' The petitioner was serving in Northern Areas as District and Sessions Judge when vide notification dated 14-5-2001 he was appointed as Presiding Officer of the Accountability Court Northern Areas with immediate effect and till further order, It was further noted in the notification that the said Officer shall perform the function of Accountability Court in addition to his own duties of District and Sessions Judge. On 26-5-2001 the petitioner assumed the charge of the said post. Now as it happened the, petitioner had to retire as District and Sessions Judge w,e,f, 1-1-2002. Vide letter dated 7-11-2001 he informed the Chief Justice of Chief Court Northern Areas, Gilgit that he has to retire as District and Sessions Judge on 31-12-2001 while the terms and conditions of the post of Judge Accountability Court have not so far been conveyed to him. He, therefore, requested for necessary action. He repeated his request on 19-11-2001. Vide Office Memo., dated 20-11-2001 Secretary Home, Service, S&GAD and Law Department, Northern Areas. Recommended the appointment of the petitioner as Judge of Accountability Court Northern Areas for 3 years after, his retirement from the service i,e, 31-12-2001. Vide letter dated 31-12-2001, with reference to section 5- A(3) of the NAB Ordinance, 1999 (as amended) the petitioner exercised his option to continue the service as NAB Judge for a period of 3 years from the date of initial appointment as Judge He repeated his request on 3-1-2002. Vide notification dated 4-1-2002 the petitioner was re-appointed as District and Sessions Judge, Northern Areas on contract basis for a period of six months. It was further stated that he will continue to work as Presiding Officer of the Accountability Court and Anti- Terrorism Court Northern Areas in addition to his own duties. Vide Office Memo., dated 11-4-2001 issued by Kashmir Affairs and Northern Areas, States and Frontier Regions Divisions, Government of Pakistan, the status of the said post was placed at par with that of District and Sessions Judge w,e,f, 24-4-2001. However, special allowance of Rs,10,000 was allowed. Vide notification dated 20-7-2002 respondent No,6 District and Sessions Judge Northern Areas was appointed as Presiding Officer Accountability Court in his own pay and scale for a period of 3 years till further orders. End result was that the petitioner ceased to be Judge of the said Court.
2. Official respondents have filed comments. The plea taken is that since the petitioner was given additional charge of the said Accountability Court, he would not be protected by the provision of section 5-A(3) of the NAB Ordinance 1999.
3. Learned counsel for the petitioner argues that section 5-A(3) was added vide Amendment Ordinance No,XXXV of 2001 w,e,f, 10-8-2001 and that the said amendment was made in compliance with the directions of the Hon'ble Supreme Court in the ease of Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607). According to the learned counsel the judgment was pronounced on 24-4-2001 and amendment was made on 10-8-2001. The precise contention is that the said judgment had taken the field when notification dated 14-5-2001 appointing the petitioner as Judge of Accountability Court Northern Areas was issued with immediate effect and till further order and as such tenure of his client stood protected under the said section 5-A(3) of NAB Ordinance, 1999.
The learned Deputy Attorney General of Pakistan has taken position in line with comments filed by the official respondents. Learned counsel for the respondent No,6 also adopts the same line of argument and states that the petitioner was never appointed as Judge of Accountability Court within the meaning of said section 5-A(3) of NAB Ordinance, 1999.
4. I have considered the respective contentions of the learned counsel for the parties and learned Law Officer in the light of factual position stated above. There is no cavil that the petitioner was working as District and Sessions Judge Northern Areas when he was appointed as Judge of Accountability Court, Northern Areas vide Notification dated 14-5-2001. I may reproduce here the said section 5-A of the said NAB Ordinance, 1999.
"(5A) Tenure etc. Of a Judge:- (1) A Judge of a Court who is a serving District and Sessions Judge shall hold office for a period of three years from the date of his appointment as such Judge.
(2) An incumbent Judge who on the 24th April, 2001 is not a serving District and Sessions Judge and has exercised option to serve as a Judge shall continue for a period of three years from the date of his initial appointment as such Judge.
(3) An incumbent Judge who is a serving District and Sessions Judge and retires while serving as such Judge shall, subject to his option, continue for a period of three years from the date of his initial appointment as such Judge.
(4) A Judge shall not be removed or transferred from his office before the completion of the term of his office without consultation of the Chief Justice of the High Court concerned."
' Now section 2(g) defines Court to mean an Accountability Court which shall consist of a Judge who shall be appointed by the President of Pakistan, in consultation with the Chief Justice of the High Court concerned, and shall hold office for a period of three years on such terms and conditions as may be determined by the President.
5. Section 2(h) of the said Ordinance defines a Judge to mean a Judge of the Court who shall be a.
Serving District and Sessions Judge, who was. Appointed Judge of the Court before the Commencement of the National Accountability Bureau (Amendment) Ordinance, 2001.
