P L D 1969 Supreme Court 623 (PLP)

NAMOODUR RAHMAN, C. J.‑These two appeals arise out of the same judgment of a Division Bench of the High Court of West Pakistan. This judgment was given in two Miscellaneous applications filed by the Advocate‑General, West Pakistan, Lahore, objecting to the appearance of Mr. Manzoor Qadir, the respondent in Civil Appeal No. 38 of 1967 and Sheikh Muhammad Shan, before the High Court of West Pakistan in the cases specified in those applications. The Division Bench of the High Court allowed the objection in the case of Sheikh Muhammad Shafi but disallowed the objection with regard to Mr. Manzoor Qadir. Both Sh. Muhammad Shafi and the Government of West Pakistan filed petitions for special leave to appeal to this Court from the judgment of the High Court and leave was granted to each of them, as important questions of Law relating to the interpre tation of the Constitution and a previous judgment of this Court in the case of Government of Pakistan v. Syed Akhlaque Hussain and another (P L D 1965 S C 527) arose for consideration. Before I take up for discussion the points raised in these appeals it is necessary to give first a brief summary of some facts relevant for understanding the questions of law raised. Mr. Manzoor Qadir who was originally enrolled as an Advocate of the Lahore High Court on the 13th February 1936, became enrolled as an Advocate of the High Court of West Pakistan on the 14th October 1955, and practised as such till the 27th October 1958, when he was appointed a Minister of the Presidential Cabinet of Field Marshal Muhammad Ayub Khan. During the period he was serving as such Cabinet Minister, an order called the Retired Judges (Legal Practice) Order, 1962 (President's Order No. 21 of 1962), was promulgated on the 30th May 1962, by the President of Pakistan in pursuance of the powers vested in him by the Proclamation of the 7th day of October 1958, and all other powers empowering him in that behalf. This order gave to a Judge of the Supreme Court and of a High Court, including the Chief Justice of Pakistan and the Chief Justice of a High Court, irrespective of whether he was before such appointment a legal practitioner or not, the right to be enrolled as a Senior Advocate of the Supreme Court and also as an Advocate of the High Court, upon his retirement or resignation from Office (but not removal), notwithstanding anything to the contrary in any other law or in any undertaking. This enrolment carried with it the right of audience before the said Courts and all other rights to which a Senior Advocate of the Supreme Court or an Advocate of a High Court was otherwise entitled. In this Order a Judge is defined as a Judge of the Supreme Court or of a High Court and includes the Chief Justices of the said Courts. The definition ex facie, appears to confer the right given by the substantive provisions only upon those persons who were acting as such Judges or as a Chief Justice of the Supreme Court or of a High Court on the date the order came into force, namely, the 30th May 1962, because it does not say that such right is to be conferred on any one who is or has been a Judge or a Chief Justice of the Supreme Court or a High Court. At the time of the promulgation of this order a Constitution had furthermore been already enacted on the 1st March 1962, although the majority of its provisions were, under Article 224, clause (1) thereof, to come into force on the day on which the first meeting of the National Assembly was to be held. The first meeting of the National Assembly was held on the 8th June 1962 and after the coming into force of the new Constitution, Mr. Manzoor Qadir ceased to be a Cabinet Minister. On the 18th October 1962, however, he was appointed the Chief Justice of the High Court of West Pakistan. Unfortunately he continued in the said office only for about a year. He resigned on the 30th September 1963, and by virtue of the provisions of President's Order No. 21 of 1962 resumed practice both as an Advocate of the High Court and as a Senior Advocate of the Supreme Court. Sheikh Muhammad Shafi was originally enrolled in 1925 as a Second Grade Legal Practitioner in the Court of the Judicial Commissioner of the then North‑West Frontier Province. Two years later he became a legal practitioner of the First Grade entitled to appear in the highest Court of that Province. In July 1949, he was appointed a Judge of the Judicial Commis sioner's Court. On his appointment to the Bench he gave, according to the practice then prevailing, an undertaking, in writing to the effect that after his retirement he will not practise in the Court of which he had been appointed a Judge or in any Court subordinate thereto. In May 1955, he became a Judicial Commissioner of that Court and when the High Court of West Pakistan was constituted, as a result of the integration of the Province of West Pakistan, he became a Judge of the High Court of West Pakistan in October 1955. On the 6th September 1960, he retired on attaining the age of superannuation but he too, after the promulgation of President's Order No. 21 of 1962, resumed his practice as an Advocate of the High Court of West Pakistan, although under Article 166 (3) of the 1956‑Constitution he would not have been entitled to do so even on the date he retired by reason of the provisions of Article 6 of the Laws (Continuance in Force) Order, 1958. It may be pointed out here that prior to the 1956-- Constitution, practising Advocates were as a matter of practice required, upon their elevation to the Bench and their appointment as Permanent Judges of the High Court, to give an undertaking in writing to the effect that after their retirement they will not practice in the same High Court or Courts subordinate thereto, but in the 1956‑Constitution this became a Constitutional bar as it was provided by clause (3) of Article 166 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". This disqualification was removed by President's Order No. 21 of 1962 which was promulgated by the President in persuance of the Proclamation of Martial Law of the 7th October 1958. The Constitution of 1962 did not repeat the provisions of clause (3) of Article 166 of the 1956‑Constitution, presumably, because, the President's Order No. 21 of 1962 was intended to hold the field. On the 30th January 1964, however, the policy underwent a radical change and the President of Pakistan again promulgated the Legal Practice (Disqualifications) Ordinance (No. II of 1964), in exercise of his powers under clause (1) of Article 29 read with Cause (2) of Article 131 of tile 1962‑Constitution, Section 2 of this Ordinance expressly specified that a Judge of a High Court or of the Supreme Court for the purposes of the said Ordinance included any person who had, at any time after the 14th day of August 1947, held office in Pakistan either as the Chief Justice or the Chief Judge, or as a Judge of the Federal Court or the Supreme Court or a Chief Court or a Judicial Commissioner's Court or a High Court, but did not include a temporary, acting, additional or ad hoe Judge. Section 3 of the Ordinance provided that notwithstanding anything contained in any other' law for the time being in force, a Judge of the Supreme Court would, upon the commencement of the Ordinance stand disqualified from pleading or acting in or before any Court, authority or Tribunal in Pakistan and a Judge of a High Court, in or before any Court authority or Tribunal except the Supreme Court and a High Court the territorial limits of whose jurisdiction did not extend to any area which was within the territorial jurisdiction of the Court in which he last held office as a Judge. After the promulgation of this Ordinance the question arose as to whether the retired Judges, who had since the enactment of the President's Order No. 21 of 1962 resumed practice, were still entitled to do so. Three of them, namely; Mr. Z. H. Lari, Mr. S. Akhlaque Hussain and Sheikh Muhammad Shafi, applied in writing to the Karachi Bench of the High Court of West Pakistan for a clarification of the position. A Full Bench of three Judges was constituted to examine this matter but in the meanwhile Mr. S. Akhlaque Hussain made a similar application before the Lahore Bench. The Chief Justice of the High Court of West Pakistan, thereupon, on the 24th February 1964, constituted a Full Bench of five learned Judges of the said Court to consider all the applications. On the 26th February 1964, a Division Bench at Lahore also referred a similar