P L D 1965 Supreme Court 527 (PLP)

CORNELIUS, C. J.‑This appeal is brought before the Court by the Central Government of Pakistan to call in question a decision pronounced by a Full Bench of five learned Judges of the West Pakistan High Court in a number of matters which came before that High Court in different forms, to be detailed presently. The Central Government was not made a party in any of these matters, but as the decision of the Full Bench declares a Central f Ordinance, namely, the Legal Practice (Disqualifications) Ordi nance, 1964, to be ultra vires and as it is clear that the executive, authority of the Republic of Pakistan is vested in the President, who is under oath to preserve, protect and defend the Constitu tion, under Article 29 of which the Ordinance in question wits‑made, the existence of locus standi to challenge the High Court] decision cannot but be conceded. The Central Government's1 petition for leave to appeal was instituted on the 23rd December 1964, and it impleaded the following as respondents, namely :‑ (1) Syed Akhlaque Hussain, (2) Sheikh Muhammad Shafi, (3) Mr. Z. H. Lari, (4) Mr. H. B. Tyabji, (5) Mr. Manzur Qadir, and (6) The Province of West Pakistan. The three first‑mentioned persons are Advocates of the High Court of West Pakistan and have all been permanent Judges of that High Court. Mr. H. B. Tyabji was Chief Judge of the Sind Chief Court at Karachi until his retirement fourteen years ago. Mr. Manzur Qadir was Chief Justice of the West Pakistan High Court for about a year before he resigned that office in 1963. On the 22nd April 1965, the Central , Government made application seeking that the names of all respondents other than Syed Akhlaque Hussain and the West Pakistan Province should be deleted from the title of the petition, and this prayer was granted by order of the same date when also directions were given for expediting the hearing of the petition. It was heard on the 5th May 1955, and leave was granted with a direction that the appeal should be heard on the 10th May 1965. We have heard Mr. Ghias Muhammad, Deputy Attorney‑General in support of the appeal, and Mr. Manzur Qadir on behalf of Syed Akhlaque Hussain in reply. The Advocate‑General of West Pakistan also presented a short argument in support of the appellant case. In view of the deletion of the names of Sheikh Muhammad shafi Mr Z.H LARI Mr H,B Tyabji and Mr Manzur Qadir from the list of parties to this appeal it becomes clear that the decision of this court will be effective only in relation to the case of syed akhlaque Hussain . the circumstances in which matters affecting each of these five ex-judge were brought together before the full bench of the high court and a decision was given in comprehensive terms favouring each if them need to be stated in some little detail Syed Akhlaque Hussain had been engaged as counsel for the petitioner in Writ Petition No. 66 of 1963, New Chaudhury Bus Service v. Member, Board of Revenue, in the High Court, and the question, being raised as to his right to appear and act as an advocate in the proceedings, he moved an application before the High Court, which was given the form of a writ petition and duly numbered as 217 of 1964. This petition set out that the Ordinance of 1964. "disqualifies the petitioner from pleading or acting in this Honourable Court as well as in other Courts and Tribunals in West Pakistan," and prayed that the question of his right to plead in the case should be decided after a notice to the West Pakistan Advocate General. The validity of the Ordinance was challenged on the ground that it violated the petitioner's "fundamental right" to practise his profession, and secondly, that the President had no power to make this Ordinance since no circumstances existed which rendered immediate legislation on the subject necessary. As regards the form of this application in my view, it would have `beer. better entitled, "in re the Writ Case No. 66 of 1963", as a matter arising for decision in connection with that case. The question whether Syed Akhlaque Hussain could appear and plead in that writ petition could have been appropriately decided in relation to that case of which the High Court was properly seized, it being a matter falling under Article 98 of the Constitution. The decision now under appeal could then be regarded as a part of the decision in Writ Petition No. 66 of 1963, and the present appeal may then have been described in the terms used by the ‑ Judicial Committee in the case of P. R. Das (58 1 A 38), viz. as an appeal from so much of the order of the West Pakistan High Court as allowed Syed Akhlaque Hussain as an advocate to appear in the High Court .of West Pakistan and Courts subordinate thereto as well as all other Courts and authorities as specified in section 14(1) of the Bar Councils Act, 1926. The matters affecting the other ex‑Judges came before the High Court in what might be described, without exaggeration, as a somewhat irregular mode. Two of them, namely, Mr. Muhammad Shafi and Mr. Lad applied in writing to the High Court ‑for "clarification of their position." Syed Akhlaque Hussain also made a similar application for clarification, but as has been seen, his case of right to practise before the High Court was brought up for decision in a strictly formal proceeding within the High Court's jurisdiction. The question whether indeed the High Court possessed jurisdiction to make‑a decision of the kind here pronounced on the basis of mere applications for clarification need not be considered in detail, for the simple reason that the appellant Government has chosen to have the names of the appli cants deleted from the list of respondents, though it is not difficult to see that there is in these matters, room for the argument that as raised, it was an academic question that was placed before the High Court, and that it did not conform to any recognized form of proceeding of which the High Court could properly be seized in its judicial capacity. The cases of Mr. Tyabji and Mr. Manzur Qadir were brought into the scope of the proceeding even more informally: These two persons did not even file applications for clarification, but their cases have been considered in the judgment of the Full Bench for a reason which appears in the judgment in the following words :‑ "Mr. Brohi stated when the case came up for hearing that he will also be arguing on behalf of Mr. Tyabji and Mr. Manzur Qadir. As the point at issue is important, we allowed Mr. Biohi to present the case of these gentlemen also." However, as has been stated already, .this decision will be confined to the case of Syed Akhlaque Hussain. A short statement of the Provisions of the Ordinance in question is necessary by way of preface to the argument on which a true appreciation of the case of Syed Akhlaque Hussain turns. This Ordinance was made on the 29th January 1964, and commenced with a short preamble stating that it was "expedient to provide for disqualification for legal practice in certain cases," that it was in "the national interest of Pakistan in relation to the achievement of uniformity within the meaning of clause (2) of Article 131 of the Constitution" that there should be central legislation in the matter and there was added a recital that the National Assembly was not in session and the President was satisfied that the circumstances required immediate legislation. The Ordinance provided by section 3 that a person who had been a permanent Judge of a High Court should be disqualified from pleading or acting before any Court, authority or tribunal in Pakistan, except (1) the Supreme Court, and (2) "the High Court the territorial limits of whose jurisdic tion did not extend to any area which was within the territorial jurisdiction of the Court in which he last held office as such Judge." A Judge of a High Court was defined as a person who had at any time after the establishment of Pakistan held office as a Judge of any High Court or Chief Court in Pakistan or had been a Judicial Commissioner or a member of a Judicial Com missioner's Court. The result of this legislative prohibition, described as a "disqualification for legal practice" was that a person, situated as was Syed Akhlaque Hussain, was allowed to practise only in the Supreme Court of Pakistan, or in the High Court of East Pakistan at Dacca. He could not practise in the High Court of West Pakistan or any Court subordinate thereto. In East Pakistan, he could practise only in the‑ High Court, but not in any Court subordinate thereto. He could not practise as a lawyer before any tribunal in any part of Pakistan. The High Court judgment notes that Syed Akhlaque Hussain was an enrolled advocate of the High Court before the Ordinance came into force. The judgment also notes that while under the Constitution of 1956, of which Article 166(3) is relevant, every person who had held office as a permanent Judge of a High Court was expressly debarred from acting or pleading before that High Court or in any Court or authority‑ within its jurisdiction, the present Constitution contains no such provision. On the contrary when it was promulgated there was in existence, as law of the land, a legislative instrument, namely, the Retired Judges (Legal Practice) Order 1962, which expressly overrode all earlier contrary laws or undertakings by individual Judges not to practise after a leaving the Bench and obliged that a Judge of the Supreme Court or of a High Court upon his retirement or resignation, but not removal, should on application be enrolled as a Senior Advocate of the Supreme Court, or as an Advocate of a High Court, and "upon being so enrolled shall have all the rights of such Senior Advocate or Advocate including the right of audience." The Order, also. provided for fixation of the seniority in the roll of senior advocates or advocates of ex‑Judges, enrolled under its terms. Relying on these provisions, the Full Bench expressed the view that : "it was the clear intention of the Constitution that retired Judges should not be disqualified from practising and (that the Ordinance being in the nature of subordinate legislation could not override that intention." It was then pressed before the learned Judges that the Ordinance violated Fundamental Right No. 8, which guarantees to citizens possessing the relevant qualifications prescribed by law, the right to enter upon a lawful profession and to conduct its lawful business, subject however to regulation of the profession by a licensing system. The contention of violation was examined in two parts, namely, whether the Ordinance purported to lay down a ,qualification or whether the Ordinance was "one of the con stituents of a valid licensing system." On the first question, the view was expressed that "it is impossible to bring the Ordinance within the category of a law prescribing a qualification" and further that such qualification may only be laid down for prospective entrants into a profession and it cannot be retrospectively imposed to disqualify a person who has already entered upon that profession. To establish that the Ordinance had retrospective effect, the judgment under appeal refers to the fact that the respondent Syed Akhlaque Hussain had been engaged in a number of cases which had not yet come up for hearing, when the. Ordinance was pro mulgated, with the result that "litigants will be compelled to make other arrangements and the respondent will be under obligation to return fees received." A reference was made to a statement in the American jurisprudence that an attorney's right to practise under his licence is not "a mere matter of grace or favour revocable at the pleasure of the Court or the command of the Legislature", but may only be taken "for good cause shown in a judicial proceeding" and that he was "entitled to bold his office during good behaviour." Further contentions raised on the basis of Fundamental Right No. 4, for bidding ex post facto legislation in criminal matters, and Fundamental Right No. 15, which assures equality before the law and equal protection before the law, were rejected as being unfounded. As to the question whether the Ordinance was an integral part of the licensing system relating to the legal profession, it was observed that it had the effect of "partially disbarring" persons who had been granted licences to practise as Advocates before the Ordinance came into force, and it had "therefore to be seen whether such disbarment is reasonable". While the disqualification imposed by the Ordinance was "scarcely calculated to degrade them, (i.e., ex‑Judges) in the eyes of the community" yet it could not be denied that it had the effect of depriving them of a substantial portion of their means of livelihood. The fact of having been a Judge of a Superior Court would not appear to render a person unfit to be entrusted with the duties of an Advocate. On the point of whether it was appropriate for a retired Judge to act and plead as a lawyer in the Court of which he had been a Judge, two considerations were placed before the Court, namely, (1) that a retired Judge was believed by a litigant to be likely to receive more favourable treatment from the Court of which he had been r member, than other legal practitioners, and (2) the dignity of the legal profession and of the Judiciary required that the ban upon an ex‑Judge appearing and pleading in Court should continue. These reasons were regarded as insufficient to justify the drastic step of "partially cancelling the licences of those retired Judges, such as the petitioners, who had already resumed practice before the passing of the Ordinance." Stress was laid on the fact that when the Constitution of 1962 was promulgated, the Retired Judges (Legal Practice) Order 1962 was in force, and at that time it was not thought improper .to permit retired Judges to practise as lawyers. On these grounds, the conclusion was reached that the "partial disbarment" imposed by the Ordinance was not reasonable. The question of whether circumstances existed to render immediate legislation necessary was held to be one for the subjective satisfaction of the President, and consequently not justiciable, so that the validity of the Ordinance could not be attacked on this ground. The final conclusion was given, in words embracing also the condition of the private respondents other than Syed Akhlaque Hussain as below:‑ "the Ordinance is ultra vires qua the petitioners and that notwithstanding its provisions, they are entitled to practise in this Court, and subject to the provisions of clauses (b)(c) of section 14(1) of the Bar Councils Act, before the Courts and authorities mentioned in the said clauses." It cannot be gain‑said that the entire legal profession operates under an intensive licensing system. This has been the case at least from the time of the earliest charters by which High Courts were established in India. Thus, the Letters Patent of the Calcutta High Court under Article 9 empowered the High ~ Court at Fort William to admit and enrol Advocates, Vakils and Attorneys who were by, the same Article authorised to appear, plead and act in the High Court "according as the said High Court may by its rules and directions determine and subject to such rules and ‑directions". By Article 10, the High Court was empowered to make rules for the qualifications and admission of persons to the legal profession. In due time, the designation Vakil seems to have disappeared and, apart from solicitors; the legal practitioners for whom the rules of the Calcutta High Court provided were classed as Advocates, Pleaders and mukhtars. The Legal Practitioners Act of 1879, contains the law relating to Advocates, Vakils, Pleaders and Attorneys. In relation to Courts Subordinate to the High Court and to Revenue Courts, by section 4, Advocates who under the Letters Patent were entitled to practise in the High Court were enabled to practise in all the Courts Subordinate to the High Court, but Vakils and Pleaders were confined to practice in Courts Subordinate to the High Court except that in a Presidency town, they were entitled to appear in the High Court, but not on the original side. The qualifications and mode of admission as well as the certificates to be granted to Pleaders and mukhtars were made subject to rules made by the High Court.