1998 PLP (C (PLC(CS))

HAMID SAEED MALIK. J.

Humayun Khan, petitioner hits called to question the appointment order of Muhammad Rashid, respondent No. 2 made by the Registrar, Peshawar High Court, Peshawar, respondent No. 1, on the newly created vacancy of the Clerk of Court/Superintendent (BPS-16) for the Court of District and Sessions Judge, Alpuri, District Shangla. The grievance of the petitioner is that he had applied through proper channel for appointment as Superintendent in Court of District and Sessions Judge, Alpuri and had also participated in the test and interview held by the District and Sessions Judge, Alpuri for the purpose. The learned District and Sessions Judge, Alpuri after conducting test and interviews of the candidates prepared a merit list wherein the name of the petitioner was placed at Serial No. l for appointment as Superintendent here as respondent No.2 was placed in the said merit list much behind him, as his name finds mention at Serial No.5 of the list. The District and Sessions Judge, Alpuri out of the 7 contesting candidates, forwarded the names of only 4 candidates i.e. the petitioner, respondent No.2 and two other candidates for appointment of one of the candidate with the remarks/recommendation that the said candidates are having experience in official and judicial work. The Registrar Peshawar High Court, Peshawar (respondent No l) issued the impugned appointment order for appointment of respondent No.2 as Superintendent and also made his posting in the Court of District and Sessions Judge, Alpuri as such. The petitioner has, therefore, questioned the said appointment order of the Registrar, Peshawar High Court through the instant writ petition. Comments were called for from respondents Nos. 1 and 3 on 29-5-1997. The Registrar, Peshawar High Court in compliance with the orders dated 29-5-1997 submitted his comments on 20-6-1997 wherein it has been stated that in view of Rule-XI of Rules and Orders of the High Court, Volume-I, read with Rule 3(a) of Delegation of Powers Rules, 1960, the Chief Justice has exclusive power in respect of the appointment, punishment and transfer of the Gazetted and Non-Gazetted Establishment under the High Court, and respondent No. 2, who was fulfilling the requirement for appointment under the Rules was appointed on the said vacancy and his appointment is, therefore, legal and correct. It has been further submitted in the comments that sanction for appointment of respondent No.2 was duly obtained from the higher authority (i.e., the Hon'ble Chief Justice). We have also perused the relevant provisions of the High Court of West Pakistan Delegation of Powers Rules, 1960, under which it has been provided that for the purpose of appointments of the Clerks of Court and Chief Ministerial Officers to the District and Sessions Judges, the appointing punishing and transferring authority is the Chief Justice of *the High Court. In this case the District and Sessions Judge after conducting test and interview of the candidates for the post of the Clerk of Court/Superintendent forwarded a panel containing 4 names of the candidates suitable for appointment and the Registrar, Peshawar High Court, respondent No. 1, after obtaining approval of the appointing authority (Hon'ble Chief Justice) with respect to appointment of one of the candidate from the said panel forwarded by respondent No.3 accordingly issued the impugned orders dated 17-11-1996. In our view, it is quite within competence of the appointing authority to appoint suitable persons on the vacant posts. Even otherwise, under Article 199(5) of the Constitution, the High Court is excluded from the purview of the said Article while defining 'person' therein. Hence no constitutional petition under Article 199 of the Constitution could be entertained against the High Court itself. A similar question arose for determination before a learned Division Bench of the Lahore High Court in the case of M/s. Nusrat Ilahi and 41 others v. The Registrar, Lahore High Court and 68 others 1991 MLD 2546) wherein juniors to the petitioners were appointed/promoted by the learned Chief Justice, Lahore High Court and the appointment/promotion orders of the respondents were challenged by the petitioner/employees through a constitutional petition. The relevant observations of the learned Division Bench are to the following effect:- "Constitutional petition against High Court - Maintainability -Provision of Article 199(5) while defining 'person' excluded Supreme Court, High Court or a Tribunal established under law relating to the Armed Forces of Pakistan from its purview - No petition, thus, could be entertained under Article 199 of the Constitution against the High Court itself Impugned orders were passed by the Chief Justice who had exercised powers and had acted on behalf of the High Court - Registrar had carried out orders 'of Chief Justice and the Judges of the High Court Appellants' contention that orders passed on executive side by the Chief Justice or the Registrar were not protected from the purview of Article 199 of the Constitution was fallacious by reference to Article 208 of the Constitution vesting powers to frame Rules in respect of employees of High Court in the High Court itself " Keeping in view the abovementioned ruling, we are of the view that the present writ petition is not maintainable on this score also. Resultantly, the writ petition in hand, being misconceived and devoid of any force is hereby dismissed in limine. A.A./2219/P Petition dismissed.