application of Sh. Muhammad Shafi to the Full Bench which, after hearing elaborate arguments came to the conclusion that Ordinance 'No. II of 1964 was ultra vires qua the petitioners before it and that notwithstanding its provisions, they were entitled to practice in that High Court and subject to the provisions of clauses (b) and (e) of section 14 (1) of the Bar Council Act, before the Courts and authorities mentioned in the said clauses. The Full Bench was clearly of the view that President's Order No. 21 of 1962 did not, in view of the definition of a Judge given in section 2 thereof, apply to Judges who were either not functioning as such at the time of the passing of the Order or were not appointed subsequent thereto, yet it did not, curiously enough, make any distinction between the petitioners before it although on this ground alone both Sheikh Muhammad Shafi and Mr. S. Akhlaque Hussain would have been disentitled from resuming practice under the said Order. It was, however, clearly of the view that the Ordinance No. II of 1964, being in the nature of a subordinate legislation, could not override the intention of the 1962‑Constitution which, according to it, was clearly to the fact that retired Judges should not be disqualified from practising. From this judgment the Government of Pakistan obtained special leave to appeal to this Court and impleaded as respondents not only Sheikh Muhammad Shaft, Mr. Manzoor Qadir and Syed Akhlaque Hussain but also Messrs Z. H. Lad and H. B. Tayabji. Subsequently the names of all the said respon dents except Syed Akhlaque Hussain were deleted on the application of the Government and the appeal was ultimately heard only as against Mr. Syed Akhlaque Hussain. The decision of this Court in that appeal Government of Pakistan v. Akhlaque Hussain and another as pointed out by the then learned Chief Justice himself was "effective only in relation to the case of Syed Akhlaque Hussain". In this Court opinion was, unfortunately, divided on the question of the vires of Ordinance No. II of 1964. While the learned Chief Justice, Muhammad Yaqoob Ali and Abdus Sattar, JJ. took the view that the Ordinance was intra vires and not opposed either to the intention of the Constitution or repugnant to any Fundamental Right; Kaikaus, J. held it to be violative of Fundamental Right No. 8; S. A. Rahman and Fazle‑Akbar, JJ. refrained from expressing any opinion on this particular question. The Division Bench in the High Court in the judgment under appeal, has, after a careful examination of the judgment of this Court in the case of Syed Akhlaque Hussain, taken the view that although the opinion of the majority in the Supreme Court was clearly to the effect that the Ordinance was intra vires yet it did not have the effect of taking away the right of Mr. Manzoor Qadir to resume practice, because, both when he was appointed as Chief Justice of the High Court of West Pakistan and when he retired from that office, the President's Order No. 21 of 1962 held the field. Therefore, the terms and conditions of his service which became vested in him in his capacity of Chief Justice could not be altered to his disadvantage by means of the impugned Ordinance after his resignation. The learned Advocate‑General, appearing on behalf of the Province of West Pakistan has, however, sought to contend that the right to practice after resignation cannot be considered to be a part of the terms and conditions of service of a Judge, for, a term and condition of service can only relate to the rights, privileges and other benefits which are available to him during the tenure of his office. Hence no question of variation of the terms and conditions of service arises in this case. At best, he urges, the right given by the President's Order No. 21 of 1962 was in the nature of a privilege and since that was given by a legislative document which, after the enactment of the Constitution of the 1962, had effect only as an "existing law", that "existing law" could be changed in the same way as any other existing law is capable of being changed. The High Court, it is contended, has thus fallen into error in not taking notice of the provisions of clause (2) of Article 225 of the 1962 Constitution, whereby except for the Orders expressly repealed other Orders were continued in force merely as existing laws until altered, repealed or amended by the appropriate Legislature. Clause (7) of this Article, it is further said, clearly provides that existing laws in this Article mean all laws including Ordinance, Orders‑in‑Council Orders, rules, bye‑laws, regulations, etc. in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day. Alternatively, it is argued, that even if such a right to practise can be considered to be a part of the terms and conditions of service of a Judge then by reason of the provisions of Article 124, read with the Second Schedule to the Constitution of 1962, it is manifest that the President could change those terms and conditions of service even under the Constitution itself. Since the Constitution does not lay down the manner in which the President may determine the privileges, allowances and rights to which a Judge of the Supreme Court or High Court may be entitled this could be done either by an executive order of the President or, as was done in the present case, by the promul gation of a legislative measure. As for the reasoning of the High Court that the Ordinance No. II of 1964 could not operate retroactively in the case of Mr. Manzoor Qadir, who had retired even before the Ordinance came into force, it is pointed out that since the Legislature had by express words given retroactive effect to this legislative measure, it was not for the Courts to say that this could not be done. The Legislature has, it is argued power to legislate both prosecutively and retroactively. In the present case it has, by express words, made the provisions of the Ordinance applicable to "any person who has, at any time after the fourteenth day of August 1947, held office in Pakistan, as the Chief Justice or the Chief Judge, or as a Judge, of any High Court or Chief Court in Pakistan". Mr. Manzoor Qadir clearly fell within the mischief of this definition. It was not possible, therefore, to say that the Ordinance was not applicable to him if it was a valid piece of legislation as has been held by this Court in the case of Syed Akhlaque Hussain. The learned Attorney‑General of Pakistan has adopted these arguments and further attempted to classify the terms; and conditions of service of a Judge into two categories, namely fundamental and subsidiary. Fundamental according to him, are those which have been specified in the body of the Con stitution itself and subsidiary are those which are left to be determined by the President under the Second Schedule. Those provided for in the body of the Constitution itself could not, he concedes, be changed without a change in the Constitution itself but so far as the subsidiary terms and conditions are concerned, he has maintained, that since this has been left within the executive control of the President, there can be no possible legal bar to this being done by the President by a legislative enactment. The President, when acting under the Second Schedule, was not a persona designata but merely the Constitutional President, having both legislative as well as as executive powers. If the Constitution did not specify the manner in which that power had to be exercised it would depend upon the President to determine his own mode of action and if he chose to do so in the exercise of his legislative powers under the Constitution, then he must be deemed to have elected to act, subject to the same restrictions as would have bound the Legislature itself, although the Schedule gave him a wider power. There could be no bar to his electing to exercise his powers in a restrictive manner. The only objection, therefore, that could legitimately be taken to the determination that had been made by an Ordinance, could be, as has in fact been done, on the basis that the Legislature itself had no power to legislate in this particular field. In the present case, he says it is abundantly clear that the Legislature had the power to legislate in this behalf under item 38 of the Third Schedule of the 1962 Constitution which deals with the subject of "persons entitled to practice before that Court", namely, the Supreme Court. Furthermore, under clause (2) of Article 131 the Central Legislature could for the achievement of