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P L D 2000 SC 179

Mr. JUSTICEGHULAM HYDER LAKHO,HIGH COURT OF SINDH, KARACHI

V/S

FEDERATION OF PAKISTAN through Secretary Law, justice parliamentary


Per Saiduzzaman Siddiqui, C.J.

(a) Constitution of Pakistan (1973), Art. 193

This conclusion when read with direction No.(f) of the short order made it clear that this invalidity in the process of consultation in making the appointment/confirmation of the Judges, was to be removed by a fresh processing of the cases by the permanent Chief Justices keeping in view the processing of Article 193 of the Constitution. Therefore, if the Hon’ble Chief Justices of the High Courts, and the Chief Justice of Pakistan in that process were of the opinion they any of the incumbents was not fit for appointment or confirmation or lacked the qualification prescribed in Article 193 of the Constitution for appointment as a Judge of the High Court, they were entitled to express their opinion, accordingly, within the scope of direction No.(f) of the short order. [p. 195] B

(b) Constitution of Pakistan (1973), Art. 193

The appointment of an additional judge of the High Court is for a specified period. Such appointment, therefore, comes to an end on expiry of the High Court, unless the period is further extended or the appointment is converted into a Judge of the High Court. Therefore an Additional Judge ceases to hod the office if the period specified in the notification appointing him as an Additional Judge is not extended. In such an eventuality, he cannot claim hearing before expiry of the period mentioned in the notification. However, additional judges appointed in the High Court against permanent vacancies or if permanent vacancies occur while such judges are performing functions as additional judges, they acquire a legitimate expectancy and they are entitled to be considered for permanent appointment on expiry of their period as additional judges if they are recommended by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. [p. 195] C

In any case, it is a matter for consideration by the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. They have to decide, whether a particular candidate has requisite experience and once they form the view that the candidate has the requisite experience as envisaged by sub-clause (a) of clause (2) of Article 193, this issue will not be justiciable before the Court of law. The Court cannot sit and decide, whether a particular person has the requisite experience or not/ It is a matter of subjective satisfaction of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan. [p.196] D

In these circumstances, we inclined to hold that where the Chief Justice of the High Court concerned and the Chief Justice of Pakistan do not recommend a particular incumbent for confirmation or appointment as a Judge of the High Court and these recommendations are accepted by the President/Executive, the same cannot be brought under challenge in the Court on the ground that the incumbent was not heard before making such recommendations. [p. 196] F

In view of the above-quoted observation of Ajmal Mian, J. It is quite clear that the recommendations of the Chief Justice of the High Court and that of Chief Justice of Pakistan are not justiciable. [p. 196] E
(c) Constitution of Pakistan (1973), Arts. 193 & 209

The last common contention of the petitioners in these cases is that a judge once appointed in the High Court could not be removed. except in accordance with the provisions contained in Article 209 of the Constitution.

In view of the above-stated legal position, we are of the view that the recommendations of the Chief Justice of the High Court concerned and that of Chief Justice of Pakistan in respect of fitness or otherwise of a person to be appointed/confirmed as a Judge of the High Court would not fall within the scope of Article 209 of the Constitution. We, accordingly, repel the 3rd common contention of the petitioners in the above case.
[pp. 197, 199]G & I

(d) Constitution of Pakistan (1973), Arts. 193

The case of the petitioner is distinguishable from the cases of the other Judges of Lahore High Court who were not confirmed/de-notified as the Judges of the High Court of Lahore. The petitioner was appointed as the Additional Judge of Lahore High Court vide notification dated 26-8-1992 on the recommendations of Mian Mahbub Ahmed, Chief Justice, who was the permanent Chief Justice of Lahore High Court. Therefore, to the extent that the initial appointment of the petitioner did not suffer from any constitutional infirmity the argument appears to be correct. However, his tenure as Additional Judge of High Court was extended for one year on 28-6-1994 on the recommendation of the Acting Chief Justice of Lahore High Court (Mr.Justice Muhammad Ilyas) and the then Chief Justice of Pakistan (Mr. Justice Sajjad Ali Shah). Similarly, the confirmation of the petitioner as a Judge of Lahore High Court was also made on the recommendations of the Acting Chief Justice of Lahore High Court (Mr. Justice Muhammad Ilyas). Therefore, though the initial appointment of the petitioner as the Additional Judge of Lahore High Court did not suffer from any constitutional infirmity, his confirmation as the Judge of Lahore High Court fell within the mischief of conclusion number xiii of the short order in the judges case, and accordingly, his case needed fresh processing and regularisation within the scope of direction number (f) of the short order in Judges case.
[p. 201]J

The petitioner’s confirmation as the Judge of Lahore High Court having taken place on the recommendation of Acting Chief Justice, it was not a valid confirmation within the meaning of conclusion number xiii of the short order and as such the petitioner case required processing and regularisation in terms of direction number (f) of the short order in Judges case.[P.201,202]K

We have gone through the official record and noticed that the Chief Justice of Lahore High Court (Mr. Justice Khalilur Rehman Khan) and the then Chief Justice of Pakistan (Mr. Justice Sajjad Ali Shah) did not recommend the name of petitioner for confirmation as a Judge of the Lahore High Court. As observed earlier by us, the recommendations of the Chief Justice of High Courts and the Chief Justice of Pakistan are not justiciable, therefore, no relief can be granted to the petitioner in the circumstances. However, as the petitioner’s confirmation as a Judge of Lahore High Court on 1-6-1995 was rendered invalid by force of the judgment of this Court in the Judges case, he shall be deemed to have not been confirmed as a Judge of the Lahore High Court and shall be entitled to practices before that Court.[p. 202]L

