1991 PLP 2681 (MLD)

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:-- 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. 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 sub section (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.