P L D 2016 Supreme Court (AJ&K) 36 (PLP)

Laws Cited

Representation

• Shamas Textile Mills Ltd. and others v. The Province of Punjab and 2 others 1999 SCMR 1477 and Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate Muzaffarabad and others PLD 2012 SC(AJ&K) 42 rel.
• Abdul Rasheed Abbasi, Advocate along with Mansoor Pervaiz Khan, Advocate-General, Ch. Shaukat Aziz and Sardar M. R. Khan, Additional Advocates-General for the Referring: Authority/President and AJ&K Legislative Assembly.
• Raja Muhammad Hanif Khan and Sadaqat Hussain Raja, Advocates for AJ&K Council.
• K.D. Khan and Raja Amjad Ali Khan, Advocates (for Ch. Anwaarul Haque, former Speaker AJ&K Legislative Assembly) for Interveners.
• As the opinion was sought on the question whether the Azad Jammu and Kashmir Legislative Assembly or the Azad Jammu and Kashmir Council is competent to legislate in respect of the terms and conditions of the Chief Election Commissioner, a notice was issued to the Secretary Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council as well as the public at large to file the statement of facts. The statements of facts were filed on behalf of Azad Jammu and Kashmir Council, the President, Secretary Azad Jammu and Kashmir Legislative Assembly, Ch. Anwaarul Haque, a former Speaker of the Azad Jammu and Kashmir Legislative Assembly and Mr. K. D. Khan, an advocate of this Court.
• 2. At the outset, Raja Muhammad Hanif Khan, advocate, representing the Council, raised a preliminary objection on maintainability of the reference on the ground that the reference has been made by the President in violation of sub-rules (1) and (4) of Rule 11 and Schedule V(12)(c) of the Rules of Business, 1985. The Secretary Law, Justice, Parliamentary Affairs and the Human Rights Department, Azad Government of the State of Jammu and Kashmir, initiated the summary for sending back the advice to the Chairman Azad Jammu and Kashmir Council for revisiting the same on the ground that there is no concept of appointment of the Chief Election Commissioner for the remaining period which is fixed for the tenure of the office of Chief Election Commissioner. The learned counsel submitted that no summary was initiated for referring the matter to the Court, therefore, the reference is not competently filed. The learned counsel submitted that in the light of the provisions contained in Rule 7(b) of the Rules of Business, 1985, the summary was to be routed back through the Chief Secretary. The said summary was not routed back and was not sent to the Chief Secretary, therefore, without the signature of the Chief Secretary, the reference was not competently filed. The learned counsel made another objection on the maintainability of the reference that under Rule 10 of the Azad Jammu and Kashmir Rules of Business, 1985, the sanction of the President in every matter is to be notified. The sanction of the President for filing the reference was not notified, therefore, the reference was not competently filed. The learned counsel referred to and relied upon the case reported as Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43].
• 3. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the referring authority and the Azad Jammu and Kashmir Legislative Assembly, submitted that the organization of the Department is provided in Rule 4(1) of the Rules of Business, 1985. The Secretary of the Department submitted the summary to the Minister. The Minister Law, Justice, Parliamentary Affairs and Human Rights Department, apart from the points raised before him, formulated further points and opined that the matter be sent to the Prime Minister for advising the President for seeking the opinion of the Supreme Court under Section 46-A of Act, 1974. It is not the intention of the Rules of Business, 1985, that the Minister, Law, Justice, Parliamentary Affairs and Human Rights Department, in all circumstances, shall follow the summary. On the advice of the Prime Minister the summary was sent to the President for his approval. The learned counsel submitted that routing back the summary under Rule 7(b) of the Rules of Business, 1985, relates only to those matters where a formal order has to be issued. In the matter in hand, it is the sole prerogative of the President to refer the matter, therefore, the formal notification was not required. It is only the President, who may invoke the advisory jurisdiction of the Court. The learned counsel submitted that in the light of Rule 10 of the Rules of Business, 1985, the executive orders of the Government have to be notified. The reference under Section 46-A of Act, 1974 is not an executive order of the Government. The learned counsel submitted that the Court in its order dated 16th September 2015 has held that legal questions of public importance have been referred to the Court for opinion, therefore, the Court entertained the same.
• 4. We have carefully perused the preliminary objection raised by Raja Muhammad Hanif Khan, advocate, representing the Council.