6. Going by the said definitions of a Court and Judge in the said Ordinance, the petitioner does fall in the later part of the definition of the term "Judge" 'in the said Ordinance. He was serving District and Sessions Judge who was appointed Judge of the said Court before 10-8-2001, which is date of commencement of the said Amendment Ordinance XXXV 2001. Now reading section 2(h) in conjunction with section 5-A(3) of the Ordinance, subsection (1) of section 5-A provides that Judge of a Court who is serving District and Sessions Judge shall hold office for a period of three years from the date of initial appointment as Judge. Subsection (2) would not be relevant. Subsection (3) provides that incumbent Judge who is serving District and Sessions Judge and retires while serving as such Judge shall, subject to his option, continue for a period of three years from the date of his initial appointment as such Judge.
7. Now the petitioner was an incumbent Judge when section 5-A was introduced and it is matter of record that he did exercise his option on 3-12-2001. This being so, he was to continue for a period of three years from the date of his initial appointment as such Judge i,e, 14-5-2001.
8. Coming to the said contention of the learned Deputy Attorney General and learned counsel for respondent No,6. I do not find any condition spelt out either in section 2(h) or section 5-A of the said Ordinance that a serving District and Sessions Judge who is duly appointed as a Judge of the said Court will not be deemed to be Judge of the said Court only because he was performing his duties as District and Sessions Judge and additionally performing his duties as a Judge of the said Court. Fact remains that the petitioner was appointed as Judge of the said Court vide notification dated 14-5-2001.
9. Now what happened thereafter was that probably all concerned including the petitioner remained under impression that his continuance as a Judge of the said Court is dependant upon his continuation in the office of the District and Sessions Judge. However, section 5-A(3) does not leave any manner of doubt that subject to the option to be exercised by the incumbent Judge, notwithstanding his retirement as District and Sessions Judge, he is to continue as said Judge for a period of three years from the date of his initial appointment. I also deem it proper to reproduce here paras 193 and 194 from the judgment of Chief Justice Irshad Hassan Khan (as his lordship then was) appearing at page 884 of the aforesaid report:-- "(193) We are of the view that for smooth and effective functioning of the Accountability Courts all the Judges should be serving District and Sessions Judges qualified to be appointed as Judges of the High Court. They should be appointed for a period of three years in consultation with the Chief Justice of the concerned High Court and not with the Chief Justice of Pakistan as contemplated in section 5(g) of the NAB Ordinance. During their term of appointment as such they shall not be transferred to any other place nor removed from service except on ground of misconduct, or physical or mental infirmity by the competent authority i,e, the High Court concerned, after following the procedure prescribed in the relevant rules in that regard. They shall be entitled to same remuneration, privileges, facilities and allowances as are admissible to their .Counterparts who are performing functions in respect of Courts and Tribunals established by the Federal Government. They shall not be paid the salaries and privileges as are admissible to Judges of the High Court except security arrangements if and when required having regard to the nature of their work. Remuneration already drawn for the period they performed their functions as Judges of the Accountability Courts shall not be recovered being hit by the doctrine of past and closed transaction. Further, appointment and posting as Judge of Accountability Court shall not debar such Judge from being elevated as Judge of a High Court if so appointed in terms of Article 193 of the Constitution.
' (194) The present incumbents/Judges of the Accountability Courts who are not serving District and Sessions Judges shall be given an option to serve as such on the last pay/salary drawn at the lime of their retirement as District and Sessions Judges for the remainder part of their term of three years otherwise their services shall be dispensed with by giving them three months salary."
Thus examining said provisions in the light of said observations of the Hon'ble Supreme Court of Pakistan, I conclude that the petitioner having been appointed as Judge of the said Court on 14-5- 2001 while serving District and Sessions Judge, having exercised his option on 3-12-2001 was entitled to continue as Judge of the said Court for a period of three years from the date of his initial appointment as such Judge. The act of the official respondents in not allowing the petitioner to complete his said tenure secured under the said judgment of the Hon'ble Supreme Court as incorporated in section 5-A(3) of-the NAB Ordinance 1999 is Without lawful authority and is accordingly declared as such. This writ petition is allowed. The respondents are directed to reinstate the petitioner 'as a Judge of the Accountability Court, Northern Areas, with immediate effect and he shall continue as such .Judge in terms of the said judgment of the Hon'ble Supreme Court and. Section '5-A (3) of the NAB Ordinance, 1999 till such time he completes three years of service to be counted w,e,f, 14-5-2001 after adjusting the period between 1-7-2002 and the date when he resumes his office. Since the petitioner is to complete his tenure, there is no occasion for allowing back benefits. No order as to costs.