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Petitioner: MUHAMMAD YOUNAS TAHIR and others VS Respondent: SHAUKAT AZIZ
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Raja Saeed Akram Khan, Mohammad Azam Khan Title:MUHAMMAD YOUNAS TAHIR and others vs SHAUKAT AZIZ, ADVOCATE
JUDGMENT
Reported As: PLJ 2012 SC (AJ&K) 226 Result: Appeal dismissed Judgment JUDGMENT Muhammad Azam Khan, C.J.--The above titled appeals, with the leave of the Court, have been addressed against the judgment of the High Court dated 30.4.2010, whereby the writ petition filed by Shaukat Aziz and others was accepted. Since both the appeals arise out of single judgment of the High Court, these are being disposed of through the proposed judgment. 2. The brief facts culminating into these appeals are that the appellants were appointed as Judges of the High Court of Azad Jammu and Kashmir vide Notification No, LD-AD/4/2/92/2007 dated 23.1.2007. The vires of the said notification were challenged through writ petition No, 122 of 2007 which was accepted. The operative part of the judgment is reproduced as under:-- "The epitome of the above discussion is that as the consultation, required by the Act, 1974, is missing in the present case, therefore, I am constrained to hold that the impugned Notification dated 23.1.2007 has been issued without any lawful authority and the offices of the private respondents are hereby declared vacant." 3. Mr. S. M. Zafar, counsel for the appellants, argued that the judgment of the High Court has been passed against the law and facts of the case. The High Court badly failed to consider the relevant provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as the Act, 1974) while delivering the impugned judgment. He argued that the appellants were duly appointed after the consultation with the concerned consulted which was forwarded to the Chairman, Azad Jammu and Kashmir Council (hereinafter to be referred as the Council) for advice. Upon the advice of the Council, which was the requirement of the Constitution, the appointments were made. Once an appointment of a Judge of the superior Court has been made
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after fulfillment of the requirements of the Constitution and other provisions of law, that cannot be challenged on the basis of procedural irregularities. For the removal of the Judges of the superior Courts, a special procedure has been provided in Section 42E of the Act, 1974 and without following the said procedure no appointment can be declared invalid. He further argued that at the time of appointment of the appellants as Judges of the High Court, their suitability was judged on the touchstone of the Constitution. The learned counsel vehemently argued that initially the process of appointment of Judges was started in September, 2005. The Judges could not be appointed by one reason or the other. After the elevation of Mr. Justice Muhammad Reaz Akhtar Chaudhry, the then Chief Justice of the High Court, as Judge of the Supreme Court and later on as Chief Justice of Azad Jammu and Kashmir, the President consulted with the Chief Justice of Azad Jammu and Kashmir for the appointment of the Judges in the High Court who recommended the names of the appellants for their appointment as Judges and also opined that he had already recommended them in the capacity of Chief Justice of the High Court. The learned counsel contended that it was a valid consultation by the President with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. He argued that there was no permanent Chief Justice of the High Court, rather there was only Acting Chief Justice and Acting Chief Justice cannot be consulted by the President for the appointment of Judges in the High Court. It was dire need that the Judges be appointed on the basis of the consultation made by the President with Mr. Justice Muhammad Reaz Akhtar Chaudhry in the capacity of Chief Justice of High Court and later on as Chief Justice of Azad Jammu and Kashmir. The matter of appointment of Judges could not be kept pending for an indefinite period. 4. The learned counsel argued that the High Court has declared the appointment of the appellants being without consultation on the basis of double personality. It is not a case of double personality. The doctrine of double personality is not applicable in the present case. He drew the distinction between the expressions 'double personality' and `double capacity'. He referred to page 64 of "Salmond on Jurisprudence" 12th edition, Ellis v. Kerr [1909 E. 559], William Henry Neale v. Sir T. Turton and others [(1827) 4 Bingham 149 130 E.R. 725], Napier v. Williams [1910 N. 1362] which confirms the view delivered in Ellis v. Kerr [1909 E. 559] and Munir Hussain and others v. Muhammad Aslam and others [PLD 2003 Azad J&K 16]. 