P L D 1964 (W (PLP)

ORTCHESON, J.‑This order will decide one point common to ten Writ Petitions Nos. 427, 453, 481, 671, 699, 700, 701, 702, 795 and 970 of 1963. That point is the interpretation of Article 126(2) of the Constitution of the Republic of Pakistan. Nine of the petitions relate, inter alia, to the appointment as Custodian of Evacuee Property after the commencing day of the Constitution of Mr. A. R. Changez, who retired from the office of a Judge of the High Court of West Pakistan on the 3rd of June 1962, while the remaining petition (No. 481 of 1963) challenges the appointment as Minister to the Central Govern ment of Mr. Habib Ullah Khan, who relinquished office as a Judge of the same Court on the 10th of October 1961.

2. It may be made clear that this order does not purport to decide the petitions in question finally, but only to dispose of the common point referred to above.

3. In addition to hearing learned counsel for the various petitioners and those representing the respondents, we asked Mr. S. M. Zafar to assist us as amicus curiae.

4. Article 126(2) of the Constitution, as it stood before the passing of President's Order No. 28 of 1962, ran : "A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan before the expiration of two years after he ceased to hold that office." According to the petitioners Mr. Changez and Mr. Habib Ullah Khan, having been appointed Custodian and Minister, respec tively, within two years of their retirement, are hit by the above constitutional provision.

5. The expression "Judge of a High Court" is defined in Article 242 of the Constitution as follows: "`Judge', in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court and also includes‑ (a) in relation to the Supreme Court‑a person who is acting as a Judge of the Court; and (b) in relation to the High Court‑a person who is an Additional Judge of the Court." It will be seen that the above definition, which only clarifies that, unless the context otherwise requires, the expression "Judge" includes the Chief Justice on the one hand and Acting and Additional Judges on the other, throws no light on the problem before us, namely, whether Article 126(2) applies to those Judges who retired before the commencing day of the Constitution, and that in order to determine the exact scope of that sub‑Article it is necessary to examine the other provisions of the Constitution.

6. I may first refer to Article

227. For reasons to be given later, it will be convenient to quote the above Article in extenso. It runs :‑ "(1) Any reference in this Constitution to the President shall, for the purposes of this Constitution at any time before the commencing day, be read as a reference to the person who at that time is President of Pakistan, and any reference in this Constitution to the Governor of a Province shall, for the purposes of this Constitution at any time before the com mencing day, be read as a reference to the person who at that time is Governor of the Province. (2) Any reference in this Constitution to the Chief Justice or a Judge of the Supreme Court, or to the Chief Justice or a Judge of a High Court, shall, for the purposes of this Constitution at any time before the commencing day, be read as a reference to the Chief Justice of Pakistan, to a Judge of the Supreme Court of Pakistan as constituted at that time or to the Chief Justice or other Judge of the High Court of a Province as constituted at that time, as the case requires." The words underlined clearly indicate that the Article draws a distinction between the High Courts established under the Constitution and those set up under the previously existing law. This is confirmed by the further fact that there are certain c differences between the Constitution of the former Supreme Court and High Courts and that of the present corresponding Courts. For example, Article 49 of the present Constitution, after stating that there shall be a Supreme Court of Pakistan, goes on to lay down that that Court shall consist, in addition to the Chief Justice, of so many other Judges as may be determined by law, or, until so determined, as may be fixed by the President. Article 148 of the 1956 Constitution is in the following terms :‑ "There shall be a Supreme Court of Pakistan consisting of a Chief Justice, to be known as the Chief Justice of Pakistan, and not more than six Judges: Provided that Parliament may by Act increase the number of other Judges beyond six." Again, whereas under Article 91(2) of the present Constitution a High Court shall consist of a Chief Justice and so many other Judges as may be determined by law, Article 165 of the 1956 Constitution left the determination of the number of Judges exclusively in the hands of the President.

