2014 S C M R 1289
2014 S C M R 1289
[Supreme Court of Pakistan
Present: Tassaduq Hussain Jillani, C.J., Nasir-ul-Mulk, Anwar
Zaheer Jamali, Asif Saeed Khan Khosa and Ejaz Afzal Khan, JJ
MUHAMMAD ASLAM AWAN, ADVOCATE SUPREME COURT---Petitioner
Versus
FEDERATION OF PAKISTAN
Constitutional Petition No.9 of 2014, decided on 6th May, 2014.
(Constitution
petition under Article 184 of the Constitution regarding seniority of the
Judges of Lahore High Court, Lahore
Per Tassaduq Hussain Jillani, CJ.
(a) Constitution of Pakistan---
----Arts. 175(3), 184(3) & 199 & Preamble---Independence
of judiciary---Significance and effect---Pubic confidence---Enforcement of
Fundamental Rights of the people---Judicial independence both of the individual
Judge and of the Judiciary as an institution was essential so that those who
brought their causes/cases before the Judges and the public in general had
confidence that their cases would be decided justly and in accordance with
law---Judicial independence was one of the foundational values of the
Constitution which was based on trichotomy of powers in which the functions of
each organ of the State had been constitutionally delineated---Fundamental
Rights guaranteed under the Constitution could not be secured unless Judiciary
was independent because the enforcement of said rights had been left to
Judiciary in terms of Arts. 184(3) & 199 of the Constitution and the
relevant law.
(b) Constitution of Pakistan---
----Arts. 193, 194, 197, 255(3) & 260(1)---Seniority of a
Judge of the High Court---Computation of---Period of service as Additional
Judge to be counted towards seniority---Qualification for a person to be
appointed as Additional Judge (of the High Court) was the same (as that of a
Permanent Judge of the High Court) provided under Art. 193 of the
Constitution---Under Art. 260(1) of the Constitution, a 'Judge' in relation to
a High Court included the Chief Justice of the Court and also "a person
who is an Additional Judge of the Court"---Similar oath was prescribed for
both the offices (Additional and Permanent Judge of the High Court) in terms of
Art.194 of the Constitution and both were "deemed to have entered upon the
office" on the day on which they made the oath (Article 255(3) of the Constitution)---Thus
when an Additional Judge entered upon the office having taken oath in terms of
Art. 194 of the Constitution and was later appointed as a Judge (under Article
193), his service in the office continued, there was no break in service and, therefore,
the period spent as Additional Judge had to be counted towards his seniority
while computing the period of service of a permanent Judge in the High Court.
Ghulam
Jillani v. Mr. Justice Muhammad Gul 1978 SCMR 110; Supreme Court Bar Association
v. Federation of Pakistan PLD 2002 SC 939; Hira Singh and others v. Jai Singh
and others AIR 1937 Allahabad 588; Federation of Pakistan v. Sindh High Court
Bar Association PLD 2012 SC 1067 and PLD 2013 SC 829 ref.
(c) Constitution of Pakistan---
----Arts. 193, 194, 197, 255(3), 260(1) &
184(3)---Constitutional petition under Art. 184(3) of the Constitution
regarding inter se seniority of the Judges of the High Courts---Inter se
seniority of Additional and Permanent Judges of the High Court---Computation
of---Criterion and principles---Constitutional convention---Scope---Inter se
seniority of Judges of a High Court shall reckon from the order and date of
their appointment as Additional Judges of that Court---Inter se seniority of
Additional Judges of a High Court appointed vide the same order and date shall
reckon from their seniority in age---If appointment of two or more (district
judiciary) service candidates was simultaneously made with that of the
candidates from the Bar, the service Judges shall retain their existing
seniority in the department regardless of their age, though that would be the
determining factor in respect of their seniority vis-a-vis the candidates from
the Bar---Supreme Court observed that such mode and principle of determining
inter se seniority of Judges of the High Court had been consistent in all the
four Provinces, barring one time deviation when the Administration Committee of
Sindh High Court followed a different course; that such mode was normative
because it was more in accord with equity and constitutional intent reflected
in various provisions of the Constitution, thus it had assumed the character of
a constitutional convention---Constitutional petition was dismissed
accordingly.