uniformity in respect of any matter in different parts of Pakistan legislate with respect even to a matter not enumerated in the Third Schedule. The Preamble to the impugned Ordinance also clearly declares that the President had passed the legislation for the sake of uniformity under this provision of the Constitution. There could thus be no manner of doubt, it is contended, as to the competence of the President to legislate by Ordinance with respect to the subject‑matter of this legislation. Upon these arguments the first question that arises for consideration is as to whether the disqualification imposed by Ordinance No. II of 1964, was a part of the terms and conditions of service of a Judge of a High Court or the Supreme Court. The contention of the learned Advocate‑General of West Pakistan, of course, is that it is not a condition of his service, because, according to him, a condition of service means a condition which has to be observed during service and not afterwards. I am afraid I cannot accept such an argument. Any condition upon which a person holds an office, or any benefit, advantage or disadvantage, which may attach or accrue to a person as a consequence of his holding an office, is as much a condition of his service as is the question of his emoluments or leave or pension. If the learned Advocate‑General's arguments were to be accepted then even pension would not be a term and condition of service. In this connection it is interesting to notice that when this question of debarring Barrister or Pleader‑Judges from resuming the practice of their profession after their retirement from the Bench was first raised in 1920 by the Government of India, the majority of the High Courts in British India took the view that this matter was inextricably connected with the question of the salary and pension given to Judges. Indeed the reason given by the Government of India itself for this proposal in its letter of the 7th July 1921, addressed to His Majesty's Secretary of State for India (vide copy furnished by the Advocate‑General, West Pakistan), was as follows: "It will be observed from paragraph 7 of Mr. Chamberlain's public despatch No. 40, dated the 3rd March 1916, that the introduction of a graduated scale of pensions for High and Chief Court Judges was intended, among other things, to lessen the likelihood of a barrister or Pleader Judge reverting to practice owing to absence or insufficiency of pension." This objective the Government then sought to achieve by insisting upon the Advocate or vakil‑Judges having their names removed from the Roll of Advocates or Vakils of the Court before their appointment as Permanent Judges of the Court or, alternatively, by altering the pension rules. The final decision, however, of the Government of India, as embodies in its said letter of the 7th July 1921, was to the following effect :‑ "It seems to us that the object which we have in view would best be attained by the adoption of the alternative suggested, either definitely or by inference, by some local Governments and High Courts, viz. that, when an offer of a permanent appointment as a Judge is made to a barrister or Pleader, one of the conditions which should be included in the written offer of the appointment should be that he will not resume after retirement, forensic practice in the High Court to which he is appointed or to which he may be transferred or in any of the Courts subordinate thereto. The barrister or Pleader would thus, in writing, accept the appoint ment subject to the conditions specified in the written offer." It will thus be observed that historically also the idea of preventing Advocate or Vakil‑Judges from practising after retirement from the Bench originated after the introduction of a graduated pension scale for them and since it was as a result of this decision that the practice of obtaining an undertaking from an Advocate or a Vakil‑Judge before his appointment on a permanent basis came into vogue, it seems to me that it would be futile to argue that this was not a part of the terms and conditions of service of a Judge. In the light of the above I feel confirmed in the view that the decision of this Court in the case of Syed Akhlaque Hussain v. The Judges of the High Court of West--Pakistan (P L D 1961 SC 431) to the effect that by such an undertaking Judges of the High Court on becoming permanent "voluntarily place upon themselves as a condition of their appointment, the restriction that after retirement the3 would not practice in that High Court or any Court subordinate thereto," was in every way correct. Now it was this very undertaking, which in essence became translated into Constitutional prohibition by Clause (3) of Article 166 of the Constitution of 1956. This made no substantial difference in the language save for expressing it in the form of an absolute prohibition it, therefore, remained even afterwards as a condition of service as such. The prohibition which is now incorporated in the impugned Ordinance No. II of 1964, is in essence still the same and, therefore, continues to bear the same character, namely, that it is a term and condition of the service of a Judge. It is, also worth nothing that even in the case of Government of Pakistan v. Syed Akhlaque Hussain end another the learned Chief Justice, at page 551 of his judgment observed as follows :‑ "We were informed in the course of the argument in this case by Mr. Manzoor 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." The learned Chief Justice, however, did not record any specific finding on this question, namely; as to whether the bar imposed by the, impugned Ordinance of 1964, formed a part of the terms and conditions of service of a Judge but he did not also differ from the view expressed by him earlier in the case of Syed Akhlaque Hussain v. The Judges of the High Court of West Pakistan, presumably, because, this question did not arise for decision. But as against this the view of S. A. Rahman, J. at pages 558 and 559 of the report, was clearly to the effect that such a condition as was introduced by clause (3) of Article 166 of the 1956‑Constitution "represented a condition applicable to the holding of Office as permanent Judge of the High Court". Fazle‑Akbar, J., at page 565 similarly held that this was a condition of service of a Judge. Kaikaus, J. also was definitely of that view. Yaqoob Ali, J. at page 591 opined that the undertaking given not to practice before a High Court constituted a condition of appointment to the office of a Judge. I too would, therefore, for the reasons already given by me, hold that the bar sought to be imposed by Ordinance No. II of 1964, was in the nature of a condition of service of a Judge. The next question that arises for consideration is as to whether such a condition of service of a High Court or of a Supreme Court Judge could competently be laid down by an Ordinance. Learned counsel representing Mr. Manzoor Qadir has, of course, argued that in principle the terms and conditions of service of a Judge of a superior Court can only be prescribed by a Constitutional instrument and not by any kind of a subordinate legislation. In support of this contention he has referred to Articles 50, 51, 52, 92, 93, 94, 99, 124, 125, 126 and 128 of the Constitution of 1962 as also the provisions of the Second Schedule to the Constitution of 1962. These Articles, it is true, lay down as to how a Judge of the Supreme Court or of a High Court is to be appointed, what kind of oath he shall take, at what age he shall retire, in what circumstances he may be transferred from one High Court to another and how his remuneration and other terms and conditions of service are to be fixed. The Constitution also prescribes how he can resign his office by a writing under his hand addressed to the President and the disqualifications to which he is to be subjected by Article

126. It sets up the machinery by which he can be removed from service for misconduct in Article

