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1991 M L D 2681

[Supreme Court (AJ&K)]


Before Sher Zaman Choudri, Actg. C.J. and Khawaja Muhammad Saeed, J
GHULAM MUSTAFA MUGHAL and another---Petitioners
versus
AZAD GOVERNMENT OF THE STATE OF J&K through Chief Secretary,
Muzaffarabad and 5 others---Respondents
Writ Petition No.13 of 1991, decided on 11th August, 1991.
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 43(6)---Appointment of Additional Judge of High Court---Mode of appointment---
Essentials---Tenure---Additional Judge of High Court would be appointed temporarily when,
either any Judge was absent or was unable to perform his functions due to his bad health or some
other cause---Such appointment would continue for such period for which permanent Judge was
absent or was unable to perform his functions as Judge of the High Court---Qualifications
required of a person for appointment as Additional Judge of High Court were the same as that of
permanent Judge---Oath of office of two categories of Judges was also the same and they were
equal in status---Additional Judge could be adjusted as a permanent Judge--Mode of appointment
and qualifications for appointment of Additional Judge were the same as those for appointment
of a permanent Judge under S. 43 (2-A)(a) of the Azad Jammu and Kashmir Interim Constitution
Act, 1974, as no other mode had been provided specifically in regard to Additional Judge.
A I R 1982 SC 149; 1989 C L C 1369; P L D 1968 Lah. 72; A 1 R 1956 Mad. 183; P L D 1976
SC 315; A I R 1937 All. 588; P L D 1979 Kar. 653; P L D 1961 Pesh. 40; P L D 1973 Lah. 778
and A I R 1982 SC (Ind.) 149 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 43---Appointment of Judges of High Court made on previous occasions following
Constitutional requirements---Validity---Although appointment of Judges on previous occasions
had been made without advice of Azad Jammu and Kashmir Council or without consultation
with Chief Justice, but at relevant time, no person having challenged legality of such
appointments, previous practice could not be given weight over Constitutional provisions.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 43---Appointment of Additional Judges of High Court---Validity---One of the Additional
Judges was appointed by the President on the advice of Azad Jammu and Kashmir Council---
President's note also showed that he had consulted Chief Justice for appointment of Additional
Judge concerned---Order of appointment of such Judge, being in conformity with Constitutional
provisions was valid.
M.D. Tahir v. Federal Government 1989 C L C 1369; Muhammad Sharif v. Federation of
Pakistan P L D 1988 Lah. 725; Government of Punjab v. Naila Begum P L D 1987 Lah. 336 and
Federal Government v. M.D. Tahir 1990 SCMR189ref.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
---Ss. 43 & 44(5)---Appointment of Additional Judges of High Court not in conformity with
Constitutional provisions---Validity---Two Additional Judges of High Court were appointed
without consultation with Azad Jammu and Kashmir Council and the Chief Justice and their
tenure as Additional Judges of High Court was till they attained age of retirement---Notification
of appointment showed that such Additional Judges had been appointed permanently against
some substantive posts, their appointment was thus, in contravention of Constitutional provisions
contained in S.43(2) & (6) of Azad Jammu and Kashmir Interim Constitution Act, 19 74---
Additional Judges whose appointment was not in conformity with Constitutional provisions,
having taken oath of office of Additional Judges of High Court, no relief could be granted
against them in view of the bar, contained in sub-clause (5) of S.44 of the Act.
Abrar Hussain v. Government of Pakistan P L D 1976 SC 315 rel.
Raja Muhammad Hanif Khan for Petitioners.
Barrister Aitzas Ahsan and Muhammad Abdul Khaliq Ansari for Respondents Nos.1 to 5.
Sajid Hussain Malik, Section Officer, Representative of Respondent No.6 in person.
Date of institution: 18th February, 1991.
ORDER
KHAWAJA MUHAMMAD SAEED, J.--The petitioners who claim to be the President and
Secretary of the Central Bar Association Muzaffarabad respectively have filed the writ petition
to challenge the correctness and validity of the Ordinance promulgated on 19th of January, 1991
whereby amendment in Section 5(1) of the Azad Jammu and Kashmir Courts and Laws Code
Act was effected and two Notifications which were issued on 21st and 23rd of January, 1991
respectively whereby respondents Nos. 3 to 5 were appointed as Additional Judges of the Azad
Jammu and Kashmir High Court.
