Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SLAM AWAN, ADVOCATE SUPKIME COURT VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Supreme Court of Pakistan Judge(s):Nasir-ul-Mulk, Anwar Zaheer Jamali, Asif Saeed Khan Khosa, Tasaddaq
Hussain Jillani, Ejaz Afzal Khan Title:MUHAMMAD SLAM AWAN, ADVOCATE SUPKIME COURT vs FEDERATION OF PAKISTAN and others Case No.: Constitutional Petition No.9 of 2014 Date of Judgment:2014-05-06 Reported As: 2014 SCMR 1147, 2014 SCMR 1289 Result: Order accordingly Judgment ORDER TASSADUQ HUSSAIN JILLANI, C.J.---The question of inter se seniority of High Court Judges has been raised off and on either on the administrative side in the respective High Courts or through representations addressed to the President of Pakistan. Such issues though important for the Judges concerned, yet have a potential to cause some ripple in the comity of Judges and it is imperative that those be resolved in the light of some objective criterion to be laid down by this Court. 2. Leaving the question of seniority to be decided by the President or by the concerned Chief Justice of a High Court without reference to any objective criterion may raise issues of judicial independence which is mandated under the Constitution and is essential in a democracy. Judicial independence both of the individual Judge and of the Judiciary as an institution is essential so that those who bring their causes/cases before the Judges and the public in general have confidence that their cases would be decided justly and in accordance with law. Judicial independence is one of the foundational values of the Constitution of Islamic Republic of Pakistan which is based on trichotomy of powers in which the functions of each organ of the State have been constitutionally delineated. The very Preamble of the Constitution pledges "wherein the independence of judiciary shall be fully secured" The Constitution makers conferred this independence because they wanted the Judges to "do right to all manner of people, according to law, without fear or favour, affection or ill-will" (Oath of office of Judges). The fundamental rights guaranteed under the Constitution cannot be secured unless Judiciary is independent because the enforcement of these rights has
---
## Page 2
been left to Judiciary in terms of Articles 184(3) and 199 of the Constitution and the relevant law. Judiciary has not been made part of the Executive or the Legislature (Article 7). The separation of Judiciary from the Executive was made a Constitutional mandate (Article 175(3)). So jealously this independence has been guarded that even in the appointment of Judges (Article 175A) and in their removal (Article 209) the primacy is that of the Judiciary. The Judicial Commission is headed by the Chief Justice of Pakistan and its Members comprise of four senior most Judges of the Supreme Court, a former Chief Justice or Judge of the Supreme Court, Chief Justices and senior puisne Judges of the respective High Courts (if the appointment is that of the Judge of the High Court), Minister for Law and Attorney General for Pakistan as also representative of the Bar. The recommendations made by the Judicial Commission are sent to the Parliamentary Committee which is to decide within 14 days, failing which the recommendations made by the Judicial Commission are deemed to have been affirmed. The primacy in the entire process of appointment of Judges is still with the Judiciary. The Court through this judgment in laying down a criterion/guideline to determine the inter se seniority of the Judges of the High Courts has partly been influenced to protect and preserve this seminal Constitutional value. 3. The questions raised in this petition are two fold: (i) From which date the inter se seniority of Judges of the High Court appointed under Article 193 of the Constitution vide the same order and date be reckoned i.e. From the date of their appointment as Additional Judges under Article 197 or from the date they are appointed as Judges under Article 193 of the Constitution, and (ii) what should be the criterion to determine the inter se seniority of Judges appointed the same day and vide the same order both from the Bar and District Judiciary? These questions have been raised in the following set of circumstances: On 14-9-2009, the President of Pakistan in exercise of his powers under Article 197 of the Constitution of Islamic Republic of Pakistan appointed following 12 Additional Judges of the Lahore High Court "for a period of one year, with effect from the date they take oath of their offices":-- (1) Mr. Justice Syed Mansoor Ali Shah (2) Mr. Justice Sh. Najam ul Hassan (3) Mr. Justice Manzoor Ahmad