2003 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, C.J.

This petition for leave to appeal is filed against the order passed in the meeting of the Judges of the High Court of Azad Jammu and Kashmir on 21-11-2002 conveyed to the petitioner under No. 11837/Admin/HC/2002 on 25-11-2002.

2. The case of the petitioner is that he was employed in judicial service of Azad Jammu and Kashmir and posted as Family Judge Bagh when he received a show-cause notice in the manner of explanation on 7-3-2002 and to consequence of aforesaid show-cause notice proceedings under the Azad Jammu and Kashmir Removal from Service (Special Powers) Act. 2001 (hereinafter to be referred as the Act) were initiated against him and an Inquiry Committee was constituted vide order dated 4-7-2002. The Inquiry Committee also issued show-cause notice on 7-10-2002 to which the petitioner filed his reply. The petitioner was again issued a show-cause notice based on report of the inquiry Committee on 5-8-2002 to which the petitioner also replied. The petitioner was ultimately removed from service vide order dated Aug. 21, 2002 issued under the order of the learned Chief Justice of Azad Jammu and Kashmir. The petitioner made a representation before the Prime Minister of Jammu and Kashmir under section 9 of the Act to which comments ere filed by the Registrar of the High Court when sent for by the Prime Minister. The Prime Minister accepted the representation of the petitioner and set aside the order of his removal from service and a notification to that effect was issued on 1-11-2002. The petitioner filed joining report in the High Court on 2-11-2002 but the learned Judges of the High Court refused to accept his joining report in their meeting convened on November 21st, 2002 and conveyed the decision of the meeting to the petitioner through notice dated 25-11-2002 which is impugned before the Court.

3. The learned counsel appearing for the petitioner when asked as to whether he would argue the stay or urgent application or petition for leave to appeal; he stated that the arguments on leave to appeal be heard, hence he was heard on the petition for leave to appeal.

4. The learned counsel contended that the proceedings against the petitioner were initiated under the Act and he was ultimately removed under section 3 of the Act. According to the learned Advocate, the petitioner availing the remedy provided by the Act under section 9, filed representation before the Prime Minister on which the learned Chief Justice filed comments and the Prime Minister after taking into consideration the representation and the comments, set aside the order of the learned Chief Justice in exercise of the powers under section 9 of the Act. According to the learned Advocate when all proceedings were conducted under the Act, no authority was left with the learned Chief Justice or Judges of the High Court to refuse to accept the order of the Prime Minister on the pretext that it was without authority. He contended that once the learned Chief Justice submitted to the authority of the Prime Minister by filing comments, he or the Judges of the High Court cannot resile by alleging that the Prime Minister did not have the authority. He further contended that the order passed in the meeting of the learned Judges is a judicial order whereby reinstatement of the petitioner in service under the orders of the competent authority is declined, hence,, the Supreme Court is competent to set aside the order passed by the learned Judges of the High Court in their meeting held on 21-11-2002 and conveyed to the petitioner on 25-11-2002. The learned counsel for the petitioner relied upon an unreported case of this Court in Civil Appeal No. 134 of 2000 in the case of Secretary Services and another v. High Court of Azad Jammu and Kashmir through Registrar dated 11-10-2000.

5. After hearing the learned Advocates, I have gone through the documents placed before the Court and relevant law.

6. The appellate 19owers of the Supreme Court are -provided under section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Jurisdiction of the Court at the moment is invoked under subsection (12) of section 42 of the Constitution which is as follow:-- "(12) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of the High Court in a case to which subsection (11) does not apply shall lie only if the Supreme Court of Azad Jammu and Kashmir grants leave to appeal. "