2. Necessary facts giving rise to the present controversy briefly stated are that during the absence
of the President of Azad Jammu and Kashmir when he was abroad, the Speaker of Azad Jammu
and Kashmir Legislative Assembly assumed the office of the President under Section 8 of the
Azad Jammu and Kashmir Interim Constitution Act, 1974. On 19th of January, 1991, the Acting
President promulgated an Ordinance called as "The Azad Jammu and Kashmir Courts and Laws
Code (Amendment) Ordinance, 1991", whereby amendment was carried out in Section 5(1) of
the aforesaid Act. Subsequently, on 21st of January, 1991 a Notification was issued, whereby
respondents Nos.4 and 5 who were and still are posted as Law Secretary and Chairman Azad
Jammu and Kashmir Service Tribunal, respectively, were appointed as Additional Judges of the
Azad Jammu & Kashmir High Court. Through another Notification dated 23rd of January, 1991,
respondent No.3 was elevated and appointed as Additional Judge of the High Court by the
Acting President of Azad Jammu and Kashmir.
3. On his arrival back from abroad the President of Azad Jammu and Kashmir in exercise of his
powers conferred upon him under Section 41(2)(6) of the Interim Constitution, issued a
Notification on 31st of January, 1991, whereby he withdrew the amendment effected in the
Courts and Laws Code Act. Two other Notifications were separately issued by him on the same
day whereby he cancelled the Notification issued previously on 21st and 23rd of January, 1991,
whereby respondents Nos.3 to 5 were appointed as Additional Judges of the High Court.
4. The Government of Azad Jammu and Kashmir issued a Notification on 3rd of February, 1991,
whereby all the Notifications issued by the President of Azad Jammu and Kashmir, were
declared void for having been issued in violation of the relevant provisions contained in Section
7 of the Constitution. Through this Notification it was declared that Ordinance
No.041/86/LD/91, dated 19th of January, 1991 and Notifications Nos.3/7/91, OAD, dated 21st of
January, 1991 and No3/8/91, OAD, dated 23rd of January, 1991 issued by the Acting President
previously were valid and still subsisting.
5. In the aforesaid background through the present writ petition, the petitioners challenged the
legality and correctness of the aforesaid Notifications by invoking extraordinary writ jurisdiction
of this Court.
6. It was claimed in the writ petition by the petitioners that appointments of respondents Nos.3 to
5 as Additional Judges of the Azad Jammu and Kashmir High Court could only be made by the
President of Azad Jammu and Kashmir on the advice of the Azad Jammu and Kashmir Council
after consultation with the Chief Justice of the Azad Jammu and Kashmir High Court whereas
respondents Nos.3 to 5 were appointed as Additional Judges of the High Court in total disregard
of the relevant Constitutional provisions. The appointment of the Additional Judge or Judges was
un-Constitutional as the appointment of a permanent Judge of the High Court was still to be
made which had fallen vacant due to the appointment of Mr. Justice Sardar Muhammad Ashraf
Khan as Judge of the Supreme Court. Therefore, without first appointing a person as permanent
Judge against the vacant post in accordance with Constitutional provisions, there was no
justification to appoint Additional Judges in the High Court, as the appointment of Additional
Judge or Judges is always made in addition to the substantive post or posts. The appointments of
Additional Judges under Section 43(5) of the Constitution are of temporary nature whereas
respondents Nos.4 and 5 through the impugned Notifications have been in fact appointed as
permanent Judges as they will continue till they attain the age of their retirement. This shows that
these Additional Judges have been appointed permanently against the substantive posts whereas
procedure laid down for the appointment of Judge has not been followed. It was further pleaded
that the President was legally competent to withdraw the Ordinance and he had withdrawn the
amended Ordinance of 1991; whereby a justification was created for the appointments and
adjustments of respondents Nos.3 to 5 as Additional Judges of the High Court by carrying out
the amendment in Section 5(1) of the Courts and Laws Code Act. It was further pleaded that the
respondents Nos. 3 to 5 are holding the posts of Additional Judges of the High Court in violation
of the Constitutional provisions.
7. The respondents filed their written statements wherein besides repudiating the averments
made in the writ petition they raised the following preliminary objections:--
(i) That no writ of quo warranto is maintainable against a Judge of the High Court under Section
44(5) of the Azad Jammu and Kashmir Interim Constitution Act of 1974;
(ii) that the petitioners have no locus standi to file the present writ petition; and
(iii) that writ petition has been filed with a mala fide intention to serve the ends of some other
person.
8. Besides these objections, it was contended by the respondents that appointments of the
respondents as Additional Judges of the Azad Jammu and Kashmir High Court have been made
in strict conformity with law after complying with all requirements of Interim Constitution.
