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Petitioner: Barrister Adnan Nawaz Khan, Advocate, Supreme Court Of AJ&K and others VS Respondent: Government Of The State Of Azad Jammu And Kashmir through Chief Secretary and others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Muhammad Sheraz Kayani, Azhar Saleem Babar Title:Barrister Adnan Nawaz Khan, Advocate, Supreme Court Of AJ&K and
others vs Government Of The State Of Azad Jammu And Kashmir through Chief Secretary and others Case No.: Writ Petitions Nos.1092, 1130, 1194, 1235, 1255 and 1296 of 2018 Date of Judgment:2019-09-17 Reported As:2020 [M] C L R 898, KLR 2020 Labour & Service Cases 38, PLD 2020 High Court (AJ&K) 9 Result: Order accordingly Judgment ORDER AZHAR SALEEM BABAR, J.--Mr. Raza Ali Khan, Mr.Muhammad Ej az Khan, Mr. Khalid Yousuf Chaudhry , Raja Sajj ad Ahmed Khan and Ch. Muhammad Munir , respondents, have been appointe d as Judges High Court of Azad Jammu and Kashmir vide notification dated 21.05.2018. The notification of appointment of aforementioned incumbent Judges has been challenged through the above titled writ petitions on almost common grounds. 2. Facts envisaged by the writ petitions may briefly be summarized as under:- (i) Petitioners are practicing lawyers and are office bearers of different Lawyers Associations and believe in supremacy of Constitution and Law. It is claimed that the writ petitions have been filed to uphold independence of Judiciary and to uphold the Constitution. (ii) That some posts of Judges High Court fell vacant and number of vacancies beefed up to 5 after shifting/transfer of 2 vacancies of Judges Shariat Court to the High Court and at the eve of elevation of Justice Ghulam Mustafa Mughal, Chief Justice High Court AJ&K, as Judge of the Supreme Court of AJ&K. (iii) After mentioning qualification of Judge of the High Court envisaged by section 43(2-A) of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioners have contended that process of filling-in the vacant positions was initiated. It is stated that as per the aforementioned provision of Constitution, the President of the State of Azad Jammu and Kashmir (herein after may be referred as "The President" is supposed to appoint a Judge in the High Court after consultation with Chief Justic e of the AJ&K and Chief Justice High Court of AJ&K and after seeking advice from Chairman AJ&K Council (herein after may be referred (The Chairman). It is contended that consultation with the constitutional consultees has not been conducted in accordance with the constitutional
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provisions. The petitioners contended that the President sent a panel of 5 persons in exclusion of other nominees to the Chairman and, thus, an advice was sought from the Chairman on an illegal and unconstitutional correspondence. (iv) The petitioners have challenged the eligibility of Ch. Muhammad Munir , J, on the ground that he was promoted as District and Sessions Judge on 09.01.2016, so, he was not eligible to be appointed as Judge High Court because he lacked requisite eligibility of 3 years service as District and Sessions Judge as per the provisions of Section 43(3)(b) of the Interim Constitution. (v) It is claimed that mandatory requirement of "Consultation" ordained by S.43 of the Constitution has not been complied with because it has been time and again held that consultation should be effective, meaningful, purposive and consensus oriented leaving no room for complaint of arbitrariness or unfair play. It has also been contended that incumbent Judges lack the capacity , ability , sound knowledge of law and required experience for the job of Judge High Court. (vi) Another important point raised in the writ petitions is that there is no consens us between the Chief Justice of AJ&K and Chief Justice High Court of AJ&K in appointment of incumbent Judges. It has been explained that both the Judicial Consultees have been given equal weightage by the Constitution and opinion of none of them can be brushed aside So, the impugne notification is liable to be set at naught while accepting the writ petitions. 3. The respondents have filed separate written statements and besides raising some technical objections, have insisted that whole the process of appointment of incumbent Judges has been conducted in accordance with the Constitutional provisions and in accordance with the judgments of the superior Courts. It has been explained that process of consultation was duly held by the Hon'ble President and after seeking advice of the Chairman, the impugned notification has correctly been issued. 