• 6. Raja Muhammad Hanif Khan, advocate, has laid much stress on the point that the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department has not initiated the summary for filing the reference. We have carefully perused the summary initiated by the Secretary Law. The Secretary, after detailed narration of facts, apprised that Mr. Justice (R) Munir Ahmed Chaudhary, a serving judge of the High Court, was appointed as the Chief Election Commissioner. After reaching the age of superannuation, he was retired from his office and on his retirement, he ceased to be the Chief Election Commissioner of Azad Jammu and Kashmir w.e.f. 14th April, 2015. In the light of the provisions contained in proviso to Section 5(1) of Act, 2000, a judge of the Supreme Court or the High Court, who is appointed as Chief Election Commissioner in addition to the functions as a judge, he shall, on retirement as judge of the Supreme Court or the High Court, as the case may be, cease to function as Chief Election Commissioner and in the light of Section 7(2) of Act, 2000, a person who is holding the office of Chief Election Commissioner, shall not hold any office of profit in the service of Azad Jammu and Kashmir before expiry of two years, after he ceases to hold that office. Mr. Justice (R) Munir Ahmed Chaudhary cannot be appointed as Chief Election Commissioner again till 13th April, 2017, i.e. till the expiry of the period of two years. He requested the Minister Law, Justice, Parliamentary Affairs and Human Rights Department, that the matter may be referred to the President through the Prime Minister for review of the advice on these grounds. After perusal of the summary, the Minister Law pointed out that presently two Acts relating to the terms and conditions of Chief Election Commissioner; one made by the Azad Jammu and Kashmir Legislative Assembly in the year 1992 and the other made by the Azad Jammu and Kashmir Council in the year 2000, are holding the field. Which one out of the two forums is competent to legislate upon the terms and conditions of the Chief Election Commissioner and also that in the light of the provisions contained in Section 43(7) of Act, 1974, a judge of the High Court is not entitled to hold any office of profit in the service of Azad Jammu and Kashmir if remuneration is thereby increased or any other office carrying along with the right of remuneration for rendering any service. He requested the Prime Minister that the President be advised to refer the matter to the Supreme Court for seeking the opinion.
• 7. The "Department" is defined in Rule 2(ix-a) of the Rules of Business, 1985, which means a self-contained administrative unit in the Secretariat, responsible for the conduct of business of the Government in a distinct and specified sphere and declared as such by the Government. The organization of the Department, as provided in Rule 4 of the Rules of Business, 1985, provides that a Department shall consist of a Minister, a Secretary and of such other officials as the Government may determine and under Rule 6 of the Rules of Business, 1985, the Minister shall be responsible for policy matters and for conducting the business of his Department and he has to submit the cases to the Prime Minister as required by the provisions of these Rules. Under Rule 8 of the Rules of Business, 1985, a Secretary has to assist the Minister in formulation of policies and bring to the notice of the Minister the cases which are required to be submitted to the Prime Minister under the Rules. He has to execute the sanctioned policies. He is responsible to the Minister for proper conduct of the business of the Department. It is the duty of the Secretary that whenever any order made by the Minister, appears to involve a departure from the rules, regulations or Government policy, resubmit the case to the Minister. Under sub-rule (2) of Rule 8 of the Rules of Business, 1985, the Secretary, while resubmitting the case to the Minister, shall suggest a definite line of action. The Secretary has initiated the matter that in his opinion, the appointment of Mr.Justice (R) Munir Ahmed Chaudhary appears to be against the provisions contained in Section 5 and Section 7 of Act, 2000. The Minister thought that the interpretation of legislative powers of the Council and the Azad Jammu and Kashmir Legislative Assembly under Section 31 of Act, 1974, the interpretation of the provisions of Section 43(7) of Act, 1974 and the provisions of Act, 2000 are involved, therefore, it is appropriate that the President be advised to seek the opinion from the Supreme Court and referred the case to the Prime Minister. In this context, the argument of Raja Muhammad Hanif Khan, advocate, appears to be misconceived.
• 8. We agree with the argument of Raja Muhammad Hanif Khan, advocate, that under Rule 7(b) of the Rules of Business, 1985, all the cases submitted to the Prime Minister or the President for orders shall be routed back through the Chief Secretary and all the orders of the Government have to be notified. The cases where after the approval of the President and the Prime Minister, the formal order is required by a Department, the file is sent back to the Department through the Chief Secretary for formal notification. The filing of reference in the Supreme Court doesn't require a formal notification. The Prime Minister advised the President and the President filed a reference for seeking the opinion of the Court on the formulated points. The objection on the maintainability of the reference is devoid of any force, hence is repelled.