128. His remuneration is, however, fixed by the Second Schedule and it is therein provided that he 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 Supreme Court or of a High Court were entitled. As compared to this in respect of the holders of other Constitutional Offices Article 149 prescribes the Chief Election Commissioner's salary and provides that his other terms and conditions of service shall be determined by Act of the Central Legislature or until so determined, by rules made by the President. Article 191 makes similar provision in respect of the terms and conditions of service of the Comptroller and Auditor-- General and Article 182 for those of a Member of the Central Public Service Commission. It is, therefore, urged that wherever the Constitution intended that the Central Legislature shall prescribe the terms and conditions of service of any particular office, it has specifically so provided. The intention of the Constitution, thus appears it is said, to be that the terms and conditions of service of a Judge of a High Court or of the Supreme Court shall not be prescribed by any legislation but either by the Constitution itself or by the Head of the State himself, acting as a persona designata. It would, no doubt, have been very desirable in the wider public interests of maintaining the independence of the judiciary which is considered to be an essential concomitant of this branch of the service, that the terms and conditions of office of a Judge of a superior Court should have been laid down in the Constitution itself and not left to be determined at the discretion of the Chief Executive of the State of the wishes of a political party. Under the scheme of the Government of India Act of 1935 also s the salary of a High Court Judge was not voteable in any Assembly but formed a charge upon the Provincial Revenue. But from this it does not necessarily follow that this highly desirable state of affairs has hardened into any rule of law or Constitution making or that it has ever existed in this sub continent. Under section 201 of the Government of India Act of 1935, the salaries and allowances including all rights and privileges of leave and pensions of even Federal Court Judges were to be such as may be fixed from time to time by His Majesty in Council. After Independence this power was transferred to the Governor‑General. The Constitution itself only fixed the number of Judges of the Court, the manner of their appointment, their qualifications and their age of retirement. Similarly, section 221 of the said Act provided that the salaries and allowances of High Court Judges would be such as may be fixed by His Majesty in Council, It was under these provision that the Government of India (Federal Court) Order, 1937 and the Government of India (High Court Judges) Order, 1937, were passed, prescribing the salaries and other terms and conditions of service of Judges of the Federal Court and the High Courts, respectively. With the first Constitution framed in Pakistan a departure began. The prohibition from resumption of forensic practice, which was till then incorporated in the form of an undertaking, became transformed into a Constitutional prohibition. Article 166 (3) debarred a permanent Judge of a High Court from pleading or practising before that Court or any Court or authority within its jurisdiction. This Constitution also adopted the device of prescribing the salaries and other terms and conditions of Judges in a Schedule to the Constitution. Thus Article 177 of 1956‑Constitution enacted that "until other provisions in that behalf are made by Act of Parliament (underlining is mine), the provisions of the Third Schedule shall apply in relation to the Supreme Court and High Courts in respect of matters specified therein." Paragraph 1 of Part I and paragraph 4 of Part II of this Third Schedule provided that the other privileges and allowances including allowances and rights in respect of leave of absence and pension, etc. of Judges of the Supreme Court and of High Courts will be such "as may be determined by the President, and until so determined" they would be entitled to the allowances, privileges and rights which immediately before the Constitution day, were admissible to them under the Government of India (Federal Court) Order, 1937 or High Court Judges Order, 1937. The Scheme is the same in the Constitution of 1962 but with this difference that Article 124 does not say that the provisions of the Second Schedule are to apply until other provision is made in that behalf by an Act of the Central Legislature as was said in Article 177 of the 1956‑Constitution. Under the Government of India Act, 1935 and 1956 Constitution, there could be no manner of doubt that the terms and conditions of service of Judges could be prescribed either by Act of Parliament or by Orders of His Majesty‑in‑Council or of the Governor‑General‑in‑Council. After Independence, this could be done by the Governor‑General presumably by Orders like the Federal Court Order, 1937 and the High Court Judges Order, 1937 which were in the nature of Legislative measures. The question, however, is whether that scheme was radically changed by the 1962‑Constitution. It is correct that Article 124 does not say that the terms and conditions prescribed in the Second Schedule are to be subject to any law made by the Central Legislature nor does it say that the terms and conditions of service of a Judge shall be as determined by an Act of the Central Legislature, is in Articles 149, 182 and 191 of the 1962. Constitution. But it has to be pointed out that even in the case of the latter their qualifications, their age of retirement, the form of their respective oaths, the terms of their respective offices have been, as in the case of the Judges of superior Courts, prescribed in the Constitution itself. The mere omission on the part of the Constitution to mention that the remuneration and other terms and conditions of service of Judges of the Supreme Court or of the High Courts can be determined by Act of Parliament as under Article 177 of the Constitution of 1956, does not, in my view, take away the power of the Central Legislature to legislate with regard to the terms and conditions of service of such Judges if such power is to be found aliened in the Constitution item 38 of the Third Schedule to the 1962 Constitution is in exactly the same terms as item 16 of the Fifth Schedule to the 1956‑Constitution and if under that item the Parliament under that Constitution had the right to legislate with regard to the salaries, remunerations and other terms and conditions of service of the Judges of the Supreme Court and High Courts, then I see no reason why item 38 of the Third Schedule of the 1962‑Constitution cannot now be held to have given the same power to the Central Legislature. It may well be that for this precise reason the language of Article 124 of the 1962‑Constitution did not follow the pattern of the language of Article 177 of the 1956‑Constitution but this difference in the terminology of these two Articles does not mean that the power given to the Central Legislature by Article 131 of the 1962 Constitution to legislate in respect of the matters enumerated in the Third Schedule becomes non‑existent. As a Judge it would have given me immense satisfaction if I could have agreed with Mr. Brohi, the learned counsel appearing for Mr. Manzoor Qadir, that the intention of the 1962‑Constitution was clearly to the effect that the terms and conditions of service of Judges of superior Courts could only be provided in the body of the Constitution itself and not by any Sub- Constitutional Legislation, but I regret my inability to do so in view of the above provisions of the Constitution as a whole and giving to the legislative powers conferred thereby upon the Central Legislature by item 38 of the 1962‑Constitution, their due significance the conclusion is irresistible that the Central Legislature did have the power to legislate with regard to the terms and conditions of service of Judges of the Supreme Court notwithstanding Article 124 and the Second Schedule to the Constitution. If this is so then a similar power would, under the residuary powers given by Article 132, be also available to the Provincial Legislature so far as the High Court Judges are concerned. Under the Scheme of the 1962‑Constitution the Provincial Legislature could legislate with regard to all other matters not enumerated in the Third Schedule. This would also mean that under clause (2) of Article 131 of the 1962. Constitution the Central Legislature would, in the national interest of Pakistan in relation to the achievement of uniformity in respect of any matter in different parts of Pakistan, have also the power to make laws with regard to the two High Courts situ ated in the two Provinces of East and West Pakistan. Indeed this is exactly what Ordinance No. II of 1964 itself claims to have done by its preamble. The President says that the Ordinance is being made in the exercise of this very power for the achievement