4. Messrs Abdul Rasheed Abbasi and Raja Muhammad Hanif Khan Advocates addressed the Court on behalf of the respondents at some length, whereas Barrister Adnan Nawaz Khan opened the arguments on behalf of the petitioners. It looks appropriate to deal with the technical objections towards maintainability of the writ petitions, first. (i) It has been contended that all the facts have not been brought to the notice of the Court in the writ petitions which is essential to constitute a ground for indulgence of the High Court to exercise powers under section 44 of the Interim Constitution. It has been explained in this regard that petitioners do not have substantive knowledge of the facts and the facts mentioned have been brought forth on the basis of credible sources and according to the petitioners' information. Learned counsel for the respondents has referred to and relied upon PLD 1993 SC AJ&K 12 and 2014 SCR 1412 (sic) in support of his contention. The petitioners are practicing Advocates in the territory of Azad Kashmir and hail from different Districts. It is logical to assume that the petitioners are neither a witness to the process of consultation nor the record of consultation is within their reach. The petitioners have attached certified copy of notification dated 21.05.2018, whereby the respondents have been appointed as Judges in the High Court of AJ&K. There is no legal infirmity in the claim that the facts taken in the writ petitions are based on their information or on some plausible sources. The objection is, therefore, overruled. (ii) It is claimed that the supra titled writ petitions have been filed just to disturb the smooth functioning of the AJ&K High Court. It has been claimed that object of filing of the writ petitions is just to humiliate the respondent Judges. PLD 1965 SC 236 referred. It may be stated in this regard that petitioners carry equal respect and unless some mala fide is apparent from record, the petitioners cannot be blamed for filing the writ petitions with a bad intent. Smooth functioning of an institution, by itself, is not a ground for throwing the petitioners out of the Court. In the referred case, it has been laid down that the Court is empowered to refuse discretionary relief in a constitutional petition if it obstructs smooth nature of working. The objection, being weightless, is not tenable. (iii) It has been objected that the petitioners are not entitled to challenge the process of consultation held between the constitutional consultees. It has also been contended that the petitioners claim that process of consultation has not been conducted in accordance with the Constitution, whereas contention of the respondents is that whole process of consultation has been condu cted in accordance with law. As per his view, a factual controversy has
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arisen which cannot be resolved in a constitutional writ petition. Learned counsel has referred to 2001 SCMR 1493 , 2004 SCMR 1299 , 2005 SCMR 37 , 2006 SCMR 219 , 2013 CLC 868 and 2008 SCMR 916. A perusal of case law regarding appointment of Judges in the superior Courts transpires that wisdom of constitutional consultation cannot be challenged in a writ petition but the procedural defects in the process of consultation are open to challenge via a constitutional writ petition. It may be refreshed that a writ of certiorari is generally filed on the ground that the impugned order/notification of an authority is not in accordance with law. From Gupta's case reported as AIR 1982 SC 149, upto Muhammad Younas Tahir's case reported as PLD 2012 SC(AJ&K) 42, the process of consultation amongst the Constitutional Consultees was under challenge and Supreme Courts of India, Pakistan and Azad Kashmir have resolved the controversy without feeling any legal hitch. The objection, being unnecessary , is overruled. (iv) It has also been contended on behalf of the respondents that acts done by the President in his official capacity are immuned by virtue of section 52(3)(4) of the Interim Constitution. This ground is also not available to the respondents because the procedural defects in the process of appointment of Judges in the superior Courts has frequently been challenged in the High Courts and the Supreme Court of Pakistan, so, the law referred to on behalf of the respondents is not attracted. It may be stated here that wisdom behind the immunity has been explained in 2014 CLC 817, which states that since the Governor is acting upon advice of the Cabinet, therefore, immunity has been provided to the Governor under Article 248(1) of the Constitution of Islamic Republic of Pakistan, 1973. The respondents forgot for a while that they are governed by the Interim Constitution, 1974, and the President has sole prerogative to consult with the Chief Justice of AJ&K and Chief Justice of the High Court and Article 7 of the Constitution does not obstruct his prerogative in so doing. An analogous provision under Article 48 of the Constitution of Pakistan 1973, (CoP 1973) is a bit different from the provision contained in section 7 of the Interim Constitution, 1974. It has been clarified in Muhammad Younas Tahir's case (PLD 2012 SC (AJ&K) 42) that the words "subject to an express provision to the contrary in this Act" are missing in the CoP 1973. The Hon'ble Supreme Court of AJ&K has differentiated that Governor or President under CoP 1973, is bound by the advice of the