5. The learned counsel argued that the principle of bias is attracted in the case. The appellants were Advocates of the high standing. They were appointed as Judges of the High Court. They worked in the capacity of Judges for a long time. Ore of the appellants was nominated as member of the Supreme Judicial Council where the President made a reference against Mr. Justice Syed Manzoor Hussain Gillani, Acting Chief Justice of Azad Jammu and Kashmir and Mr. Justice Ghulam Mustafa Mughal, Chief Justice of the High Court and the parallel Supreme Judicial Council passed the order restraining Mr. Justice Ghulam Mustafa Mughal, the Chief Justice of the High Court, from functioning as Judge and Chief Justice. Due to this reason, the Chief Justice in the High Court was biased towards one of the appellants and could not hear and decide the case. Due to acceptance of the writ petition, they have been biased by the order. He referred to pages 159 and 162 of "Administrative Law by Sir William". The learned counsel vehemently argued that the procedure for appointment of a Judge in the High Court is laid down in the Act, 1974 and under the relevant provisions, only a Chief Justice can recommend an eligible person for the appointment of a Judge and the Acting Chief Justice cannot make such recommendation. A Judge has to be appointed after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. For the purpose he referred to the cases titled M.D. Tahir v. Federal Government and 12 others [1989 CLC 1369] and Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others [1999 SCR 235]. The learned counsel also referred to Paragraph 5 of the comments filed by the Council in the writ petition, wherein the Council took a categorical stand that the appointment of the
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appellants has validly been made on the advice of the Council and it has been acted upon. 6. Raja Muhammad Hand Khan, Advocate, the learned counsel for Shaukat Aziz and others, while controverting the arguments advanced by the learned counsel for the appellants, has submitted that it is not only a case of violation of rules/procedure but a case of sheer violation of the Constitutional provisions which has not been followed in letter and spirit He submitted that the appointments were manoeuvred, as is apparent from the record, which have been rightly declared invalid by the High Court. The judgment of the High Court is perfect and legal which has been passed after dilating upon all the controversial questions involved in the writ petition which have decided in a comprehensive manner. He emphasised that in case of the appointment of a Judge of the. High. Court, consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court is mandatory in nature and if any escape from the said provisions has been made, the appointment would be invalid and against the Constitution. He further contended that the panels sent by the respective Chief Justices in the month of November/December, 2005 was never acted upon and remained pending for a long time as the names of the appellants were not included in the panel recommended by the then Chief Justice Jf Azad Jammu and Kashmir, rather only Mr. Justice Muhammad Reaz Akhtar Chaudhry in the capacity of Chief Justice of High Court recommended their names. He submitted that it is also not denied that in the meantime Mr. Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice, High Court, was elevated as Judge of the Supreme Court and then Chief Justice of Azad Jammu and Kashmir. In this scenario, the proper course was to seek fresh recommendations and consultation with the Chief Justice of the High Court and then the Chief Justice of Azad Jammu and Kashmir which was not done in the instant case. He argued that a person who recommended the names of appellants as Chief Justice of the High Court also recommended their Nines as Chief Justice of Azad Jammu and Kashmir at different times which is against the spirit of the Act, 1974. Therefore, the High Court was justified while declaring the appointments of the appellants as illegal. He further urged that the consultation with both the Chief Justices at the same time is the scheme of the Act, 1974. In the first panel, the then Chief Justice of the High Court recommended the names of the appellants but the then Chief Justice of the Azad Jammu and Kashmir did not recommend their names which was the only valid consultation as has been the consistent practice in Azad Jammu and Kashmir regarding the appointment of Judges in the superior judiciary. He further argued that the consultation must be in black and white and should be made within a reasonable time by both the Chief Justices which has not been done in this case. In this way, the Rules of Business were not followed in true perspective. 