Certain documents were appended with the written statement in support of preliminary objection
No.3. But as the concerned person has not been impleaded as party in the writ petition, therefore,
objection No.3 listed above and documents relating thereto need not be discussed herein. Even
during the course of arguments the learned counsel for the respondents were not allowed to argue
this point as it would have offended the celebrated principle of audi alteram partem.
9. From the respondents' side, respondents Nos.3 and 4 have also filed their affidavits in support
of their respective written statements. During the pendency of this writ petition an application
was moved seeking amendment in the writ petition on 26th of May, 1991 wherein two more
Notifications issued by the Azad Jammu and Kashmir Government on 4th of May, 1991 and 18th
of May, 1991 were placed on file. As no objection was raised from the opposite side, therefore,
this application was allowed and the Notifications so placed on the file as AZ/1 and AZ/2 were
also discussed by the learned counsel for the parties during the course of their arguments. It will,
therefore, be convenient to mention these documents at this stage.
10. Through the Notification AZ/1 the President of Azad Jammu and Kashmir has been pleased
to reaffirm the appointment of respondents Nos.4 and 5 as Additional Judges of the High Court
and was further pleased to withdraw the Notification issued by him on 31st of January, 1991.
Through Notification AZ/2 the President has withdrawn the Notification dated 31st of January
1991 and has reaffirmed the appointment of respondent No. 3 as Additional Judge of the High
Court in the terms of the Notification dated 23rd of January, 1991.
11. We have heard the learned counsel for the parties and have also perused the entire record of
the case made available alongwith this writ petition by the parties.
12. The learned counsel for the petitioners has vehemently argued that:--
(i) A Judge of the High Court which includes an Additional Judge under the Interim Constitution
Act, can be appointed by the President on the advice of the Azad Jammu and Kashmir Council
after consultation with the Chief Justice of the High Court. Under Section 43 (2-A)(a) of the
Interim Constitution. respondents Nos.3 to 5 have been appointed as Additional Judges of the
High Court, without complying with the abovementioned provisions of the Interim Constitution;
(ii) an 'Additional Judge can only be appointed when a Judge of the High Court is either absent
or is unable to perform his functions due to illness or some other cause. As none of the Judges of
the High Court was absent or unable to perform his functions, at the time when the impugned
Notifications were issued, therefore, there was no justification to appoint respondents Nos. 3 to 5
as Additional Judges of the High Court;
(iii) the appointment of Additional Judge or Judges even otherwise, is against the spirit of the
Interim Constitution Act, as no permanent Judge has been appointed so far against the vacancy
caused by the appointment of Mr. Justice Sardar Muhammad Ashraf Khan, as Judge of the Azad
Jammu and Kashmir Supreme Court. It was also emphasised that appointment of Additional
Judge or Judges is always in addition to the substantive post or posts; and
(iv) amendment in the Courts and Laws Code Act was effected by respondent No.4, in his
capacity as Secretary Law for his personal benefit.
13. About respondent No.3, it was argued that even though in the light of Ex.RS/1, it is found
that advice of the Azad Jammu and Kashmir Council was secured and conveyed to the President
of Azad Jammu and Kashmir for his appointment as Additional Judge of the High Court but the
President wrote a note on the same advice in the following words:--
The above note of the President thus indicates that the Chief Justice was not consulted at the
relevant time. Therefore, his elevation as Additional Judge of the High Court, despite the Advice
of the AJ&K Council was against the spirit of Interim Constitution Act.
14. The learned counsel for the petitioners in support of his submission, relied on A I R 1982 SC
149 (page 883) para. 532, 1989 C L C 1369 para. 5, P L D 1968 Lah. 72, A I R 1956 Mad. 183
and "Amjad Hussain and 4 others v. Ghulam Rasool, decided by the Azad Jammu and Kashmir
Supreme Court on 16th of February, 1991. In the light of this authority, it was argued by the
learned counsel for the petitioners that as held by the Supreme Court, the appointment of a Judge
can be challenged by seeking a writ of quo warranto.
15. The learned counsel for the respondents, on the other hand, strenuously argued that under
Section 44(5) of the Constitution, no writ of quo warranto was maintainable against a Judge of
the High Court. According to Mr. Aitzaz Ahsan, learned counsel for the respondents, a Judge
and the High Court are inseparable from each other. Therefore, the Court cannot exist without a
Judge and vice versa. In this connection he relied on P L D 1976 SC 315, A I R 1937 All. -588. P
L D 1979 Kar. 653, P L D 1961 Pesh. 40 and P L D 1973 Lah. 778, wherein it was held that one
Judge cannot pass an order against any other Judge.