[1981]
2 SCR 753 (Supreme Court of Canada
(d) Civil service---
----Civil servant---Seniority of---Reckoned from date of initial
appointment---In service matters, while considering the seniority of civil servants,
the seniority was reckoned from the date of initial appointment and not from
the date of confirmation or regularization.
(e) Precedent---
----Administrative decision---Judicial decision---Administrative
decision would not assume the character of a precedent to be followed but a
judicial decision may assume such a character.
Jaswant
Sugar Mills v. Kakshmi Chand AIR 1963 SC 677 ref.
Per Asif Saeed Khan Khosa, J.; agreeing with Tassaduq Hussain
Jillani, CJ.
(f) Constitution---
----Constitution of a country was a living organism.
(g) Constitution---
----Words and concepts within a Constitution---Change in meaning
through passage of time and changed circumstances---Original words of a
Constitution did assume different meanings, the initial concepts envisaged
therein did undergo metamorphosis and the earlier schemes contained in the same
evolved and transformed into different mechanisms with passage of time, changed
circumstances and sprouting requirements.
(h) Constitution of Pakistan---
----Art. 197---Additional Judge of the High Court---History of the
concept and utility of the office of an Additional Judge of a High Court in the
Indo-Pak subcontinent stated.
Al-Jehad
Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v.
Federation of Pakistan and others PLD 1996 SC 324 ref.
(i) Constitution of Pakistan---
----Arts. 193, 194, 197, 255(3) & 260(1)---Additional Judge of
the High Court---Office of---Appointment of Additional Judge of the High Court
as Permanent Judge of such Court not an appointment to a new office but
continuation in the same office of a Judge---Qualifications prescribed by the
Constitution for an Additional Judge of a High Court were the same as those
stipulated for a (Permanent) Judge of such Court---Process of appointment of an
Additional Judge was the same as that of appointment of a (Permanent) Judge---
Constitution did not provide for a separate and different oath of office for an
Additional Judge and before entering upon the said office an Additional Judge
had to make the same oath which was prescribed by the Constitution for a
(Permanent) Judge of a High Court---Said oath of office for an Additional Judge
was prescribed by the Constitution itself and by virtue of the provisions of
Art. 260(1) of the Constitution a "Judge" in relation to a High Court
included an "Additional Judge" of that Court---Judge of a High Court
was appointed in many stages and his appointment as an Additional Judge marked
the first and initial stage and his final and formal appointment as a
(Permanent) Judge was the culminating stage of such appointment---Additional
Judge's subsequent appointment as a Judge was not an appointment to a new
office but through such appointment his initial appointment as an Additional
Judge matured and merged into the office of a Judge---Subsequent oath made by
Additional Judge was nothing but in continuation of his earlier oath,
particularly when the subsequent oath was the selfsame oath which he had
already made before entering upon the office of an Additional Judge---By making
the said oath as an Additional Judge he had already entered the office of a
Judge and his subsequent oath as a (Permanent) Judge only reinforced and
confirmed his position in that office.
(j) Constitution of Pakistan---
----Arts. 193, 194, 197, 255(3), 175A &
184(3)---Constitutional petition under Art. 184(3) of the Constitution
regarding inter se seniority of the Judges of the High Court---Seniority of a
Judge of the High Court---Computation of---Seniority of a Judge of the High
Court was to be reckoned with reference to his making of the first oath as an
Additional Judge of such Court---Such was the spirit of the of the
Constitution---Supreme Court observed that such mode of determining seniority
of a Judge of a High Court was safer as it obviated the chances of tinkering or
fiddling with the seniority of a Judge by the Judicial Commission or the
Parliamentary Committee by delaying the matter of his nomination and
confirmation as such or by the Federal Government by delaying issuance of the
notification of appointment of an Additional Judge as a (Permanent) Judge for
reasons which may be manufactured or contrived; that such mode of determination
of seniority of a Judge of a High Court (provided in the present judgment) was
likely to foster and advance the constitutional mandate regarding
"fully" securing the independence of the judiciary---Constitutional
petition was dismissed accordingly.