‑ Pleaders and mukhtars to whom certificates had been issued by the High Court were entitled to apply to be enrolled in any Court or revenue office, within the limits of the High Courts' appellate jurisdiction, and pleaders were empowered by section 8 to appear, plead and act in these Courts and offices, but as for mukhtars, by the High Court rules, they Were not permitted to address the Court, or to appear, or to present any legal argument, or to examine witnesses, but were confined to functions of a procedural character as defined in rule 957 of the Rules of the Calcutta High Court. The qualifications for enrolment as a pleader were the possession of a law degree from an approved university and the completion of a year's probation in accordance with certain rules. A person holding a law degree could also apply to be admitted as a mukhtar, but the basic educational qualification for mukhtarship was lower, namely, the possession of a matriculation certificate or its equivalent, and the passing of an examination held‑by the High Court. By the Letters Patent of the Lahore High Court as well, the High Court was empowered to enrol Advocates, Vakils and Attornees, and clause 7, authorised such persons to appear, plead and act in the High Court "according as the said High Court may by its rules and directions determine and subject to such rules and directions". By clause 8, the High Court was empowered to make rules for the qualification and admission of persons to be Advocates, Vakils and Attorneys. A point of difference appears between the two High Courts on the basis that the Bar Councils Act of 1926 was applied from the outset to the High Court of Calcutta, but was never applied to the High Court at Lahore. Consequently, the rights of Advocates of the Lahore High Court continued so long as that Court was in existence, to be governed . exclusively by the rules made by the High Court, whereas Advocates of the Calcutta High Court became entitled by virtue of section 14 of the Bar Councils Act to the right to practise in the High Court except as limited by the rules of the High Court in respect of its original jurisdiction, as well as before "any other Court in British India," which signifies in fact Courts Subordinate to the High Court in which such a person was enrolled as an Advocate. Section 14 also gave Advocates a right io practise before all other tribunals or persons legally authorised to take evidence subject to the law governing such tribunals or persons. For the purposes of the Lahore High Court, however, besides provisions laying down the necessary qualifications as well as disqualifications, e.g., by insolvency or dismissal from Government service, and the mode of application for admission, there was a further provision in rule 3 (ii) of Chapter 6‑A, in Volume 5, of the High Court Rules and Orders reading as below:‑ "In the case of an applicant who has been a Government servant, but at the time of applying as an Advocate has ceased to be in the service of Government, the application shall be granted subject to such conditions as the Court may impose with regard to the locality in which the applicant shall practise," The purpose of this rule is clear. It is obvious that it is based upon an appreciation of the exceptional influence which officers of the. Government carried in their persons in the period of British) rule. This could perhaps be most correctly said about those who were connected directly with the executive administration of the country, or which the Courts in the capacity of Judges and Magistrates or other inferior posts. The intention behind the power given to the High Court to prescribe the place at which such an ex‑official should or should not be entitled to practise as an Advocate clearly was that he should not obtain undue advantage as against the other members of the profession through his previous connection with the executive or ' judicial administration, and perhaps also that the. danger of his imposing upon the litigants or of his employees, e.g., his clerks so imposing upon the litigants, on the basis of his previous status‑ in the administration, should be avoided. The provision was one made in aid of keeping the processes of justice free from unhealthy influences and maintaining conditions of equality among the members of the legal profession in respect of their approach to the courts This rule would appear to have been devoid of its effect when in 1956, the bar councils act was applied to the west Pakistan high court in which the Lahore high court was merged in October 1955. the same result would appear also to be produced by the provision in the third schedule to the 1956 constitution in paragraph 7, namely that an advocate on the rolls of a High Court shall be entitled to act and plead in both the High Courts and in all other ID Courts subordinate thereto." I mention the rule particularly for the purpose of showing that it is not violation of the concept of the licensing laws applicable to the legal profession in pre‑Partition India and now in Pakistan, that there should be a power, even in respect of Advocates, to restrict the full right of practice conferred upon them by the Letters Patent, where the special qualities of the licences required it and in order to save the judicial system from the encroachment of tendencies injurious to the dispensation of justice as well as to the maintenance of healthy conditions .within the legal profession. By the Rules of the Lahore High Court as well, a distinction was made as to the Courts in which a Pleader and a Mukhtar might appear, that is, a pleader could only practise in the Courts subordinate to the High Court, as well as in the Revenue Courts and offices subordinate to the Financial Commissioner, while a Mukhtar could practise only in Civil Courts subordinate to the High Court and in Criminal Courts inferior to the Sessions Court. Here, again, the licensing system has operated so as to confine the practise of certain classes of legal practitioners, by reason of the inferiority of their qualifications, to certain inferior Courts. Instances are thus provided of the licensing system operating in relation to the personal qualifications of different classes of legal practitioners, so as to restrict and confine their practice to the Courts; and to matters, appropriate to such qualifications. The distinction in favour of Advocates would appear to be based no longer on any rules or directions given by the high Courts in the exercise of their powers under the Letters Patent, but on the strength of the franchise given to this class of legal practitioners, namely, the Advocates of the High Courts, by section 14 of the Bar Councils Act, 1926. This position was affirmed with clarity by the Judicial Committee of the Privy Council in the case already mentioned, namely, that of P. R. D2I A Judge of the High Court of Patna had been practising as an Advocate in that Court before his elevation to the Bench, but his name remained on the roll. Upon his retirement in 1930, he applied to the High Courts, : to have his name entered on the roll, and though it seems that his name had never been removed from the roll, that application was granted, but a few days earlier, the Judges of the High Court made the following order, which can perhaps be read as a direction under the relevant clause in the Letters Patent, viz.:‑ "That although in the opinion of a majority of the Judges, Mr. P. R. bas is entitled to be enrolled as an Advocate under section 8(2)(a) Bar Councils Act, yet, in view of the fact that he was a permanent Judge of this Court, the Judges refuse to allow him to appear‑ in the Courts of this Province." An appeal being taken before the Privy Council, reliance was placed on the statutory right of practice given by section 14 of the Bar Councils Act. Against this, it was pleaded that while Mr. P. R. Das was a Judge, he was not an Advocate entitled as of right to practise in the High Court, but the argument was deprived of substance by the fact that enrolment had been sanctioned after Mr. P. R. Das ceased to be a Judge, and on that single circumstances, the Judicial Committee held that he had established a statutory right in himself to practise his profession in the High Court and the Courts subordinate thereto, But at the same time, the Judicial Committee made the following significant observation‑ "Their Lordships therefore refrain from expressing any opinion upon the important question as to the propriety of an ex‑Judge practising in the Courts of the Province where he has exercised judicial functions." The implication of this observation plainly is that what was given as a matter of statutory right could only be taken away by statute, and today, some 34 years, later when certain Fundamental Rights have been assured to the citizens by the Constitution, that would be possible only if a law taking away that right was found not to be in violation of a Constitution assurance. It is appropriate at this stage to consider the various devices which have been adopted by the executive Government and the Legislature from time to time in dealing with the ".`important question as to the propriety of an ex‑Judge practising in the Courts of the Province where he has exercised judicial functions". In the pre‑partition period; the practice was that before a person was appointed to a permanent Judgeship, he was required to give an undertaking that after retirement, he would not practise in the same High Court, or in any Court subordinate thereto. The respondent Syed Akhlaque Hussain upon becoming a permanent Judge of the Lahore High Court in October 1954 had given an undertaking in the following words:‑ "I undertake as a condition of' appointment that I will not after. retirement practise in the High Court to which I am appointed or to which I may be transferred or in any of the Courts subordinate thereto." In October 1955, the Lahore High Court was merged in the High Court of West Pakistan. That merger gave rise to a question in respect of Mr. H. B. Tyabji, one of the respondents whose name was delegated from the record of the present case, whether it stood in the way of his practising as an Advocate of the West Pakistan High Court. His case is reported as H. B. Tyabji v. The Chief Justice and Judges of the High Court of West Pakistan (P L D 1957 S C (Pak.) 272). The undertaking he had given was in. relation to appointment on a permanent basis to the Court of the Judicial Commissioner in Sind, and operated to exclude him after retirement from practice in. the Court of the Judicial Commissioner to which he was being appointed, or in any Court to which he might later have been transferred, or in Courts subordinate to either of these Courts. The Court of the Judicial Commissioner had been replaced in 1940 by the Chief Court of Sind of which Mr. Tyabji first became a Judge and eventually was elevated to the position of Chief Judge from which he retired .in .1951. The question being raised that he was barred by his undertaking aforesaid to practise as a lawyer before the High Court of West Pakistan, it was held by the Supreme Court that Mr. H. B. Tyabji's statutory right based upon his enrolment of an Advocate of the High Court of West Pakistan, to practise in that Court, was unaffected by anything contained in the undertaking mentioned above, which related only to the Court of the Judicial Commissioner in Sind. As a result, Mr. H. B. Tyabji was enabled to practise as a lawyer even in cases arising within the territory included in the jurisdiction of the defunct Court of the Judicial Commissioner in Sind of which he had been a An interesting instance of the effect of merger of High Courts upon undertakings of this kind is afforded by the case of Sir Iqbal Ahmad (A I R 1950 F C71). Sir Iqbal Ahmad had retired from the position of Chief Justice of the Allahabad High Court at a time when that Court was separate from the Oudh Chief at Lucknow, and after retirement, he had his name removed from the roll of the Advocates of the Allahabad High Court, and entered instead in the roll of Advocates of the Oudh Chief Court. In 1948, the Allahabad High Court and the Oudh Chief Court were amalgamated and constituted as one High Court with Benches. at Allahabad and at Lucknow. In the Amalgation Order, provision was made for the right of audience of Advocates in the High Court to be regulated in accordance with the rules of the Allahabad High Court. Some four months later, the Order was amended by a provision referring specially to undertakings given by persons who had held office as Judges of the Allahabad High Court, or of the Oudh Chief Court. The amendment provided that the undertakings should be deemed to continue in force and "the Chief Justice shall issue directions prohibiting from practice as advocates such persons and to such extent as may be appropriate having regard to the terms of their undertakings." In the exercise of this power, the Chief Justice of the amalgamated High Court made a direction that the ex‑Judges of the previous Allahabad High Court who had given an undertaking not to practise after retirement within the jurisdiction of that Court‑ "shall not appear before the Benches of the High Court sitting at Allahabad and in. the subordinate Courts in the 37 districts which were in the jurisdiction of the High Court of Judicature at Allahabad before 26th July 1948." It was similarly directed that ex‑Judges of the Oudh Chief Court, who had given similar undertakings should not appear before the Benches of the High Court at Lucknow or in the subordinate Courts in the 12 districts which were under the jurisdiction of the Oudh Chief Court before amalgamation. The validity of the amending Order was upheld by the Federal Court of India. I have mentioned the case as furnishing an instance of a device by which difficulties that had arisen in the imposition of the pre existing ban on practice by ex‑Judges, following merger of the Courts of which they were members with other Courts, were met by a legislative instrument. The device of a direction issued by the Chief Justice appears to have been suggested by the provision in the relevant clauses in the Letters Patent of the High Court of Pre‑Partition India that the right of Advocates to practise should be "according as the (said) High Court may by rules and directions determine." Without disrespect to the authorities which created and operated this device, it may, I think, be said fairly that, logical though it may seem, yet it appears to carry an undertone of fragmentation of the jurisdiction of the amalgamated High Court, by expressly maintaining differentiation between the specific territorial jurisdictions of the pre‑existing High Courts. Again, the underlying assumption in the employment of such a device is that the mischiefs which such undertakings were designed to avoid, were confined within the territorial jurisdiction of the High Court to which they related and the Courts subordinate thereto. Other aspects may have been ignored, namely, the extent to which the standing of a High Court in the judicial administration of a territory belongs and is carried by the persons who are the permanent Judges of that Court for the time being, and that the maintenance of the dignity of the High Court, which is an inseparable and essential element in the efficiency of its operation at the apex of the judiciary, is liable to be gravely impaired by actions of such persons, even after their retirement, in capacities which, relatively to a Judgeship are directly subordinate and inferior. It could be thought that the inequality within the profession resulting from the entry into it of a person who had exercised the full power of a High Court and enjoyed the full dignity belonging to that High Court as a permanent member of the Bench, would not be materially different within the territorial jurisdiction of that High Court from what it would be in the territorial jurisdiction of an adjoining High Court, particularly when the two High Courts had been operating in the same Province. The point could, also be made, on the basis of the reasoning underlying rule 3 in Chapter 6‑A of Volume 5 of the Lahore High Court Rule3 mentioned above, that the exercise of plenary judicial power in a country such as ours, confers 'a permanent kind of position and influence, which if allowed free play, by an ex‑Judge being admitted to the legal profession, might produce unhealthy results both to the dispensation of justice as well as to the maintenance of harmony within the legal profession. These two cases, namely, of Mr. H. B. Tyabji and Sir 1qbal Ahmad indicate, the difficulties in the way of enforcing an undertaking of the relevant kind in a case of merger. I may here say that between the case of Mr. H. B. Tyabji and that of a person who had been a permanent member of the Lahore High Court before the establishment of the West Pakistan High Court, one point of distinction might perhaps be found, namely, that while the Court of the Judicial Commissioner and the Chief Court of Sind were relatively at a lower level in the hierarchy of Courts, it is clear that the nucleus of the High Court of West Pakistan was furnished by the High Court at Lahore. The Judges of the other High Courts which were merged by the . Order of 1955 were, by the instrument of merger, elevated as to status and vested with territorial jurisdiction in respect of the whole Province of West Pakistan and with all the powers and authority, which had been previously exerciseable by the High Court in Lahore and the Judges thereof, vide section 7 of the Establishment of West Pakistan Act, 1955. By section 9 of the High Court of West Pakistan (Establishment) Order, 1955, the Letters Patent of the Lahore High Court was made to apply to the new High Court and all the jurisdiction, power and authority conferred upon the Lahore High Court by that Letters Patent were to be deemed to have been "conferred on the High Court of West ‑Pakistan. The impression is gained that thereby there was merely brought about an extension of the territorial jurisdiction of the permanent Judges of the Lahore High Court, and in this view, it .is a tenable argument that the undertaking given by Syed Akhlaque Hussain that he would not "practise in the High Court to which I am appointed" after relinquishing his seat in that High Court cannot be affected by the mere fact that as from October 1955, he was to be a Judge of the High Court of West Pakistan. However, .there is a contention in respect of 'the continued validity of his undertaking which will need to be considered presently. It is conceivable that it was on account of the difficulties which had appeared in relation to the enforcement of such undertakings that when in 1956, the Constitution of Pakistan was promulgated, it contained a provision rendering such undertakings obsolete by providing in Article 166(3) that‑ "a person who has held office as a permanent Judge of a High Court shall not plead or act in that Court, or any Court or authority within its jurisdiction." The prohibition was expressed in terms of futurity, and would in any case operate in respect of all persons‑who, like Syed Akhlaque Hussain, were permanent Judges of a High Court on the date, the 23rd March 1956, when this Constitution was promulgated. As is well‑known, the Constitution was suspended in October 1958, and a new Constitution, namely, that of 1962 came into force on the 8th June 1962. Before that date, however, in the exercise of plenary power derived from the Laws (Continuance in Force) Order 1958, the President had on the 30th May 1962, made the Retired Judges (Legal Practice) Order, 1962, to which reference has already been made. By this Order, the long standing policy, in regard to the propriety of Judges of a High Court practising in that High Court after their retirement was completely reversed. Far from being prohibited from practisting in that High Court or Courts subordinate thereto, it was enjoined that every such Judge on relinquishing his seat otherwise than by removal.