of uniformity in both the wings of Pakistan. The competency of the President to make this Ordinance at a time when the Central Legislature was not in session cannot therefore, be challenged. The President could under Article 29 of the Constitution make Ordinances having the force of an Act of the Central Legislature whenever the National Assembly was not in session provided the law was within the competence ref the Central Legislature. This answers also the next contention of Mr. Brohi that even if the terms and conditions of Service of a Judge of a superior Court could be prescribed by Legislation there was no competent Legislature under the 1962‑Constitution which could do so. As already indicated the Central Legislature was, under item 38 of the Third Schedule, fully competent, in my view, to legislate with regard to this matter. The items in the legislative list, as was observed in the case of the United Provinces v. Mst. Atique Begum and others (AIR 1941 FC 16) are not to be read in any narrow or pedantic sense. Each general word therein should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to' be comprehended within it. These items describe only com prehensive categories of legislation by a word of broad and general meaning. Thus, by being given the authority to legislate in respect of the Constitution, organisation, jurisdiction and powers of the Supreme Court, the Central Legislature, in my view, acquired the jurisdiction also to legislate with regard to the number of Judges to be appointed, the salaries to be paid to them and the terms and conditions upon which they were to serve in the Supreme Court. Even otherwise if the impugned Ordinance be held only to have prescribed that certain persons shall not be entitled to practise before the Supreme Court then the Central Legislature could certainly do so under item 38 of the Third Schedule, for that included legislation with regard to "persons entitled to practise before that Court". I, therefore, find myself with due respect, unable also to agree with the reasonings of Kaikaus, J. in his separate judgment in the case of the Government of Pakistan v. Syed Akhlaque Hussain and another, for, he has obviously not taken into account the provisions of Article 225 or item 38 of the Third Schedule although he has noticed item 40 thereof. Mr. Brohi has also raised two other subsidiary arguments. The first is that the disbarment from resumption of practice being in the nature of a disqualification was illegal, because, it was not one which had been incorporated in Article 126 of the Constitution of 1962. The only disqualifications that the Constitution had, according to him, provided for in respect of Judges of the High Courts and the Supreme Court were to be found in Article

126. That Article should be treated as being exhaustive of the disabilities of "a Judge, for, the Constitution having specifically prohibited the doing of certain things must be deemed to have, by necessary implication, permitted the doing of every other thing. This argument was also advanced before this Court in the case of Government of Pakistan v. Syed Akhlaque Hussain and another but did not find favour with the majority of the Court. I am in entire agreement with the then Chief Justice that it would be "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". It would follow from this that I am also in agreement with the view that Article 126 of the Constitution of 1962 is not exhaustive of all types of disqualifications of Judge. It may here be pointed out that even S. A. Rahman, J. thought in that case that "the negative fact that the 1962‑Constitution omits the provision contained in Article 166 (31 of the 1956‑Constitution, cannot improve the respondent's position in this behalf". Learned counsel has secondly argued that in any event Ordinance No. II of 1964 could not take away a right which had become vested in Mr. Manzoor Qadir as both when he was appointed and when he resigned, President's Order No. 21 of 1962 held the field and under that he had an absolute right of resuming his practice. I would entirely agree with him that a vested right cannot be taken away save by express words or necessary intendment The Legislature, however which is competent to make a law has full and plenary powers in that behalf and can even legislate retrospectively or retroactively. There is no such rule that even if the Legislature has, by the use of clear and unambiguous language, sought to take away a vested right yet the Courts, must hold that such a legislation is ineffective or strike down that Legislation on the ground that it has retrospectively taken away a vested right. The relevant provisions of Ordinance No. 11 of 1964, are in these terms: "

2. In this Ordinance, unless there is anything repugnant in the subject or context,‑ (a) "Judge of a High Court" includes any person who has, at any time after the fourteenth day of August, 1947, held office in Pakistan as the Chief Justice or the Chief Judge, or as a Judge of any High Court or Chief Court in Pakistan, or as a Judicial Commissioner or as a Member of a Judicial Commissioner's Court in Pakistan, but does not include a temporary, acting or Additional Judge of High Court or Chief Court; and (b) "Judge of the Supreme Court" includes any person who has, at any time after the fourteenth day of August 1947, held office in Pakistan as the Chief Justice or as a Judge of the Federal Court of Pakistan or the Supreme Court of Pakistan, but does not include a temporary, Acting, Additional or Ad hoc Judge.

3. 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 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 has held office as 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 Judge." Can it possibly be urged, in the, face of these words, that there vas any doubt as to the intention of the law‑maker? The words are clear and free from any ambiguity. They specify in no uncertain manner that every person who has since 15‑8‑1947, held office as a Judge of a High Court or the Supreme Court is to be affected by this Ordinance and that notwithstanding anything contained in any other law for the time being in force, to be disqualified from pleading or acting. I am unable, upon these words, to find any escape from the conclusion that this piece of legislation did undoubtedly seek to take away even vested right retrospectively. It represents a complete reversal of policy from the position taken up at the time the President' Order No. 21 of 1962 was promulgated and it is worded in such a way as to leave no room for doubt that no matter when a person was appointed, if he had held office at any time after the 14th August 1947, then he would come within the mischief o the Ordinance and his right would be affected thereby. In the circumstances, I have extremely reluctantly to come to the conclusion that this argument of Mr. Brohi cannot be accepted in view of the clear language of the Ordinance. If this was the position with regard to the powers of the Central Legislature then during the time that the Legislature was not in session, the President had the sauce powers under Article 29 of the 1962‑Constitution. 'The only limitation on his powers of Legislation by Ordinance were those which applied to the Legislature itself and as I have endeavoured to show, if the Legislature was not debarred from making a similar kind of legislation then the President was also competent to make the same. I am not impressed either by the argument that the President when acting under the Second Schedule of the 1962‑Constitution acts as a persona designate. The President there referred to is the Chief Executive of the State. He could, no doubt, have, even by the exercise of his executive power, prescribed for the matters mentioned in the said Schedule. But in the present case the necessity for making a legislative enactment arose, because the right to resume practice had earlier been given by a legislative measure, namely; the President's Order No. 21 of 1962. The Schedule not having prescribed and‑ particular mode of action it was for the President to choose his own mode provided it was a competent mode of action. The next contention is that since the President's Order No. 21 of 1962 was a pre‑Constitutional measure, made by the President in the exercise of his powers under the proclamation of Emergency and all other powers given to him in that behalf, it was in the nature of a supra‑constitutional document and, therefore, it could not be changed or altered by a