7. In the matter of the transfer of Judges also the provisions of the two Constitutions are not identical. Under Article 99(1) of the present Constitution not only the Chief Justice of the Supreme Court but also the Chief Justices of both High Courts must be consulted before a Judge is transferred from one High Court to another, but Article 172 of the Constitution of 1956 only required consultation with the Chief Justice of Pakistan and the Chief Justice of the High Court of which the person proposed to be transferred was a Judge. It may further be mentioned that the present Constitution makes provision for the transfer of Judges from one permanent Bench of the High Court of West Pakistan to another, a matter with respect to which the 1956 Constitution was silent.

8. It appears from the above that the expression "Judge of a High Court" as used in the present Constitution refers primarily to a Judge serving in a High Court established there under, and that it is only for the purpose of carrying into effect the provisions of the Constitution that the meaning is extended to include the High Courts established under the previous law As an example of the purposes in question, reference may be made to Article 153 of the Constitution, clause (2)(b) of which requires that, even before the commencing day, two Judges, one from the High Court of East Pakistan and the other from the West Pakistan High Court, are to be appointed Members of the Election Committee.

9. The distinction between the position as it stood before the commencing day and that prevailing thereafter is even clearer in the case of the President of Pakistan, and it is for that reason that clause (1) of Article 227 has been cited. Article 9 of the Constitution states that "there shall be a President of Pakistan who shall be elected in accordance with this Constitution and the law." Further, Article 226(1) runs: "In accordance with the result of the referendum conducted during February, one thousand nine hundred and sixty, Field Marshal Muhammad Ayub Khan, Hilal‑i‑Pakistan, Hilal‑i‑Jura'at, shall, notwithstanding anything in this Con stitution but subject to this Article, become the first President of Pakistan under this Constitution on the commencing day." It is obvious from the above provision that although, for the purposes of the Constitution, the term "President" in relation to the period between the enactment day and the commencing day means the person who at that time was holding the office of President, he only became President of Pakistan in the full sense of the Constitution as from the commencing day. Clauses (1) and (2) of Article 227 are completely parallel provisions, and the inference appears to me to be irresistible that in the full sense of the term as used in the Constitution the High Courts only came into existence on the commencing day. Reference may also be made to Article 93 and 219(3), the former of which lays down that, before they enter upon their office both the Chief Justice and the other Judges of a High Court shall make an oath in the form set out in the First Schedule, while the latter states in general terms that where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath. Although, therefore, Article 234(1) declares that every person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him immediately before that day, no Judge who failed to take to the necessary oath could exercise the functions of his office after the commencing day. In my opinion, therefore, there is good ground for confining the use of the expression "a Judge of a High Court" as used in Article 126(2) to those Judges who have taken an oath under the Constitution.

10. Another aspect of the matter is that if the wider construction of the term were adopted, there would be a clear inconsistency between Article 126(2) and Article 234(1) already referred to, since although, under the later Article, a retired Judge of a High Court who had assumed an office of profit under the State before the commencing day is entitled to continue in that office on the same terms and conditions as were applicable to him previously, under Article 126(2) he would stand debarred from continuing to the said office, and inconsistency is not readily to be attributed to the Legislature. If, on the other hand, the more limited and, in my opinion, the true construction, is adopted there is no inconsistency.

11. Finally, Mr. Zullah for Mr. Changez cited several authorities on the point that where rights have accrued, even constitutional provisions are not to be lightly given retrospectivity. For example, in Muhammad Ishaq v. The State (P L D 1956 S C (Pak.) 256) the question under consideration was whether retrospective effect was to be given to Article 159 of the 1956 Constitution, which imposed certain limitations, not existing previously, on the right of appeal to the Supreme Court from a judgment, final order or sentence of a High Court in criminal proceedings. The learned Judges, following the Privy Council case Delhi Cloth and General Mills Co. Ltd. v. Income‑tax Commissioner, Delhi and another (AIR 1927 P C 242), held that while those provisions of a statute which deal merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.