‑ should be entitled on application, to be enrolled as an Advocate f the same High Court and to have the full rights of audience belonging to an Advocate. This privilege was irrespective of whether or not the person in question possessed the qualifications to become an Advocate of a High Court, as provided in the High Court Rules or under the Bar. Councils‑ Act. It is evident that this was intended to favour Judges who bad been elevated to the Bench from inferior posts in .the Judicial Service, and who did not possess academic legal qualifications. 'For such persons, a special provision was made that their names were to be deemed to have been entered in the roll of Advocates from the date when they were first appointed as Judges, but as. for a 'Judge who had previously been an Advocate, his seniority on the roll would date from the day of his previous enrolment. We were informed in the course of the argument in this case by Mr. Manzur Qadir who was a member of the Central Cabinet of Pakistan at the time when the Retired Judges (Legal Practice) Order, 1962,, was made that the right of practice after retirement was thus given in more or less absolute terms, making a total departure from the previous policy, from the consideration that the Government did not find it possible for various reasons to increase the pensions provided under the rules for Judges, which pensions were admitted to be inadequate, in relation to the existing level of prices, and to the status which a retired Judge was expected to maintain. Whatever the motives, it is clear that the minds of the principal authorities of the State were exercised in relation to this important question, namely, "the propriety of an ex‑Judge practising in the Court .of the Province where he has exercised judicial functions" and on this occasion, a fresh opinion was formed which may well have been that the danger to the whole system of justice, which it had previously been felt might result from allowing retired High Court Judges to re‑enter the legal profession within the jurisdiction of the High Court of which they had formed part, may have been exaggerated, or in the alternative, that ‑the need to allow such persons to supplement their income by the use of their legal knowledge and experience outweighed any considerations arising from a sense of such possible injury. The Order expressly avoided the effect of any earlier law to the contrary, which would embrace the provision contained in Article 166(3) of the 1956‑Constitution. It expressly also avoided the effect of any undertaking. I find it difficult to suppose that it was the intention of the wording of this Order that, while such an undertaking should be of no effect in the case of Judges who had retired o had resigned, to deprive them of the privilege of re‑entering the legal profession, yet it should stand in the way of a Judge who had been removed, which is the case of Syed Akhlaque Hussain. In my opinion, the more reasonable view is that what was withheld from a removed Judge was the right to claim enrolment, and as for the undertakings, they were effaced wholly by the Order as a preliminary step. .It should be mentioned that the question of Syed Akhlaque Hussain's right to practise before the West Pakistan High Court has been the subject of a judicial decision by a Division Bench of that Court in the case of Hashim Ali v. The State (P L D 1963 Lah. 82). It was there held that he was entitled so to practise as his name was borne on the roll of the High Court of West Pakistan after his removal, and any bar to his appearance created by Article 166(3) of the 1956‑Constitution was overcome by the fact that that bar was, not repeated in the Constitution of 1962, and in the meantime the Retired Judges (Legal Practice) Order, 1962, had been made which removed generally the bar on practice by retired Judges. Although, the privilege of enrolment on application could not be claimed by Syed Akhalque Hussain under the latter Order since he had been removed, yet it was not necessary for him to seek that privilege because his name was already carried on the roll of the High Court Advocates. As to the undertaking which he gave, it was held that it did not bar his practice in the new High Court of West Pakistan, and this was based on the consideration that the Lahore High Court to which that undertaking related was no more and that Syed Akhlaque Hussain had not been "transferred" to the High Court of West Pakistan. In arriving at the decision, the learned Judges, as is pointed out in the judgment of the Full Bench, did not give sufficient weight to certain observations made by the Supreme Court on the same question in their judgment in the case of Syed Akhlaque Hussain (P L D 1961 S C 431). An additional reason for considering that that undertaking was carried over when Syed Akhlaque Hussain became a permanent Judge of the West Pakistan High Court has been indicated above, namely, that in effect by the Establishment of West Pakistan Act, 1955, and the High Court of West Pakistan (Establishment) Order, 1955, made thereunder, the jurisdiction of the existing Judges of the Lahore High Court was merely extended to cover territories which had previously. lain within the exclusive jurisdiction of the Chief Court of Sind, the Peshawar Judicial Commissioner's Court and certain other Courts which were amalgamated with the new High Court of West Pakistan. But as I have indicated already, after the passage of the Retired Judges (Legal Practice) Order, 1962, avoiding .the effect of all such undertakings, I find ‑ it difficult to hold that in the case of Syed Akhlaque Hussain, because of the fact that he was removed from his office, the undertaking continued to have effect, whereas such an undertaking was avoided in the case of Judges who had retired or had resigned. I would prefer to treat of the matter as if after the making of the Retired Judges (Legal Practice) Order 1962, and the promulgation of ‑ the Constitution of 1962, which contained no bar such as that previously provided by Article 166(3) of the 1956‑COnstltllttOn, the effect of such undertakings was totally avoided, and it was under that condition when among other ex‑Judges, Syed Akhlaque Hussain had enjoyed the full franchise of ‑an Advocate of the High Court for a period of almost two years that the bar of the Ordinance of 1964 was applied hose effect should therefore, ins my opinion, he considered wholly irrespective of Syed ‑Akhlaque, Hussain's undertaking. The Full Bench has expressed the opinion that the Ordinance of 1964 is void because it is contrary to the intention of the Constitution in the relevant respect. I find it impossible to support this view. The Constitution of 1962 itself provided that such an order of the President, made in the Martial. Law period, as the Retired Judges (Legal Practice) Order, 1962, which was not. repealed by the new Constitution, should continue as existing law, in other words, iii the status of a Central Legislative enactment. It is, I think, going altogether too far to say that by implication from mere omission of the express bar provided by an earlier superseded Constitution, the intention of the 1962‑Constitution was that the Retired Judges (Legal Practice) Order, 1962 should for all time remain permanent and unchanged on the statute book. The terms of a Constitution are to be applied according .to their tenor, giving the expressions used the widest meaning in the context, but an earlier Constitution' is not part of the context, and to refer to it for enlarging the meaning of the existing Constitution, or importing intentions into it, does not seem to me to be permissible. As a law of the Central Legislature the Order of 1962 was amenable to amendment, modification and repeal in the exercise of legislative power by the Centre. The Ordinance of 1964 repeals the Retired Judges (Legal Practice) Order, 1962, expressly, and I find nothing in the judgment of the Full Bench ‑to indicate that this repeal was ultra vires of the Central Legislature whose powers were exercised by the President in making the Ordinance of 1964. The Full Bench has found that the Ordinance does not lay down qualifications within the meaning of that expression as used in Fundamental Right No. 8, and with respect, but for different reasons, I would agree with that conclusion. For on a plain reading of this Order, I. think it is possible to say that the use of 'the word "disqualification" in this instrument is totally misplaced. The learned Judges have themselves regarded this Ordinance as effectuating a partial disbarment, and that is in my opinion somewhat closer to the truth of the matter. What the Ordinance provides is that certain specified members of the legal profession, namely ex‑Judges of the Superior Courts, whose names are carried on the roll of Advocates of the Superior Courts, should not plead or act except before certain specified Courts. There is nothing in the Ordinance involving the removal of the names of such persons from any roll ' of Advocates. All the indirect advantages which flow from the possession of such a status are available to these persons, but as from the date of the Ordinance they will not enjoy the full franchise of enrolled Advocates given by section 14 of the Bar Councils Act, and may not practise in the High Court in which they are enrolled as Advocates or in any' Courts subordinate to a High Court, or before any authority or, tribunal in Pakistan. They may practise before a High Court. of which they were not Judges and they may practise also in the Supreme Court, upon being duly enrolled. They, are not disqualified from following the profession in other ways, such as; in the capacity of Legal Advisers, or by practice in chambers. The bar is as to appearance. in specified Courts. An extended meaning has been given to the expression "High Court" by including certain superior Courts which are now defunct, and that indicates sufficiently clearly that the ban has been laid, upon the basis of the person so prohibited having at one time enjoyed the full status and dignity of a permanent Judge of a High Court or an equivalent Superior Court in any place now included in Pakistan. The question which arises is whether or not such a. restriction is relatable to matters which may be appropriately governed by a licensing system. It is immaterial that the prohibition is applied by means of a statute. As the learned Judges of the Full Bench have said, the question before them was whether the Ordinance could be thought "to form one of the constituents of a valid licensing system". They have found an answer in the negative on a basis of reasonableness and it is questionable whether that criterion is truly applicable. For, it must be remembered that here the restriction is applied not by a rule or other form of subordinate legislation, but by a law of the Central Legislature, which is not susceptible of avoidance on the ground of reasonableness. That statute was indeed necessary to carry out ,the intention behind the Ordinance of 1964 is clear. The need was to restrict, in the particular cases, the full franchise conferred upon Advocates by another law, namely, the Bar Councils Act of 1926. But, even from the standpoint of reason, the grounds thought sufficient by the Full Bench for pronouncing against the validity of the law do not appear to me, I say so with all respect, to give consideration to all relevant factors, .or even to the protestations made on behalf of the West Pakistan Bar Council by Mr. Mahmud Ali. If it be appropriate that certain members of the legal profession should, by reason of the qualifications which they possess, be restricted to the lowest level of the Courts, and even in relation to the type of functions which in those Courts they may be safely empowered to perform on behalf of their clients, surely there is nothing of unreason in requiring that those who have been plenipotentiaries of the law, in the capacity of Judges, should not thereafter descend into the well of the Court and join in the competitive activities of the legal profession, except under conditions which do not bring anything of criticism or disrepute upon the standing in the public eye of the Courts of which they have been members. The whole apparatus of justice functions under conditions of the most intense publicity. By the law, a person sitting in the high seat of justice is protested from every kind of criticism such as might reflect upon his capacity to do justice, or upon anything done by him in the dispensation of justice. On the contrary, a lawyer standing before a Court must expect to be treated with severity by the Court 'in regard to the propriety, the correctness, the comprehensiveness, and perhaps even the persuasiveness of everything which he places before the Court, and it cannot be without effect upon the public image which Judges of the Superior Courts are expected to, and for the most part indeed do create, that a person who is one day a Judge, should the next day be standing before Judges and perhaps receiving correction on point after point, in respect of his preparation of his case or his knowledge of the relevant law, or even of the manner of the presentation of his argument. On the other hand, should' the fact of his having been a Judge be constantly borne in mind by the Court, there is little prospect of his argument receiving the intensive examination at the hands of the Courts, which is necessary for the correct dispensation of justice in the ultimate Courts, and consequently injury is done not only to the case, but also generally within the legal profession, which is devoted to the concept of equality among themselves, before the law, and before the Judges. If it became common practice for ex‑Judges to be practising in their own High Court, making submissions where previously they made only pronouncements, and if their submissions were subjected to constant criticism by their opponents, at the bar, as well as from the Bench, would this not necessarily produce in the public mind a feeling that the position which these persons enjoyed and were under the law allowed, during their period on the Bench, was scarcely deserved by personal merit? Such a feelings, once it commenced, would tend to grow and eventually to develop into a large doubt in the public mind as to the efficacy of the entire system. Therefore, in my view, it is an entirely reasonable, move, on the part of the Legislature, in relation to this vexed question, of which solutions have been attempted in the sub‑continent and since the Partition in Pakistan in a variety of different modes, to adopt the mode of confining ex‑Judges; who may need a livelihood through professional work, to appearance only in the highest Courts of the country, and of these, only such Courts as they have not been members of. Such a drastic step would not have been necessary had it been the experience that ex‑Judges in the pursuit of the profession, observed restraints such .as were consistent with the dignity which still attached to them as ex‑Judges. It is to be said with regret‑ that occasions have been known in the recent past, when ex‑Judges have appeared even before Magistrates in outlying stations in their search for a livelihood, and it may well be that such instances, have operated on the minds` of the law‑making authority to produce the' conviction that legislative control was indeed necessary. This was provided by a new regulatory law confining those who carried in themselves a residue of. high dignity within the Judiciary, t0 appearances before those Courts only where they could appear without any element of unbalance or inequality. The fact of partial disbarment is however plain, and where this occurs in diminution of a franchise which has been enjoyed for a period, the question would arise whether the law can effectively produce such a‑ loss of a property right, consistently with the requirements of the Constitution. Speaking generally, the law as an instrument for the advancement of the public interest, must be adapted to existing requirements, being specially sensitive to the existence of any elements of mischief or injury which it finds in operation. The law moves slowly, and therefore conservatively, but instances are not uncommon of the law moving to remedy gross inefficiency and inequalities which have grown up under its protection in the past, even at the cost of deprivation, of the existing rights of property. There is the instance of the land reform, which was found necessary in the entire sub‑continent following upon the century during which, under British rule, a condition had developed leading to monopolization and inefficient exploitation of land, .to the detriment of the prosperity of the common people. The technique of decartelization in industry and commerce in many countries through legal instruments, affords another example of the removal of existing mischiefs by deprivation of existing rights of ownership, because such rights having developed in unbalanced fashion, so as to produce real dangers to the public interest in the shape of unhealthy monopolies. The Constitutional right in respect of property is expressed in the following simple terms, viz.:‑ "No person shall be deprived of his property save in accordance with law." In this case, the loss of a property right through partial disbarment has been operated by a law. It has no quality of a "bill of attainder" such as was found by the majority of the Supreme Court of the United States in the case of Garland (71 U S 366.). That Court had under consideration a law of Congress depriving attorneys of their entire right of practising the profession of law, unless they took an oath denying that they had over participated on behalf of the Confederacy of the Southern States .in