• 9. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the referring authority, the President of Azad Jammu and Kashmir, and the Azad Jammu and Kashmir Legislative Assembly, submitted that the legislative powers of the Council and the AJ&K Legislative Assembly are contained in Section 31 of Act, 1974. He submitted that the Council and the Legislative Assembly have powers to make laws for the territories of Azad Jammu and Kashmir, for all the State subjects wherever they are or they may be. Under subsection (2) of Section 31 of Act, 1974 the Council is vested with the powers to legislate in the matters falling in the Council Legislative List set out in third schedule and in the residuary matters, the Council shall not and the Assembly shall have powers to make laws. He submitted that under Section 50 of Act, 1974, the Chief Election Commissioner shall be appointed by the President on the advice of the Council on such terms and conditions, as may be prescribed. The word "prescribed" is defined in Section 2 of Act, 1974 as "prescribed by law or rules made thereunder." The matter of appointment and terms and conditions of the Chief Election Commissioner does not fall in the Council Legislative List. It is a residuary matter and only the Azad Jammu and Kashmir Legislative Assembly is competent to legislate in the matter. The Legislative Assembly competently made the Chief Election Commissioner (Terms and Conditions) Act, 1992 and appointments of the Chief Election Commissioner were made on the advice of the Council under this Act in the year 1992 and 1997. Later on, the Council passed Act, 2000 on the same subject in the year 2000. The learned counsel submitted that subsection (2) of Section 31 of Act, 1974 categorically lays down that the Council has legislative competence only in the matters enumerated in the Council Legislative List falling in the third schedule and clause (b) of subsection (2) of Section 31 of Act, 1974 further prohibits the Council from legislating on any residuary matter. The matter of appointment and terms and conditions of the Chief Election Commissioner exclusively falls in the residuary matter and it is only the Azad Jammu and Kashmir Legislative Assembly which is competent to legislate in the matter. The Council is not competent to legislate in the matter.
• 10. Raja Muhammad Hanif Khan, advocate, representing the Council, submitted that the Chief Election Commissioner is appointed under Section 50 of Act, 1974, which provides that the terms and conditions of the Chief Election Commissioner may be prescribed. The learned counsel submitted that the Chief Election Commissioner is appointed by the President on the advice of the Council and throughout right from 1974 the Chief Election Commissioner is being appointed on the advice of the Council. The word 'advice' is of much significance. The advice is an executive act and the authority, which performs the executive act, has powers to legislate under Sections 21 and 31 of Act, 1974. The Azad Jammu and Kashmir Legislative Assembly made Act, 1992 for appointment, terms and conditions of the Chief Election Commissioner. Since the functions relating to the Chief Election Commissioner are of such nature, which require impartiality, therefore, the Council legislated Act, 2000 for appointment, terms and conditions of the Chief Election Commissioner. The learned counsel submitted that the Constitution shall be read as an organic whole and when we look into the whole scheme of the Constitution, it becomes crystal clear that the authority, which exercises the executive act, has powers to legislate in that matter. Since the Council has powers to issue advice for appointment of the Chief Election Commissioner under Section 50 of Act, 1974, it has the legislative authority and entry No.51 of Third Schedule clearly empowers the Council to legislate in the matter. Entry No.51 gives powers to the Council for legislation in respect of the matters "which under the Act are within the legislative competence of the Council or relates to the Council". The matter of appointment or issuance of advice relates to the Council, therefore, it is the Council, which has powers to legislate in the matter. The learned counsel referred to the Azad Jammu and Kashmir Council Rules of Business, 1983, Schedule V, Entry Nos.18 and 19 and submitted that the appointment of Chief Election Commissioner and the Auditor-General of Azad Jammu and Kashmir falls in the competence of the Council. The learned counsel referred to and relied upon the cases reported as Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43] and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Ltd. and others [PLD 2014 SC 1].
• The learned counsel on point No.ii concurred with the opinion of Mr. Abdul Rasheed Abbasi, advocate, and submitted that a sitting judge of the High Court can be appointed as Chief Election Commissioner.