Zaka
ur
Salman
Aslam Butt, Attorney-General, Taimur Khan, Consultant to Attorney-General and
Sardar Dilnawaz Cheema, Consultant to Attorney-General on Courts Notice.
Dates
of hearing: 5th and 6th May, 2014.
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 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 Iqbal
(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
(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 Iqbal
Sidhu
(19) Mr. Justice Rauf Ahmad
Shaikh
(20) Mr. Justice Shaikh Ahmad
Farooq
(21) Mr. Justice Muhammad
Naseem 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 Ali Shah
(7) Mr. Justice
Sheikh Ahmad Farooq
(8) Mr. Justice Ch.
Shahid Saeed
(9) Mr. Justice
Rauf Ahmad Shaikh
(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 SCMR 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 India
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 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 MLD 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 SCMR 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 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 and 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; 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 that an Additional Judge cannot be said to be on probation
for the purpose of appointment as a Permanent Judge. This position is clear
from the fact that when an Additional Judge is appointed there may not be
vacancy for a Permanent Judge. The moment a vacancy arises, the Chief Justice
of the concerned High Court is required to send a proposal for appointment of
the Additional Judge as Permanent Judge along with material as indicated in
para 13. The rigour of the scrutiny and the process of selection initially as
an Additional Judge and a Permanent Judge are not different. The yardsticks are
the same. Whether a person is appointed as an Additional Judge or a Permanent
Judge on the same date, he has to satisfy the high standards expected to be
maintained as a Judge. Additionally, on being made permanent, the effect of
such permanency relates back to the date of initial appointment as an
Additional Judge. The parameters of paragraph 12 of the memorandum cannot be
transported in its entirely to paragraph 13. To being with, while making the
recommendations for appointment of an Additional Judge as a permanent Judge,
Chief Justice of the High Court is not required to consult the collegium of the
High Court." (Emphasis is supplied)
20. On being asked by
this Court, learned Attorney-General submitted that eversince the creation of
this country, the practice is that the seniority of Judges of the High Courts
is reckoned from the date of their initial appointment as Additional Judges. He
cited the example of late former Chief Justice of Pakistan Mr. Justice Anwar ul
Haq who was appointed as Additional Judge of the West Pakistan High Court on
24-10-1959 and was made a Judge/permanent Judge on 24-10-1962. As against this,
two Hon'ble Judges of the High Court Mr. Justice Moulvi Mushtaq Hussain and Mr.
Justice Sardar Muhammad Iqbal were directly appointed as Judges of the High
Court on 1-10-1962 which is before Mr. Justice Anwar ul Haq was made a
Judge/permanent Judge (i.e. 24-10-1962) but he always ranked senior to the
former Judges. He added that he did not find any contrary practice in this
regard. This practice, he further contended, has become almost a Constitutional
convention and it has to be considered accordingly. In this regard he referred
to a judgment of this Court reported at Malik Asad Ali and others v. Federation
of Pakistan (PLD 1998 SC 161).
21. He also referred to
another judgment of this Court reported at Federation of Pakistan v. Sindh High
Court Bar Association (PLD 2012 SC 1067) wherein this Court reiterated the view
that the seniority of Judges shall be reckoned from the date of their initial
appointment.
22. In the case regarding
pensionary benefits of the Judges of superior Courts (PLD 2013 SC 829), this
Court candidly held that an Additional Judge is covered under the definition of
a Judge and, therefore, entitled to pension similarly as Judge of the High
Court. In para 84, the Court observed as under:--
"84.