7. He has lastly argued that it is not a case of misconduct, therefore, the procedure laid down under Section 42-n of the Act, 1974 for the removal of a Judge through Supreme Judicial Council is not applicable in this case. He has relied on the cases titled Raja Muhammad Irshad Khan v. Azad Jammu and Kashmir Council and 3 others [2007 "Section 48 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) SCR 419], Habibullah v. D.I.G. Police and 3 others [2004 SCR 378], AlJehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v Federation of Pakistan and others [PLD 1997 SC 84], Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others [PLD 2010 SC 61], Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others [PLD 1998 SC 161], Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others [PLD 2005 SC 511], Mirza Shaukat Baig and others v. Shahid Jamil and others [PLD 2005 SC 530], Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another [2008 SCMR 1148], Raja Hamayun Sarfraz Khan and others v. Noor Muhammad [2007 SCMR 307], Chairman Evacuee Trust Property, West Pakistan, Lahore v. Muhammad Din and another [PLD 1971 Lah. 217] and Ghulam
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Mustafa Mughal v. The Azad Government and others [1993 SCR 131]. 8. Sardar Mansoor Pervaiz, Advocate, has adopted the arguments of Mr. S.M. Zafar, whereas Mr. Farooq Hussain Kashmiri, Advocate, while adopting the arguments advanced by Raja Muhammad Hand Khan, has made an additional prayer seeking the direction, that the appellants must pay back the benefits which they received as Judges of the High Court. 9. We have heard the learned counsel for the parties and perused the record. Before proceeding further, we deem it necessary to go through the history of establishment of the Azad Jammu and Kashmir High Court. Through an agreement dated 16th March, 1846, the British Rulers sold the Jammu and Kashmir State to Gulab Singh, Dogra of Jammu, who was its first Ruler. Initially two `Sadar Adalats' (Chief Courts): one at Jammu and the other in Srinagar, were established. In the year 1877 a High Court {{URDU TEXT}} was established under a regulation known as The State Civil Courts Regulation 1877" which was the highest Court of appeal. The High Court consisted of a Judicial Member who was appointed by Mahraja of Kashmir. In the year 1996 Bk. (1939 A.D.), the Jammu and Kashmir Constitution Act, 1996 (Bk.) (1939 A.D.) was promulgated by Mahraja of Jammu and Kashmir. Part IV of the Constitution deals with the High Court of the State. Section 48 of the Constitution provided the Constitution and title of the High Court while Section 49 dealt with the terms and mode of appointment of Judges. It will be useful to reproduce Sections 48 and 49 as under: "Section 48 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) "48 Constitution and title of the High Court.--(a) The High Court referred to in this Act is the High Court established in the State by Order No, 1 of 1985 and styled as the High Court of judicature, Jammu & Kashmir State. (b) The High Court shall consist of a Chief Justice and one or more other Judges, as His Highness may from time to time think fit to appoint." Section 49 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) "49Tenure of office of Judges.--Every Judge of the High Court including the Chief Justice shall be appointed by His Highness and shall hold office until he attains the age of fifty five years: Provided that if a Chief Justice is taken from a High Court in British India he shall hold office until he attains the age of 65 years: Provided further that-- (a) a Judge may by resignation under his hand addressed to His Highness resign his office. (b) a Judge may removed from his office by order of His Highness on the ground of misbehavior, or infirmity of mind or body." 10.A perusal of Sections 48 and 49, reproduced above, reveals that the High Court consisted of a Chief Justice and one or more other Judges. A Judge or Chief Justice was appointed by Mahraja and held the office till he attained the age of 55 years. There was an exception that if a Chief Justice is taken from the High Court from British India, he shall hold the office till the age of 65 years. 11.A perusal of regulation of 1877 and Section 49 of the Jammu and Kashmir Constitution Act, 1996 (Bk.) shows that a Judge of the High Court and Chief Justice were appointed by Mahraja at his sweet will. There was no concept of consultation with Council of Ministers, Assembly or the Chief Justice. 12.After division of. India into two independent countries, i,e,, India and Pakistan, the Princely States were given the choice to join either of the countries. Kashmir was one of the largest State amongst 560 princely States of British India. Kashmiri people started the struggle for freedom and the Government of Azad Jammu and Kashmir was established on 24th October, 1947. The judicial system was established under the Azad Kashmir Courts and Laws Code, 1948. Sections 5 of the Azad Kashmir Courts and Laws Code, 1948 provided the Constitution of the High Court. It is relevant