the American, Civil War. :The case was one of treason being visited with punishment through legislative instrumentation. Here, it is not a case of punishment at all. The Ordinance of 1964 operates in aid of maintenance of the judicial machinery at the apex of the system, in that state of dignity, which is essential to its proper operation. In the case of Garland, it was found that the law also operated ex post facto, that is, it applied to an act not runishable when it was performed, a punishment of later devising. Such a prohibition is contained in the Pakistan Constitution in Fundamental Right No. 4, but that right is clearly not attracted, for here indeed there is nothing in the nature of a punishment being applied. Nor can it be said that there is violation of the M right of equality of citizens expressed in Fundamental Right No. 15, in the following terms viz.:‑ "All citizens are equal before law and are entitled to equal protection of law." For, it is fully recognised that such a pronouncement cannot be understood in an absolute sense, and is subject to the rule of reasonable classification. I see no difficulty in holding that it is not only a reasonable classification, but a real necessity, for the proper continuance of the whole system of justice in our. country, that ex‑Judges who are active members of the legal profession should be placed in a class apart, and for the good of the judicial ,,stem should be confined in their professional activities to the its only, these being Courts of which they themselves highest Courts only, have not been members. Therefore, in my opinion, the Ordinance of 1964 is to be understood as an instrument of regulation within the licensing system under which the whole profession of the law operates, and I do not find that the restrictions which it imposes are in themselves unreasonable, or that they operate in violation of any of the Fundamental Rights of citizens embodied in the Constitution. . The ground on which retrospective operation has been found by the Full Bench, namely, the fact of litigants having to engage other counsel to replace the ex‑Judges, and of the ex‑Judges having to return fees which they had received is, in my opinion, and I say so with all respect, entirely disproportionate to the size and o importance of the question involved to this case. The mere fact of a few cases being affected in this way and certain .limited sums of money, appreciable though they may be in the eyes of their present holders, having to be returned, is an inadequate ground for declaring a law of the Central Legislature to be ultra vires. Therefore, in my opinion,, the answer returned by the Full Bench; namely, that Syed Akhlaque Hussain was entitled to practise to the High Court, because the Ordinance in his case was ultra vires is liable to be reversed and in its place I would return the answer that the Ordinance is valid to prevent Syed Akhlaque Hussain from appearing in Writ Petition No. 66 of 1963 New Chaudhury Bus Service v. Member, Board of Revenue, as counsel. I would leave the parties to bear their own costs. S. A. RAHMAN, J.‑I have had the privilege of seeing, in advance, the judgments proposed to be delivered to this case by my Lord the Chief Justice and my brother Kaikaus, J. with respect, I find myself in agreement with the order proposed to be passed by my Lord the Chief Justice' that the judgment of the High Court be reversed and that the appeal should be allowed but that the parties should be left to bear their own costs. My approach to the problem arising in this case, however, is a somewhat different from that adopted by my Lord and I would therefore briefly indicate my own reasons for my agreement with the final conclusion reached by my Lord. This appeal is confined to the right of‑ Mr. Akhlaque Hussain to practise before the high Court of West Pakistan or any Courts or authorities subordinate thereto or within its jurisdiction. The mere fact that the Government has withdrawn its appeal against other persons does not, to my mind, lead to the inference, as my brother Kaikaus is disposed to hold that the Government admits the ultra vires character of Ordinance II of 1964. The right of appeal has been conceded to the Government of Pakistan on the basis that it is interested in obtaining a decision upholding the validity of this Ordinance. The facts of the case are sufficiently set out in my Lord's judgment and need not be repeated at length. The essential facts are that Mr. Akhlaque Hussain was appointed a Judge of the‑ Lahore High Court in 1953 and became a permanent Judge of that Court in 1954. On the 14th of October 1955, the Establishment of West Pakistan Act, 1955, was brought into force. As a result of an order passed thereunder, Mr. Akhlaque Hussain became a Judge of the High Court of West Pakistan. He had given an undertaking when a Judge of the Lahore High Court, not to practise after retirement, in the High Court to which he was appointed or to which he may be transferred or in any of the Courts subordinate thereto. Mr. Akhlaque Hussain was removed from the office of the Judge, High Court of West Pakistan, as the result of a report made on a reference by the President to the Supreme Court of Pakistan, in 1959. In 1960, Mr. Akhlaque Hussain asserted his right to appear before the Karachi Bench of the .High Court of West Pakistan in a case, but he was not conceded that right. There was an appeal brought to this Court from that order by Mr. Akhlaque Hussain but it was dismissed on the 5th of June 1961, the report being published as Syed Akhlaque Husain v. Judges of the High Court of West Pakistan (P L D 1961 S C 431). It was held in the course of that judgment by the Full Court that Article 166(3) of the Constitution of 1956, which was continued in force by the Laws (Continuance in Force) Order, 1958, represented a condition applicable to the holding of office as permanent Judge of the High Court and was binding on Mr. Akhlaque Hussain as such. This placed a positive prohibition on a person who had held office as a permanent Judge of a High Court on pleading or acting before that Court or in any Court or authority within its jurisdiction. It was pointed out also that the form ,of the undertaking given by Mr. Akhlaque Hussain earlier, was clearly expressed to be a condition of his appointment and what the late Constitution of 1956 did was, inter alia, to convert this condition into a constitutional prohibition without affecting its essential character. It was ruled by this Court, in consequence, that the respondent was barred from practising in the West Pakistan High Court or in any Courts subordinate thereto. Mr. Akhlaque Hussain, it would thus be clear severed his connection with the High Court of West Pakistan at a time when this condition of service was applicable to him and was in full force. The question then arises whether any subsequent changes in the law altered that position. On the 2nd of June 1962, the President Promulgated his Order No. 21 of 1962, called the Retired Judges (Legal Practice) Order, 1962. At the time that this was brought into operation, the President enjoyed supra‑constitutional powers and therefore it could even override an existing constitutional provision. With the enactment of the present Constitution of 1962, however, this Order was relegated to the sub‑constitutional field, as has been pointed out by my Lord in his judgment. My Lord has taken the view that President's Order 21 of 1962 had the effect of abrogating any undertaking given by a permanent Judge of a Q High Court, including a Judge who had been removed from his office. I am conscious the high weight of authority behind this opinion, but I venture to 'suggest, with the utmost deference, that the inference does not necessarily follow from the provisions of this Order. In terms, it applies only to Judges who have retired from or resigned their office but not those who have been removed therefrom. It confers certain privileges on the first two categories of Judges but says nothing about any benefit being conferred on those Judges who have been removed from office. This fact, taken along with the circumstance that the provision contained in clause (3) of Article 166 of ‑ the Constitution of 1956, has not been repeated in the 1962‑Constitution, does not, to my mind, destroy the effect of a condition of service to which a Judge was subject when he was removed from office. I find nothing either in the 1962‑Constitution or in President's Order 21 of 1962, which. could be construed as removing the disability attaching to a removed Judge who, when he was removed, was bound by the condition . of service preventing him from practice before the High Court of which he was a Member or before subordinate Courts or authorities. Unless there is a ‑positive enactment removing such a ban, I think the ban would continue to apply to him with full force. I find no warrant in the language employed in Order 21 ‑ of 1962 for extending its benefit to removed Judges in respect of relief from any undertaking or other constitutional disqualification to practise binding on them ' as a condition of service. The negative fact that the 1962‑Constitution omits the provision contained in Article 166 (3) of the 1956‑Constitution, cannot improve the respondent's position in this behalf. The abrogation of the Constitution of 1956, on a date subsequent to the removal of the respondent from the High Court, would not provide justification for the proposition that the disability with regard to practice attaching to the respondent. as a condition of his appointment as Judge, has ceased to be effective, without some positive enactment removing it. On this view the question whether the impugned Ordinance II of 1964 could be successfully invoked to place a ban on Mr. Akhlaque Hussain in respect of practice to the extent contemplated by it, assumes a more or less academic character. It is a question of some nicety whether, even if this subsequent legislation is to be regarded as competent to repeal the Retired Judges Legal Practice Order, 1962, which had acquired the status of a Central Act, the condition of service attaching to a High Court Judge could be the subject of legislation by the Central Government or whether it had to be regulated by a constitutional provision alone. I would reserve that question for decision in an appropriate case wherein it really calls for adjudication. It follows, therefore, that the question whether the ban imposed by the impugned Ordinance amounts either to a "qualification" for practice in the sense that a "disqualification" can also be included within that generic term, or whether its provisions amount to "regulation" of the profession of law, without interfering with the content of Fundamental Right No 8, guaranteed by the Constitution, need not be decided in the present ease. With respect, I might say, however, that the considerations mentioned by my Lord the Chief Justice in support of his view that the provisions of the impugned Ordinance were regulatory in character, within the meaning of the term "regulation" as used in Fundamental Right No. 8, are attractive, but I would not like to commit myself to a final opinion on that question as I do not feel pressed to do so in the circumstances of the instant There remains the question whether the decision of the High Court in Hashim Ali v. The State (PLD 1963 Lah. 82) that Mr. Akhlaque Hussain was entitled to practise before the High Court or any other Courts or authorities subordinate thereto, not having been appealed from, operates as res judicata against the Government. I note that the Central Government was not a party to that case but only the Assistant Advocate‑General of the Province represented the Provincial Government before the learned Judges who decided that case. The Central Government which has brought the present appeal as a Central Ordinance has been struck down as unconstitutional by the High Court. I do not therefore see how that decision is binding on the Central Government. Moreover, the question whether Mr. Akhlaque Hussain should be allowed to practise, arose in that particular case of Hashim Ali v. The State and the question really decided therein was that Mr. Akhlaque Hussain could appear as Counsel for Hashim Ali in that case. His right to appear in that case may not be any longer challengeable, but I do not think that his right to practise generally in the High Court or in any Courts or authorities subordinate thereto, should be held to be established for all times to come. With respect, therefore, I am not inclined to accept the view that has found favour with my brother Kaikaus, J. in this respect. The decision in Hashim Ali's case must be held confined to the facts and circumstances of that particular case. It would perhaps be advisable for Government to place the matter beyond all controversy, if the policy with R regard to practice by former Judges is settled by, an amendment of the Constitution in the relevant respect. I would concur in the order allowing the appeal and leaving the parties to bear their own costs. FAZLE‑AKBAR, J.‑The question raised by this appeal is: Whether the respondent Mr. Akhlaque Hussain is entitled to appear as an Advocate in the High Court of West Pakistan. The facts in the case are not in dispute. In 1953 Mr. Akhlaque Hussain, a Senior Advocate of the High Court of Lahore was appointed as a Judge of that Court. In 1954 when he became a Permanent Judge, he gave an undertaking in the following words: "I undertake as a condition of appointment that I will not after retirement practice in High Court to which I ant appointed or to which I may be transferred or in any of the Courts subordinate thereto." In 1955 after Intergration of the Provinces of West Pakistan into a single Province he automatically became a Permanent Judge of the High Court of West Pakistan by reason of a provision contained in Establishment of West Pakistan Act, 1955 and under Article 6 of the High Court of West Pakistan Order, 1955 he held his office on the same terms and conditions as were applicable to him before. On 23rd March 1956 Constitution of Pakistan was promulgated and Article 166 (3) provided that A person who has held office as a Permanent Judge of a High Court shall not plead or act before that Court, or any Court or authority within its jurisdiction. On 31st August 1959 Mr. Akhlaque Hussain was .removed from the office of a Judge by the President of Pakistan on a report submitted by this Court on a reference made by the President. Shortly thereafter a Full Bench of this Court while ordering for removal of his name from the roll of Senior Advocates of this Court for one year observed: "Nor is a reference to the High Court of West Pakistan necessary, since he is bound by the undertaking he gave when he assumed the office of Judge of that Court that after leaving it, he would not practise in that Court or any Court subordinate thereto." (See In the matter of: Removal of the Name of Mr. Akhlaque Hussain From the Roll of Senior Advocates of the Supreme Court of Pakistan) (P L D 1960 S C 40). In 1961 he was engaged to appear in three criminal cases before the High Court of West Pakistan at Karachi and a Division Bench of that Court did not permit him to appear before it as an Advocate. Against the above order Mr. Akhlaque Hussain filed an appeal in this Court and a Full Bench of this Court while upholding the order of the High Court observed It is perfectly clear that the relevant provision in Article 166 (3) is in essense the same condition of appointment which was incorporated in the undertaking obtained from Judges in the period preceding the promulgation of the Constitution. It makes no substantial difference, that it is expressed in the form of an absolute prohibition. It nevertheless remains a condition of the appointment and as such it appears to us to be perfectly clear that it was continued in relation to each permanent High Court Judge who held such an appointment on the 7th October 1958. The further argument that a Judge's terms and conditions of office cannot be altered to his disadvantage during his term of office, is of no avail against a clear prohibition included in the Constitution itself. See Syed Akhlaque Hussain v. The Judges of the High Court of West Pakistan (PLD1961SG01) Further, while dealing with the appellant's contention that he had an absolute right to appear in High Court, this Court made the following observations: "Syed Akhlaque Hussain attempted to rely upon the absolute right of Advocates to appear in High Courts, and referred to paragraph 7 of the Third Schedule to the late Constitution, where this right was assured in the following words, namely: An Advocate on the rolls of a High Court shall be entitled to act and plead in both the High Courts, and in all other Courts subordinate thereto . . . . " That is a legal provision of a general nature available to all Advocates. Its operation is subject to all special legal provisions on the same subject, and such a provision of a very special nature, which directly hits the case of the appellant, is that contained in the.Constitution in Article 166 (3). We are in no doubt that the appellant is barred, by a provision in the late Constitution directly applicable to his case, from practising in West Pakistan High Court or any Courts subordinate thereto." On 2nd June 1962, President Order No. 21 of 1962 Retired Judges (Legal Practice) Order 1962 was promlugated in these terms "In pursuance of‑ the Proclamation of the seventh day of October 1958, and in exercise of all powers enabling him in that behalf, the President is pleased to make the following order:

1. Short title and commencement.‑(1) This Order may be called the Retired Judges (Legal Practice) Order, 1962. (2) It shall come into force at oncd.

2. Definition.‑In this Order, unless there is anything repugnant in the subject or context, `Judge' means a Judge bf the Supreme Court or of a High Court, and includes the Chief Justice of Pakistan and the Chief Justice of a High Court.