16. The questions raised in this petition are of tar-reaching fundamental importance touching the
interpretation of Constitutional provisions, relating to the appointments of Judges of the Superior
Court and also the powers of this Court under Section 44 of the Act, in the light of immunity
Clause (5) of the same Section.
17. At the very outset of this order, we may observe that there are two points needing resolution
in the light of the lengthy arguments of the learned counsel for the parties who admittedly
worked very hard and cited numerous authorities. The crux of the controversy in the light of the
pleadings of the parties and the arguments addressed by the learned counsel is:--
(a) Whether the writ petition is maintainable keeping in view the bar contained in Section 44(5)
of the Constitution Act; and
(b) whether the orders of appointments of the respondents Nos.3 to 5 as Additional Judges of the
High Court are in accordance with the Constitutional provisions.
18. All the three respondents have been appointed as Additional Judges of this Court under
Section 43(6) of the Act. Under Section 2 of the Act, the term "Judge" in relation to the Supreme
Court and High Court, has been defined as under:--
"`Judge' in relation to the Supreme Court of Azad Jammu and Kashmir or the High Court,
includes the Chief Justice of the Supreme Court of Azad Jammu and Kashmir or, ac the
case may be, High Court and also includes an Additional Judge of the High Court."
In the light of this definition an Additional Judge is a Judge of the High Court within the
meaning of Section 2 of the Act. Even though in the Act, the modes of appointment and
qualification for the appointment of an Additional Judge have not been given. But as, an
Additional Judge discharges the functions of the same character as a permanent Judge, there is
no difference either in the status and other incidents of the office of the two. The only difference
is that an Additional Judge is appointed under Section 43(6) of the Act by reason of some
contingency of inability of Judge to perform functions due to illness, absence or some other
cause which have been mentioned in subsection (6) of Section 43 of the Act. The same provision
being relevant is reproduced below for the convenience of the reference:--
"43.(6) If at any time any Judge of the High Court is absent or is unable to perform his
functions due to illness or some other cause, the President may appoint a person qualified
for appointment as a Judge of the High Court to be an Additional Judge of the High Court
for the period for which the Judge is absent or unable to perform his functions."
Keeping in view the above provisions of the Constitution, an Additional Judge may be appointed
temporarily when, either any Judge is absent or is unable to perform his functions due to his bad
health or some other cause. This appointment shall continue for the period for which the
permanent Judge is absent or is unable to perform his functions as Judge of the High Court.
19. In "S.P. Gupta v. Union of India and others" reported as A I R 1982 SC 149, while discussing
the status of an Additional Judge, it was opined that an Additional Judge is not a Judge on
probation. He is not appointed on terms of being confirmed if found suitable. It was observed at
page 532 (para. 883) as:---
"An Additional Judge discharges functions of the same character as the permanent Judge.
There is no difference whatever between the two in status and the other incidents of
office, except that an Additional Judge can hold office only for the period specified in the
warrant of his appointment."
20. In India if by reason of any temporary increase in the business of the High Court or by reason
of any work in any such High Court, it appears to the Governor-General that number of Judges
of the High Court should be for the time being increased, the Governor may under Article 224 of
the Constitution of India appoint persons duly qualified for the appointment as Judges to be
Additional Judges of the High Court for such period not exceeding two years. It means that in
India a maximum tenure of an Additional Judge cannot exceed two years as is specified in
Article 224 of its Constitution. Under separate Articles even in Pakistan, the President was
authorised to appoint a person qualified for the appointment as Judge to be an Additional Judge
of the High Court under Article 96 of the Constitution of Islamic Republic of Pakistan of 1962,
and even under present Constitution of 1973. Through Article 197, the President is empowered
to appoint a person duly qualified as Additional Judge of the High Court through the same mode
which is applicable for the appointment of a permanent Judge. Article 96 of 1962 Constitution
and Article 197 of the Constitution of 1973 of Islamic Republic of Pakistan are reproduced
below in extenso for further discussion:--
"Article 96 of 1962 Constitution.--If, at any time-
(a) the office of a Judge of a High Court is vacant;
(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to
illness or some other cause; or
(c) for any reason it is necessary to increase the number of Judges of a High Court,
the President may appoint a person qualified for appointment as a Judge of the High Court to be
an Additional Judge of the High Court for such period as the President may determine, being a
period not exceeding such period, if any, as may be prescribed by law."