The submissions made by some of the learned Advocates Supreme Court that
"Additional Judges" of the High Court, being covered with the
definition of "Judge" as defined under Article 260(1)(c) of the
Constitution, are equally entitled for right to pension like permanent judges
of the High Court, have much force as at one place the definition of 'Judge' in
the above referred Article of the Constitution clearly defines that in relation
to the High Court, a person who is an Additional Judge of the High Court, is
also included in the definition of a Judge and at the other place under Article
197 of the Constitution, relating to appointment of Additional Judges also, no
discrimination is identified for the purpose of holding them disentitled for
right to pension like any permanent judge of the High Court, who, in terms of
Article 195 of the Constitution, will retire on attaining the age of 62 years,
unless he resigns sooner or removed from the office in accordance with the Constitution.
It will be also pertinent to mention here that under paragraph-2 of the
President's Order 3 of 1997, "Additional Judge" and "Judge"
of the High Court have been separately defined as under:--
"2(c)
"Additional Judge" means a Judge appointed by the President to be an
Additional Judge."
"2(f)
"Judge" means a Judge of High Court and include the Chief Justice,
and Acting Chief Justice and an Additional Judge."
From
the reading of above two definitions, again it is clear that definition of a
Judge of the High Court also includes additional judge, therefore, no exception
could be taken in determination of his right to pension for the reason that he
has not yet been appointed as permanent judge of the High Court in terms of
Article 193 of the Constitution. Another added reason in support of this
conclusion emerges from the combined reading of paragraph-2 of the Fifth
Schedule to Article 205 of the Constitution, speaking about "every
judge", and the definitions of "judge" under Article
260(1)(c)(b) of the Constitution and paragraph-2(f) of President's Order 3 of
1997, which leave no room for exclusion of "Additional Judge" from
the category of "every judge" within the meaning of paragraph-2 (ibid).
However, it is necessary to state and clarify here that in such eventuality,
for claiming right to pension a retired judge of the High Court
"additional judge" will also have to have minimum five years actual
service to this credit."
23. On Court query,
learned Attorney General informed that none of the Judges of the Lahore High
Court whose seniority is a point in issue in this case has filed any
representation qua his seniority.
24. Mr. Zakar ur Rehman
Awan, petitioner's learned counsel in his right of reply submitted that the
practice of treating seniority of Judges from the date they were appointed as
Additional Judges is not a Constitutional/legal convention and, therefore,
cannot be sanctified by this Court, because of following reasons:--
"(1) While the practice
under question may no doubt have been consistently followed over a long period
of time, it is well-settled that mere practice cannot automatically acquire the
status of "Constitutional convention" unless some other requirements
are met.
(2) It cannot truly
be said that the Chief Justice acts deliberately when he treats a Judge's date
of appointment as Additional Judge to be the starting point for purposes of
determining inter se seniority of High Court Judges. There may in fact be no
element of "deliberation" at all in his determination.
(3) Additionally,
given the fact that neither the Constitution has fixed any rules for
determination of inter se seniority of High Court Judges, nor the legislature
has sought to lay down criteria for the same, it cannot be said that the Chief
Justice acts "in accordance to a rule" when he endeavours to make
such a determination. As has already been established, the existence of
"obligations" and "rules" lies at the very heart of
determining whether or not a practice is in fact a "Constitutional
convention".
(4) Even if the
Chief Justice, in fixing inter se seniority in the manner that he does, feels
bound by a rule not laid down by the Constitution or the legislature, but by
general principles of equity, there must be some good reason behind the rule.
In other words, there must be some good reason that compels the Chief Justice
to treat the date of appointment as Additional Judge to be the starting point
for purposes of determining inter se seniority of High Court Judges, rather
than the date of appointment as (permanent) Judge. If there is no good reason
at all, then the practice in question is merely an anomalous/erroneous
application of a mistaken 'rule", not worthy of being deemed a
"Constitutional convention".
