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Petitioner: Raja BASHIR AHMED KHAN VS Respondent: PRESIDENT, AZAD JAMMU & KASHMIRThrough Secretary, Presidential Affairs, Muzaffarabad And 3OTHER
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Syed Manzoor Hussain Gillani, Chaudhary Muhammad Taj Title:Raja BASHIR AHMED KHAN vs PRESIDENT, AZAD JAMMU & KASHMIRThrough
Secretary, Presidential Affairs, Muzaffarabad And 3OTHER Case No.: Writ Petition No. 31 of 1996 Date of Judgment:1996-08-05 Reported As: 1997 CLC 380 Result: Petition dismissed Judgment ORDER SYED MANZOOR HUSSAIN GILANI, J.---The petitioner through this writ petition under section 44 of Azad Jammu and Kashmir Interim Constitution Act; 1974 seeks the quashment of the appointment of respondent No.4 as a Judge of the High Court and a direction to respondent No.2 for a fresh advice for appointment of petitioner by revising the earlier advice sent in favour of. Respondent No.4. 2. The brief facts which led the petitioner to file the present petition are that respondent No.4 (to be referred hereinafter as respondent) was appointed as Judge of the High Court under Notification No.3/19/95 A.D. Dated 29-11-1995, Respondent entered into his office on 7-12-1995 when he took the oath The petitioner alleges that respondent was basically a practising lawyer at Rawatakot who acquired allotment of evacuee property in Hajira and Rawalakot areas and managed to get huge amount out of the property as compensation of the land left by the Hindus and invested the money in real estate in Islamabad. The petitioner further alleges that respondent on shifting his place of business to Muzaffarabad procured the assignment of Principal Prosecutor against the politicians in the despotic rule of then President of Azad Jammu and Kashmir General Hayat Khan. The petitioner further alleges that respondent got first appointment as Chairman Service Tribunal on 2- 6-1985 on the wrongful recommendation of the Chief Justice of the High Court and was removed from the office of Chairman Service Tribunal vide Notification No.Admin/S.II/ST (14)/89, dated 1-8- 1989. According to the petitioner respondent was again appointed as Custodian Fvacuee Property vide Notification No.Admin/S.II/A-5/90. Dated 30-9-1990 and thereafter transferred as Secretary Law. Vide Notification No.Admin/A--1(28)/S.V/90, dated 2-10-1990. The respondent, according to
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the petitioner, was performing the function of Secretary Law, Justice and Parliamentary Affairs at the time of his elevation as Judge of the High Court and, according to the petitioner, had ceased to be an Advocate after the appointment as Chairman. Service Tribunal and then as Custodian Evacuee Property and his subsequent transfer as Secretary Law. According to the petitioner, respondent alongwith him appeared in the test for the post of Sub-Judge before the Public Service Commission. Where in the petitioner qualified the test, while respondent failed to qualify the test and the petitioner while topping the list, was appointed as Sub---Judge on 23-12-1969. The petitioner further alleges that the members of the Judicial Department have been completely denied the right of appointment as Judges in the High Court and the last person who was appointed as Judge of the High Court from the cadre of Judicial Officers was Sardar Muhammad Ashraf Khan who has since retired as Judge of the Supreme Court. According to the petitioner, the denial of the right of appointment as a Judge in the High Court to the members of the Judicial Service has caused worst kind of frustration and amounts discrimination and jeopardises the right of equality granted to the citizens of the State under the Constitution. According to him, the denial of these rights has adversely affected the career of the Judges of subordinate judiciary and has caused a lot of frustration as well as lack of initiative in the members of the Judicial Department. The petitioner further alleges that according to his information, respondent was placed at No.2 in the service group next below his name in the panel sent to respondent No.2 for advice. According to the petitioner, as respondent never enjoyed the status of a Judicial Officer, he could not be placed in the category of service group for his appointment as a Judge of the High Court, nor could the Chairperson of the Council advise the appointment of respondent as Judge of the High Court. The petitioner also alleges that the appointment of respondent has been made on the recommendations of Acting Chief Justice of the High Court which is violative of the Constitution. 3. The respondents were ordered to file the para-wise comments upon the petition filed by the petitioner. All of them have filed the separate parawise comments upon the petition. It is admitted in the comments filed by all the respondents that respondent was an Advocate of the High Court qualified to be appointed as Judge of the High Court when he was appointed' as Chairman of Service Tribunal and later on as Custodian and Secretary Law. It is also admitted in the comments that respondent has been appointed on the basis of recommendations of the Chief Justice of the High Court and Chief Justice of Azad Kashmir and on the advice of Kashmir Council. It is unanimously denied in all the comments that the appointment of respondent has been made out of the service group/Judicial Officers, however, respondent No.2 in his comments has stated that respondent was rightly included in the service group because being eligible to be appointed as a Judge of the High Court in his capacity of Advocate and Pleader as provided by section 43(3)(a) of the Constitution. He also served as Chairman of the Service Tribunal, Custodian of Evacuee Property, Ad hoc Judge of the Supreme Court and Secretary Law of Azad Kashmir. It is further stated that he was not considered for appointment as a Judge as Judicial Officer. It is further stated that it is not necessary that at the time of appointment as a Judge, one should be an Advocate, but it is the requirement of the Constitution that a person should have been an Advocate for a period or periods aggregating not less than ten years. It is also stated in the comments that no quota is fixed in the Constitution for Judicial Officers to be appointed as Judge of the High Court. The comments filed on behalf of the President, Azad Jammu and Kashmir through its Secretary state that a panel was sent to the Council by President on the basis of consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court without preferring any in the panel, over the other. Similar comments are furnished by the Secretary Law stating that the panel sent to the Council Secretariat was based on the consultation with the Chief Justice of Azad Kashmir and Chief Justice of High Court and it was in fact a list of the eligible candidates qualified for being appointed as