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to reproduce Section 5 of the Azad Kashmir Courts and Laws Code, 1948 which reads as under:-- "5. Constitution and appointment of the Judges:--The High Court shall consist of a Chief Justice and other Judges to be appointed by any under the orders of the Azad Kashmir Government and to receive pay as may be fixed by the said Government." 13.A perusal of section reveals that like State Civil Courts Regulation, 1877 and Jammu and Kashmir Constitution Act, 1996(Bk.) (1939 A.D.), the powers to appoint the Chief Justice and Judges in the High Court remained with the Government. There was no concept of consultation in the Courts and Laws Code, 1948. In the year 1949, this Act was repealed and a new Azad Jammu and Kashmir Courts and Laws Code, 1949 was enacted. Under Section 5 of the said Code, the High Court was to consist of a Chief Justice and one or two other puisne Judges who were to be appointed by the Government. Again in appointment of the Chief Justice and Judges, the Government had unfettered powers. There was no concept of consultation. Later on, the Azad Jammu and Kashmir Government Act, 1970 was promulgated in the light of UNCIP resolutions. The High Court was established under sub-section (1) of Section 25 of the Azad Jammu and Kashmir Government Act, 1970. Sub-section (1) of Section 25 postulates that the High Court shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Legislative Assembly and under sub-section (3), the persons holding the office of Chief Justice and Judges of the High Court immediately before the commencement of the Act, 1970 were deemed to have been appointed under this Act. The procedure and mode of appointment was not provided in the Act. The mode of appointment remained the one provided in the Courts and Laws Code, 1949. 14.In 1974, the Azad Jammu and Kashmir Legislative Assembly enacted the Act, 1974, ,where a complete judicial set up was provided. Section 43 of the Act, 1974 provides the Constitution of the High Court and appointments of Judges. It will be useful to reproduce Section 43 which is as under:-- "43. High Court--(1) There shall be a High Court for Azad Jammu & Kashmir, hereinafter called the High Court, which shall consist of a Chief Justice and such number of other Judges as may be prescribed by an Act of the Assembly. (1-A) .................. (2) The person holding office as Chief Justice or other Judge of the High Court immediately before the commencerment of this Act shall be deemed to be the Chief Justice or other Judge as the case may be, appointed under this Act. (2-A) A Judge of 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 & Kashmir, and (b)except where the appointment is that of Chief Justice, with the Chief Justice of the High Court, (3) .................... (4) .................... (5) ................... (6) ................... (7) ................... (8) .................. (9) ....................... 15.The history of appointment of Judges in the High Court is that; in pre-partition era, the Chief Justice and Judges in the High Court were appointed by the Mahraja of Jammu and Kashmir at his sweet will. Similarly under the Courts and Laws Code, 1949 the Chief Justice and Judges were appointed by the Azad Jammu and Kashmir Government at its discretion which was clearly against the independence of the judiciary. For the first time a marked change was brought in the Act, 1974, whereby the process of consultation was introduced for the appointment of Judges in the
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superior judiciary on the pattern of Constitution of India and the Constitution of Islamic Republic of Pakistan, 1956, 1962 and 1973. 16.The process for filling in the vacancies of the Judges in the High Court was initiated by the President in September 2005 and the names of the appellants were included in the panel sent by the then Chief Justice of the High Court, Mr. Justice Muhammad Reaz Akhtar Chaudhry, while their names were not included in the panel sent by Mr. Justice Khawaja Muhammad Saeed, Chief Justice of Azad Jammu and Kashmir (as he then was). Mr, Justice Muhammad Reaz Akhtar Chaudhry, Chief Justice, High Court, later on was elevated as Judge of the Supreme Court and on the retirement of Chief Justice of Azad Jammu and Kashmir, he was appointed as Chief Justice of Azad Jammu and Kashmir on 27th October, 2006, whereas Sardar Muhammad Nawaz Khan, the then senior most Judge, of the High Court, was appointed as Acting Chief Justice of the High Court on 10th October, 2006 who retired as Acting Chief Justice on 31st December, 2009. He remained the Acting Chief Justice for a period of more than three years as he was not appointed as permanent Chief Justice of the High Court. 