Malik (4) Mr. Justice Asad Munir (5) Mr. Justice Ijaz ul Ahsan (6) Mr. Justice Hafiz Abdul Rehman Ansari (7) Mr. Justice Sardar Tariq Masood (8) Mr. Justice Tariq Javaid (9) Mr. Justice Nasir Saeed Sheikh (10) Mr. Justice Mansoor Akbar Kokab (11) Mr. Justice Kh. Imtiaz Ahmad. (12) Mr. Justice Sagheer Ahmad Qadri 4. On 17-2-2010 yet another notification was issued with regard to the appointment of 22 Additional Judges under Article 197 of the Constitution "for a period of one year" with effect from the date they took oath of their offices. Their names are:-- (1) Mr. Justice Mian Shahid lqbal (2) Mr. Justice M. Farrukh Irfan Khan (3) Mr. Justice Mamoon Rashid Shaikh (4) Mr. Justice Shaukat Umar Pirzada (5) Mr. Justice Waqar Hassan Mir (6) Mr. Justice Yawar Ali Khan (7) Mr. Justice Muhammad Khalid Mahmood (8) Mr. Justice Ch. Shahid Saeed
---
## Page 3
(9) Mr. Justice M. Anwar Bhour (10) Mr. Justice Ijaz Ahmad (11) Mr. Justice Sardar Muhammad Shamim Khan (12) Mr. Justice Hassan Raza Pasha (13) Mr. Justice Syed Mazahar Ali Akbar Naqvi (14) Mr. Justice Muhammad Anwar ul Haq (15) Mr. Justice Muhammad Qasim Khan (16) Mr. Justice Shahid Hameed Dar (17) Mr. Justice Ch. Muhammad Tariq (18) Mr. Justice Mazhar lqbal Sidhu (19) Mr. Justice Rauf Ahmad Shaikh (20) Mr. Justice Shaikh Ahmad Farooq (21) Mr. Justice Muhammad Naseern Akhtar (22) Mr. Justice Syed Akhlaq Ahmad 5. The President vide the notification dated 17-2-2011 under Article 197 of the Constitution, extended the period of following 18 out of 34 Additional Judges (appointed vide the notifications referred to above) as Additional Judges "for a period of one year with effect from the date their present term expires":-- (1) Mr. Justice Sagheer Ahmad Qadri (2) Mr. Justice Nasir Saeed Sheikh (3) Mr. Justice Sh. Najam ul Hassan (4) Mr. Justice Kh. Imtiaz Ahmad (5) Mr. Justice Manzoor Ahmad Malik (6) Mr. Justice Sardar Tariq Masood (7) Mr. Justice Ijaz ul Ahsan (8) Mr. Justice Syed Mansoor Ali Shah (9) Mr. Justice Sheikh Ahmad Farooq (10) Mr. Justice Ch. Shahid Saeed (11) Mr. Justice Rauf Ahmad Shaikh (12) Mr. Justice Ijaz Ahmad (13) Mr. Justice Muhammad Khalid Mehmood Khan (14) Mr. Justice Shahid Hameed Dar (15) Mr. Justice Muhammad Anwaarul Haq (16) Mr. Justice Sardar Muhammad Shamim Khan (17) Mr. Justice Muhammad Qasim Khan (18) Mr. Justice Mazhar Iqbal Sidhu 6. Out of the afore-mentioned 18 Judges, 15 were appointed as Judges under Article 193 of the Constitution vide the notification dated 11-5-2011 on the recommendation of Judicial Commission, who are as follows:-- (1) Mr. Justice Nasir Saeed Sheikh (2) Mr. Justice Sh. Najam ul Hassan (3) Mr. Justice Manzoor Ahmad Malik (4) Mr. Justice Sardar Tariq Masood (5) Mr. Justice Ijaz ul Ahsan (6) Mr. Justice Syed Mansoor All Shah (7) Mr. Justice Sheikh Ahmad Farooq (8) Mr. Justice Ch. Shahid Saeed (9) Mr. Justice Rauf Ahmad Shaikh
---
## Page 4
(10) Mr. Justice Ijaz Ahmad (11) Mr. Justice Muhammad Khalid Mehmood Khan (12) Mr. Justice Shahid Hameed Dar (13) Mr. Justice Muhammad Anwaarul Haq (14) Mr. Justice Sardar Muhammad Shamim Khan (15) Mr. Justice Mazhar Iqbal Sidhu 7. On 25-8-2011 the President (on the recommendation of the Judicial Commission and Parliamentary Committee) appointed another three Additional Judges as Judges of the High Court under Article 193 of the Constitution with effect from the date they make oath of their offices and they took oath on 5-9-2011. Those are:-- (1) Mr. Justice Sagheer Ahmad Qadri (2) Mr. Justice Kh. Imtiaz Ahmad (3) Mr. Justice Muhammad Qasim Khan 8. On 2-12-2013, the Hon'ble Senior Puisne Judge of the Lahore High Court Mr. Justice Nasir Saeed Sheikh requested the Hon'ble Chief Justice of the Lahore High Court that the inter se seniority of the Judges appointed under Article 193 of the Constitution be determined in conformity with the law laid down by this Court and, thereafter, the Administration Committee of the High Court be reconstituted. The Administration Committee was reconstituted on 14-12-2013. 9. Learned counsel for the petitioner contended that the notification dated 14-12-2013 wherein the Administration Committee was reconstituted is violative of the Constitution and the law laid down by this Court in Nadeem Ahmed v. Federation of Pakistan (2013 SCM R 1062) and Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs and Justice v. Sindh High Court Bar Association through President (PLD 2012 SC 1067); that the inter se seniority of the Judges had to be determined by the Chief Justice; that it's a long standing practice of the High Court that the Judges whose appointments are made by a single order take seniority according to age; that an Additional Judge appointed under Article 197 of the