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Judge of the High Court without any distinction of service or Advocates class or any inter se preference. 4. Respondent No.4, however, has filed detailed comments which besides including the above factual and legal position of the case, states that he remained Pleader from Z4-1-1964 to 6-2-1967 and an Advocate of the High Court from 7-2-1967 to the date of joining the service as Chairman, Service Tribunal i.e. 2-6-1985. It is further stated by respondent that he was enrolled as an Advocate on 7-11-1975 and remained as an Ad-hoc Judge of the Supreme Court from 6-3-1985 to 21-5-1985 and again from 16-11-1986 to 15-12-1986. It is further stated in the comments by respondent that the criteria for appointment as a Judge of the High Court is laid down in the Constitution and no Service Rules for such an appointment are framed afresh. The respondent being qualified for the appointment was rightly appointed on the advice of the Council; and High Court has no power, to substitute its wisdom for the discretion and the powers vested in the Council and the President. It is further stated in the comments that there is no quota fixed for any service group or Advocates for appointment as a Judge in the High Court, neither is the office meant for promotion of any service class. It is further stated by the respondent that he was granted the status equivalent to, the status of a Judge of the High Court on 1-7-1988 when the (petitioner) was hardly in B-19. The respondent has further stated that he was twice appointed as Ad hoc Judge in the Supreme Court once before his appointment as the Chairman Service Tribunal and again in 1986. It is further stated that the status of the Chairman of Service Tribunal and Secretary Law is equal to that of the Judge of the High Court. Respondent has attacked upon the qualification, conduct and attitude of the petitioner as well, which is not relevant for the disposal of the petition hence not to be reproduced. Respondent also filed the additional comments when the petitioner was allowed the amendment in the petition, whereby a plea was taken that the respondent was recommended by the Acting Chief Justice of the High Court and such a recommendation/consultation being violative of the Constitution, the appointment of respondent is without lawful authority. In the additional comments, respondent has stated that the Acting Chief Justice of the High Court who had recommended him for appointment as Judge of the High Court was senior most Judge of the High Court, who later on became permanent Chief Justice of the High Court, thus there is no infirmity in the recommendations made by the Acting Chief Justice. It is also stated in the additional comments that he was recommended twice earlier for Judgeship firstly by Sardar Muhammad Ashraf Khan as Acting Chief Justice in 1988 and then by Mr. Abdul Majeed Mallick, the then Chief Justice in 1993. The respondent has further stated that as the appointment of a Judge in the High Court is made on the advice of the Azad Jammu and Kashmir Council which is very' predominant factor in the appointment of the Judges and the respondent having been thrice recommended by the Chief Justice of Azad Jammu and Kashmir whose views get primacy, his appointment is lawful as a Judge of the High Court. 5. We have heard the petitioner in person as well. The petitioner during the course of arguments raised the following points:-- That the respondent at the time of his appointment as a Judge of the High Court was never a Judicial Officer nor an Advocate, thus was not qualified to be recommended nor eligible to be appointed as a Judge of the High Court; and That at the time of appointment of respondent as a Judge of the High Court, the office of the Chief Justice of High Court was manned by Acting Chief Justice who recommended respondent for appointment and as an Acting Chief Justice, he was not authorized to recommend him. The petitioner cited in this behalf the famous case decided by the Supreme Court of Pakistan reported as "Al-Jehad Trust through Raeesul Majahideen Habib-ul--Wahab-ul-Khairi and 6 others v. Federation of Pakistan and 27 others" PLD 1996 SC 324 (Hereinafter to be called as Judges case). The alternate argument of the petitioner is that as no judicial officer has been appointed as a