17. In view of the arguments advanced by the learned counsel for the parties and the background of the case, following points can be formulated for determination by this Court:-- (i) Whether in presence of Section 42-E of the Act, 1974, the writ petition is competent against the appointment of a Judge; (ii) Whether the appointment of a Judge in the High Court can be made with the consultation of the same person acting in two capacities as Chief Justice of the High Court and the Chief Justice of Azad Jainmu and Kashmir at different times and can such consultation be treated as a valid consultation; and (iii)Whether an Acting Chief Justice can be consulted for the purpose of appointment of a Judge. 18. First of all we would like to resolve the question of maintainability of the writ petition. Under Section 43(2-A), a Judge of the High Court has to be appointed by the President on the advice of the Council and after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. The president has to consult both the Chief Justices and seek advice from the Council before he issues an appointment order of a Judge. In the last two decades, the consultation process has attracted the attention of the superior judiciary of Pakistan and India and a large number of authoritative judgments have been passed. In the case titled Supreme Court Advocates-on-record Association and another v. Union of India [AIR 1994 SC 268], the Indian Supreme Court expressed its authoritative view on the process of consultation. The process of consultation attracted the attention of the Supreme Court of Pakistan in a famous case titled Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another [PLD 1996 SC 324], and an authoritative judgment was delivered by the Court elaborating the consultation process and guidelines were laid down that what can be termed as a valid consultation. Before proceeding further, it will be useful to reproduce Article 193 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution of 1973) and Article 217 of the Indian Constitution. Article 193 of the Constitution of 1973 reads as under:-- "193. Appointment of High Court Judges:--(1) A Judge of a High Court shall be appointed by the President after consultation- (a) with the Chief Justice of Pakistan; (b) with the Governor concerned; and (c) except where the appointment is that of Chief Justice, with the Chief Justice of the High Court. (2) ...................... (3) ...................... Article 217 of the Constitution of Indian reads as under:--
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"217. Appointment and conditions of the office of a Judge of a High Court.--(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years: Provided that-- (a) ............................ (b) ........................... (2) ........................... (3) ........................... 19.A comparative study. of Constitution of 1973, the Constitution of India and the Act, 1974 would show that a Judge, in the High Court of Pakistan is appointed by the President after consultation with the Chief Justice of Pakistan, the Governor concerned and the Chief Justice of the High Court concerned. There are three consultees in the process while in the Act, 1974, a Judge in. the High Court is appointed by the President on the advice of the Council after consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court. A marked difference between. Section 43(2-A) and Article 193 of the Constitution of 1973 is that in the, Act, 1974 there are only two consultees and a Judge has to be appointed on the advice of the Council (the Prime Minister of Pakistan is the Chairman of the Council), while in Article 193 of Constitution of 1973, the word 'advice' is missing. Here we may observe that under Article 48 of the Constitution of 1973 the advice of Prime Minister is binding on the President. Similar provision exists in Section 7 of the Act, 1974. There is a distinction in Article 48 of Constitution of Pakistan and Section 7 of the Act, 1974, which are reproduced as under:-- Article 48 of the Constitution of Islamic Republic of Pakistan reads as under-- "48. President to act on advice, etc.--(1) In the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister: Provided that within fifteen days the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall, within ten days act in accordance with the advice tendered after such reconsideration. (2) Notwithstanding anything contained…
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