Cabinet under section 48 but the President is not bound by any such advice under section 7 of the Interim Constitution, 1974. Para 20 at page 235 of Muhammad Younas Tahir's case can be referred, which is as under:- "A comparative study of both the provisions would show that the provisions of Article 48 of the Constitution of 1973 and Section 7 of the Act, 1974 are different to some extent. The words "subject to an express provision to the contrary in this Act" appearing in Section 7 of the Act, 1974 are missing in Article 48 of the Constitution of 1973, which shows that in the Act, 1974, there is some provision contrary to Section 7 but in Constitution of 1973 there is no provision contrary to Article 48. In the Constitution of 1973, the word "advice" appears in Article 48 only, while in the Act, 1974, the word "advice", apart from Section 7, appears in Section 42(4) and Section 43(2-A) of Act, 1974 for different purposes. A Judge in Supreme Court of Pakistan is appointed under Article 177 by the President after consultation with the Chief Justice of Pakistan and a Judge in the High Court is appointed by the President after consultation with the Chief Justice of Pakistan, Governor concerned and the Chief Justice of the High Court concerned under Article 193, while under Sections 42(4) and 43(2-A) of the Act, 1974, a Judge in the Supreme Court is appointed by the President on the advice of the Council and after consu ltation with the Chief Justice of Azad Jammu and Kashmir and a Judge in the High Court is appointed on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of High Court. The advice of the Prime Minister under Section 7 of the Act, 1974 is not relevant for the purpose of the appointment of Judges." Therefore, the objection towards immunity of act done by the President is not tenable. (v) Another point has been raised that High Court cannot sit over the process of consultation conducted by the President, the Chief Justice of AJ&K and Chief Justice of the High Court of AJ&K. This objection is repelled on the same grounds, which have been mentioned in two preceding paragraphs. (vi) It has been claimed that appointment of incumbent Judges in the High Court of AJ&K is deemed to have been made validly on the "Principle of Primacy". The objection needs detailed deliberation which shall be dealt with while discussing merits of the case. It has also been contended that Ch. Muhammad Munir, J, is fully eligible as per the requirement of the Interim Constitution. It has been stated that post of District and Sessions Judge has been
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upgraded from BS-19 to BS-20 and then to BS-21 at different times, so, it is not pay scale that matters; rather it is the experience as District and Sessions Judge which matters. Learned counsel has relied on Section 3(15) of General Clauses Act in support of his contention as well. He has further referred to AIR 1954 Aasam 161, AIR 1951 Calcatta 1 , AIR 1990 Patna 49, PLD 1996 SC 324 as well. The matter of eligibility of Ch. Muhammad Munir , J, shall also be discussed while elaborating merits of the case. 5. Barrister Adnan Nawaz Advocate while opening the arguments in his case contended that consultation with the Chief Justice of AJ&K and Chief Justice High Court of AJ&K is-a prerequisite to bring it valid. He emphasized that the word "and" has been used in section 43(2-A), which means that consultation with both the Judicial consultees is a must. For guidance, relevant provision contained in section 43(2-A) is reproduced as under:- "A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation- (a) W ith the Chief Justice of Azad Jammu and Kashmir; and (b) Except where the appointment is that of Chief Justice, with the Chief Justice of the High Court". Learned counsel is of the view that if consultation with any of the judicial consultees is missing, it would be rendered invalid. He relied on PLD 1996 SC 324. Learned counsel explained correspondence of the Worthy President with the Hon'ble Chief Justices in chronological order by referring to documents attached with the written statement as Annexure "RA/1" to Annexure "RA/18". It has been stated that Hon'ble Chief Justice of AJ&K forwarded a panel of 9 candidates to the President on 23.12.2017 and expressed his opinion in letter that sending of a panel is not a proper consultation and mutual consultative process should be followed. Learned counsel emphasized that there was no consultation until 23.12.2017 in view of correspondence of the Chief Justice of AJ&K. He further explained that Worthy President forwarded a panel of candidates to the Chairman on 04.01.2018. So, the panel was drawn and forwarded to the Worthy Chairman after 11 days of correspondence by Hon'ble Chief Justice of AJ&K. He asserted that there is no correspondence found on record during these 11 days. Learned counsel argued that Worthy President has assumed and posed himself as consultee in his written statement and perhaps because of such misconception, he finalized 5 candidates