Sub‑Constitu tional enactment like an Ordinance. This would undoubtedly have been so, but unfortunately, since the Constitution of 1962 itself by the combined effect of clauses (2) and (7) off Article 225, made such Orders as were not expressly repealed by the Constitution, existing laws and provided that existing laws were to continue in force until altered, repealed or amended by the ap propriate Legislature, certain supra‑constitutional measures of the Martial Law period were, by the Constitution, reduced to a sub‑constitutional level and were made amenable to change by the Ordinary legislative process. There could be no question, therefore, of a supra‑Constitutional measure being changed or altered by a sub‑constitutional measure after the coming into force of the Constitution of 1962. It was just one sub -constitutional measure being changed by another measure of the same kind by a competent authority. The vires of Ordinance No. 11 of 1964 is, therefore, unassailable. This incidentally was also the conclusion to which, in the case of the Government of Pakistan v. Syed Akhlague Hussain and another three of the learned Judges of this Court, including the then Chief Justice, also arrived. I respectfully agree with them. So far as the case of Mr. Manzoor Qadir is concerned it remains, now only to consider the last contention raised on his behalf to the effect that the terms and conditions of his service could not be changed to his disadvantage either during the tenure of his office or after the completion of the period thereof. In this connection it has been pointed out that both under the Government of India Act of 1935 and under the Constitution of 1956, it was expressly provided, in the first case by the provisos appended to sections 201 and 221 of the Government of India Act, 1935 that "neither the salary of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment," and by Article 175, in the later case, that "the remuneration and other conditions of service of a Judge of the Supreme Court or of a High Court shall not be varied to his disadvantage during his tenure of office". No such guarantee was, however, given by the Constitution of 1962. Article 124 thereof merely prescribed that the remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Second Schedule and the Second Schedule enacted that every Judge of the Supreme Court, 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 Supreme Court of Pakistan of the High Court of the Province were entitled. Notwithstanding this significant omission it has been argued that it is an implicit assumption of the Constitution of 1962 that no one's terms and conditions of service would be changed to his disadvantage during his tenure of office although it is in clause (3) of Article 178 alone that it has specifically been provided that the terms and conditions of service of a person in the service of Pakistan (in so far as those terms and conditions relate to remuneration or age fixed for superannuation) shall not be varied to his disadvantage. Similar guarantees have not, however, been given either to the Chief Election Commissioner or the Members of the Public Service Commission or the Comptroller and Auditor‑General or the Judges of superior Courts. But it is contended that Judges and the above‑mentioned office‑holders could not have been intended to be placed in a worse position that the members of the services of Pakistan. It will be observed that the guarantee given to persons in the service of Pakistan is limited to remuneration and age of superannuation only. So far as these two matters are concerned they have in the cases of Judges been fixed by Article 124 read with the Second Schedule and Articles 52 and 94 of the Constitution itself. Similarly Articles 149 and 150 fix the salary and term of office of the Chief Election Commissioner; Article 184 fixes the term of office of a member of the Central Public Service Commission and Article 193 of the Comptroller and Auditor‑General. In this view of the matter it was not necessary to add any guarantee clause in Article 24 with regard to the matters which had already been provided for in the body of the Constitution itself. They could only be varied by amending the Constitution. With regard to other terms and conditions of service however, no such implied guarantee can be inferred from the tenor of the Constitution of 1962. Normally, upon general principles of equity and justice it would only be reasonable to expect that the terms and conditions of service of a person, no matter who he is, would not be varied to his disadvantage during the tenure of his office, or after he has completed his tenure of office relying on those terms and conditions but the validity of a legislation made by a competent authority cannot, in my view, be challenged merely on the basis of such an expectation or inference. To strike down a law as being opposed to a constitutional provision one would have to show that there is a constitutional provision which the law ink question violates. In the absence of any such constitutional provision it cannot be said that the law is bad merely because it violates some principle of justice and fair play which ought normally to be observed. The Courts cannot question the wisdom of the law‑maker if he has left one in no doubt as to his intention. They have, of necessity, to proceed on the basis of what has been expressly provided in the law and not upon one's notions of what ought to have been provided therein, however, harsh or unjust the result might appear to be. It is only where the intention is not clear that it becomes possible to resolve the doubt by imputing to the Legislature the intention of not perpetrating any injustice. But where, as in the present case, the language of the impugned legislation leaves no room for doubt recourse cannot be had to any such principle. In these circumstances I have reluctantly to come to the conclusion that once it is held that Ordinance No. II of 1964 was intra vires, its operation cannot be restricted upon any such general principle of justice, equity or good conscience. Coming now to the case of Mr. Muhammad Shafi I have to point out at the very outset that in my opinion the President's Order No. 21 of 1962 did not give him the right of practice; because, he did not come within the ambit of the definition of a Judge given in that Order paragraph 2 of this Order clearly states that "in this Order, unless there is anything repugnant in the subject or context, "Judge" means a Judge of the Supreme Court or of a High Court, and includes the Chief Justice of Pakistan and the Chief Justice of a High Court," and paragraph 3 thereof restricts the benefits given thereunder to a Judge who comes within this definition, which is clearly confined to Judges who were then serving as Judges or Chief Justices of the said Courts and does not embrace those who had ceased to be such Judges before the coming into force of that Order. Mr. Muhammad Shafi has, nevertheless, argued that the President's Order No. 21 of 1962 applied even to judges who had retired before the said Order came into force but the definition which I have quoted above is, in my view, incapable of such an interpretation, for, it does not say that a 'Judge' means a person who is or has been a Judge of the Supreme Court or of a High Court. A person who had retired from the Bench before the Order came into force cannot possibly be considered to be still a Judge of the Supreme Court or a High Court after his retirement. There is no such rule that once a person is appointed as a permanent Judge of the Supreme Court or a High Court he is always a Judge. Mr. Muhammad Shafi next attempted to argue that in any event since the Full Bench of the High Court had decided in his favour and the Government had withdrawn the appeal filed from that judgment in this Court as against him, that decision had become final and could no longer be challenged now upon, at least, principles analogous to the principles of res judicata. The Full Bench, as already pointed out, took the view that the President's Order No. 21 of 1962 applied "only to those Judges who were actually occupying that Office on the date of its coming into force (the 30th of May 1962) or were subsequently appointed. If the definition had been intended to cover Judge who had already retired, it would have included the Chief Justices (or Chief Judges) and Judges of the Federal Court and other Courts, as was done in section 2 of the Ordinance. The wording of sub section (1) of section 3 of the Order also strongly suggests that it is intended to refer only to those Judges who were either functioning as such at the time of the passing of the Order, or would be appointed in the future": Having said this the Full Bench went on to consider the cases of Mr. S. Akhlaque Hussain, Mr. Muhammad Shafi, Mr. Z. H. Lari or Mr. Tayebji on the basis of their fundamental right to practice their profession de hors the Order and struck down the Ordinance No. II of 1964 on that ground. The Full Bench did not, in my opinion, therefore, decide that the President's Order No. 21 of 1962 applied to all Judges, who had retired, no matter when, before the Order came into force. Indeed it could not have done so in view of its own categorical finding quoted above. On this particular question, therefore; the Full Bench did not either give any decision and if it did give any decision, it was adverse to Mr. Muhammad Shafi on this point at any rate. The correct view to take would, however, in my opinion, be that the Full Bench of the High Court gave no definite decision on this question. Hence the question of res judicata does not arise. As for the question of the vires of Ordinance No. II of 1964, there is no doubt that the Full Bench did declare the Ordinance to be ultra vires but it has still to be considered as to whether this was a Judicial decision to which the principles of res judicata could at all be attracted. These matters, it must be remembered, came before the High Court only by way of a miscellaneous application for clarification and not by any regular or recognised form of proceeding in respect of which the High Court could be legally seized in its judicial capacity. The validity of these proceedings was doubted by the learned Chief Justice in the case of Government of Pakistan v. Syed Akhlaque, Hussain and another but since the appeal as against them had been withdrawn, the question was not finally decided. It is necessary, therefore, to examine as to what was the nature of those proceedings. The matter came before the High Court before the Legal Practitioners and Bar Councils Act, 1965 was enacted when the High Court had under its Letters Patent and the Bar Councils Act of 1926, the jurisdiction to approve, admit and enrol Advocates to plead or to act before it. But this it did in its administrative capacity. Thus if the decision was given in the administrative jurisdiction then the principles of res judicata would not, in my view, be attracted to it, for, it would then really be a matter between the Court and one of its own officers. It would not, therefore, be proper in such circumstances to import into such proceedings the notions of res judicata and the finality of decisions, which are applicable, strictu sensu, only in cases where a lis is decided between the two contesting parties. It has also in this connection to be remembered that the application for clarification was necessitated because a question had arisen in the course of hearing of Writ Petition No. 83 of 1964 Khan Muhammad Khan and another v. Government of Pakistan on the 26th February 1964, before another Division Bench of the High Court of West Pakistan as to whether Mr. Muhammad Shafi could appear as an Advocate in that case. It was before the said Division Bench that Mr. Muhammad Shafi expressed his desire to associate himself with the repre sentation made by Syed Akhlaqe Hussain in another case which had already been directed to be placed for consideration before a Full Bench. On this the Division Bench ordered as follows :‑ "Learned counsel who is an ex‑Judge of this Court, states that he wishes to associate himself with the representation made in another case by Mr. Akhlaque Hussain and requests that this case also be referred to the Full Bench which is being constituted to deal with that representation. Adjourned sine die. The learned counsel states that he will put in his written grounds today." It was in this way that Mr. Muhammad Shafi came to move an application, which purported to be under section 151 of the Civil Procedure Code, in the case in which he was engaged as counsel but the office of the High Court erroneously registered it as a separate writ petition and numbered it as Writ Petition No. 509 of 1964‑In the matter of Sheikh Muhammad Shafi, Advocate. The true position, however, that emerges is that Mr. Muhammad Shafi only sought clarification of his right of audience in Writ Petition No. 83 of 1964 and it was that application which was decided by the Full Bench. The present appeal, on the other hand, arises out of an application moved by the Advocate‑General under section 3 of the Legal Practice (Disqualifications) Ordinance, 1964, before another Bench of the High Court of West Pakistan which was then hearing a Regular First Appeal No. 55 of 1962 Messrs Haider Automobiles Limited v. Pakistan objecting to Mr. Muhammad Shafi appearing as an Advocate in that appeal and the judgment under appeal was delivered in that matter. Even on this ground, therefore, the plea of res judicata is not attracted in this case, for this is an entirely different matter in which the parties are not the same as the parties to Writ Petition No. 83 of 1964. The decision of the Full Bench of the High Court was restricted, in the circumstances, to the right of Mr. Muhammad Shafi to appear in Writ Petition No. 83 of 1964 and not in any other case. The Government of Pakistan was not also a party in the strict sense in the matter that was before the Full Bench but there the Attorney‑General was called upon to appear only under Order XXVII‑A, rule 1 of the Civil Procedure Code, because, a substantial question of the interpretation of the Constitution was involved. In the circumstances, in any view of the matter, the only effect of the withdrawal of the petition for Special Leave to Appeal before this Court against Mr. Muhammad Shafi was that the Government was precluded from challenging the right of Mr. Muhammad Shafi to appear in the said writ petition No. 83 of 1964. This did not, by any means, preclude the Government from again challenging his right to appear in another case as indeed they have now done. Mr. Muhammad Shafi also, at one stage, sought to contend that when he became Judge of the High Court of West Pakistan, the undertaking given by him on his appointment as a Judicial Commissioner in the North‑West Frontier Province lapsed and became wholly ineffective. But ultimately he himself did not seriously press this contention, because, it appears that on his appointment as a Judge of the High Court of West Pakistan, after the creation of the Province of West Pakistan, he had given a fresh undertaking not to practise in the said High Court or in any Court subordinate thereto. The case of Mr. Muhammad Shafi stands on an entirely different footing. When he became a Judge of the Judicial Commissioner's Court, he was bound by his own undertaking. When he became a Judge of‑the High Court of West Pakistan he again voluntarily bound himself by a similar undertaking. Then the Constitution of 1956 converted this undertaking into a Constitutional prohibition by its Article 166 and in 1960 when Mr. Muhammad Shafi retired from the Bench that constitutional prohibition was still operative by reason of the provision of the Laws (Continuance in Force) Order, 1958 and if, in the circum stances, the President's Order No. 21 of 1962 did not apply to him, then he continued to remain disqualified from resuming practice in the High Court of West Pakistan or any Court subordinate thereto. Mr. Muhammad Shafi has next contended that since the case of Mr. S. Akhlaque Hussain stood on the same footing as his case and since this Court too had in the case of Government of Pakistan v. Syed Akhlaque Hussain and another taken the view that the effect of the undertaking was totally avoided by the Retired Judges (Legal Practice) Order (No. 21 of 1962) and the promulgation of the Constitution of 1962, which contained no bar similar to that contained in Article 166 (3) of the 1956 Constitution, it must follow that the position would be the same in his case too. Even if President's Order No. 21 of 1962 did not apply to him the right to practice his profession or trade reverted to him by the Constitution of 1962 which prescribed no constitutional prohibition. This Court had in the case of Government of Pakistan v. Syed Akhlaque Hussain and another no doubt, assumed that the benefit of the President's Order No. 21 of 1962 would have been available to Mr. S. Akhlaque