"Article 197 of the Constitution of 1973.--At any time when----
(a) the office of a Judge of a High Court is vacant; or
(b) a Judge of a High Court is absent or is unable to perform the functions of his office due to
any other cause; or
(c) for any reason it is necessary to increase the number of Judges of a High Court, the
President may, in the manner provided in clause (1) of Article 193, appoint a person qualified for
appointment as a Judge of the High Court to be Additional Judge of the Court for such period as
the President may determine, being a period not exceeding such period, if any, as may be
prescribed by law."
21. The only difference in two provisions of these Constitutions is that under 1973 Constitution,
it is mentioned that the President may, in the manner provided in Clause (1) of Article 193
appoint a person qualified for the appointment of Judge of the High Court to be Additional Judge
of the High Court for such period as the President may determine, being a period not exceeding
two years. Mode of appointment was not given under Article 96 of 1962 Constitution. In our
Interim Constitution Act, 1974, the mode of appointment of a permanent Judge has been given in
Section 43 (2-A)(a). Under subsection (6) of the same Section, an Additional Judge can be
appointed almost on identical grounds which have been given in Pakistan Constitution. But no
mode has been given for the appointment of the Additional Judge.
22. It was argued by Mr. Aitzaz Ahsan, the learned counsel for the respondents that due to the
conscious omission, the mode of appointment of an Additional Judge has not been given in the
Constitution. He was, therefore, of he view that it is not necessary that an Additional Judge
should be appointed on the advice of the Azad Jammu and Kashmir Council after consultation
with the Chief Justice as is provided under Section 43(2-A)(a) of the Constitution for a
permanent Judge.
23. We cannot agree with the learned counsel as except that tenure of the Additional Judge is
limited depending on the existence of exigency mentioned in Article 43(6), the position and
power of an Additional Judge and a permanent Judge are the same. Qualification required of a
person for appointment as an Additional Judge of the High Court are the same as that of
permanent Judge. The oath of the office which a permanent Judge has to take before assuming
the office is also the same for an Additional Judge. A person who is appointed as an Additional
Judge, he should be a man of character, integrity and legal ability as is required in cases of a
permanent Judge. Both Additional Judges and permanent Judges are equal in status. Even an
Additional Judge can be adjusted -as a permanent Judge. Therefore, in our view, under our
Constitution too, the mode of appointment and qualification for appointment of an Additional
Judge are the same as those for the appointment of a permanent Judge under Article 43(2-A(a)
because no other mode has been provided specifically in this behalf.
24. The learned counsel for the respondents have referred to certain orders of appointments
which were made previously by the Azad Jammu and Kashmir Government. No doubt, all these
appointments were made without the advice of the Azad Jammu and Kashmir Council or without
consultation with the Chief Justice but as at the relevant time, no person had challenged the
legality of these appointments, as such the previous practice cannot be given weight over the
Constitutional provisions. The arguments of the learned counsel for the respondents in this
regard stand repelled.
25. For the true perception of the appointment of respondents Nos.3 to 5 as Additional Judges of
the High Court, it will be advantageous to reproduce below the Notifications issued on 21st and
23rd of January, 1991:--
NOTIFICATION
No.3/7/91-O.A.D.--In exercise of the powers conferred by subsection (6) of Section 43 of the
Azad Jammu and Kashmir Interim Constitution Act. 1974, the President, Azad Jammu and
Kashmir is pleased to appoint Messrs Sardar Muhammad Sajawal Khan. Chairman, Service
Tribunal and Muhammad Siddique Farooqi, Law Secretary, as Additional Judges of the High
Court for the period for which they are eligible to hold the office of the Judge, High Court.
2. This Notification shall not affect their present appointments and they shall, after entering upon
the office of the Additional Judges, High Court, continue to perform the functions of the
Chairman, Service Tribunal and the Law Secretary, respectively.
NOTIFICATION
No.3/8/91-OA.D:------In exercise of the powers conferred by subsection (6) of Section 43 of the
Azad Jammu and Kashmir Interim Constitution Act, 1974, the President is pleased to appoint
Mr. Muhammad Riaz Akhtar, Advocate, Mirpur as Additional Judge of the High Court for the
period for which Mr. Justice Basharat Ahmad Sheikh remains posted as Ad hoc fudge, Supreme
Court.
This notification shall take effect on and from the date Mr. Muhammad Riaz Akhtar takes upon
himself the execution of his office as such Additional Judge."