for judgeship. The petitioners have attached copies of all the correspondence which are attached with the written statement as Annexures "RA/1 " to "RA/18 ". Learned counsel explained that Minister Kashmir Affairs sought details of corresp ondence between the President and the Chief Justices, which was sent to him by the President accordingly . Thereafter AJ&K Council Secretariat objected to the panel by pointing-out that Chief Justice High Court must be consulted because the, panel already sent comprises names contained in the list of Hon'ble Chief Justice of the Suprem e Court. It was advised by the Secretariat that a fresh panel be sent after fresh consultation. Learned counsel pointed out that according to details of meetings provided on a document RA/15, 4 meetings were conducted after 23.12.2017, which included telephonic conversation. 6. Barrister Adnan Nawaz Khan Advocat e submitted with vehemence that the President was not empowered to prioritize the names of the candidates and it was not within his competence to finalize and to forward only 5 names of the candidates for 5 vacant positions/ posts. It has further been argued that names of the incumbent Judges have not been recommended by both the judicial consultees, so, the consultation and the impugned notification are bad in the eye of law. He pointed out that Registrar High Court in his written statement has clarified that Chief Justice High Court was never consulted for appointment of the incumbent Judges and that no telephonic conversation was ever held in this regard. In such a situation, learned counsel, while relying on Muhammad Younas Tahir's case , suggested that the positions ought to have been left vacant. Learned counsel lamented on appointment of Mr. Justice Ch. Muhammad Munir by stating that he did not have requisite eligibility of 3 years service as District and Sessions Judge, so, the impugned notification is liable to be set aside. 7. Sardar Shamshad Hussain Advocate while agreeing with the arguments already advanced contended that no consultation with the Hon'ble Chief Justices is found on record after reversal of summary from the Council Secretariat. While adverting to an application for striking out names of Registrar Supreme Court and Registrar High Court of AJ&K from the face of the writ petitions, he claimed that it is the discretion of the Hon'ble Court to add or delete a party to the proceedings. He relied on PLD 2002 SC 615, PLD 1963 SC 663, 1999 YLR 469 and AIR 1936 Madraas 449 in this regard. He further explained his point of view by stating that the word "Consultation" has
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not been defined in the Constitution, therefore, its Dictionary meanings are to be adhered to. He emphasized that consultation is always between 2 persons involving participatory discussions. He referred to Black's Law Dictionary , which finds mention in AIR 1982 SC 149. Learned counsel further emphasized that learned counsel for the respondents has mistakenly referred to Section 3(15) of General Clauses Act, which defines "District Judge". He pointed out that this definition is not relevant to the case of Ch. Muhammad Munir , J, because the words "District and Sessions Judge" have been employed in section 43 (2-B) of the Interim Constitution. Learned counsel submitted that acting charge is not a regular promotion, so, the period of Ch. Muhammad Munir , J, as District and Sessions Judge has to be reckoned from his regular promotion as District & Sessions Judge, He explained that by order of the High Court, Ch. Muhammad Munir was promoted as District and Sessions Judge BS-21 on regular basis on 09.01.2016, so, he had not the requisite length of 3 years service as District and Sessions Judge at the time of his elevation as Judge of the High Court i.e. 21.05.2018. Learned counsel relied on PLD 2016 SC 509 and 1993 SCMR 1589 in support of his contention. While re-adverting to the process of consultation, Mr. Shamshad Hussain Advocate contended that previous consultation was in black and white, whereas the second purported consultation has not been done in written shape. He relied on PLD 1996 SC 324, AIR 1991 SC 621, PLD 2016 SC AJ&K 1, PLD 2015 .SC (AJ&K) 31, PLD 2012 SC(AJK) 42, 1993 SCR 331 and PLD 2013 SC 1. 8. In addition to the arguments, Syed Shahid Bahar Advocate stated that political affiliation of a candidate by itself is not an obstruction in the way of appointment of a Judge High Court but a candidate with a political affiliation. must have maturity coupled with adequa te knowledge of law and integrity . While diverting my attention towards some news-paper clippings, learned counsel contended that Raja Sajjad Ahmed Khan, J, has a strong political affiliation and he has been a candidate for Legislative Assembly of AJ&K as well. Learned counsel referred to the opinion of Mr. S.M. Zafar , a known jurist, who has opined that a consultation is supposed to be meaningful and based on mutual discussion. Learned counsel is of the view that in case of difference of opinion between 2 Chief Justices, an appointment in the office of Judge High Court is not valid. He based his view on Sindh High Court case (PLD 2009 Karachi 408 ). 