Court to hold his office as such.
11. Now the question is whether subsection (5) of section 43 of the Constitution Act, is to be construed as one prescribing qualification for the appointment of Judge of the High Court/Advocate-General or as one prescribing duration of the office of Judge of the High Court.
Admittedly qualification and duration of the office for a Judge of the High Court have been separately provided under section 43 of the Constitution Act, 1974, therefore, the irresistible conclusion is that as the duration to hold office of a Judge of the High Court has been separately provided, therefore, the same is not the part of his qualification. The authority which the appellant has referred is not applicable to the present case because no doubt the qualifications for a Judge of the High Court and that of the Advocate-General are similar in the light of subsection (3) of section 43 of the Constitution Act, 1974, however, the Constitution contained a specific provision only about the duration of office for a Judge of the High Court. No such protection is available to the Advocate-General who can hold office during the pleasure of the Government, therefore, the argument that a person beyond 62 years cannot hold the office of Advocate-General has no force in it. The provisions contained in the Constitution must be given effect keeping in view the language applied thereto. If a person less than 60 years is appointed as Advocate-General he cannot insist that he cannot be removed from his office till he attains the age of 62 years because his qualifications are the same which are applicable to a Judge of the High Court who can retain his office as of right till he attains 62 years of age. As said earlier, the Advocate-General under the provisions of the Constitution Act can be appointed out of those persons who fulfils the qualification laid down for a Judge of the High Court but he can retain his office till the time he has the confidence of the Government. If he loses the confidence of the Government, he cannot retain his office merely on this ground that a man appointed as Judge of the High Court having same qualification can- retain his office till he attains the age of 62 years. The age has been prescribed for a Judge to guarantee his tenure so that he may work idependently without any fear or favour and without the influence of any extraneous consideration. Under subsection (3) of section 3 of the Service Tribunals Act, 1975, a Judge of the High Court or a retired Judge of the High Court or any person who is qualified to become a Judge of the High Court, can be validly appointed as Chairman of the Service Tribunal. It is an admitted principle of interpretation of statute or rules that these must be taken into consideration as a whole and no part or word of it should be omitted from consideration and that all attempts should be made to reconcile various provisions of the statute for rational meaning avoiding redundancy to any provision thereof.
12. Judging the present case from the above-referred principle of interpretation, we are unable to accept the interpretation which has been put forward by the appellant, that a retired Judge of the High Court may be requested to sit and act as Chairman of the Service Tribunal but a person who fulfils, the requirement of the Judge of the High Court or Advocate-General cannot be allowed to act as Chairman Service Tribunal as he had attained the age of 62 years. The distinction between the qualification of a person qualified to be appointed as Judge of the High Court and tenure of office of the Judge of the High Court have been separately provided in the Constitution Act, therefore, it can be said that in the language of the Constitution, a Judge does not lose the qualification prescribed for the office of the Judge of the High Court or an Advocate-General on the attainment of the age of 62 years. Respondent No,1 was fulfilling the requirement for his elevation as Judge of the High Court when he was appointed as Chairman Service Tribunal. As a retired Judge could also be appointed as a Chairman Service Tribunal, therefore, there was no disqualification for respondent No,1 to hold this post. The Government, therefore, was justified in law in appointing him as Chairman Service Tribunal. The case cited by the appellant titled Dr. Kamal Hussain and others v. Muhammad Siraj-ul-Islam and others (PLD 1969 SC 42), has no application to the facts of the present case because a Judge of the High Court or an Advocate-General can be taken out of the Advocates who are on the role of the High Court as such for a period of 10 years or out of those Judicial Officers who have service exceeding 10 years with three years service as District and Sessions Judge at their credit but the Judge of the High Court and the Advocate- General are not entitled to the same privileges, and protection under the Constitutional provisions.
An Advocate-General can be removed at any time irrespective of his age if he loses the confidence of the Government but a Judge of the High Court irrespective of the pleasure of the Government can retain his office till he attains the age of 62 years. In the same way the privileges and emoluments of the Judge of the High Court have been provided under the law whereas the terms and conditions of the office of the Advocate-General are fixed by the Government and the incumbent by mutual agreement. This authority in view of these distinguishable features has no application, as said earlier, on the facts of the present case.
' In view of the above discussion, this appeal having no merit, stands dismissed.