• 11. Mr. K.D. Khan, an advocate of this Court, who has filed the statement of facts voluntarily, submitted that the provisions contained in Section 31 of Act 1974, provide that subject to the succeeding provisions of this section, the Assembly and the Council shall have power to legislate for the territories of Azad Jammu and Kashmir and for the State subjects wherever they may be, and succeeding section 50 of Act, 1974 provides for appointment of the Chief Election Commissioner. Initially the Chief Election Commissioner was provided to be appointed without the advice of the Council but in the year 1975, the section was amended and it was provided that the Chief Election Commissioner shall be appointed on the advice of the Council and advice is an executive act, therefore, by exercising the executive authority, the right to legislate in respect of the terms and conditions of Chief Election Commissioner vests in the Azad Jammu and Kashmir Council and the Assembly is not competent to legislate in the matter. The learned counsel submitted that Act, 1992 has impliedly been repealed by promulgation of Act, 2000. It is only the Council which has the authority to legislate in the matter. The learned counsel referred to and relied upon the case reported as Shahid Nabi Malik v. Chief Election Commissioner, Islamabad and 7 others [1997 PSC 10] and Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmed Khan and another [2012 SCMR 6]. The learned counsel further submitted that the schedule is an extension of the section and the schedule shall be read as part of that Section. Section 50 of Act, 1974 and the schedule when read together, leave no doubt that it is only the Council which has power to legislate in the matter.
• 12. Raja Amjad Ali Khan, advocate, representing Ch. Anwaarul Haque, a former speaker of the Azad Jammu and Kashmir Legislative Assembly, submitted that the reference made by the President under Section 46-A of Act, 1974 is not an appeal or the petition for leave to appeal. The President and the Chairman, Azad Jammu and Kashmir Council has exclusive powers under Section 46-A of Act, 1974 to seek the opinion of the Supreme Court on any question of law of public importance. No objection can be raised by anybody on the reference because there is no concept of parties in the reference. The learned counsel while attending point No.i submitted that under Section 31(2) of Act, 1974, the Council has exclusive powers to make laws enumerated in the Council Legislative List set out in the third schedule. In the said matters, it is only the Council which can legislate and the Assembly has nothing to do with such matters as in clause (b) of Section 31(2) of Act, 1974 it has categorically been laid down that in the residuary matters, the Assembly shall and the Council shall not have powers to make laws in respect of the matters not enumerated in the Council Legislative List. A restriction has been imposed on the legislative powers of the Council in clause (b) of subsection (2) of Section 31 of Act, 1974. The matter of appointment, terms and conditions of the Chief Election Commissioner is not included in the Council Legislative list. The Council has powers to legislate in the matters, which are clearly provided in the Council Legislative List. The learned counsel submitted that the argument of Raja Muhammad Hanif Khan, advocate, that the Azad Government of the State of Jammu and Kashmir has surrendered its right of legislation before the High Court that the Council is competent to legislate in the matter, has no force as the jurisdiction cannot be conferred by consent. The Azad Jammu and Kashmir Legislative Assembly was not party in the said writ petition and the judgment of the High Court is not binding on this Court. The said judgment was delivered without filing of written statement by the Government. It has no value. The learned counsel submitted that the deciding factor for the legislative purpose is the Council Legislative List and entry No.51 incorporated in the Council Legislative List relates to the matters falling within the Council legislative competence. For interpreting the said entry, it cannot be said that a matter distant to the Council can fall in the Council Legislative List. The learned counsel placed on record a copy of the letter written by Sardar Muhammad Ibrahim Khan, President of Azad Jammu and Kashmir, addressed to the Minister Kashmir Affairs on 27th November, 2000, whereby the President has shown serious reservations on the promulgation of Act, 2000. The learned counsel submitted that by reading of the whole of Act, 1974, the constitutional provisions, i.e. Sections 19, 21 and 31 and the schedule of Act, 1974, it becomes crystal clear that only the Azad Jammu and Kashmir Legislative Assembly has competence to make laws for appointment, terms and conditions of the Chief Election Commissioner. The Council has no jurisdiction in the matter.
• 13. Mr. Sadaqat Hussain Raja, advocate, counsel for the Azad Jammu and Kashmir Council, submitted that the reference has been filed with mala fide intention. It is in fact an appeal against the judgment of the High Court delivered in Mr. Justice (R) Muhammad Siddique Farooqi's case (supra). The questions formulated are person related. Mr.Justice (R) Munir Ahmed Chaudhary remained a judge of the High Court and also remained Chief Election Commissioner for a period of one year, 11 months and 17 days till he reached the age of superannuation and retired as a judge of High Court. All the questions have been formulated only to debar him from being appointed as Chief Election Commissioner.