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Judge of the High Court, the provisions of the Constitution are frustrated and the members of the subordinate judiciary are not equally treated and are discriminated. The petitioner further contended that the competent authority is bound to record reasons when a person out of the panel is picked for appointment, while no reason is recorded for the appointment of respondent out of the large panel. 6. We have considered the arguments advanced at bar, perused the para--wise comments filed by the respondent, the personal file of the respondent and have gone through the report of the Judges case referred above. Before discussing the points raised by the petitioner, the scheme of appointment of the Judges and the Acting Chief Justice in the High Court as regulated by the Azad Jammu and Kashmir Interim Constitution Act, 1974 may be reproduced here: "43. High Court.--(1) There shall be a High Court for Azad Jammu and Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such members of other Judges as may be prescribed by an Act of the Assembly. (a) ------------------------------------- (b) ------------------------------------- (c) ------------------------------------- (2) ------------------------------------- (2-A) A Judge of the High Court shall be appointed by the President on the advice of the Council and after consultation: (a)With 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. (3) (A person shall not be appointed) as a Judge of the High Court or Advocate-General unless-- (a)he has for a period, or for periods aggregating, not less than ten years, been an Advocate or Pleader of the High Court of Azad Jammu and Kashmir or a High Court in Pakistan: Provided that the term 'High Court' herein shall include a High Court or an equivalent Court that existed at any time before the 14th day of August, 1974; or (b) he has for a period of not less than ten years held a Judicial Office out of which not less than three years shall have been as District and Sessions Judge. (4) Before he enters upon his office, the Chief Justice of the High Court shall make before the President, and an other Judge of the High Court shall make before the Chief Justice, an oath in the form set out in the First Schedule. (5)----------------------------------------- (6) ----------------------------------------- (7) ----------------------------------------- (a) ----------------------------------------- (b) ----------------------------------------- (8) ----------------------------------------- (9) ----------------------------------------- 43-A. Acting Chief Justice.--At any time when:--- (a) the office of Chief Justice of High Court is vacant; or (b) the Chief Justice of High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint the senior most of the other Judges of the High Court to act as Chief Justice." 7. The scheme of the Constitution, stated above, visualizes that the order of appointment of a Judge in the High Court shall be issued after the approval of the President when he is so advised by the Council on the basis of consultation with the Chief Justice of Azad Kashmir and the Chief Justice of High Court (if it is not the appointment of Chief Justice himself. The common practice which has been in vogue is that when the appointment of a Judge in the High Court is required, the
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Chief Justice is requested by the Government/President to furnish the panel of the persons qualified and eligible to be appointed as a Judge of the High Court. The learned Chief Justice send the panel of the persons qualified and eligible for such appointments to the Government or to the President to process the case who send it to the Council for its approval. The Council out of the list furnished by the honourable Chief Justices and forwarded by the President, advise the appointment of the Judge or Judges as the case may be, on which the formal Government Notification is issued by the Law Secretariat of Azad Jammu and Kashmir Government after approval/order of the President. The eligibility, integrity, suitability. Fitness and becomingness of a person to be appointed as a Judge of the High Court is and has to be assumed, when the learned Chief Justices include a qualified person in the list of the persons eligible and suitable for appointment as a Judge. The individual characteristics and qualities of a person recommended by the Chief Justices are rarely discussed and ordinarily a person concurrently included in the list by the Chief Justices is assumed to be possessing all the qualities for being appointed as a Judge and the' competent authority has to act accordingly. It is opined in the Judges case by the learned Chief Justice of Pakistan, Justice Syed Sajjad A.I Shah as follows: "... The Chief Justice of the High Court and the Chief Justice of Pakistan normally know advocates who appear in their Courts regularly and would nominate or recommend names of such Advocates who are capable and fit to be Judges of the High Court and their opinion, which is expert opinion in a way, cannot and should not be ignored, but must be given due weight. 'Consultation' in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness' or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive. If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as a Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word ' consultation' is used, which is different from 'consent', opinion of the Chief Justice can be ignored. If the opinion of the Chief Justice is ignored, then the President/Executive should give reasons which could be juxtaposed with reasons of the Chief Justices to find out as to which reasons are in public interest." 8. There may of course be an occasion where any of the dignatory concerned with the appointment of a Judge may have his own reservations regarding a nominee on the basis of his knowledge in view of his field of functioning e.g. The opinion of Chief Justice regarding the professional competence, conduct, integrity, fitness, suitability, uprightness etc. Of a person proposed by Government/President or the Council and latter's information regarding the character, antecedents, loyalty to the State etc. Regarding the nominee of Chief Justice. Justice Manzoor Hussain Sial in the Judges case uncomprehending the situation has opined as follows: "... The Chief Justice of the High Court and the Chief Justice of Pakistan if give a positive opinion about the suitability of a candidate, but the Governor on the basis of information received about his antecedents gives negative opinion, the President is empowered to decline the appointment of the candidate. On the other hand, if the Chief Justice of the High Court and the Chief Justice of Pakistan give a negative opinion about a candidate on the basis of their expert opinion that candidate cannot be appointed and in this way the opinion of the Chief Justice cannot be ignored and due weight is to be given to this opinion. The extended meaning given to the word 'consultation' is mainly for the reason that it secures the independence of Judiciary. The due deference is to be attached to the opinion of the Chief Justice of Pakistan and the Chief Justice of