25. We have heard learned
counsel for the petitioner and learned Attorney-General for Pakistan.
26. The question inter
alia as to from which date the seniority of a Judge appointed under Article 193
of the Constitution of Islamic Republic of Pakistan should be reckoned i.e.
from the date of his initial appointment as Additional Judge under Article 197
of the Constitution or from the date of his appointment under Article 193 of
the Constitution, would of necessity require reference to both these
provisions, which are as under:--
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"193. [(1) The Chief Justice
and each of other Judges of a High Court shall be appointed by the President
in accordance with Article 175A.]
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197.---At any time when--- (a) the
office of a Judge of a High Court is vacant; or
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|
(2) A person shall not be
appointed a Judge of a High Court unless he is a citizen of Pakistan, is not
less than [forty-five] years of age, and---
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(b) a Judge of a High Court is
absent or is unable to perform the functions of his office due to any other
cause; or
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(a) he has for a period of, or for
periods aggregating, not less than ten years been an advocate of a High Court
(including a High Court which existed in Pakistan at any time before the
commencing day); or (b) he is, and has for a period of not less than ten
years been, a member of a civil service prescribed by law for the purposes of
this paragraph, and has, for a period of not less than three years, served as
or exercised the functions of a District Judge in Pakistan; or
|
(c) for any reason it is necessary
to increase the number of Judges of a High Court, the President may, in the
manner provided in clause (1) of Article 193, appoint a person qualified for
appointment as a Judge of the High Court to be Additional Judge of the Court
for such period as the President may determine, being a period not exceeding
such period, if any, as may be prescribed by law. "
|
|
(c) he has, for a period of not
less than ten years, held a judicial office in Pakistan.
|
|
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Explanation.---In computing the
period during which a person has been an advocate of a High Court or held
judicial office, there shall be included any period during which he has held
judicial office after he became an advocate or, as the case may be, the
period during which he has been an advocate after having held judicial
office.
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|
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(3) In this Article,
"District Judge" means Judge of a principal civil court of original
jurisdiction.
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27. The qualification for
a person to be appointed as Additional Judge is the same as provided under
Article 193 of the Constitution because Article 197 provides that "the
President may, in the manner provided in clause (1) of Article 193, appoint a
person qualified for appointment as a Judge of the High Court to be Additional Judge
of the Court for such period as the President may determine, being a period not
exceeding such period, if any, as may be prescribed by law." As defined
under Article 260(1)(c) of the Constitution, a 'Judge' in relation to a High
Court includes the Chief Justice of the Court and also "a person who is an
Additional Judge of the Court". A similar oath is prescribed for both the
offices in terms of Article 194 of the Constitution and both are "deemed
to have entered upon the office" on the day on which they make the oath
(Article 255(3)). Thus when an Additional Judge enters upon the office having
taken oath in terms of Article 194 of the Constitution and is later appointed
as a Judge (under Article 193), his service in the office continues, there is
no break in service and, therefore, the period spent as Additional Judge has to
be counted towards his seniority while computing the period of service of a
permanent Judge in the High Court. This is also evident from Article 177(2)(a)
of the Constitution relatable to the appointment of a Judge of the Supreme
Court, which provides as follows:--
"177(2)
A person shall not be appointed a Judge of the Supreme Court unless he is a
citizen of Pakistan and---
(a) has for a
period of, or for periods aggregating, not less than five years been a judge of
a High Court (including a High Court which existed in Pakistan at any time
before the commencing day)" (Emphasis is supplied)
28. The expression used
in Article 177(2)(a) "for periods aggregating, not less than five years
been a judge of a High Court" indicates that both the periods i.e. as
Additional Judge and as Judge have to be counted for the requisite qualifying
period of five years. It was precisely for this reason that this Court in the
case of a challenge to the appointment of Mr. Justice Muhammad Gul as Judge of
the Supreme Court on the ground that he had not completed the requisite service
of five years as Judge of the High Court in Ghulam Jillani v. Mr. Justice
Muhammad Gul (1978 SCMR 110) held as under:--
"Mr.