26. Respondent No.3 has contended that he was appointed as Additional Judge on the advice of
the Azad Jammu and Kashmir Council after consultation with the Chief Justice of the High
Court. He has supported this contention through affidavit and has also attached an attested copy
of the advice and orders which were passed on that advice as Annexure RS/1. This document
being relevant is reproduced below for guidance:--
"Dear Mr./President
Kindly refer to your letter of 2nd September, 1990 regarding appointment of Judges in the
Superior Courts of Azad Jammu and Kashmir.
2. I have the honour to convey the advice of the AJ&K Council as under:--
1. Sardar Muhammad Ashraf Khan, Judge High Court who is due to retire on 12-9-1990 may be
appointed as permanent Judge in the Supreme Court of AJ&K.
2. Mr. Manzoor Hussain Gilani, the former Advocate-General of AJ&K may be appointed as
Permanent Judge in the High Court of AJ&K.
3. Ch. Muhammad Riaz Akhtar an Advocate from Mirpur may be appointed as Additional Judge
in the High Court of AJ&K.
With kind regards.
Sd/-
Yours sincerely,
(AHMED SADIK)
27. It is clear from RS/1 that in fact the advice of the Azad Jammu and, Kashmir Council was
conveyed to the President of Azad Jammu and Kashmir by the Secretary Azad Jammu and
Kashmir Council on 5th of September, 1990. On this advice, the President on the same date,
wrote that orders be issued in the light of the advice. He also wrote a note that he had discussed
the matter with the Chief Justice for the appointment of respondent No.3 as Additional Judge.
Therefore, the order of appointment of respondent No.3 as Additional Judge of the High Court is
in conformity with the Constitutional provisions.
28. About respondents Nos. 4 and 5 it was contended by the learned counsel for the petitioners
that they have been appointed as Additional Judges of this Court on the advice of the Prime
Minister. Therefore, the appointments made on the advice of the Prime Minister are bad in law
and not sustainable. He supported his viewpoint by relying on a case titled "M.D. Tahir v.
Federal Government" reported as 1989 CLC 1369 wherein it was held that:----
"As regards the absence of the advice of the Prime Minister, similar argument was
advanced before a Full Bench of this Court, in the case of "Muhammad Sharif v.
Federation of Pakistan" (P L D 1988 Lahore 725) but according to the majority view
interference in the matter, in exercise of discretionary power under Article 199 of the
Constitution, was not called for. After hearing the petitioner we are not persuaded to act
otherwise. In any case, the Prime Minister does not : find mention in Article 193,
amongst the persons, after consultation with whom, the President is required to appoint
the Judges. It is Article 48 (1) which ordains that in exercise of his functions, the
President shall act in accordance with the advice of the Cabinet or the Prime Minister.
But Article 193 specifically deals with the appointments of the High Court Judges and it
is well settled that where in a Statute there are two provisions, one of which is of specific
character and the other general one, then the specific provision ought to be applied
unfettered by the general one. This principle has also been exhaustively discussed in
"Government of Punjab v. Naila Begum" (P L D 1987 Lahore 336) to which one of us
was a party."
29. As against this, the learned counsel for the respondents submitted that para. 5 of the order of
the High Court in this case, on appeal, was deleted by the Supreme Court. Therefore, by
implication, it has been held by the Supreme Court that appointment of the Judges of Superior
Courts can be made validly on the advice of the Prime Minister. He, in this connection, relied on
1990 S C M R 189 (Federal Government v. M.D. Tahir).
30. We have considered the submission of the learned counsel. No doubt, in M.D. Tahir's case,
on appeal, the Supreme Court, with consent of the parties, has deleted para 5 of the judgment of
the High Court. Therefore, it can be said that by implication in Pakistan, the advice of Prime
Minister for the appointment of the Judges of Superior Courts is required. But in Azad Kashmir,
under Interim Constitution Act, the mode of appointment of Judges is quite unique. Therefore, in
our view, the learned counsel for the parties were labouring under wrong impression. The
controversy is to be resolved in the light of the Interim Constitution Act, 1974 (hereinafter called
as Act) wherein a special unique mode for the appointment of the Judges of Superior Courts has
been given. Section 43 (2) (a) of the Act postulates that a Judge of the High Court shall be
appointed by 'the President on the advice of the Council after consultation with the Chief Justice
of the High Court. The unique character of the constitution was discussed in a case titled
"Barrister Sultan Mahmood Choudhary v. The Azad Jammu and Kashmir Government and
others" wherein it was observed:--
"We cannot be oblivious of the fact that from the very nature of it, the Act is unique
having special features. Unlike other countries of the world, the Interim Constitution of
the State postulates a unique scheme in the manner as under Section 56 read with Section
31 (3), the Government of Pakistan has been assigned responsibilities in the light of the
Resolutions of the United Nations Commission for India and Pakistan with respect to the
areas called Azad Jammu and Kashmir:"
31. As specific provision for the appointment of the Judge of the High Court has been laid down
in the Act, therefore, no other mode in this regard can be, justified.