Hussain too had not been a Judge who had been removed from service but no decision was given on this point by this Court, for, it was of the view that upon the terms of the Order itself a Judge who had been removed from service, was not entitled to its benefits. There was no decision, therefore, one way or the other on this question by this Court. The effect of the non‑inclusion in the Constitution of 1962 of provisions similar to those of Article 166 of the 1956 Constitution did come up for discussion in the case of Syed Akhlaque Hussain and although Cornelius, C. J. did there express the view that he "would prefer to treat 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‑Constitution, the effect of such undertakings was totally avoided" yet he held that Mr. S. Akhlaque Hussain was debarred by Ordinance II of 1964 from continuing his practice. I would myself prefer to adopt the view of S. A. Rahman, J. that the mere fact "that the provisions 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 of which a Judge was subject" before the coming into force of the 1962‑Constitution. The disability arising either by reason of the undertaking given by a Judge or by reason of the applicability of the provisions of Article 166 (3) of the 1956‑Constitution continued, in my view, to be operative in the case of a person who was not entitled to the benefits of President's Order No. 21 of 1962 notwithstanding the omission from the 1962‑Constitution of provisions similar to those of Article 166 (3) of the 1956‑Constitution by reason of the provisions of Article 250 of the 1962‑Constitution. The disability incurred under the previous Constitution continued to attach until it was removed. The mere repeal of Article 166(3) did not have the effect of removing the disability. It was removed by President's Order No. 21 of 1962 but if the benefit of that Order is not available to a person the disability continues to attach. Now as for the argument that even if the decision of the Full Bench of the High Court was on its administrative side it should be treated as departmental interpretation and accepted by this Court, it will be sufficient to point out that the principle upon which a departmental interpretation is preferred is not applicable in the present case. It applies only in those cases where a rule made by a department is interpreted by it in a particular way, upon the ground that those who have framed the rule are likely to know its intention better than others. The President's Order No. 21 of 1962 was not framed by the High Court but by the President and, therefore, its interpretation made by the High Court even though in its administrative jurisdiction, was not a departmental interpretation in that sense of the term. It remains now only to consider two other arguments raised by Mr. Muhammad Shafi as to the vices of Ordinance No. II of 1964. The first is that since this Ordinance was made at a tine when Fundamental Rights were available, it should be treated as being void ab initio qua retired Judges who had already resumed practice, whether rightly or wrongly, on the ground that clause (2) of Article 6 of the 1962‑Constitution not only absolutely prohibits the making of any law which takes away or abridges a Fundamental Right conferred by Chapter 1, Part II of the 1962‑Constitution, but also declares that such laws shall, to the extent of such contravention, be void. This raises the question as to whether Ordinance No. II of 1964 was violative of any Fundamental Right. It is only if it is found that Ordinance No. II of 1964 violated any one of the Fundamental Rights, as were then available, the question of its provisions being void to that extent would arise. The Full Bench of the High Court in the case of Syed Akhlaque Hussain Advocate did, it is true, find that the provisions of the said Ordinance offended against Fundamental Right No. 8 namely, the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business, but on appeal to this Court P L D 1965 S C 527 only one learned Judge, namely, Kaikaus, J. agreed with the High Court. Four, including the learned Chief Justice, were of the view that the Ordinance did not operate in violation of any of the Fundamental Rights of citizens embodied in the Constitution. S. A. Rahman, J. did not commit himself to any final opinion on this point. Though this Fundamental Right is not available now and any litigation in which a Fundamental Right is sought to be enforced has now to abate under clause (3) of Article 3 of the Provisional Constitution Order, 1969 I propose to examine this question only with a view to considering whether the Ordinance No. II of 1964 was at all void as is now sought to be contended even at the time when it was promulgated. Fundamental Right No. 8 was, in accordance with the proviso annexed thereto, available subject to the condition that :- (a) the regulation of any trade or profession by a licensing system, or (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 Govern ment or by a Corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons, was not to be prevented thereby. The right to practice the profession of law is a right available subject to a system of licensing under the Bar Councils Act or under the powers of the High Court under its Letters Patent and of the Supreme Court under its own rules and a person seeking to practise has to obtain a licence in that behalf upon satisfying the Licencing Authority that he fulfils the qualifications laid down and has paid the fees prescribed for that purpose. He is also subject to the disciplinary control of the Courts and the tribunals in which he practises or at any rate was, until the coming into force of the Legal Practitioners and Bar Councils Act, 1965. Under the latter disciplinary control has to a large extent, been transferred to the Bar Councils but the right is nevertheless, not an uncontrolled or absolute right. Nor could it in the very nature of things be. Such regulatory provisions are not and can never be considered to be violative of the Fundamental Right to carry on a trade or profession. The question then is as to whether Ordinance No II of 1964 did impose any bar which went beyond regulation of the profession. The impugned Ordinance did not prevent, it will be observed, a retired Judge of the High Court from doing chamber practice, that is, advising clients in Chambers or practising in the jurisdiction of a High Court of which he was not a Judge or practising in the Supreme Court. Similarly although a retired Judge or Chief Justice of the Supreme Court was prohibited from practising before any Court or tribunal in Pakistan, his right to do Chamber practice remained unaffected. The Ordinance No. 11 of 1964 did not, therefore, introduce any total prohibition but it only restricted the forums before which a retired Judge could practise, in the interest of maintaining the independence of the judiciary; preserving the dignity of a person who had held such a High Office and preventing embarrassment both to him and to the Judges before whom he was otherwise likely to appear. Such a restriction was not, in the circumstances, in my opinion, violative of the said Fundamental Right No. 8 and, therefore, the question of the Ordinance being void did not at all arise. I am in this respect, in agreement with Cornelius, C. J. Fazle Akbar, Yaqoob Ali and Abdus Sattar, JJ. with their opinions in this regard in the case of Government of Pakistan v. Syed Akhlaque Hussain and another. These are all the contentions raised in this appeal and since I have come to the conclusion that none of them is, for the reasons which I have given, tenable, I would allow Civil Appeal No. 38 of 1967 Province of West Pakistan v. Mr. Manzoor Qadir Advocate and another and would dismiss Civil Appeal No. 37 of 1967 Messrs Haider Automobile Limited v. Pakistan. But having regard to the fact that these cases have come before us out of certain miscellaneous proceedings initiated at the instance of the Government of Pakistan for disbarring Mr. Manzoor Qadir and Mr. Muhammad Shafi from appearing in certain proceedings before the High Court, I would make no order as to costs. The result is that both Mr. Manzoor Qadir and Mr. Muhammad Shafi are held to have been debarred by Ordinance No. II of 1964 from practising in the High Court of West Pakistan or any Court or tribunal subordinate to it. MUHAMMAD YAQUB ALI, J.‑I agree. SAJJAD AHMAD, J.‑I agree. ABDUS SATTAR, J.‑I agree. M. R. KHAN, J. ‑I agree. K. B. A. Appeal No. 38 accepted.