Justice Muhammad Gul was thus appointed a Judge of the High Court of Pakistan
more than five years before his elevation to this Court which fulfilled the
requirement of Article 178(2)(a) but the petitioner contended that it was
necessary that he should have functioned as a Judge of the High Court for five
years. In his opinion mere appointment as a Judge did not achieve the object
underlying Article 178(2)(a) viz., experience of functioning as a Judge for
five years which would equip sufficiently a Judge of the High Court to be
considered for elevation to the Supreme Curt.
The
phraseology of Article 178(2)(a) of the Interim Constitution does not hear out
the intent attributed to it by the petitioner. The words used are 'he has for a
period of, or for periods aggregating not leas than five years been a Judge of
the High Court. If the authors of the Constitution had so intended they would
have used some other words to Indicate that not only has he held the Office of
a Judge but also functioned or worked as a judge."
29. This view has been
reiterated in a later judgment reported as Supreme Court Bar Association v.
Federation of Pakistan (PLD 2002 SC 939) when the question of appointment of
Mr. Justice Faqir Muhammad Khokhar as Judge of the Supreme Court was raised
before this Court and the Court held as follows:--
"The
precise contention is that having not performed judicial functions as a Judge
of the Lahore High Court for a period of five years he was not qualified for
appointment as a Judge of the Supreme Court and his appointment was also hit by
the cardinal principle of natural justice 'no one should be a judge in his own
cause' on account of the pivotal role of the incumbent of the office of Law
Secretary in the process of the Constitutional appointments. This contention
too is without any substance as it is incompatible with the provisions of
Article 177 of the Constitution and ignores the law laid down by this Court in
Malik Ghulam Jilani v. Mr. Justice Muhammad Gul (1978 SCMR 110). With regard to
experience, Article 177 of the Constitution only provides that a person shall
not be appointed as a Judge of the Supreme Court unless he has been a Judge of
a High Court for a period of or for periods aggregating not less than five
years and does not prohibit appointment of a Judge of a High Court as a Judge
of the Supreme Court who has not worked as a Judge of the High Court for a
period of five years.
The
disqualification set up by the petitioners cannot be read into Article 177 of
the Constitution. Mr. Justice Faqir Muhammad Khokhar was appointed as a Judge
of the Lahore High Court on 10th December, 1996 and as Secretary Law, Justice
and Human Rights' Division on 1st January, 2000. Having held the office as a
Judge of the Lahore High Court for a period of five years he fulfilled the
experience related Constitutional requirement on the eve of his appointment as
a Judge of the Supreme Court. Besides, the issue was addressed and settled in
the case of Justice Muhammad Gul wherein it was held that contention that a
'person in order to be qualified for appointment as a Judge of the Supreme
Court must have had experience of functioning as a Judge of High Court for five
years was not correct. In that case also Mr. Justice Muhammad Gul was
Secretary, Ministry of Law and Parliamentary Affairs, Government of Pakistan,
at the time of his appointment as a Judge of the Supreme Court and the
appointment was challenged through a writ petition under Article 199 of the
Constitution on the ground that he did not fulfil the requirement of Article
178(2) of the Interim Constitution, 1972 that a person shall not be appointed
as a Judge of the Supreme Court unless he has for a period of or for periods
aggregating not less than five years been a Judge of a High Court. The writ
petition was dismissed in limine by a Division Bench of the Peshawar High Court
and the petition for special leave to appeal was dismissed by this Court, inter
alia, with the following observations:--
"The
phraseology of Article 178(2) of the Interim Constitution does not bear out the
intent attributed to it by the petitioner. The words used are he has for a
period of, or for periods aggregating not less than five years been a Judge of
the High Court. If the authors of the Constitution had so intended they would
have used some other words to indicate that not only has he held the office of
a Judge but also functioned or worked as a Judge."