9. Barrister Humayun Nawaz Khan Advocate in support of his contention stated that written statement filed by Worthy President is supported by an affidavit of Section Officer, which is not relevant. He further stated that in the same way, Registrar High Court has filed his personal affidavit in support of such facts which did not occur in his presence. He explained that Registrar High Court and the concerned Section Officer were not present during process of consultation, so, their affidavits are not relevant. He further contende d that in case of difference of opinion between the 2 Chief Justices, an appointment in the office of Judge High Court should be avoided. Learned counsel extended his arguments by stating that principle of primacy is not attracted because 3 names from the panel of Hon'ble Chief Justice Supreme Court and 2 names from the panel of Hon'ble Chief of the High Court have been finalized and notified, so, Rule of Primacy attached with the opinion of Hon'ble Chief Justice Supreme Court is not attracted. He explained that such principle could be relevant if all the candidates suggested by Hon'ble Chief Justice Supreme Court had been finalized. 10. Mr. Fayyaz Ahmed Janjua Advocate in support of his petition, argued that in the impugned notification dated 21.05.2018, the word "Consultation" has not been mentioned, so, the notification lacks constitutional requirement of consultation and is, therefore, bad in law. He expressed the same views of ineligibility in connection with the appointment of Ch. Muhammad Munir , J. 11. Raja Muhammad Hanif Khan Advocat e appearing for the President and incumbent Judges submitted his point of view by explaining that detail of meetings between the Worthy President and the Hon'ble Chief Justices has been provided by the Presidential Secretariat attached with the written statem ent as Annexure "RA/15". In response to correspondence initiated by the Worthy President, Hon'ble Chief Justices forwarded their panels and in this regard, last meeting of the Hon'ble Chief Justices was held with the Preside nt on 23.12.2017. The Hon'ble Chief Justice forwarded his panel of choice to the President on the same date. The President forwarded a panel of 5 candidates to the Chairman AJ&K Council on 04.01.2018, which was objected upon by the Council Secretariat. The Council Secretariat sought a panel of atleast 3 candidates for each post, whereupon the President of AJ&K
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consulted Chief Justice of the High Court through telephonic calls. He explained that Hon'ble Chief Justice of the High Court did not agree to have a face to face meeting with the President despite request extended by the later. Learned counsel further explained that after due consultation with the Judicial consultees, the President sent a panel of 15 candidates to the Chairman AJ&K Council, who happens to be the Prime Minister of Pakistan. It may be added here that an argument was extended on behalf of the petitioners that Mr. Shahid Khaqan Abbasi, the then Chairman Kashmir Council signed the summary on 17.05.2018, which was his last day in the office. Learned counsel for the respondents explained that Mr. Shahid Khaqan Abbasi remained in the office of Prime Minister of Pakistan till 31.05.2018, so, it has wrongly been claimed that signatures of the Chairman Kashmir Council were politically maneuvered at the last hours of his term in the office. It was further submitted that last meeting with Chief Justice of AJ&K was held in Islamabad on 22.04.2018. In his view, detailed consultative process was conducted between the constitutional entities and, therefore, no defect in the process of consultation is manifested. 12. It was further argued that Chief Justic e High Court of AJ&K is the relevant person to clarify that whether he was consulted for appointment of Judges or not? Learned counsel referred to 1998 PLC (C.S.) 110 in support of his arguments. He further asserted that Registrar is an irrelevant person who was not present during consultations, so, written statement by Registrar is not relevant. He further explained that at the time of consultation between the Worthy President and the Hon'ble Chief Justices, Mr. Liaqat Shaheen was functioning as Registrar of the High Court, whereas Mian Arif Hussain has submitted written statement as Registrar -High Court. Learned counsel further explained that Registrar is not competent to file his personal affidavit. He relied on 1999 SCR 5(sic) in support of his version. It was further submitted that Registrar High Court has filed written statement on his own and the written statement does not indicate that it has been drafted and filed on directions of Hon'ble Chief Justice. Learned counsel stated that Registrar is a public servant and the High Court is an attached…
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