3. Enrolment and right to practise, etc.‑(1) Notwithstanding anything to the contrary contained in any other law or in any undertaking, a Judge shall, upon his retirement or resignation from his office (but not removal), be forthwith entitled, upon application made to the appropriate Court, to be enrolled, as a Senior Advocate of the Supreme Court, and also as an Advocate of a High Court, and upon being so enrolled shall shall have all the rights of such Senior Advocate or Advocate, including the right of audience. (2) A person enrolled under the provisions of clause (1) shall take his seniority among the Senior Advocates of the Supreme Court, or Advocates of the High Court, as the case may be‑ (a) If he was, before his first appointment as a Judge, enrolled as a Senior Advocate of the late Federal Court or of the Supreme Court or as an Advocate of the High Court from the day of his previous enrolment; or (b) if he was not so enrolled, from the day of his first appointment as a Judge." In September 1962, Mr. Akhlaque Hussain moved a petition for bail in the case of Hashim Ali v. The State before a learned Single Judge of the High Court of West Pakistan at Karachi and as the said Judge doubted his competency to appear as a counsel, the matter was referred to a Division Bench. A Division Bench of that Court held in the above case Hashim Ali v. The State that "The Laws (Continuance in Force) Order, 1958 which kept alive clause (3) of Article 166 of the Islamic Republic of Pakistan having been repealed on the 8th of June 1962, the bar to Mr. Akhlaque Hussain's practising as an Advocate in the High Court of which he had been a permanent Judge was removed on the 8th of June 1962, and he could practise as an Advocate from that date and President's Order No. 21 of 1962 cannot stand in his, way." While dealing with the question of his undertaking the Court observed "The effect of the undertaking given by Mr. Akhlaque Hussain at the time of his becoming a permanent Judge of the High Court of Judicature at Lahore may now be dealt with. The undertaking would not be applicable because it related to practising as an Advocate before the High Court of Judicature at Lahore a Court which ceased to exist on the 14th of October 1955, when the Establishment of West Pakistan Act came into force. No doubt the undertaking given by Mr. Akhlaque Hussain was to the effect that he shall not practise as an Advocate before any High Court to which he may be transferred from the High Court of Judicature at Lahore but as the undertaking cannot create a disability which was not possible at the time of the giving of the undertaking. I. have no hesitation in holding that the undertaking could be invoked against Mr. Akhlaque Hussain only if he wanted to practise as an Advocate before the High Court of Judicature at Lahore or before a High Court to which he could be, and actually was, transferred under the law in force at the time he gave the undertaking in 1954 and I find no difficulty in holding that Mr. Akhlaque Hussain's becoming a Judge of the High Court of West Pakistan did not amount to his transfer to another High Court for the purposes of the undertaking given by him." In this view of the matter the Division Bench held that Mr. Akhlaque Hussain was entitled to appear as an Advocate before the High Court of West Pakistan. On the 30th January 1964, the President promulgated the Legal Practice (Disqualifications) Ordinance (II of 1964). Clauses 3 and 4 of the Ordinance are in these terms: "

3. Disqualification for legal practice in certain cases. Notwithstanding anything contained in any other law for the time being in force, a person shall be disqualified, and, if he had been carrying on legal practice, or had been enrolled as an Advocate or Pleader, before the commencement of this Ordinance shall, upon such commencement, stand disqualified, from pleading or acting,‑‑ (a) If such person has held office as a Judge of the Supreme Court, in or before any Court, authority or tribunal in Pakistan; and (b) if such person held office as a Judge of a High Court, in or before any Court, authority or tribunal in Pakistan except‑‑‑ (i) the Supreme Court, and (ii) the High Court the territorial limits of whose jurisdiction do not extend to any area which was within the territorial jurisdiction of the Court in which he last held office as such (4) Repeal.‑The Retired Judges (Legal Practice) Order, 1 t,' (President's Order No. 21 of 1962) is hereby repealed." After promulgation of the said Ordinance Mr. Akhlaque Hussain again raised the question of his competency to appear as an Advocate before the High Court of West Pakistan and the matter was ultimately referred to a Full Bench. The Full Bench consisting of five Judges found that the above Ordinance of 1964 was ultra vires and that notwithstanding its provisions Mr. Aklaque Hussain was entitled to practice in the High Court of West Pakistan. With great respect to the opinion of the learned Judges the Full Bench it appears that they gave too little weight to the essential difference between a removed Judge and a retired Judge. Mr. Akhlaque Hussain at the time of his appointment as a permanent Judge of the Lahore. High Court gave an undertaking that he would not practise in that High Court or Courts subordinate thereto. After integration of the Provinces of West Pakistan in 1955 he held his office on the same terms and conditions as were applicable to him before. In 1959 he was removed from the office of a Judge. In 1962 the President's Order No. 21 removed the disability attaching to the retired Judges. Now the question is: Whether the benefit of the said Order could be extended to a Judge who was removed from his office. In Hashim Ali v. The State a Division Bench of the High Court answered this question in the affirmative. The learned counsel for Mr. Akhlaque Hussain has however, found it difficult to place much reliance on the decision in `the above case. Section 3 of the. Order in express terms provides that "Notwithstanding anything to the contrary contained in any other law or in any undertaking, Judge shall, upon his retirement or resignation from his office (but not removal), be forthwith entitled, upon application made to the appropriate Court, to be enrolled, as a Senior Advocate of the Supreme Court, and also as an Advocate of a High Court, and upon being so enrolled shall have all the rights of such Senior Advocate or Advocate including the right of audience." I may here point out that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. When the S words used are clear and unambiguous, it would not be open to Courts ‑to adopt any hypothetical construction. The language of the section being clear it was not open to the learned Judges to read into it matter which was not there by reference to other extraneous consideration. Furthermore, the learned Judges while dealing with the undertaking give;: by Mr. Akhlaque Hussain did not give full weight to the observations of this Court: In the matter of Removai of Mr. Akhlaque Hussain from the Roll of Senior Advocates of the Supreme Court of Pakistan (P L D 1960 S C 40) and in Syed Akhlaque Hussain v. Judges of the High Court of West Pakistan (P L D 1961 S C 431). This Court has already held in the above‑mentioned cases that even after integration, of the Provinces of West Pakistan the undertaking was enforceale by reason of section 6 of High Court of West Pakistan Order, 1955. For the reasons stated above I am unable to agree with the conclusion of the Division Bench that the President's Order No. 21 was applicable also to a remove Judge and that the undertaking given by Mr. Akhlaque Hussain was not enforceable due to changed circumstances. In my opinion the disqualification attached to a removed Judge continued even after promulgation of the President's Order No. 2 and that in the absence of a statute removing the obligations contained in the undertaking, it can be enforced as against a removed Judge who gave that undertaking. The next question is: Can res judicata be pleaded on the basis of decision in Hashim Ali's case. It is well settled that what) is res judicata the decision and not the reasons thereof. In that case the decision of the High Court related to the right of Mr. Akhlaqu, Hussain to appear in a particular case before the High Court no doubt the said decision with regard to his right to appear in that case could not be disputed. The present case how , relates to a somewhat wider question, namely his right t; practice in the High Court of West Pakistan as an Advocate. .Furthermore, the present appellant, that is, the Government of Pakistan was not a party in Hashim Ali's case. In these circumstances the plea of res judicata will not avail in this case. Similarly the argument that the undertaking violates the fundamental right of Mr. Akhlaque Hussain to practise the profession of law in the High Court of West Pakistan is also not tenable. No doubt the right of a lawyer to practise the profession of law is guaranteed by Fundamental Right No. 8 of our Constitu tion, the Government by laying down the conditions of service for a Judge of the High Court did not intend to prevent a lawyer from practising his profession but only intended that if a lawyer accepts the office of Judge of a High Court, he should not practise in that High Court. There is no fundamental right in any person to be appointed as a Judge. The Government has every right to prescribe terms and conditions of service of a Judge. If a lawyer accepts the office, he must be bound by its terms and conditions. The choice was with _ him either to accept it or leave it. Therefore, in my opinion there is no violation of fundamental right in prescribing the disqualification of the type contained in the undertaking. I may further point out that by this undertaking the right to practice has not been completely taken away. Merely a restriction has been imposed upon the exercise of that right by a Judge only in the Courts where he presided as a Judge. The object sought to be 4chieved by this undertaking was the purity of judicial administration. It is against this background that the undertaking should be Judged. Much was said at the Bar on the question of the validity of Ordinance II of 1964. Having regard to the conclusion at which f have arrived, namely, that Mr. Akhlaque Hussain is still bound by his undertaking, it is not necessary to decide in this case whether Ordinance if of 1964 is ultra vires or not I therefore. hold myself quite free to consider this point should it again come before this Court for decision. For the reasons stated above, I concur in the conclusion arrived at by my Lord the Chief Justice, though on different grounds. I would allow this appeal but make no order as to costs. B. Z. KAIKAUS, J.‑Before I deal with the questions that arise I will refer to the situation created by the withdrawal of the petition for leave against four retired Judges. All the five original respondents in the petition for special leave out of which this appeal arises had' applied to the High Court for a decision of the question as to whether the impugned ordinance was ultra vines. The matter was referred to a Full Bench. The Full Bench in a judgment dealing with the case of all the .five judges found the Ordinance to be ultra Tires on more than one ground and in any case incapable of affecting the right to practice of all the five judges involved. The Government filed a petition for leave against all the five judges, but later applied that the names of four respondents :‑ decided leaving Mr. Akhlaque Hussain as the sole respondent. This amounts to a withdrawal of the petition for leave so that the Government has accepted the order of the High Court with respect to the four respondents against whom the petition for leave has been with drawn. Now what is the implication of this withdrawal? The withdrawal can be explained only on one basis and that is that the Government accepted the ultra wires nature of the impugned Ordinance, but in spite of this resisted the right of Mr. Akhlaque Hussain to practise on the ground that President's Order 2 t of 1962 did not create any right in him as it did not apply to removed Judges and therefore the position of Mr. Akhlaque Hussain remained the same as it was before the President's Order 21 of 1963, that position having been settled by a judgment of this Court against Mr. Akhlaque Hussain. If the position of the Government was that the impugned Ordinance was valid it could not have withdrawn the petition for leave against the remaining four judges for according to this ordinance every person who has since the creation of Pakistan been a judicial Commissioner or a Judge of any Chief Court or High Court is debarred from practising and the Ordinance specifically referred even to the case of those who were already practising or on the rolls: The Government is a public body which can make no invidious distinctions. It cannot take up the position that it will give preferential treatment to ‑one person against another. The withdrawal cannot therefore be explained on the basis that the Government chooses to favour the remaining ex‑Judges. The only distinction between the case of Mr. Akhlaque Hussain and that of others is that Mr. Akhlaque Hussain is a removed judge while the others are those who have retired or resigned so that if the President's Order 21 of 1962 be good law then it would enable the retired and resigned judges to practice, but would (according to the contention of the Government) leave the removed judges in the same position in which they were before the President's Order 21 of 1952. It is involved in the withdrawal by the Govern ment of the petition for special leave against four Judges that the impugned Ordinance is void and that the rights of parties are to W be decided on the basis of the situation created by President's Order 21 of 19,42 which is still in force. I do not see how after the acceptance by the Government of the High Court judgment in respect of four ex‑Judges it lay in the mouth of the Government to contend during argument before us, that the impugned Ordinance was valid. I have little doubt as the succeeding discussion will show that the Government took up the correct position at the time of withdrawal of the petition. The Ordinance is in fact ultra vires and the rights have to be decided on the basis that President's Order 21 of 1962 is in force. I had indicated at the hearing that the impugned Ordinance prima facie relates to conditions of service of the Judges and I will first take up the question as to whether the impugned Ordinance is ultra vires the Central Legislature because it varies the conditions of service of the Judges, a variation in the condi tions of service of the Judges being not within the powers of a Legislature at all. It appears to me fairly obvious that if at the time when a Judge is appointed to his office he is not debarred from practising, but subsequently a condition is attached to his office that he shall not be entitled to practice after retirement there will be variation of his conditions of service and if there was a law which said that conditions of service of Judges could not be varied after appointment such a provision would be invalid. I will show that the situation with which we are dealing is similar. Before proceeding further, however, I will refer to a case where we have already held that a provision that a Judge shall not practice after retirement constitutes a condition of service, a case which was cited at the bar, but whose correctness was not challenged. I am referring to Syed Akhlaque Hussain v. Judges of the High Court of West Pakistan (PLD1961SC431). That is the case which deals with the right of practice of the present respondent at a time when President's Order 21 of 1962 entitling Judges of the High Court and Supreme Court to be enrolled as advocates had not yet come into existence. There were two grounds of objection to the right of Mr. Akhlaque Hussain to practice at that time (i) the undertaking which he had given not to practice after his retirement in the High Court of Judicature at Lahore or in any Court to which he may be transferred; and (ii) Article 166(3) the Constitution of Pakistan which prevented a Judge of the High Court from pleading or acting in the High Court of which he was a Judge or in any Court subordinate thereto. The reply of Mr. Akhlaque Hussain to the first objection was that the undertaking related to the High Court of Judicature at Lahore and was of no effect with respect to the High Court of West Pakistan. To the second objection his reply was that the Constitution of 1956 had been abrogated by the Proclamation .of the 7th October, 1958. In a Full Court judgment delivered by my Lord the Chief Justice we held that Mr. Akhlaque Hussain was not entitled to practice. In connection with the plea that the undertaking was not given with respect to the West Pakistan High Court we pointed out that in accordance with Article 6 of the High Court of West Pakistan (Establishment) Order, 1955, Judges of the High Court of Judicature at Lahore were to hold office as Judges of the High Court of West Pakistan "on the same terms and conditions" as were applicable to them immediately before. It will be convenient to reproduce Article 6 (1). It runs:-- "

6. Appointment of Judges.‑(1) The Chief Justice and the Judges of the High Court of Judicature at Lahore holding their respective offices immediately before the commencement of this Order shall, as from such commencement, hold their respective offices in the High Court on the same terms and conditions as were applicable to them immediately before such commence ment. We held that the condition as to not practising in the High Court after retirement was a condition on which office was being held and would remain applicable to Mr. Akhlaque Hussain when he became a Judge of the West Pakistan High Court in view of Article 6 (P L D 1958 S C 533). We said:‑ "The High Court of West Pakistan Order, 1955, by which that High Court was Constituted provided by Article 6 that the Judges of the High Court at Lahore who held their appoint ments immediately before the Constitution of the West Pakistan High Court would as from the date of such constitution "hold their respective offices in the High Court on the same terms and conditions as were applicable to them immediately before". It follows from this provision that Syed Akhlaque Hussain, when he continued as a Judge of the West Pakistan High Court after its constitution, continued also to be subject to the condition against practice as a lawyer after retirement, in that High Court." However with respect to the undertaking there is only this one sentence which too occurs in the statement of facts and our decision was really based on Article 166 (3). As already observed the contention of Mr. Akhlaque Hussain was that the Constitution having been abrogated Article 1(6(3) did not bind him. Mr. Akhlaque Hussain had the support of Dosso's case (1) in which it had been held that the words appearing in Article of the Laws (Continuance in Force) Order, 1958, that the country "shall be governed as nearly as may be in accordance with the late Constitution", had reference only "to the structure and outline of Government". We did not hold that Article 166 (3) was applicable as such, but we held that Article 6 (1) of the Laws. (Continuance in Force) Order which provided that Judges of the High Court and Supreme Court would continue after the proclamation to "hold office on the same terms and conditions" as were applicable to them before the proclamation, would make Article 166 (3) applicable to Mr. Akhlaque Hussain for this was only a condition of holding office. Article 6 (1) of the Laws (Continuance in Force) Order runs:‑ "6(1) All persons who immediately before the Proclamation were in the service of Pakistan as defined under clause (1) of Article 218 of the fat a Constitution and those persons who immediately before the Proclamation were in office as Governor, Judge of the Supreme Court or a High Court, Comptroller and Auditor‑General, Attorney‑General or Advocate‑General, shall continue in the said service or in the said office on the same terms and conditions and shall enjoy the same privileges, if any." It may be observed here that to draw a distinction between members of regular services and other holders of offices the former are referred to as continuing in service and the latter as continuing to hold office. ` Mr. Akhlaque