Constitution is a specie apart; that if he is made permanent, a fresh appointment order is made under Article 193 of the Constitution and his service as Additional Judge cannot be counted towards his seniority; that the inter se seniority has to be reckoned from the date when an Additional Judge is made permanent Judge of the High Court under Article 193 of the Constitution. He contended that when a person is appointed as Judge of the High Court under Article 193 of the Constitution, he has to take fresh oath and, therefore, it is a fresh appointment. He referred to Article 255(3) of the Constitution to contend that it has specifically been provided that "where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath" The effect of the afore-referred provision, according to learned counsel, is that it is only the day a person becomes a Judge under Article 193 of the Constitution when he can be considered as a permanent Judge and, therefore, the inter se seniority has to be reckoned from the said date. ATTORNEY GENERAL FOR PAKISTAN 10. Learned Attorney-General for Pakistan traced the history of appointment of Additional Judges in India which dates back to East India (High Courts of Judicature) Act, 1861, under which the Judges of the High Courts were appointed by Her Majesty and held office during Her Majesty's pleasure; that there was a provision of appointing an Acting Judge in absence of a permanent Judge who was to perform the duties until the return of the said Judge or until the Governor General cancels the appointment of the Acting Judge. This arrangement continued till the Government of India Act, 1935, when the expression 'Additional Judges' was used for the first time in section 222 of the Act and that appointment was to be made when the office of any Judge was vacant and the Judges so appointed were for a period "not exceeding two years" as the case may be. In India the
---
## Page 5
Constitution was promulgated in 1950, Article 217 of which empowered the President to appoint a Judge of the High Court and there was no mention of Additional or Acting Judge. Under Article 224 of the said Constitution, however, the Chief Justice of a High Court with the consent of the President could request any person who had held the office of a Judge of the High Court "to sit and act as a Judge of the High Court for that State". In 1956, Article 224 was amended and it was provided that "if by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein; it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify._ " In India, now, every Additional Judge becomes permanent when vacancy occurs. The first Constitution of Pakistan was promulgated in 1956, Article 165 of which provided for the appointment of a Judge of the High Court. On 18-11-1958 by virtue of Presidential Order No. 3 (The Courts (Additional Judges) Order, 1958) issued by General Muhammad Ayub Khan it was stipulated that "if by reason of any temporary increase in the business of the Supreme Court or of a High Court or by reason of arrears of work in any such Court it appears to the President that the number of the Judges of the court should be for the time being increased, the President may appoint persons duly qualified for appointment as Judges to be additional Judges of the Court for such period not exceeding two years as he may specify." The mode of appointment of Additional Judge became pari materia with Article 224 of the Indian Constitution. In 1962, the second Constitution .Was promulgated, Article 96 of which codified in pith and substance what was provided in Presidential Order No. 3 of 1958 regarding mode of appointment of Additional Judge of the High Court. In 1973, the Constitution of Pakistan which is in vogue today was promulgated. However, Article 193 regarding the mode of appointment of Chief Justice and Judges of the High Court was amended and it was laid down that the President shall appoint these Judges in accordance with Article 175A of the Constitution. After such an appointment, oath is administered to such an appointee in terms of Article 194 which mandates that "before entering upon office, the Chief Justice of a High Court shall make before the Governor, and any other Judge of the Court shall make before the Chief Justice, oath in the form set out in the Third Schedule". Learned Attorney General submitted that Article 194 makes no difference between an Additional Judge and a permanent Judge. In support of his submission that the Constitution does not make a difference between the two offices, he referred to (i) Article 160, (ii) Article 177(2)(a), (iii) the wording of oath of office, and (iv) the mode of appointment provided in terms of Article 175A of the Constitution. 