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High Court due to their exalted position as envisaged in Islam, so that the appointment of the Judges are made in a transparent manner on the basis of the merits alone. In Government of Sindh v. Sharaf Faridi PLD 1994 SC-105 this Court while dealing with the subject of independence of Judiciary held-- 'that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reasons; and that the Judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.' This object can only be achieved if Judges of integrity having sound knowledge in law are appointed on the basis of the expert opinion given by the Chief Justice of the High Court concerned and the Chief justice of Pakistan. The word 'consultation' used in the relevant Article of the Constitution relating to Judiciary must be read in its context and being a mandatory requirement has to be effective, meaningful, purposive and consensus-oriented, to have best persons appointed as Judges of the superior Courts and to secure the independence of Judiciary." Under such circumstances the consensus has to be worked out amongst them, as the nominee after appointment is entrusted with the task of upholding the Constitution, rule of law and ideological frontiers of the State visualized by the Constitution and law; he becomes the justice of the nation and State; and his judgments become law and property of the nation and State. However, if in the equally placed nominees in the list/panel of the qualified persons, there is unaminity amongst all concerned in the process, any of the persons from the panel may be appointed. 9. Two categories of the persons have been visualized by the Constitution who are eligible to be considered for appointment as a Judge in the High Court: (i) Advocates; and (ii) Judicial Officers. As for the Advocates are concerned, one who has been an Advocate or a Pleader of the High Court for a period or periods aggregating not less than ten years, is qualified to be appointed as a Judge in the High Court and a Judicial Officer with ten years' service, out of which he must have been a District and Sessions Judge for three years, is qualified to be appointed as a Judge in the High Court. 10. There is a marked and visible distinction in professional practice of Advocates and service of the Judicial Officers qualified to be appointed as a Judge in the High Court. As for the Judicial Service is concerned, a person must have been in the continuous service of ten years with the experience of a District and Sessions Judge provided in the Constitution, while in case of Advocate, the aggregate period of Advocacy or Pleadership amounting to ten years qualifies one for the slot. The absence of word "aggregate" in the case of Judicial Service in the provision, suggests the continuous service of ten years for judgeship, while the inclusion of word "aggregate" in the case of Advocate does not exclude a person who has ten years' actual practice as Advocate even though not continuous, but complete in aggregate. 11. Respondent was admittedly not in the Judicial Service in the manner prescribed by the Constitution as he has not served as a District and Sessions Judge for three years anywhere, thus he stands ousted from the category of Judicial Officers. 12. It is clear from the perusal of the personal file of the respondent maintained by the High Court (copy of his complete bio-data duly attested by the Deputy Registrar and verified by us is placed on record and marked as (Annex---CR) reveals that he was enrolled as a Pleader on 23-1-1964 and as an Advocate of the High Court on 7-2-1967 and as an Advocate of the Supreme Court on 7- 11-1975 and inducted in Government service as Chairman Service Tribunal on 2-6-1985. As an
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Advocate of the High Court, respondent has been on the roll of High Court for more than 18 years whereafter he was appointed in the service of Government in different capacities and at the time of his appointment he was serving as Secretary Law to the Government of Azad Jammu and Kashmir. 13. The question raised in the petition and agitated at bar by the petitioner is that the respondent is disqualified from being considered as an Advocate and not qualified to be appointed as a Judge of the High Court as he was not an Advocate when appointed as Judge. The words used in subsection (3) of section 43 of the Constitution are, prima facie, clear enough to state that an aggregate period which should not be less than ten years as Advocate qualify a person to be appointed as a Judge in the High Court, if he is otherwise eligible and considered of the level by the Chief Justices, President and the Council. The word "aggregate" is defined in the Chambers 20th Century Dictionary as "to collect into a mass or whole: to amount to: to accumulate: formed of parts that combine to make a whole: a total: a collection of elements having a common property that identifies the collection" The Oxford English Dictionary defines the word "aggregate" as follows: "Aggregate" 'Constituted by the collection of many particles or units into one body, mass, or amount; collected, collective, whole, total. A cause is the sum or aggregate of all such accidents... As concur to the producing of the effect propounded. Every such belief represents the aggregate of all past-experience. A multitude considered as One Aggregate. To gather into one whole or mass; to collect together, assemble; to mass;' The word "aggregate", thus includes in itself the interruption and discontinuance of practice and its resumption and following up continuously or by intervals. It is the collective and sum…
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