Hussain contended before us in that case that "terms and conditions of. service" in Article 6 (1) of the Laws (Continuance in Force) Order referred to leave, salary, etc. and did not cover such a condition. He argued that even if this was a condition of service it could not be varied, to the dis advantage of the Judge during his tenure of office. We rejected both these contentions saying:‑ "Syed Akhlaque Hussain attempted to draw a distinction between "terms and conditions of service" as used in Article 6 of the Laws (Continuance in Force) Order, and such a provision as is contained in Article 1t 6 (3) of the late Constitution. He argued that "terms and conditions" related to such matters as salary, pension, privileges, leave, other allowances, etc., being matters capable of being provided for otherwise than by a provision in the Constitution or amend ment thereof. We do not consider that the distinction holds good in the present case. It is perfectly clear that the relevant provision in Article 166 (3) is in essence the same condition of appointment which was incorporated in the undertaking obtained from Judges in the period preceding the promulgation of the Constitution. It makes no substantial difference, that it is expressed in the form of an absolute prohibition. It nevertheless remains a condition of the appointment and as such it appears to us to be perfectly clear` that it was continued in relation to each permanent High Court Judge who held such an appointment on the 7th October 1958. The further argument that a Judge's terms and conditions of office cannot be altered to his disadvantage during his term of office, is of no avail against clear prohibition included in the Constitution itself." In this judgment we had held with reference to two provisions, one contained in the High Court of West Pakistan (Establishment) Order and the other in the . Laws (Continuance in Force) Order that a provision like the one with which we are dealing is a condition of service. Apart from this case I do not see how a condition like the present if attached to the office of a Judge as such would not amount to a condition of service. I have already referred to a case where a condition preventing a Judge from practice is imposed during his term' of office although when he was appointed no such condition existed. If there was a law which prevented a variation of conditions of service of Judges, would not such a condition clearly violate that law? The converse case is that of a Judge who by his undertaking was debarred from practice, but President's Order 21 of 1962 relieved him of the under taking and permitted him to practise. Here again a condition of service was varied though to the advantage of the holder of office. A condition of holding an office means obviously a condition on which office is held. Any benefit or disadvantage that attaches to the holding of an office as such is a condition of service or condition of holding of office. A suggestion was made during argument that conditions of service mean conditions to be observed during service. I do not see how, this argument is possible. A pension is a condition of service.. If a Government employee was' put under obligation to serve for a period of two years after retirement in a charitable institution that would be a condition of service. Similarly if there was a right granted to the servant that after retirement he would be entitled to purchase Government land on a reduced price, and instalments that would be a condition of service. ' While discussing the interpretation of President's Order 21 of 1962 by which a right to get enrolled was conferred on the judges Mr. Manzoor Qadir who was a member of the Central Cabinet at the time when Order 21 of 1962 was promulgated had said that this right to practice was granted to the judges to meet a demand on their behalf for increase of pension. What is known to Mr. Manzoor Qadir may be known to a number of Judges of the High Court and Supreme Court. Such knowledge, cannot strictly speaking be used while interpreting an Act, but there is no bar to a suggestion in argument that President's Order No. 21 of 1962 may have been only a substitute for increase of pension. Judges of the High Court do not qualify for any pension till they have completed seven years of service and even after that the pension begins only with about Rs. 700 a month which obviously is wholly insufficient to maintain the standard of living to which the Judges are accustomed. I am drawing attention to these facts to stress that the grant of a benefit likely the right to practice is not much different in kind from the rightly to a pension. It is a provision enabling a person to add to hiss income. As a matter of fact the right may have been put in the President's Order in an alternative form. It could have been provided that a Judge would be entitled either to an increased pension or to a right to practice. With respect to those Judges who were appointed after the coming into force of President's Order No. 21 of 1962 and before the impugned Ordinance it appears to me clear that there is a variation of their conditions of Service. The right to practice was assured to them when they were appointed, but was subse quently taken away. The position, however, in respect of other Judges who were in service at that time is not different. Although those Judges who were already in service before President's Order No. 21 of 1962 was promulgated can have no grievance on this score inasmuch as when they were appointed there was already a condition of service restraining them from practice after retirement yet if at the time when the Pakistan Constitution came into force they had this right of enrolment and practice and if the legal position be that their terms of service cannot be altered by the Legislature then they are as much entitled to the benefit of President's Order No. 21 of 1962 as those Judges who were appointed after it came into force. There is one point which may be cleared up before proceeding further. It may be argued that while with respect to Judges who were holding offices when‑ the impugned Ordinance came into force and Judges who were appointed later this condition may be a condition of service it should not be regarded as such with respect to Judges who have already retired and Mr. Akhlaque Hussain had already ceased to hold office. The answer is that, a condition of service does not cease to be such a condition if it is applied with retrospective effect. Suppose pension with respect`' to a particular post is increased and there is a further provision that this increase will apply even to the servants who have already retired. This would not mean that the pension is not a condition of service with respect to servants who have already retired. It would just be a condition imposed with retrospective effect. In 1961 we had rejected the right of Mr. Akhlaque Hussain to practise on the ground that the condition as to not being entitled to practice after ceasing to hold office was a condition of service or of holding office and I do not think we can now 'hold against his right to practice on the ground that this is not a condition of service. At the same time the framer of the Constitution of 1962 is presumed to know the law. He knew that we had interpreted condition of holding office or of service as including a condition like the present and he should be presumed to use the expression in accordance with the interpretation we had placed on it. The next question to consider is whether the conditions of service of the Judges can be varied by the Central Legislature. The relevant provision is contained in Article 124 of the Constitu tion which runs: "The remuneration and other conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Second Schedule," So the only conditions applicable to the Judges are those contained in the Second Schedule. There is no provision that the conditions of service may be provided by law as there is in respect of the services and some posts. A comparison of the relevant provisions can leave little doubt as to the conditions of service of Judges not being within the jurisdiction of any legislature (except of course by an amendment of the Constitution). With respect to the services the provision in the Constitution is Article 174 which says:‑ "

174. Subject to this Constitution, the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan may be regulated by law." According to this article terms and conditions of service are regulated by law. Article 178 supplements this by saying that "subject to the Constitution and the law" "terms and conditions of service can be prescribed" by the President and the Governor in their respective spheres. With respect to the members of the Central Public Service Commission the relevant provision is Article 182 (2) according to which "terms and conditions of service of a member of the Central Public Service Commission shall be determined by Act of the Central Legislature and until so determined by the President." The provision is similar with respect to the Provincial Public Service Commissions, the Governor being substituted for the President. The "terms and conditions of service" of the Chief Election Commissioner and the Auditor‑General are in accordance with Articles 149 and 191 to be "determined by Act of the Central Legislature" or, until so determined, by the President. There is no provision that the terms and conditions of service of Judges can be regulated by law or determined by an Act of the Central Legislature the only provision being that the terms and conditions ‑of service of Judges shall be as in the Second Schedule. In fact in the Third Schedule which enumerates items as to which the Central Legislature may legislate there is no provision for enacting laws relating to the judiciary though so far as the services and posts like Auditor‑General are concerned there is item No. 40 "Central Public Service Commission, All Pakistan Services and services and posts connected with the affairs of the Centre." At this stage it will be proper to state that terms and conditions of service of High Court Judges have always been provided either by the Constitution, or by the head of State acting in exercise of power granted by the Constitution in which case too it is really the Constitution that is providing for them. No Legislature as such (apart from a power to amend the Constitution which a Legislature may possess) has ever been given power to legislate with respect to conditions of service of the High Court or Supreme Court Judge and there has never been any sub‑constitutional legislation in respect of this matter. The learned Deputy Attorney‑General had referred to the Deputy Attorney‑General and Standing Council. Ordinance, 1960, as an instance of legislation in respect of disqualifications of Judges, but that was legislation of constitutional status for it was President's Order which could, and which in fact did, in one respect, amend the Laws (Continuance in Force) Order. I will now reproduce the relevant provision in the Second Schedule. It runs: "Every Judge of a High Court of a Province shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until. so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the Province were entitled." According to this provision rights and privileges of the Judges are to be those which existed on the day the Constitution came into force till the President otherwise determines. It may be argued that terms and conditions here refer to allowances, etc. and does not refer to disqualification. The word privilege as will appear from any law dictionary (I am referring to Aiyar's Law Lexicon) means "that which one has a legal claim to do" "invested with special or peculiar rights", "a particular and peculiar benefit enjoyed by a person beyond the advantage of other citizens". On the date when the Constitution came into force the Judges were entitled by virtue of Order XXI of 1962 to be enrolled as advocates and to practice as such. Was that not a privilege? I have explained that this was similar to a pension and could have been a substitute for it. Under the Second Schedule this right was to continue till the President determined otherwise. There are further considerations which will make the matter clear. According to Articles 149 and 191, terms and conditions of service of the Election Commissioner and the Auditor‑General are to be provided by an Act of the Central Legislature. If the Central Legislature in exercise of this power provided that after retirement the Auditor‑General was debarred from practising as a chartered accountant (I am not considering fundamental rights just now), or that the Election Commissioner would after retirement be debarred from carrying on some business will such legislation be ultra vires? Will it be possible to contend that the Legislature had no power to legislate because these are not conditions of service? Similary if the Legislature that is empowered to make laws about terms and conditions relating to the services debarred the members of services from carrying on a particular business after retirement would that be ultra vires? , In the earlier part of this discussion I have dealt fully with the connotation of terms and conditions of service" and I do not want to repeat it. Every benefit or disadvantage attached to the holding of an office as such is a condition of service or of holding office. Under Article 29 (5) the powers of the President for promulgating Ordinance extend only to matters within the competence of the Central ‑Legislature. As a matter of fact after the expiry of the stipulated period the Ordinance can continue only as an Act of the Central Legislature. It "deemed" to be henceforth an Act of the Central Legislature and it is as such that its vires are to be judged. I would hold that the Ordinance is void as there was no power in the Central Legislature to vary the conditions of service of tire Judges. If the Ordinance be ultra vires the effect is that Order XXI of 1962 which this Ordinance sought to repeal is still in force and the rights of Judges are to ‑‑be regulated by it. The next question that arises is as to the effect of that Order on the rights of Mr. Akhlaque Hussain. The contention on behalf of the Government is that the Order does not in any way help Mr. Akhlaque Hussain because it refers only to Judges who have retired and resigned and specifically excludes from its operation removed Judges. The position, it is urged remains the same for Mr. Akhlaque Hussain as it was before Order 21 of 1962 and this Court has already held that before Order 21 of 1962 he was not entitled to practice in the High Court. Let me repeat here that in accordance with the position taken up by 'the Government in withdrawing the petition for leave against the retired Judges this is the only contention that was to be put forward on behalf of the Government for there is in the withdrawal an implied acceptance of the Ordinance being ultra vires. To turn now to the question as to effect of Order 21 of 19.62 on Mr. Akhlaque Hussain. My Lord the Chief Justice has taken the view that by implication this Order relieves all Judges including removed Judges of their undertakings. On the view that I take of the difficulty in the way of the Government in putting forward this plea I do not feel the need of examining the general effect of Order 21 of 1962 on removed Judges though I would agree with my Lord the Chief. Justice that it is difficult to impute to the Legislature an intention of preserving the undertaking in respect of removed Judges. The difficulty in the way of the Government is this. After the promulgation of Order 21 of 1962 a question arose in the High Court as to whether Mr. Akhlaque Hussain was entitled to practice. A division Bench of the High Court after hearing Mr. Akhlaque Hussain and the Advocate‑General decided that Mr. Akhlaque Hussain was entitled to practice. The Government accepted the decision and filed no appeal. The matter thus became res judicata between the Government and Mr. Akhlaque Hussain. The only point urged before us against that decision is that the view taken of the effect of Order 21 of 1962 was not correct. But are we concerned with its correctness so far the present case is concerned? Can the effect of a decision of the High Court against which no appeal has been filed and which has become binding on the parties be wholly washed away by saying that the view taken is not correct? Does it mean that the Government by not filing an appeal remains in precisely the same position as if an appeal had been filed? It is said that our powers are unlimited. I do not see the relevancy of that proposition. Before us are parties in‑ a formal appeal. The appeal is so formal that we are avoiding all reference to the Judges against whom petition for leave was withdrawn and are expressly laying down that our order will not affect them. We are treating the appeal before us as a proceeding between party and party. We are not deciding any general matters relating to rights of Judges, but a particular appeal between two parties who are as much subject to legal principles in this appeal as they would be in any other civil proceeding' before this Court. The question before us is as to what points the appellant is entitled to raise. If the appellant is not entitled to raise a point that point is not arising for decision at all. If in any civil matter the High Court records a decision and the Government does not appeal the Government becomes bound by the decision. It may in another case challenge the view of law taken by the High Court, but so far as the order of the High Court is concerned it will remain binding. An order of the High Court passed with jurisdiction is as much binding on the parties affected when it takes a wrong view of law as it is when it proceeds on a correct view of law. If a party does not `' appeal that party loses all rights of challenging the order. I do not see any reason for _ making a distinction in this respect between an ordinary civil proceeding and the present proceedings. While examining the applicability of res judicata the question occurred to me: Is the Government entitled at all to file an appeal in a case like the present? If so what is the basis and extent .of that right? I will discuss this question first without reference to any right which the Government may have in a proceeding because it involves the decision of a constitutional question for I find myself in. complete agreement with the view of Gwyer, C. J, in United Provinces v. Atiqa Begum (A I R 1941 F C 16) that in a case where the Government is allowed to file an appeal on this o ground the decision in appeal has to be confined to the question o of law and the decree of the lower Court cannot be set aside. 1 will deal with this aspect after I have dealt with the right of the Government to file an appeal against the order of the High Court as distinguished from the right of appeal of the Government not against the order, but against the decision of the constitutional question. If an Advocate appears in a case before the High Court who can object to his so appearing? The Judge who is hearing the case can obviously object. Who else can do so? Can the party against whom he appears object? Let me for the present assume that the opposite‑party can raise this objection. But can the Government do so? Assume that it is an ordinary civil appeal in which this question arises, the Government not being a party to the appeal, and the objection not based on the Advocate being an ex‑Judge, but on some other ground for instance that he is not validly enrolled. I see no ground for holding that the Government will be entitled in every such case to contest the right of the person concerned to appear as an Advocate. Only a person whose rights are affected by a judgment can file an appeal against the judgment. In the case of an ex‑Judge too the Government can have no right to raise an objection unless it takes up the position that the disqualification was a condition attached to the holding of an office and the Government has an interest in enforcing this condition of service. This is the only basis on which the Government can claim to contest this right before the High Court or to file an appeal against the High Court order. Giving the matter earnest thought it appears to be that even a party against whom a counsel appears has no right to object to the appearance of counsel and it is a matter which is entirely between the High Court and the Advocate, though a party may draw the attention of the Judge towards this matter. When the High Court grants a licence to or enrolls a person a member of the public cannot as such file an appeal. When a person has been enrolled and appears in a case the opposite‑party cannot object to his appearance on the ground that he should not have been enrolled or granted a licence. All that is to be seen is whether he is in fact enrolled. It may be said that in the present case and a case in which the objection is that the Advocate should not have been enrolled there is a difference, because here there is statutory provision debarring the Advocate from practising. In my view there is no substantial difference between the two cases. Suppose the practice was that when a person was appointed a Judge his name was removed from the rolls or at least suspended for henceforth he was not practising. After his return he would just put in an application for his name being brought on the rolls. The High Court is fully entitled to consider the question of his enrolment without his having been engaged in any case. In fact this is what has happened in a number of cases. The ex‑Judge has just put in an application that he should be allowed to appear before the Court or to be brought on the rolls. If an order is passed in favour of the Advocate by the High Court can his opposite‑party, when he appears in a case, object to his appearance on the ground that the opposite‑party is‑not bound by the decision to enroll him, being no party to it? If the opposite‑party be allowed to take this plea then in every case in which the Advocate appears the plea can be taken and there will be no end to objections. The question as to what persons are entitled to be on‑the rolls of the West Pakistan High Court or to practice therein is a matter which in accordance with clause 7 of the Letters Patent of the High Court of Judicature at Lahore is primarily a matter for the decision of the High Court. Clause 7 runs:‑ "