11. Learned Attorney-General for Pakistan cited the case of appointment of Mr. Justice Faqir Muhammad Khokhar, Hon'ble former Judge, as Judge of the Supreme Court which appointment was challenged before this Court Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 SC 939) to submit that in the said case the petitioner/President of the Supreme Court Bar Association had challenged the appointment inter alia on the ground that he had not completed five years of service as Judge of the High Court to be eligible for appointment to the Supreme Court but this Court while computing the requisite service of five years as Judge of the High Court included the period he served as Additional Judge. 12. Learned Attorney-General referred to many precedents in the Lahore High Court in which the seniority of Judges went along with their appointment as Additional Judges. He contended that a Judge of the High Court enters the office from the day he makes oath as Judge of the said Court as Additional Judge. This Constitutional intent is evident from Article 194 of the Constitution which provides as under:-- "194. Before entering upon office, the Chief Justice of a High Court shall make before the Governor, and any other Judge of the Court shall make before the Chief Justice, oath in the form set out in the
---
## Page 6
Third Schedule." 13. This intent is further reinforced in Article 255(3) of the Constitution which reads as follows:-- "where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath" 14. Similar is the import, according to him, of Article 275(4) of the Constitution. In support of the submissions made, learned Attorney General relied on Begum Tahira Sultan in Re: (1989 M LD 4701). Paras 2 and 3 of which reads as follow:-- (2) I requested the immediate presence of Mr. Abdul Hafeez Memon, the Advocate-General of Sindh, because although I could not expect him to argue the question at such short notice I wanted a clear statement on behalf of the Government whether it was their stand that this Court continues to exist or not. He assured me in categorical terms on behalf of the Government of Sindh, that Government regarded this Court as a continuing body with all the powers and functions that it had so far enjoyed and performed. In this view of the matter Mr. Niamat Ullah Molvi agreed to file another application expressly challenging our jurisdiction and it was agreed that the question would be argued today as it has been done. (3) Today Mr. Molvi has filed an application in which it is expressly stated that this Court has no jurisdiction to take up any matter unless a fresh oath is taken by the Court, by which I suppose he meant the judges of this Court, on the ground that the Constitution of 1972 stood repealed as on 10-4-1973 the date of its enactment. Without prejudice to this contention, it was also urged in the application that the Constitution of 1973 had already come into force and that we could not function unless we took oath under that Constitution. So far as the last question is concerned it is easily dealt with because, even assuming that the Constitution of 1973 has come into force Article 275 of that Constitution expressly continues in office the Chief Justice and other Judges of the High Courts and sub-Article (4) of that Article does not require that an oath be taken before any functions are performed by such an official but only that he shall take as soon as is practicable after the commencing date, the prescribed oath. It is to be noted that in the Constitution of 1973, as in the Constitution of the 1972, certain functionaries enter upon their office only after taking an oath but that both these Constitutions provided in respect of such persons as were already in office that they would continue to be in office and that they would take oath as soon as was practicable. In point of fact even when the 1972 Constitution came into force, the Judges of this Court including myself, did not take the oath upon the commencing date but a few days later." 15. In support of the above contention, he relied upon yet another judgment in Hira Singh and others v. Jai Singh etc. (AIR 1937 Allahabad 588). 16. He also referred to Muhammad Siddique Ahmed Khan v. Pakistan Railways (1997 SCM R 1514) to contend that even in civil service, the seniority in grade of an officer is with effect from his continuous officiation in that grade and not from his confirmation. At page 1520 of the judgment, this Court observed as follows:- "It is settled position of law that seniority in a grade will be accorded to an officer with effect from the date of his continuous officiation in that grade and not from the date of his confirmation. Similar view was taken in the case Araab Mukhtar Ahmed v. Secretary to Government of Pakistan, Establishments Division, Rawalpindi (1983 PLC (C.S.) 104). Learned counsel for the appellants Engineering Officers' Association and others v. State Maharashtra and others (AIR 1990 SC 1607), (sic) where it was observed by the Supreme Court of India that once an incumbent is appointed to a post, his seniority has to be counted from the date of his appointment and not from the date of confirmation. It was also observed that where an appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the