Somewhat
similar principle was laid in Hira Singh and others v. Jai Singh etc. (AIR 1937
Allahabad 588) wherein at page 590 it is held as follows:--
"4.
All that section 220(4) requires is that every person appointed to be a Judge
of a High Court shall, before he enters upon his office, make and subscribe
before the Governor or some other person appointed by him an oath according to
the form prescribed. The oath is necessary before entering upon his office as a
Judge. As already pointed out, Bajpai, J. entered upon his office as a Judge of
this Court long ago and took the oath which was then prescribed under Clause 3
of our Letters Patent. The mere fact that he has now been made a permanent
Judge does not mean that he "enters upon his office" as a Judge of this
Court afresh, necessitating a fresh oath which is required for a person who
enters upon his office for the first time. If this were not the correct
interpretation, then the result would be that every time that an additional
Judge's term is extended, he would have to take a fresh oath. This is contrary
to the established practice of this Court. It may also be pointed out that
under section 223 of the Act the powers of the Judges of a High Court in
relation to the administration of justice in this Court are the same as
immediately before the commencement of Part 3 of this Act." (Emphasis is
supplied)
30. In Federation of
Pakistan v. Sindh High Court Bar Association (PLD 2012 SC 1067), this Court
held that notification for appointment as permanent Judge of the High Court
shall have effect from an earlier date when four other Judges were notified.
The Court observed as follows:--
"Referring
to the arguments of Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court, we
may further add here that it is well recognized and settled principle of legal
jurisprudence that if an illegal action/wrong is struck down by the Court, as a
consequence, it is also to be ensured that no undue harm is caused to any
individual due to such illegality/wrong or as a result of delay in the redress
of his grievance. It is for this reason that in number of judgments of the apex
Court, out of which two have been referred to above, in service matters,
concept of reinstatement into service with original seniority and back benefits
has been developed and followed on case to case basis to give complete relief
to an aggrieved party. Following the same equitable principle, while passing
our short order, we have specifically mentioned that the issuance of
notification for permanent appointment of the two Judges shall have its effect
from 17-9-2011 when four other recommended of the Commission in the same batch
were notified after clearance by the Committee, so that they shall have their
respective seniority and all other benefits as permanent judges of the High
Court." (Emphasis is supplied)
31. Similarly in
Application by Abdul Rehman Farooq Pirzada regarding pensionary benefits of the
Judges of Superior Courts from the date of their respective retirements,
irrespective of their length of service as such Judges (PLD 2013 SC 829), this
Court granted equal pensionary benefits to Additional Judges as it found no
difference between the two as defined in Article 260(1)(c)(b) of the
Constitution. We find that even in service matters, while considering the
seniority of civil servants, the seniority is reckoned from the date of initial
appointment and not from the date of confirmation or regularization.
32. There is force in the
argument of learned Attorney-General that eversince the creation of this
country, the practice has been to reckon the seniority from the date of initial
appointment as Additional Judge of the High Court. The appointment of Mr.
Justice Anwar ul Haq, the former Chief Justice of Pakistan is a case in point.
He was appointed as an Additional Judge of the West Pakistan High Court on
24-10-1959 and was made a permanent Judge on 24-10-1962 whereas the other two
Judges of the same Court namely Mr. Justice Moulvi Mushtaq Hussain and Mr.
Justice Sardar Muhammad Iqbal were appointed as permanent Judges directly on
1-10-1962 which is prior to the date when Mr. Justice Anwar ul Haq was made
permanent i.e. on 24-10-1962. However, he always ranked senior to both of them.