7. Tape moot point for determination therefore, arises as to whether the order impugned before the Court is 'order' passed by the High Court and can be challenged through petition for leave to appeal or not. A perusal of the order dated 25-11-2002 reveals that it is art intimation of some decision taken by the learned Judges of the High Court in their meeting convened on 21-11-2002. The recital of the alleged order dated 25-11-2002 reveals that the order of the High Court is not passed in a case or in a judicial proceeding, but it appears to have been passed in a meeting which purportedly appears to be administrative meeting of the High Court Judges. The Supreme Court is the apex appellate Court against the judicial orders, judgments, decrees and sentences passed by the High Court or any other Court or Tribunal established under law and not the controlling authority in respect of administrative matters of the High Court. The order impugned before the Court is administrative in nature, as the order in background in which it is passed appears disciplinary proceeding initiated against the petitioner for misconduct under the Act. It does not fall in the ambit of judicial order as visualized by subsection (12) of section

42. Decisions or orders of the learned Judges of the High Court passed in their meetings are executive and administrative business of the Court regulated by Chapter XVIII of the High Court Procedure Rules, 1984. The orders passed in their meetings by the learned Judges of the High Court are, therefore administrative orders and not judicial orders subject to appeal before the Supreme Court. The petitioner, as admitted, has been removed from service by the learned Chief Justice as competent authority and as the petitioner himself alleges that he availed the remedy of representation before the Prime Minister whose order is not accepted by the learned Judges of the High Court in their meeting and the same is conveyed to the petitioner that the representation -or appeal not being competent before the Prime Minister, hence, the order of the Prime Minister dated 1-11-2002 cannot be acted upon: It is, thus, continuation of the proceedings of termination of the petitioner's service which throughout is an administrative affair in a disciplinary matter. No fresh order is passed against the petitioner by the learned Chief Justice or the Judges of the High Court in their meeting. What the learned Judges have done is that the decision earlier taken by the learned Chief Justice is endorsed and the joining report tiled by the petitioner is not accepted. The order of the Prime Minister is not set aside, which by implication is deemed to be resubmitted for review.

8. There is no death of case-law on the point that when the matter is administrative or executive in nature, appeal against the order is riot competent before the Supreme Court. A few only may be referred here. In a case titled Gulfraz v. Judges of the High Court of West Pakistan, (Peshawar) (1972 SCMR 227), order of dismissal of an orderly of the High Court passed by Senior Judges of the High Court and upheld by Division Bench was challenged in the Supreme Court through petition for leave to appeal. The petition was dismissed by the Supreme Court of Pakistan holding that:-- "The word "order" in Art. 58 aforesaid is to be read ejusdem generis with judgment, decree or sentence, which are used in the same context clearly bringing out the intention of the provision that only those orders of the High. Court are amenable to appeal in this Court which are passed in exercise of its judicial functions and authority." In a case reported as International Guarantee Trust Company Ltd. V. Syeda Abida Hussain and 5 others (1991 SCMR 1487) where a request made by an Advocate for hearing of a case during vacation by larger Bench at principal seat of the High Court was disallowed, the petition for leave to appeal filed against the order before the Supreme Court was disallowed holding that:-- "

5. As has been admitted by the learned counsel himself the requests made, namely, of hearing of the matter during vacations, its hearing by a larger Bench, its hearing at the principal seat of the High Court, were all administrative in nature having no judicial content as such. The learned Chief Justice in dealing with such a matter has been guided by his own constraints and this Court cannot sit on judgment with regard to it. However, if the petitioner feels that the matter is not being dealt with, with the urgency which it demands, after the vacations, he may move the High Court on the administrative side." In a case reported as Jasvant Sugar Mills Ltd. v. Lakshmi Chand and others (AIR 1963 SC 677) when the Supreme Court of India was seized with a matter in appeal under Article 136 of the Indian Constitution, it was held while dilating upon the word 'order' that determination or order must be judicial or quasi-judicial, purely administrative or executive direction is not contemplated to be trade subject-matter of appeal to the Supreme Court. The character of the powers conferred upon the Supreme Court, original or appellate by its Constitutional jurisdiction, shows that the determination or order sought to be appealed from must have the character of judicial adjudication. The unreported judgment of the Supreme Court relied upon by the learned Advocate for the petitioner is not applicable at all because it relates to a judicial order of the High Court and not administrative or executive. Thus, seeing from any angle, the subject-matter of dispute before the Supreme Court is administrative and executive business/order of the High Court and not a judicial order which relates to the service rights of the petitioner, remedy against which is not provided before the Supreme Court, unless the order of the learned Chief Justice is challenged before the proper forum or direction for implementation of the order of the Prime Minister is refused by proper forum. The appeal is competent before the Supreme Court only after the judicial determination by the competent forum on the order of removal of petitioner from service or validity of the order of the Prime Minister.