---
## Page 7
regularization of his service in accordance with the rules, the period of officiating service will be counted." 17. He also referred to the Indian judgment reported at The Director Recruits Class-II Engineering Officers Association and others v. State of Maharashtra and others (AIR 1990 SC 1607) wherein the seniority of a civil servant was counted from the date of his appointment aad not from the date of his confirmation, relevant portion of the judgment is as under:-- "44. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. 18. He also relied on Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) wherein this Court dilated upon the distinguishing feature of the appointment of Judges in the High Court made under the Indian Constitution and appointment of Additional Judges of the High Court in Pakistan, wherein at page 506, it was held as follows:- "It will not be out of context to mention that the above provision was lifted from clause (1) of Article 224 of the Indian Constitution, 1950, which reads as follows:-- "224. Appointment of-additional and acting Judges.---(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify." At this juncture, it may be pertinent to mention that in 1956 Constitution, there was no provision for appointment of Additional Judges in view of above speech of Quaid-e-Azam made by him in 1931 in the aforesaid Sub-Committee deprecating the practice of appointing Additional Judges. But in 1958, the then President Ayub Khan issued the above President Order. Article 96 was incorporated in 1962 Constitution for appointment of Additional Judges even against permanent vacancies. This provision has been lifted in 1972 Interim Constitution and 1973 Permanent Constitution. It may be noticed that under the above President Order of 1958 and under clause (1) of Article 224 of the Indian Constitution, an Additional Judge could be appointed in the following, two contingencies:-- (i) temporary increase in the business of a High Court; and (ii) temporary increase in arrears of work. Whereas under Article 197 of the Constitution, an Additional Judge can be appointed against a permanent vacancy or when a High Court Judge is absent or is unable to perform the functions of his office due to any other cause or for any reason it is necessary to increase the number of Judges of a High Court. In other words, under Article 224(l) of the Indian Constitution, the appointment of an Additional Judge is purely temporary to achieve the above two objects, whereas under our Constitution, though the appointment of an.Additional Judge is to be made for a period not exceeding two years but an Additional Judge can be appointed against a permanent vacancy. This makes a lot of difference. I may observe that the parity of reasoning for not appointing an Acting Chief Justice or an Acting Judge in the Supreme Court against, permanent vacancies for a long period is equally applicable to an appointment of an Additional Judge in the High Court against a permanent vacancy. However, I may point out that a practice/convention has developed in Pakistan that in the High Courts Judges are first appointed as Additional Judges;
---
## Page 8
either for a period of one year initially and then this period is extended to two years or they are initially appointed for a period of two years (during 1977 Martial Law this period was extended to three years) and then they are appointed as permanent Judges. Since there was no provision in the late Pakistan Constitution of 1956, which remained operative for a short period, for appointment of Additional Judges, in those days Judges in the High Courts initially were appointed permanently." (Emphasis is supplied) 19. He added that even in India when an Additional Judge of the High Court is appointed as Judge/(permanent) Judge his seniority is reckoned from the date of his initial appointment as an Additional Judge. He relied on Shanti Bhushan and another v. Union of India (AIR 2008 SC (Supp) 895) wherein at page 904 it is observed as under:-- "10. It is to be noted…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.