• 23. It was vehemently contended by Raja Muhammad Hanif Khan, Advocate that entry No. 51 when read with entry No. 52 makes it clear that the Council has power to legislate for terms and conditions of the Chief Election Commissioner and since the Chief Election Commissioner is appointed on the advice of the Council and the issuance of advice is an executive function, therefore, the legislation in respect of the terms and conditions of Chief Election Commissioner is a matter which relates to the Council. His argument is that the entries in the Schedule when read with other provisions of Constitution, i.e. sections 19 and 31 of Act, 1974, make it clear that it is only the Council which has power to make law for terms and conditions of Chief Election Commissioner. The argument appears to be misconceived. We respectfully agree with the rule of law laid down in the cases titled Syed Mumtaz Hussain Naqvi and 9 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43] and Dossani Travels Pvt. Ltd. v. Messrs Travels Shop (Pvt.) Ltd. and others [PLD 2014 SC 1], that the Constitution shall be read as an organic whole and while interpreting the Constitution, the whole scheme of the Constitution has to be considered. In the Act, 1974 not only the Chief Election Commissioner but the appointments in the other offices are made on the advice of the Council which include the appointment of Chief Justice and Judges of the Azad Jammu and Kashmir Supreme Court, the Chief Justice and Judges of the Azad Jammu and Kashmir High Court and the Auditor General. Under section 42-D of Act, 1974, the Assembly and the Council; both are empowered to legislate in respect of the powers of the review of the Supreme Court but the matter is not enumerated in the Council Legislative List. The Council has no executive authority over these offices. The pith and substance is material for determining the legislative ambit. The functions of Chief Election Commissioner are to prepare the electoral rolls under the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970, conducting elections to the Azad Jammu and Kashmir Legislative Assembly under Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970. The elections to the Azad Jammu and Kashmir Council find mention in entry No. 25 in the Council Legislative List appearing in the third schedule. The Azad Jammu and Kashmir Government is exercising authority in respect of the matters relating to the Chief Election Commissioner, budget, budgetary provisions of Chief Election Commissioner, are provided by the Azad Jammu and Kashmir Government. The staff is managed by the Azad Jammu and Kashmir Government and all the expenses for preparation of voter lists and the general elections are borne by the Azad Jammu and Kashmir Government. Thus, it is clear that the major functions of the Chief Election Commissioner, except elections to the Council, relate to the matters falling in the legislative competence of Azad Jammu and Kashmir Legislative Assembly.
• 24. The Act, 1974 has unique character unlike the Constitution of Pakistan, 1973. The Judges and Chief Justice of the Supreme Court and High Court are appointed by the President on the advice of the Council. In the Constitution of Pakistan, 1973, there is a specific prohibition that only Majlis-e-Shoora shall make laws for conferring jurisdiction upon the Supreme Court but jurisdiction is conferred upon the Supreme Court of Azad Jammu and Kashmir by the Legislative Assembly. For example, under the provisions of Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act, 1974, the Azad Jammu and Kashmir Family Courts Act, 1993, and the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, a right has been provided to file appeal to the Supreme Court. Mere power to issue advice cannot confer Legislative Authority in the Council. Here it may be observed that the advice cannot be issued on its own or in vacuum. The advice can be issued whenever the appointing authority seeks the advice. This Court in the case reported as Muhammad Younas Tahir and another v. Shoukat Aziz, Advocate Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] has observed as under:
• 25. The argument of Raja Muhammad Hanif Khan, Advocate, counsel for the Council, that Act, 2000 is occupying the field for the last more than 15 years and the appointments of Chief Election Commissioner are being made in the light of said Act and the Azad Government has surrendered its authority before the Council in the matter, therefore, it is estopped to turnaround and claim that the Council has no legislative competence in the matter. The Azad Jammu and Kashmir Legislative Assembly passed the Act, 1992 in relation to the terms and conditions of Chief Election Commissioner. The said Act still holds the field. The appointments were made in the light of said Act. In presence of such Act, the Azad Jammu and Kashmir Council passed the Act, 2000 on the same subject. In the Constitution of Pakistan, 1973, under Article 143, if there are two Acts on the same subject, one passed by the Majlis-e-Shoora and the other by the Provincial Assembly, the Act of Majlis-e-Shoora shall prevail and the Act passed by the Provincial Assembly shall give way but neither is such like provision in Act, 1974, nor the Council has such superior controlling authority like the Majlis-e-Shoora. It does not need any authority that there is no estoppel against law. We have also considered the case titled Justice Rtd. Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Council and others (Writ Petition No.24/2001, decided on 28.02.2001). In the said case, the petitioner challenged the vires of Act, 2000 but later on, he requested for withdrawal of the writ petition. The High Court instead of allowing him to withdraw the writ petition decided the same only after hearing the counsel for Council. It is worth mentioning that the Azad Jammu and Kashmir Legislative Assembly was not a party in the said writ petition. No written statement was filed on behalf of the Azad Jammu and Kashmir Government. The High Court observed that ex-parte proceedings have been ordered against the Government. Later on, the High Court ordered the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department of the Azad Government of the State of Jammu and Kashmir to file written statement. The written statement was filed by the same Advocate who filed the written statement on behalf of the Council. The High Court while relying upon entries Nos. 51 and 52 of the Council Legislative List set out in the third Schedule of Act, 1974, observed that the advice appearing in section 50 of Act, 1974, when read with entries Nos. 51 and 52, makes it clear that the Council is competent to legislate in the matter and observed that the Government has filed the written statement and admitted that the Council is competent to legislate law in the matters. The High Court also observed that the advice of Chairman, Azad Jammu and Kashmir Council is binding under section 7 of Act, 1974.