9. The contention of the learned counsel for the petitioner that the order is judicial in nature for the reason that the petitioner was heard by the learned Chief Justice after show-cause notice and inquiry etc. cannot be accepted for the reason as stated above and that the removal or dismissal from service or any other order passed in relation to the terms and conditions of service of a Court servant/Judicial Officer is administrative order passed by competent authority i.e. learned Chief Justice or the Judges of the High Court, as the case may be, and it remains valid unless it is set aside by a Court/Tribunal of competent jurisdiction.

10. The contention of the learned Advocate for the petitioner that the proceedings against the petitioner were taken under the Act which itself provides representation to the Prime Minister is misconceived and misunderstood. The word 'competent authority' is defined in section 2(a) of the Act as follows:-- "(a) 'competent authority' means the Prime Minister and where; in relation to any person or class of persons, the Prime Minister authorizes any Officer or Authority to exercise the powers of competent authority under this Act, that Officer or Authority, and, in relation to an employee of a Court or Tribunal functioning under the Government, the appointing authority or the Chairman or Presiding Officer of the Court or the Tribunal. "

11. I have considered the above argument of the learned Advocate in the light of the provisions of the Act. The definition of the 'competent authority' given above visualizes two categories of the authorities, firstly the Prime Minister or any officer or authority authorized by him is 'competent authority, in relation to all persons in the service of the Government and secondly, in relation to Court employees, 'the appointing authority', 'Chairman' or 'Presiding Officer' or the Court or Tribunal is the competent authority. The Courts and Tribunals have been separated and segregated from the authority of the Prime Minister. The wisdom behind this segregation is to upkeep the integrity, independence and authority of the judiciary as a special organ of the State and not a subordinate institution of the Government. All other provisions of the Act will have to be read in light of the definition given above.

12. Section 9 regulating representation and review postulates that when an order is passed under section 3 of the Act, by an officer or authority other than the Prime Minister, representation to the Prime Minister is competent, but where an order has been passed by the Prime Minister himself, review is competent before the Prime Minister. The orders passed by the appointing authorities of the Court employees is not catered by this section. The order in the case of the petitioner' is initially passed by the learned Chief Justice and then endorsed by all the Judges of the High Court. The learned Chief Justice or the Judges of the High Court are not officers or authority subordinate to the Prime Minister nor authorized by the Prime Minister to be competent authority. In view of above definition of tire competent authority, the learned Chief Justice is himself competent in relation to the petitioner for being his appointing authority and the learned Judges of the High Court are equally competent for being controlling and supervising Authority of the Courts subordinate to it when a matter is placed before them by the learned Chief Justice.

13. Under section 46 of the Interim Constitution Act, 1974, the High Court is vested with the authority to superintend and control all other Courts which are subordinate to it. Thus, the Judges while sitting in the meeting to dilate upon administrative matters brought before them under Chapter XVIII of the High Court Procedure Rules, 1984, are competent to take any administrative action in exercise of their authority under the rules and under section 46 of the Interim Constitution Act.

