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P L D 1967 LAHORE 882

HAIDAR AUTOMOBILE LIMITED
V/S
PAKISTAN
Frame (1)
(a) Constitution of Pakistan (1962), Art. 133
Constitution of Pakistan (1973), Art. 145

Ban imposed by Art. 133 against judicial review of laws—Not absolute. [p. 911] L

However, the terms and conditions of service of the Judges of the superior Courts are in no way dependent upon any Act of the Legislatures. Basically these are specified in the Constitution. This is very necessary in order to preserve the independence of the judiciary. These provisions are also in keeping with the position in most of the other countries where the terms and conditions of service of the Judges of the Superior Courts are laid in the Constitution or determined by the head of the State and are secured against any interference by the Legislature. IN the second Schedule to our Constitution the salary of the Judges the Second Schedule to our Constitution the salary of the Judges is specified. Every Judge of the High Court of a province is entitled to such privileges and allowances, and to such rights respect of leave of absence and pension, as may be determined by the President. In this connection even the powers of the President are circumscribed. Beyond that and in other respect the Judge is entitled to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court of the province were entitled. Immediately before it was then prevailing, the Judges of the Superior Courts were entitled as of right to plead and act in them after their retirement. It is, therefore, argued that this right is assured to the Judge by the Constitution and could not be curtailed by means of the impugned Ordnance of 1964. At first I had thought that there exists a real distinction between the condition on which a Judge is appointed to the office and the terms and conditions of the service. But I must confess that this distinction is without any difference in view of the pronouncement of the Supreme Court in a previous case of Sayed Akhlaque Hussain v. The Judges of the High Court of West Pakistan (1) which I am bound to respectfully follow. In that case the Supreme Court was considering as to whether the undertaking, given by Mr. Akhlaque Hussain, as “a condition of appointment”, as a permanent Judge of the High Court of Judicature at Lahore in 1954, to the effect that he shall not resume practice in that Court after his retirement, would hold good after he became a permanent Judge of the High Court of West Pakistan established on the 7th of October 1955, in other words whether the undertaking given by him in 1954, was sufficient to prevent him from practising in this Court after it was established. In the opinion of the Supreme Court Article 6 Judges of the High Court at Lahore who held their respective offices in the High Court of West Pakistan “on the same terms and conditions” as were applicable to them immediately before. Similarly Article 6 of the Laws (Continuance in Force) Order, 1958, has laid down that every person who immediately before the 7th of October 1958 was in office as inter alia, a Judge of High Court shall continued in the said office “on the same terms and conditions and shall enjoy the same privileges, if any”. In the light of these provisions of the law, the Supreme Court was of the view that a stipulation of this kind is to be regarded as a term and condition of the service of the Judge that he shall not be entitled to practise in the Court from which he was retired or removed. (p. 911) L

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