• The contention of Mr. Abdul Rashid Abbasi, Advocate that word "or" appearing in entry No. 51 of third Schedule may be read as "and" but we do not need it necessary to resolve the same, however, from the combined reading of sections 19, 21, 31, 50, 50-A and 42-D of Act, 1974 and while considering the pith and substance of the matter, we have drawn the conclusion that the matter does not fall in the legislative competence of the Azad Jammu and Kashmir Council. It is a residuary matter and the Azad Jammu and Kashmir Legislative Assembly is competent to legislate for the appointment (Terms and Conditions) of Chief Election Commissioner, as is the requirement of section 50 of Act, 1974.
• 28. Mr. Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, Advocates, appearing on behalf of the referring authority and the Council, submitted that a serving Judge of the High Court may validly be appointed as Chief Election Commissioner. For proper appreciation, we deem it proper to reproduce subsections (7) and (8) of section 43 of Act, 1974, which read as follows:
• 31. Raja Muhammad Hanif Khan and Mr. Abdul Rashid Abbasi, Advocates, counsel for the referring authority and the Azad Jammu and Kashmir Council, submitted that there is no concept of appointment of the Chief Election Commissioner for the remaining period and Chief Election Commissioner cannot be appointed for the remaining period. Raja Muhammad Hanif Khan, Advocate, submitted that there is no concept of appointment for the remaining period. The proviso to section 5 of the Act, 2000 is ultra vires the Constitution. Section 5 of the Act, 2000 is reproduce as under:-
• 32. Mr. Abdul Rashid Abbasi and Raja Muhammad Hanif Khan, Advocates, submitted that a person who has held the office of Chief Election Commissioner shall not hold any post or office of profit in the service of Azad Jammu and Kashmir before expiration of two years if he has ceased to hold that office. Raja Muhammad Hanif Khan, Advocate, contended that the provisos attached to sections 5 and 7 of Act, 2000 are ultra vires the Constitution. Mr. Abdul Rashid Abbasi, strengthen his argument while referring to subsection (8) of section 43 of Act, 1974 and submitted that an exception has been created for the Judge of High Court. A prohibition is imposed on the judge of the High Court that he shall not hold any office of profit in the service of Azad Jammu and Kashmir till the expiry of a period of two years but an exception has been created for the judge that he may be appointed as Chief Election Commissioner or Chairman or Member of Public Service Commission, when he ceases to be a Judge of High Court. No such exception for the Chief Election Commissioner has been provided in Act, 2000 or in the Constitution. Clause (a) of section 7 of Act, 2000, specifically imposes a condition on the Chief Election Commissioner that he will not hold the office of profit in the service of Azad Jammu and Kashmir. Subsection (2) of section 7 of Act, 2000 debars a person who has held the office of Chief Election Commissioner that he shall not hold any office of profit in service of Azad Jammu and Kashmir before the expiration of two years from the date he ceases to hold the office of Chief Election Commissioner. The office of Chief Election Commissioner is an office of profit in the service of Azad Jammu and Kashmir. The language of subsection (2) is clear. The plain meaning has to be assigned while interpreting the statutory provisions. A person who has held the office of Chief Election Commissioner cannot be reappointed as Chief Election Commissioner before the expiry of 2 years from the date, he ceases to hold the office of Chief Election Commissioner.

Headnotes / Summary

Judgment & Decree