12. To the same effect is Garikapati Veeraya v. N. Subbiah Choudhry and others (P L D 1957 S C 448). Mr. Zullah further referred to Craies on Statute Law, Fifth Edition, at pages 360 and 361, in which the same principle is laid down. The learned author cites, for example, Gardner v. Lucas ((1878) 3 App. Cas. 582), in which it was held that "unless there is some declared intention of the Legislature‑clear and un equivocal‑or unless there are some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prospective and not retrospective." In the present case it is not contended that Mr. Changez had any vested right to the office of Custodian, but the fact remains that had it not been for the new Constitution his right to take up any post offered to him in the service of the State immediately on his retirement could not have been called in question. The principle that retrospec tivity is not to be lightly attributed even to the Constitution, therefore, applies with full force to his case and that of Mr. Habib Ullah Khan.

13. The petitioners called attention to the Removal of Difficulties (Judges) Order (President's Order No. 23 of 1950. Article 2(2) of that Order substituted for the previously existing clause (2) of Article 126 the following :‑ "A person who, on or after the commencing day, has held office as a permanent Judge of the Supreme Court or of a High Court, shall not hold any office of profit in the service of Pakistan before the expiration of two years after he ceases to hold that office." According to the petitioners this Order amounts to at amendment, as opposed to a mere adaptation, of the Constitution, and is, therefore, invalid, reliance being placed in this connection on the well‑known case of Fazalul Quader Chowdhry v. Muhammad Abdul Haque (P L D 1963 S C 486). It will be seen that two important changes have been introduced into the clause in question by the order. In the first place, whereas the provisions of clause (2) of Article 126 imposed a disability on all persons who had held the office of a Judge of a High Court, the amended clause limits that disability to permanent Judges. It was vehemently urged that this provision in particular is ultra vires, but this question is not before us, and I prefer to express no opinion with regard to it, since it cannot be successfully contended that if the amended clause is ultra vires in one particular, it thereby becomes wholly invalid. The other change introduced by Order XXVIII is to state specifically that clause (2) of Article 126 applies only to those Judges who held office on or after the commencing day. If the wording of clause (2) as it existed before the 7th of June 1962 (the date on which Order No. XXVIII was passed) had been clear and unambiguous, it might have been held that the change constituted an amendment of a substantive provision of the Constitution, but if the view I have expressed above is correct, the impugned clause did no more than clarify the real position, and may be considered as having been introduced merely by way of abundant caution.

14. The petitioners also contend that no difficulty existed which had to be removed, but on this point also I am unable to agree with them. Apart from the seeming inconsistency between Article 126(2) and Article 234 of the Constitution, a literal interpretation of the former Article would have rendered it im possible for a Judge of a High Court to be appointed a Judge o the Supreme Court until the period of two years had elapsed since he relinquished the former office, which was surely not the intention of the Legislature. Another point which required clarification was whether a Judge in office could assume charge of another office of profit even though his emoluments were not there by increased. In view of these facts, it cannot be argued that the impugned Order was wholly unnecessary, and I am further of the opinion that where a genuine doubt exists as to the proper inter pretation and application of the Constitution, such a doubt amounts to a "difficulty" within the meaning of Article 224(3). In this connection the learned Advocate‑General pointed out that it was unnecessary to wait until an occasion for the removal of the difficulty actually arose, and he relied in support of this proposition on a ruling of the Supreme Court of India in Shankari Prasad v. Union of India (AIR 1951 SC 458) cited by the learned Judges of the Dacca High Court in their judgment in the case of Muhammad Abdul Haque v. Fazlul Quader Chowdhry (P L D 1963 Dacca 669).

15. For the above reasons I am of the opinion that, so far at least as the point before us is concerned, President's Order] No. 28 of 1962 is valid.

16. No other argument advanced by the petitioners has any force. I would, therefore, hold that the disqualification imposed by Article 126(2) of the Constitution attaches only to those Judges who held office on or after the commencing day and has no retrospective application. The parties to bear their own costs of the present proceedings. ABDUL AZIZ KHAN, C. J.‑I agree. MUHAMMAD YAQUB ALI, J.‑I agree. MUHAMMAD DAUD KHAN, J.‑I agree. INAMULLAH KHAN, J.‑I agree. WAHEEDUDDIN AHMED, J.‑I agree. A. H.