32. Respondents Nos. 4 and 5 have been appointed as Additional Judges of the High Court
without the advice of the Council or without consultation with the Chief Justice. Moreover,
respondent No.3 was appointed as an Additional Judge for the period for which Mr. Justice
Basharat Ahmad Shaikh, a permanent Judge of the High Court remains posted as an Ad Hoc
Judge of the Azad Jammu and Kashmir Supreme Court. That shows his temporary adjustment as
Additional Judge of the High Court. Whereas respondents Nos. 4 and 5 are and were posted as
Secretary Law and Chairman Service Tribunal, respectively, they have been appointed as
Additional Judges of the High Court till they attain the age of retirement. From the perusal of the
impugned Notifications, it appears that respondents Nos. 4 and 5 have been appointed
permanently against some substantial posts. Therefore, their appointment as Additional Judges is
in contravention of the Constitutional provisions contained in Section 2 and subsection (6) of
Section 43 of the Azad Jammu -and Kashmir Interim Constitution Act of 1974.
33. Now the second point which was formulated in the light of the lengthy arguments of the
learned counsel for the parties is as to the maintainability of the writ petition. Section 44 (5)
corresponds with clause (5) of Article 199 of the Constitution of Pakistan of 1973. We have got
sufficient case-law from Pakistan jurisdiction.
34 In "Abrar Hussain v. Government of Pakistan", P L D 1976 SC 315, Mr. Justice Abdul Kadir
Sheikh Judge of the Supreme Court was appointed as Chief Justice of Sind- Baluchistan High
Court by a Notification dated 22nd of January 1975. The Vice-President of Bar Association
Karachi challenged the validity of his appointment as such through a writ of quo warranto before
the Karachi High Court: This petition was entrusted to a D.B. which, on facts, held that
appointment of Mr. Justice Abdul Kadir Sheikh was in accordance with law as there was no
prohibition for appointing a Judge of Supreme Court as Chief Justice of the High Court. But it
was also held that writ of quo warranto challenging the appointment of the Chief Justice of the
High Court, was not permissible. The judgment was assailed before the Supreme Court, where
the case was heard by F.B. Mr. Justice Yaqoob Ali, Chief Justice and Mr. Justice Anwarul Haq J.
confirmed the view of the High Court by holding that due to the immunity clause of Article 199,
the writ of quo warranto was not permissible against a Judge of the High Court whereas Mr.
Justice Salah-ud-Din, J. and Mr. Justice Muhammad Gul, J. held that writ was maintainable. The
observations recorded by Mr. Justice Yaqoob Ali, C.J. are reproduced here %6th approval:--
"It is relevant in this connection to bear in mind that totality of the jurisdiction conferred
on a High Court by Constitution and law is exercised by the individual group of Judges
sitting singly or in Benches. In this context each Judge is a High Court. That explains
why orders, judgments and decrees passed and summons and warrants issued under the
direction of a Judge are expressed in the name of the High Court and not in the name of
the individual Judge. One may also refer to Article 201 of the Constitution which lays
down that any decision of the High Court shall, to the extent it decides a question of law
or is based upon or enumerates a principle of law, is binding on all Courts subordinate to
it. The decision rendered by the Judge of a High Court thus carries the authority
conferred by Constitution and law on the High Court and not the authority of an
individual Judge. To my mind these provisions of the Constitution bring out clearly that
the term High Court and Supreme Court used in clause (5) of Article 199 includes Judges
of these respective Courts.
The policy of law that no writ will issue to a High Court and Supreme Court is based on
sound principles. If one Judge of a High Court were to issue a writ to another Judge under
Article 199, the Judge to whom the writ is issued, may in exercise of the same
jurisdiction nullify the writ. This is the logical consequence of the fact that High Courts
and their individual groups of Judges are invested with coordinate jurisdiction."