14. It is held in the case reported as Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) that supervision and control over subordinate judiciary vests in the High Court under Article 203 of the Constitution of Pakistan (which is equal to section 46 of the Interim Constitution Act, 1974) is exclusive in nature, comprehensive in extent and effectively in operation which includes administrative powers as to working of the subordinate Courts and disciplinary jurisdiction over subordinate Judicial Officers. It is further held in the same authority that any provision in any Act, rule or notification empowering any executive functionary to have administrative supervision and control over the subordinate judiciary will be violative of above Article besides militating against the concept of independence of the judiciary. All laws in force have to be enacted, read and interpreted in light of section 46 of the Constitution and not beyond that same is the view of the Indian Supreme Court as held in the cases reported as the Chief Justice of Andhra Paradesh and another v. L.V.A. Dikshitula and others (AIR 197 SC 193), State of Haryana v. Inder Prakash Anand and another (AIR 1176 SC 1841) and, Shamsher Singh v. State of Punjab acid another (AIR 1974 SC 2192).

15. As far the other contention of the learned Advocate that the learned Chief Justice after having filed the comments has submitted to the jurisdiction of the Prime Minister under section 9, hence it cannot be said that the Prime Minister did- not have jurisdiction, is equally untenable for the reason that the Registrar of the High Court has filed comments on the presentation of the petitioner. The filing of comments itself does not operate as submission to the jurisdiction of authority which otherwise did not have jurisdiction. It is usual practice in the officers that when a letter is received by a person or authority, it is responded; responding to any letter by filing comments or replying to it does not mean that the authority is accepted. Moreover, the jurisdiction of a judicial forum and of administrative officer are two different matters. This principle if at all applicable is in judicial matters and not in administrative or executive affair. In judicial forums if any objection is not taken to the jurisdiction during the hearing, it is held in some cases that party submitting to the jurisdiction, cannot later on resile when the decision goes against him, but there is a plethora of case-law on the point that if an authority did not have jurisdiction over a matter, participation in the proceeding or submitting to his authority would not debar the party from challenging its authority. I may place reliance on the cases reported as Ashin Hussain v. Additional District Judge (1993 CLC 799) and Muhammad Afzal v. Board of Revenue, West Pakistan, and others (PLD 1967 SC 314). The case here is totally different. It is, as said earlier, an administrative affair dealt with in administrative manner; its justifiability is open before competent Tribunal or Court of competent jurisdiction.

16. A perusal of the contents of the petition reveals that the learned Chief Justice or the Judges of the High Court are made party by name which is unbecoming and unwarranted. The Supreme Court and the High Court are the institutions of extraordinary Constitutional importance and significance. Unbecoming language attributing mala fide and capriciousness is used against them which is against the Code of Conduct of the Advocates and unbecoming of the petitioner who alleges himself to be a Judicial Officer. The orders of the administrative authorities are open to challenge in the manner, provided by law through authority who issues the order, e.g. the Government through the Chief Secretary, other departments through their Secretaries and in case of Supreme Court and High Court through their Registrars. Judges can never be made a party by name to scandalize and belittle their position and impair independence of the judiciary and Judges.

17. Subsection (5) of section 44 of the Interim Constitution Act, 1974, specifically excludes the High Court and the Supreme Court from the worn 'person'-which of course -includes party and it by analogy applies to all the proceedings and all laws before all Courts unless person of a Judge as distinguished from his judicial capacity is in, dispute. The matter, has thoroughly been thrashed in a case reported as Abrar Hassan v. Government of Pakistan and another (PLD 1976 SC 315). If this practice is allowed, the Judges of the Superior Courts may start passing orders against each others which will create anarchy in the State. The language used against the Judges of the High Court smacks of hatred and ridiculousness which is apprehendable under law. The Registrar is directed not to entertain any such petition or appeal in which Judges are made party by name in appeals against their decisions or when unbecoming, scandalizing or contemptuous language is used against them.

18. As the learned Advocate for the petitioner chose to argue the petition for leave to appeal, which in view of above is not maintainable, hence, all the applications filed alongwith the petition are hereby dismissed. S.A.K./339/SC Petition dismissed.