7. Powers of High Court in admitting Advocates, Vakils and Attorneys.‑And we do hereby authorise and empower the High Court of Judicature at Lahore to approve, admit and enrol such and so many Advocates, Vakils and Attorneys as to the E said High Court may seem meet: and such Advocates, Vakils and Attorneys shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may be its rules and directions determine, subject to such rules and directions." The power granted by this clause was preserved by Article 9 of the High Court of West Pakistan Order and though now under the Bar Councils Act the Bar Council can frame rules regulating admission of persons to practice it can do so only with the "previous sanction" of the High Court , and even when rules are framed the High Court retains the power under section 9 of the Bar Councils Act "to refuse admission to any person at its discredition". It would not be an unjustifiable inference that once the right of a person to ‑practice is decided by the High Court the order is final unless of course the order is set aside by the Supreme Court in appeal. I see little difference in principle between the decision of the right of the ex‑Judge without his appearance in a case and the decision of his right on appearance. The order of the High Court is liable to no further attack in one case than it is in the other. It is only the party who could file an appeal against the order in one case as can do so in the other. The Government has as little locus standi to file an appeal as a member of the public has unless it feels aggrieved because a condition of service relating to its employee is being violated. If the sole basis of the right of the Government to contest the right of the ex‑Judge to practice is the enforcement of a condi tion of service two results follow. One is that that Government is on the horns of a dilemma. If it does not admit that this is a condition of service there is no right of appeal and if it accepts that this is a condition of service the Ordinance becomes ultra vires. The second result is that the Government becomes affected by res judicata by the finding in judgment as to the condition of service of a particular employee. If the Government raises a plea as to the condition of service of an employee and the High Court decides against the Government the Government becomes bound by the judgment so far as that employee is concerned, unless it gets the judgment set aside 'by an appeal. Any determination as to the existence or extent of a condition of. service in the High Court judgment will become res judicata. The effect of this in the present case will be that so far as Mr. Akhlaque Hussain is concerned the judgment of the High Court holding that after President's Order 21 of 1962 he is entitled to practice will not be liable to be challenged by the Government. Not having appealed against that judgment the Government loses the right to say that Mr. Akhlaque Hussain was not entitled to practice before the impugned Ordinance came into force. So far as the impugned Ordinance is concerned the Government has by withdrawing the petition for special leave against four ex‑Judges accepted the High Court judgment in respect of them and conceded that the Ordinance is ultra vires. ' I will now deal with the right of the Government to file an appeal on the ground that a constitutional question is involved. The relevant provision is Order XXVII‑A of the Civil Procedure Code which in terms does not apply, but the principle involved in 'which is applicable. The first rule of this Order directs the Court to hear the Advocate‑General or the Attorney‑General as the case may be before deciding a constitutional question. The second rule permits the Court to add the Government as a party on the application of the Advocate‑General or the Attorney General. The first rule ensures that the Government is heard whenever a constitutional question is raised. This rule would not entitle the Government to file an appeal and on the other hand does away with the need of an appeal for all that the Government wants is that it should be beard on a constitutional question and this is granted by this rule. The second rule permits the addition of the Government as a party, but assuming without discussion that the Government will then be in a position to file an appeal, the appeal will have to be confined to the decision of the constitutional question. If no appeal be filed against a decree by the party affected the decree cannot be set aside on an appeal by the Government on the constitutional question. An appeal is to be filed only by a party aggrieved and this involves that the appeal is restricted to the grievance and goes no further. The right of appeal of the Government is only against the decision of the constitutional question and there is no right of appeal against the decree or the order passed. What can be decided in the appeal depends on the extent of the attack which the appellant can make. An appeal is limited to a decision of the right of the appellant. When Malik Feroze. Khan Noon was allowed aright of appeal against the judgment of the High Court in Malik Feroze Khan Noon v. The State (P L D 1958 S C 333) the judgment could not have been set aside on his appeal. Only the remarks against him could be expunged. I have already referred to United Provinces v. Atiqa 'Beguml where Gwyer, C. J. had said that when the Government prefers, an appeal because of a constitutional question the decision is confined to the decision of the Constitutional question and the decree in the suit remains unaffected. Whether it be a decree or order the same principle applies and the decree or order cans be set aside only at the instance of the party who has a right of appeal against the decree or order. I will take up now the question whether the impugned Ordinance is consistent with the Fundamental Right No.

8. For convenience of reference I reproduce below the relevant "

8. Freedom of trade, business or profession.‑Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:‑ Provided that nothing in this paragraph shall prevent‑-- (a) the regulation of any trade or profession by a licensing (b) the regulation of trade, commerce 'or industry in the interest of free competition therein; or (c) the carrying on, by the Central or a Provincial Government or by a corporation controlled by any such Government, if any trade, business, industry or service, to the exclusion, complete or partial, of other persons." We are concerned in this. appeal only with the right of. legal practice of one who has been a Judge of a High Court, but the interpretation which we place on this provision will affect the right of citizen of Pakistan to carry on a profession, occupation or trade. The contention before us on , behalf of the respondent is that Fundamental Right No. 8 is intended to ensure to every citizen the right to enter upon and to carry on a lawful profession provided he has the competence needed for it, standards of that competence being determined by law. Of course a licensing system can always be there and by it the G exercise of the right by him can be regulated and also it is only G a lawful trade or profession which the citizen can carry on but if the profession or trade be lawful and the requisite competence is possessed, the citizen cannot be prevented from exercising his right. The contention of the appellant, the Government of Pakistan, on the other hand is that the Legislature is entirely free to prevent any class of persons from carrying on any profession etc. because a disqualification is only an aspect of qualification and whenever the Legislature says that certain class of persons shall be disqualified it is only prescribing a qualification, In this view of the matter it is ‑ contended by the appellant that Fundamental Right No. 8 protects only such rights as are granted by law and that if there be no right created by law Fundamental Right No. 8 is of no avail. It was accepted that if a right was created by law it could be taken away by a change in the law. The two contending interpretations it will be observed are poles apart. The one grants an indefeasible right to the citizen which is available against the Legislature whereas the other grants nothing to the citizen as against the Legislature and concedes to him only such right as the Legislature may be pleased to confer. To protect only that which is already protected by law means nothing. To the change of law there is no bar. It may. also be stated here that before the High Court .as well as before us the only contention of the Attorney‑General in reply to the objection that the impugned Ordinance was inconsistent with Right No. 8 was that the word "qualification" included disqualification. If we did not accept that qualification included disqualification there was so far as the argument of the Attorney General was concerned an end of the matter. However towards the close of the argument of the respondent before us a question arose, on account of some observations from the bench as to the scope of "regulation". I will deal first with the argument of the Attorney‑General and will then consider the scope of `regulation'. While sometimes qualification and disqualification may present two aspects of the same matter the two concepts are obviously distinct and it is not possible to contend that there can be no classification into qualification and disqualification of the attributes of a person in relation to a profession, etc. Reference may in this connection be made to Article 103 of this very 'Constitution which in two separate paragraphs provides for qualifications and disqualifications for membership of an Assembly. "Qualification" as will appear from Aiyar's Law Lexicon means "that which makes person fit to do an act." The Lexicon goes on to state: "qualification relates to the fitness or capacity of the party for a particular pursuit or a profession". Webstor defines qualifications to mean "any natural endowment or acquirement which fits a person for a place, office or employment, or enable him to sustain any character with success". It should be quite appropriate to refer by qualifications to the competence or the positive qualities needed for 6arrying on a profession and to regard the obstacles in the carrying on of a profession as disqualifications. Every profession requires for the efficient performance of the duties involved in it (1) knowledge, (2) skill and (3) a moral standard. In short whatever goes to his, competence or makes a person fit to discharge the duties involved in his profession is a qualification. On the other hand if a person is debarred from entering a profession though he is admittedly quite competent to discharge his duties for spine reason not connected with leis competence that is a disqualification. A person may be disqualified because he has served under a foreign Government or because he belongs to a particular tribe or his father was a rebel or because he has already sufficient income from lands or he is a shareholder of a company and so on. He may be the most competent person for carrying on a profession yet he may be debarred because of some other attributes which he possesses. That will be a disqualification. It is to be noted at the same time that the qualifications are to be in "relation to the profession". This expression reinforces the argument that qualifications means only those attainments or qualities which make a person fit for carrying on a profession. The words "if he possesses the qualification in relation" also support the same interference, "Possession" is hardly a proper word to use in respect of a disability. But the most forceful argument against the interpretation proposed by the appellant is that if this interpretation be accepted there will be no restraint whatsoever on the power of the Legislature to legislate in respect of profession, occupation, etc. and the so‑called right will be a sham. The Legislature could on this interpretation prevent any class of persons from carrying on a trade or profession by disqualifying that class. In fact the learned Attorney‑General admits that on his interpretation there can be no restraint on the power of the Legislature. His contention is that Fundamental Right No. 8 will protect only a right given by law. If the right is already given by law then a statement that a person has that right will not help that person. If the right already given by law at the time when the amendment relating to Fundamental Rights came into force could not be taken away by law there would still be some value in this right. But if the citizen would have a right of profession only if it was granted by the law, there would be little in this fundamental right. The contention of the appellant is not consistent with the conception of a fundamental right. If there be no :imitation on the power of the Legislature then what is the content of this right?. Of what use is it to the citizen? This right is called "freedom of trade, business and profession". How are trade, business and profession free if the Legislature CLM always stop them? I will just refer here to the judgment of the Supreme Court delivered by Munir, C. J. in Jibendra Kishore v. . Province of East Pakistan (P L D 1957 S C (Pak.) 9) where dealing with the concept of a fundamental right it is said:, "The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken av. ay by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law." The position taken up by the learned Attorney‑General is an untenable one and the reasonable interpretation of this freedom is that it ensures to the citizen the right to carry on any trade, business or profession if he has the requisite competence. I may point out here that even if Fundamental Right No. 8 did not exist legislation relating to a profession may have been attacked on account of some other fundamental right for instance the right of equality before the law which prevents unreasonable classification. But that is besides the point. The question is as to what is the value of this right. On the interpretation proposed by the appellant it is just a fraud on the citizen and grants nothing to him. I would hold therefore that the first part of Fundamental Right No. 8 establishes the indefeasible right of every citizen to practice a profession provided he fulfils the requirements as to knowledge, skill and moral standard prescribed by law. To put' it shortly the citizen has a right to carry on any profession provided he possesses the competence for it. That is the substance of this right. The above discussion fully disposes of the. argument of the appellant as to the absence of inconsistency between Fundamental Right No. 8 and the impugned Ordinance. However, as already observed, towards the end of the argument of ‑the respondent a question had cropped up on some observations from the Bench as to whether the impugned ordinance could not be validated on the ground that it amounted to "regulation by a licensing system", and I proceed now to deal with this question. Before doing so let me repeat that the appellant never made out any such case at any stage. . The appellant raised no such contention before the High Court and took no such plea in the detailed grounds of attack on the High Court judgment which appear in the petition for special leave. One can well appreciate the attitude of the Attorney‑General for it appears to me to be something very unusual to advance an argument that a constitutional provision as to a disqualification attaching to a high office, provisions of which kind have an appropriate place in every Constitution, is a part of a licensing' system. However, the question has been raised and I propose dealing with it in full. The first point to consider even before we proceed to determine the meaning of "regulation by licensing system" is this was not "disqualification" a matter which was to be dealt with by the Constitution in the first part of Fundamental Right No. 8? The Constitution said that if a person possessed qualification prescribed in relation to a profession he could enter upon the profession. Was not that the proper place to deal with disqualification too? Fundamental Right No. 8 should, if the intention was to empower the Legislature to provide for disqualification have said: "every citizen who possess the qualification prescribed and does not suffer from any disqualifi cation provided for by law." The Constitution deliberately avoided reference to disqualification in the first part. We will assume, that this was deliberate for the Legislature is by presumption an ideal person. Does not the deliberate omission of disqualification support the inference that disqualifications as such were not to be placed at all? Let me here clear a doubt which may arise as to a person losing his right of profession by misconduct. It was argued that misconduct will have to be a disqualification. This is not in my view a correct approach. I have already stated that the positive qualities or qualifications are knowledge, skill and a moral standard. When a person is guilty of misconduct then he ceases to possess the qualification as to a moral standard. The next and what I regard a most important point to consider . is this. If disqualification can be provided . by the Legislature at its will in the garb of regulation we again come back to the position that Fundamental Right No. 8 becomes a fake. If the Legislature be granted power to impose any disqualification it likes to impose whether on the argument that "qualification" includes "disqualification" or on the argument that "regulation by licensing system" includes a power of disqualification, then there is no curb on the power of the Legislature to legislate and the fundamental right will disappear, The simple point is that the grant of a power to impose disqualifi cations as such is not consistent with the existence of the fundamental right. Any interpretation proposed must be one which debars the Legislature from legislating so as to violate a right. I now proceed to consider the nature of legislation with which we are dealing in order to determine whether the impugned Ordinance is a regulation of the profession at all much less a "regulation by a licensing system": For a proper understanding of the nature of this legislation I will briefly refer to its history. In pre‑Partition India every Judge of the highest Court of a province, be it a Judicial Commissioner's Court, a