Again, at page 332 of the same judgment it was observed:-
"Lastly, as I read the provisions of Article 199, they spell out that a writ will not issue from one
Judge of a High Court to another Judge of the same Court. Article 199 (1) confers jurisdiction on
High Courts to issue writs to persons performing, within their territorial jurisdiction, functions in
connection with the affairs of the Federation, a Province or a local authority. A High Court
cannot therefore issue a writ to a person performing functions in another province. This
restriction applies equally in case of High Courts as the Judges who constitute these Courts
perform their functions outside the territorial jurisdiction of each other The exclusion of High
Court from the definition of `person' is, therefore, not intended to debar a High Court from
issuing writs to other High Courts. This subject is fully served by the primary condition laid
down in Article 199 (1). What then is the purpose of clause (5) of Article 199. Obviously, not to
debar a High Court from issuing a writ to itself. It is too absurd to contemplate that a writ could
ever issue from the "High Court Lahore" to the "High Court of Lahore:" A more rational view is
that clause (5) is intended to debar Judges of the High Courts from issuing writs to each other.
There is a weighty reason in support of this view. If this bar is not there then the judgments
delivered by individual groups of Judges of High Courts in different jurisdictions may in the
final event be challenged, by litigants, under Article 199 as without lawful authority on variety of
grounds such as error apparent on the face of the judgment, order or decree, bias, mala fides, etc.
In this connection one should bear in mind large number of decisions given by High Courts in
the past interfering with the orders passed by Tribunals of exclusive jurisdiction such as the
orders passed by the Rehabilitation Authorities. Custodian of Evacuee Property, Settlement
Authorities, Revenue Board etc. to which finality was attached by Statute. These precedents will
provide ample girth to the jurisdiction of each Judge of the High Court to quash, under Article
199, judgments, decrees and orders passed by other Judges of his Court. I do not see how such a
result can be avoided if we exclude Judges from the term High Court and Supreme Court in,
clause (5) of Article 199.
I, however, do not mean to say that if a Judge has reached the age of superannuation or is
otherwise not qualified to hold the office of a Judge of a superior Court, there is no remedy at
law against him. His capacity to hold the office can be questioned in proper proceedings, but not
by a writ under Article 199 of the Constitution. The judgment delivered by a Judge who is not
qualified to hold the office may be brought before this Court on the ground that it is not a
judgment delivered by the High Court or it may be challenged on the ground that the High Court
is not properly constituted because a judgeship is vacant."
35. The learned counsel for the petitioners referred an unreported judgment of the Supreme
Court of Azad Jammu and Kashmir titled "Amjad Hussain and others v. Ghulam Rasool Mir and
others" in support of the proposition that the appointment of a Judge is open to challenge by
seeking a writ of quo warranto and not raising an objection by a party in private litigation. This
authority is distinguishable on facts and law. Because in this case the appointment of respondent
No.5 as Additional Judge of the Shariat Court was challenged on the ground that before his
appointment as Additional Judge of the Shariat Court, the Chief Justice of the Shariat Court was
not consulted. In the light of these facts, the learned Supreme Court of Azad Jammu and Kashmir
held that the appointment of the Judge can be questioned through a writ of quo warranto. The
relevant parts of Section 44 alongwith sub-clause (5) of the Act are reproduced below:--
44. Jurisdiction of High Court.-
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is
provided by law--
(a) on the application of any aggrieved party, make an order---
(i) ...............................
(ii) ...............................
(b) on the application of any person, make an order---
(i) ...............................
(ii) ...............................
(5) In this Section, unless the context otherwise requires `person' includes any body politic or
corporate, any authority of or under control of the Council or the Government and any Court or
Tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court
or Tribunal established under a law relating to the Defence Services."
36. As is apparent from sub-clause (5) of Section 44 of the Act, the Shariat Court has not been
excluded from term "person". It was in these circumstances, that the learned Supreme Court
observed that the appointment of a Judge of the Shariat Court can be called in question through a
writ of quo warranto. The learned counsel for the parties referred some other authorities during
the course of their arguments. As these authorities are distinguishable both on facts and law,
therefore, we refrain from quoting them in this order.
37. As respondents Nos. 4 and 5 have taken oath of office of Additional Judges of tile High
Court, therefore, despite this fact that in our view, their appointments as Additional Judges of the
High Court are not in conformity with the Constitutional provisions, we, due to the bar contained
in sub-clause (5) of Section 44 of the Act, cannot allow any relief to the petitioners. Therefore,
this writ petition stands dismissed. But as important points relating to the interpretation of
Constitutional provisions were involved, we pass no order as to costs.
AA/479/H.C.A. Petition dismissed.