(e) Constitution of Pakistan (1973), Art. 193

The petitioner in this case was appointed as the Additional Judge of Lahore High Court alongwith 19 others on 4-8-1994 for a period of one year. On 1st of June, 1996, he was appointed as the Judge of Lahore High Court. Since the appointment of the petitioner as the Additional Judge and the Judge of the Lahore High Court were made made after consultation with the Acting Chief Justice of Lahore High Court, these appointment were invalid in terms of conclusion number xiii of the short order in Judges’ case. The appointment of petitioner, therefore, required processing and regularisation in accordance with the direction number (f) of the short order. The petitioner, however, resigned from his office as the Judge of Lahore High Court, cannot now challenge his de-notification as a Judge of the Lahore High Court. The petitioner, however, is right in contending that he cannot be declined the right of practice before the Lahore High Court as his confirmation as Judge of the Lahore High Court was rendered invalid under conclusion number xiii of the short order in the Judges’ case. We, are accordingly, of the view that though the petitioner is not entitled to the relief of reinstatement, he is entitled to practice as an advocate before the Lahore High Court.[p. 202] M
(f) Constitution of Pakistan (1973), Art. 193

We have consulted the record maintained in respect of the appointment of the petitioners and find that none of the petitioners was recommended for retention/confirmation as a Judge of the High Court by the Chief Justice of the Lahore High Court or the Chief Justice of Pakistan. We have already held that the recommendations of the Chief justice of the High Courts and that of the Chief Justice of Pakistan are not justiciable in Court and therefore, in view of our above findings, the denotification of the petitioners is not open to any exception. the petitioners are, accordingly, not entitled to any relief in the present proceedings.[p. 203]N

Apart from it, as earlier pointed out by us, the recommendations of the Chief Justice of the High Court and that of the Chief Justice of Pakistan are not justiciable in any Court and therefore, if the petitioners were not confirmed or allowed to continue as Judges of the High Court in pursuance of the recommendations of the Chief Justice of Peshawar High Court and the Chief Justice of Pakistan, they cannot question such recommendations in the present proceedings. The petitioners are, therefore, not entitled to any relief in the persent proceedings.[p.204]O

Their cases were reprocessed for regularisation in view of the judgment of this Court in judges case and they were not recommended for being retained as Judges of the High Court of Sindh with the result their appointments as Judges of the High Court were de-notified on 30th of September, 1996. They have challenged their de-notification in the present proceedings.[p. 205]Q
We have consulted the record maintained in respect of the appointment of Judges of High Court of Sindh and find that both the petitioners were not recommended by the permanent Chief Justice of High Court of Sindh as well as learned Chief Justice of Pakistan and as a result of these recommendations their appointments were de-notified. As we have already held in these cases that the recommendations of the Chief Justice of a High Court and that of the Chief Justice of Pakistan are not justiciable, no relief can be granted to the petitioner in the present proceedings as they were not recommended for retention/confirmation as Judges of the High Court. It may also be added here that in so far petitioner in petition No. 44 of 1996 is concerned, he has already attained the age of superannuation i.e. 62 years and therefore, for this reason too, he cannot be granted any relief now. [p.205,206]R
(g) Constitution of Pakistan (1973), Art. 193

The case of the petitioner was, accordingly, required to be processed and regularised interms of the direction number (f) of short order in the Judges’ case. The petitioner was not recommended for retention as a Judge of Peshawar High Court either by the Chief Justice of Peshawar High Court or by the Chief Justice of Pakistan during the process of regularisation. He was, however, informed by the Governor, N.W.F.P., that as he did not possess 10 years active practice, therefore, he could not be confirmed as a Judge case. The petitioner was not recommended for retention as Judge of Peshawar High Court either by the Chief Justice of Peshawar High Court or by the Chief Justice of Pakistan during the process of regularisation. He was, however, informed by the process of regularisation. He was, however, informed by the Governor, N.W.F.P., that as he did not possess 10 years active practice, therefore, he could not be confirmed as a Judge of Peshawar High Court. He was also given the option to resign from the office of the Judge of the High Court if he so desired but he did not accept this suggestion. The petitioner contends that the ground for his removal from the office of the Judge of Peshawar High Court that he did not possess the requisite 10 years active practice, was the result of misreading of the date of his enrolment 6-2-1989 which was actually 8-2-1979. To this extent, this contention of the petitioner appears to be correct. However, from the record, it appears that the petitioner was otherwise not recommended either by the Chief Justice of Peshawar High Court. Apart from it, the petitioner admitted before us that after he was de-notified as Judge of Peshawar High Court, he was recommended for appointment as the Additional Judge of Peshawar High Court in April, 1997 by the Chief Justice of Peshawar High Court to which he consented. He was once again considered and recommended by the Chief Justice of Peshawar High Court in 1998 for appointment as an Additional Judge of the High Court to which also he consented. In these circumstances, the petitioner cannot be permitted now to challenge his de-notification as the Judge of Peshawar High Court. We are, however, of the opinion that denotification of the petitioner in September, 1996 as a Judge of the Peshawar High Court should not come in the way of his fresh appointment as a Judge of that Court if he is again recommended for that office in accordance with the law specially for the reasons that after his de-notification two successive Chief Justice of the Peshawar High Court at different times, recommended him for appointment as the Additional Judge of the Peshawar High Court. With these observations, we decline to grant any relief in the present proceedings.[p. 205] P

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