Chief Court, or a High Court, had to give an undertaking before he assumed office as a permanent Judge of that. Court that he will not practice in that Court of Courts subordinate thereto after he ceased to hold office. This practice continued in Pakistan till. 1956 when Article 166 of the Constitution replaced the undertaking and substituted for it a constitutional provision that a Judge of a High Court could not plead or act in the Court in which he held office after he ceased to hold office. By President's Order No. 21 of 1962 not only was the ban on practice by Judges removed, but all Judges who retired or resigned (but not those who were removed) were granted a right to be enrolled as Advocates and to practice although they were otherwise not qualified to be Advocates. The Constitution of 1962 while it debarred the Judges from holding office of profit under the Government till the expiry of two years from the date of their ceasing to hold office, did not make any reference to the ban on practice. In 1964 was passed the impugned Ordinance which prevented all practice except in the area in which the ex‑Judge had as a Judge no jurisdiction. While considering the nature of this legislation the first question to ask is: What was the reason for this disqualification which was continuously in force in one form or another? The reason as my Lord the Chief Just‑ice stated at the hearing was the preservation of the dignity of the high office which had been held by the Judges. One day the Judge would be presiding in the Court and the next day he would be assisting the suitors in that very Court. When assisting the suitors he may as my Lord the Chief Justice has pointed out be continuously corrected by the Court. He would therefore be bringing down his office if he was allowed to practice. I may borrow the example cited by my Lord the Chief Justice for explaining the nature of the disqualification. The example is an extreme one, but there is no intention to belittle the profession, the intention being only to bring out the point with force. The example was that the ‑ King of England appointed a shoe‑maker the Chancellor of the Exchequer, but ' His Majesty. at the same time attached a condition to the appointment that after ceasing to hold office he would not revert to the profession of a shoe‑maker. (Let me not be understood‑ as personally accepting distinction between man and man based on higher or lower status in life. I am dealing with the object of a piece of legislation). I may observe here that at no stage in the case was a suggestion put forward that the retired Judges would have a preferential treatment or some advantage while appearing in their cases, a suggestion for which there would be no basis and which would assume that the Judges before whom appearances were made were not fit persons to hold their offices. Let us now examine the provisions of the impugned Ordinance. It begins by saying that it is expedient to impose certain disqualifications for legal practice. It then refers to the national interests of Pakistan, but this is only repetition of the words of Article 131 and without such a statement the Central Legislature cannot make laws applicable to the provinces. The Ordinance then says that any person who at any time since the coming into existence of Pakistan held office as Judicial Commissioner or Judge of Chief Court or High Court or Federal Court or Supreme Court would be debarred from practising in that Court or within its jurisdiction. The effect is that the Supreme Court or Federal Court Judges are debarred from practice altogether. The High Court Judges are debarred from practising within the jurisdiction of the High Court in which they held office. Whether they will totally be debarred or partially depends on whether under the law as it stands and on the qualifications they possess they are entitled to practice at any other place. There appears to be an impression that so far as High Court Judges are concerned this is not a totally debarring provision. As the sole basis of the argument in favour of the proposition that the impugned Ordinance amounts to regulation is the assumed absence of total bar on the High Court Judge, I proceed to explain the position and take first the case of a service Judge. Assume that the service Judge was practising as a Pleader in district Courts and had more than two years practice, but was not an Advocate. He accepted service as Civil Judge, became a District Judge and was ultimately appointed a Judge of the High Court. He has on his retirement the right to practice in the District Courts only. If he is debarred from practising in the Courts subordinate to the High Court of which he was Judge he has no other place to go to. He too has a right to carry on a profession as much as those Judges who were Advocates of the High Court. His right was confined to District Courts and that right has been destroyed by the impugned Ordinance. Also he was entitled to apply for enrolment as an Advocate in his own High Court because he had practised as Pleader for more than two years, but how can the High Court now put him on the rolls? It can enrol only those who are entitled to act and plead before it. With respect to Judges who were on the roll of Advocates of the High Court to which they were appointed it has to be observed that their right to practice in another Court is not an absolute one. According to section 15 (b) of the Bar Councils Act the Bar Council can by framing rules lay down "the conditions subject to which Advocates of other High Courts may permitted to practice in the High Court" of that province. Rules may also be framed preventing an Advocate of another High Court to make that High Court his ordinary place of business. Or a provision may be made that no Advocate of the other Court could make that High Court his ordinary place of business unless he passed an examination in special and local laws. This will in fact be a very reasonable rule to frame considering the large number of special and local laws that are in common use in both the provinces of Pakistan. At the same time it is to be borne in mind that be impugned Ordinance does not make it a condition of the application of the disqualification in dispute to the Judges of the High Court that the Bar Councils Act as it stands should be in force and the xe‑Judge should be entitled to practice in another High Court. The disqualification is absolute and does not depend on there being other opportunities for practice for the ex‑Judge. The impugned Ordinance is not concerned with these matters. The Bar Councils Act may be amended and the right to practice of Advocates of one High Court in another High Court may be altogether taken away. The disqualification will still be there. This is the legal position as to the right of ex‑Judges of a High Court to practice elsewhere. But what is the position as to practicability? Will a Judge after retirement at the age of sixty from the West Pakistan\High Court go and set up a new business in East Pakistan? He does not know the language of the people. He does not know the special and local laws. There is vast difference between special and local laws of the two wings to which a large number of cases relate. The tenancy laws of East Pakistan, its land tenures, the zamindari system, the special kind ‑ of pre‑emption, the Khatian and other peculiar revenue records, fisheries, rights relating to ports and navigation and a number of other matters, would be something entirely new to an Advocate of the West Pakistan High Court just as the customary law, Muslim Personal Law Application Act, pre emption, tenancy and land revenue. laws, etc. of West Pakistan would not be known to the Advocate of the East Pakistan High Court. At the age of sixty one does not begin taking new lessons and . generally one depends on the experience and knowledge already gained. The retiring Judge of West Pakistan may have been only a criminal lawyer depending mostly on murder references. He may have ..to search the records of the East Pakistan High Court for a murder reference. Considering all the handicaps there would be little‑ chance of practice for Advocates of West Pakistan High Court in East Pakistan. Practice depends on reputation and faith of the clientele. The retiring Judge would have neither of these in East Pakistan. The mere fact that a person has been a Judge is not sufficient for attracting clients. A good deal of initial expenditure will be involved. Parting with friends and relatives and migrating to a rather far away place to settle is not quite easy at an advanced age. Nobody from one province has as yet attempted to go `and start practice in the other province and there is little chance of anybody ever attempting it. The Ordinance practically destroys the right to practice not only of the Judges of the Supreme . Court, but also of those of the High Court. To show what is meant by regulation I will just. reproduce the meaning of regulation in Aiyar's Law Lexicon: "Regulate.‑To regulate means‑ to adjust by rule, method, or established mode: to direct by rule or restriction; to subject to governing principles or laws. To "regulate" a supply of Water, does not mean to shut it off altogether. A power to make a bye‑law to "regulate and govern a trade, does not authorize the prohibition of such trade; "there is a marked distinction between the prohibition or prevention of a trade and the regulation pr governance of it; and, indeed, a power to `regulate and govern' seems to imply the continued existence of that which is to be regulated or governed." It is nobody's case that regulation can mean prohibition though it is suggested that by regulation a person can be confined to an area a matter with which I will presently deal. The point I am considering is whether a disqualification attached to the holding of a high office amounts to regulation. Whatever the extent to which restraints may be placed by regulation it should be clear that the object in regulation is not to prevent persons from carrying on a profession, but to see that the profession is carried o on in the most efficient and suitable manner. The impugned o Ordinance is not concerned at all with the proper and efficient carrying on of a profession, its object being just to preserve the dignity of an office. By regulation restraints may be placed on the carrying on of a profession, but the restraints are not objects in, themselves. They are placed because for the proper working of the profession they have to be placed. On the other hand the disquali fication with which we are concerned is an object of in itself. It is the object of the impugned Ordinance that the ex‑Judges shall not practice so that the dignity of their office be maintained, and this object altogether ignores the effect on the profession of this disquali fication. The profession as well as the public which deals with the profession may suffer in consequence. The public may stand badly in need of the services of good Advocates and there may be total dearth of good Advocates in the High Court from which a Judge retires. The retiring Judge may be a counsel of great competence and repute whose presence in the profession will be a boon to the public and a source of great strength and status to the profession. Courts require the help of competent counsel. In fact without a competent bar the Courts cannot function properly and the administration of justice itself would suffer if competent counsel are debarred from practising. Yet‑ the retiring Judge has to be prevented from practising because of the .violence which will result to what is regarded as a sense of dignity. I am assuming just now for the sake of argument that by regulation a person can be confined to a particular ‑area. But in that case if the authority that was regulating a profession came to the conclusion that the best working of the profession would be obtained by sending Judges of one High Court to another High Court and the circumstances were such that the right to practice was also not being substantially affected by such a measure it may be argued that this was regulation; it may be regulation to allot different areas to different practitioners in any profession if that will be conducive ' to the efficient working of the profession. But how is it a regulation if a resident of one province is told that he should go to another province whose language he does not understand, of whose local and special laws he knows. little and his moving to which place is so remote a possibility that it has not yet happened and there is little chance of its ever happening? It is not regulation to send those who are well versed in laws of West Pakistan to East Pakistan of whose peculiar laws they are ignorant and vice versa. If all the inhabitants of West Pakistan were told that they could only carry on business in East Pakistan and the inhabitants of East Pakistan were told that they could only carry on business in West Pakistan it would not be regulation. It would be a punishment. No authority has been cited, even for the proposition that by regulation the exercise of right may be confined to a particular area. The licensing systems at present in force in Pakistan do not place any restriction as. to area on any profession and no example is forthcoming of any such restriction in any country either a country with Fundamental Rights or a country without them. The right to carry on a profession provided in the Constitution exists with, respect to the whole of Pakistan. Regulation may mean only the manner in which the right is exercised. The working hours may be regulated. Conditions may be imposed as to clerks, accounts, receipts to clients and possession of libraries. Fees may be controlled. Engagements may be directed to be made through attorneys only and other similar matters may be provided by a "regulation by a licensing system". To support the argument that by a licensing system it is possible to limit the activity of members of this profession my Lord the Chief Justice has referred to the fact that Pleaders can appear only in the district Courts. Let me respectfully point out that this is a matter of qualifications and not of regulation. Higher qualifications are needed for practising in the High Court. If a person possesses the qualifications for being placed on the rolls of the High Court he cannot be prevented from practising in the High Court. But really there is no need to say all that I have said in the preceding paragraphs because the impugned Ordinance does not even pretend to regulate anything. It does not say that if an ex‑Judge can practice in two areas he will be confined to one. Assuming it is possible to tell an Advocate that out ‑of the whole of Pakistan he will be allowed to practice in one specified part of it, the provision which regulates must be only this that if he is qualified to practice in the whole he will be confined to a part. The impugned Ordinance does not speak of any other area at all. It is only concerned with debarring him from practice in one area without caring whether he is entitled to practice in the other area. It is as much applicable if there be no right to practice anywhere else as it would be if there was such a right. It is not concerned with the circumstances of the profession and if there was no other living Advocate at all it will still debar the ex‑Judge from practising. When we are determining the nature of a piece of legislation we must look at it as a whole. There are no grounds for holding that the Legislature bad one object in view in relation to Supreme Court Judges and another in relation to High Court Judges. Also we have to see the pith and substance. The impugned Ordinance just attaches a condition to the holding of an office. It provides a disqualification like other disqualifications that attach to high offices. Such provisions are common in Constitutions. In its nature it is, to repeat the example cited by my Lord the Chief Justice, like the King of England telling the shoe‑maker that after ceasing to hold office as Chancellor of the Exchequer he will not be a shoe‑maker. The King of England was surely not regulating the profession of shoe‑makers when he attached this condition to the holding of office of the Chancellor of the Exchequer. When the disqualification with which we are dealing was based on an undertaking it was not "regulation" and the nature of the provision does not, as we pointed out in Akhlaque Hussain v. Judges of the West Pakistan High Court (P L D 1961 S C 431) change if the undertaking is substituted by a statutory bar. The impugned Ordinance is not even regulation, but I do not know on what basis it can be urged that it is part of a licensing system. Does every disqualification attached to an office automatically become part of a licensing system? There should be some difference between mere regulation and regulation by a licensing system otherwise the words "by a licensing system" would be redundant. The impugned ordinance refers to no licensing system and does not purport to be part of any. If the intention was to make the impugned Ordinance part of a system it should come as an amendment of the existing system and would be given a proper place in it. Not only is there no intention to incorporate the impugned Ordinance in any system but the disqualifying section begins by saying "Notwithstanding anything contained in any other law in force." The intention was to override other law and not that the Ordinance should become part of them (i) every citizen has a fundamental right under the Constitution to practice any lawful profession if he has the competence for it; ‑ ‑ (ii) the impugned Ordinance practically destroys the right to practice and just provides a disability attached to the holding of an office for the reservation of the dignity of the office. It is neither regulation nor part of a licensing system. The impugned Ordinance is therefore void on account of it conflict with a fundamental right. The next question is as to the effect of this finding. on Mr. Akhlaque Hussain. When I found the Ordinance to be ultra vires on the ground that it was a condition of service I had to discuss the question as to what was the position of Mr. Akhlaque Hussain after President's Order 21 of 1963 and I found that the Government was debarred from raising a question as to his right to practice. However if the impugned Ordinance be ultra vires on the ground of its conflict with the fundamental right to carry on a profession Mr. Akhlaque Hussain will have a right to practice quite independently of the bar of res judicata. The only objection to the right of Mr. Akhlaque Hussain to practice before the impugned Ordinance was his undertaking. But the undertaking cannot affect the fundamental right to carry on a profession. Fundamental rights cannot be waived. No right which is L,asedi on public policy can, be waived. Even the right which the Government servant possesses under the Constitution of racing entitled to a show‑cause notice before dismissal cannot be waived. This is what we held in Ghulatn Sarivar v. Pakistan (P L D 1962 S C 142). We held that the agreement waiving the right was void. In Prem Parkash v. Mohan Lai (A I R 1973 Lah.268) a judgment‑debtor who was a Government servant had agreed that a portion of his salary exceeding that which is mentioned as attachable in the Civil Procedure Code may be attached. It was held that this provision protecting Government servants was based on public policy and could not be waived. The agreement to waive it was held to be void. Citizens of Pakistan cannot contract themselves out of the various fundamental rights which the Constitution grants them. The fundamental rights are not to be read as if they included the words "subject to a contract to the contrary". One way of putting the matter is this. Every law which is inconsistent with a fundamental right, is void. The Contract Act in so far as it permits an agreement to waive a fundamental right is void. It is not necessary to labour the point as the proposition that rights granted on account, of public policy cannot be waived is well established. The two points I have dealt with are sufficient to dispose of the appeal and I do not feel the need of discussing other points that arise. I would dismiss this appeal. MUHAMMAD YAQUB ALI, J.‑I am in respectful agreement with the learned Chief Justice that this appeal should be allowed, but my reasons in arriving at the conclusion are a little different.