He confirmed on Court query that there is no contrary precedent. No wonder,
learned Attorney General further confirms, that none of the Judges whose
seniority is a point in issue in the instant case of the Lahore High Court has
made any representation with regard to their seniority as Judge, which
presently has been determined from the date of their initial appointment as
Additional Judges of the Lahore High Court. In the history of the Lahore High
Court
(http://courtsofpakistan.wordpress.com/all-courts-of-pakistan/lahore-high-court-history),
it is recorded that:--
"On
10th February, 1985, the Administration Committee of the High Court considered
the recommendations of a Sub-Committee appointed to look into the question of
inter se seniority of the Judges of the High Court and decided (i) that Judge
who was younger in age, when the appointment was made in the same batch,
whether from the Bar or from the Service; (ii) that if two or more Judges were
appointed from the Service in the same batch, they would retain their Service
seniority as existing on the day of their appointment and, (iii) that if two or
more Judges were appointed from the Bar and from the Service in the same batch,
then the junior Judge from the Service would rank after the senior Judge from
the service, even though he may be older in age to any Judge appointed from the
Bar.
In
1985, one of the Judges who had come in the batch in November, 1981, and had
claimed seniority over three others, attempted to settle his account vis-a-vis
another brother Judge by seating himself as the senior Judge. This resulted in
an unhappy situation, on coming to know of it, the Chief Justice, Mr. Justice
Javed Iqbal, hurriedly convened a meeting of the Administration Committee on
10th February, 1985, where the above decision regarding seniority was taken.
This decision required confirmation of the Full Court. Apprehending
unpleasantness at the meeting that would be held for the purpose, it was
decided that views of all the Judges be obtained by circulation. On receipt of
the views, the Chief Justice referred the matter to the Law Ministry. The
Ministry took it to the President, who was the appointing authority for the
High Court Judges. It was directed by the President that an equitable principle
consistently adopted in regard to inter se seniority of Judges, appointed by a
single order, was that service Judges appointed with that of candidates from
the Bar, the Service Judges should retain their existing seniority in the
Department, regardless of their age, which of course would be determining
factor in respect of their seniority vis-a-vis candidates from the Bar. While
conveying this directive of the President to the High Court, vide letter
No.12(5)/86-AII, dated 20th April, 1987, the Ministry asked the High Court to
revise its seniority list accordingly and send the revised list to the Ministry
for onward transmission to the President's Secretariat (Public), but this was
never done and the further batch of Judges that came in July, 1983, March,
1984, and October 1988, had some complaints and though all the Judges aggrieved
by their incorrect rankings attempted to secure justice, all the Chief
Justices, one after the other, felt paralysed and avoided to take a decision.
The oldest High Court in the country could not find a Chief Justice brave
enough to implement the President's letter, or have the matter solved one way
or the other.
The
above President's ruling is clear that Judges who come in one batch, should
first be ranked in order of seniority by age. The next question as to how a
Service Judge who is junior in age to another Service Judge, but otherwise
senior to him in Service, is to be placed, has not been clearly stated is the
senior Service Judge to be taken out of his normal place and placed one
position ahead of the junior Service Judge, or the junior Service Judge to be
taken out of his normal place and placed one position below the senior Service
Judge. Till this is answered, the difficulty will remain."
33. However,
notwithstanding the disconcerting episode referred to above in the history of
the Lahore High Court, the fact remained that by and large in all the High
Courts of Pakistan the inter se seniority of Judges of the High Courts was
determined with reference to the order/date of their initial appointment as
Additional Judges under Article 197 of the Constitution. On a query from this
Court, the Registrar of the Lahore High Court intimated that vide notification
dated 4-8-1994, following 20 persons were appointed as Additional Judges of the
Lahore High Court under Article 197 of the Constitution, which incidentally
included the author:--
(1) Ch. Khurshid
Ahmad Advocate, Faisalabad.
(2) Raja Abdul Aziz
Bhatti, Advocate, Rawalpindi
(3) Rao Naeem
Hashim Khan Advocate, Sahiwal
(4) Miss
Fakhar-un-Nisa Begum Advocate, Multan
(5) Mr. Arif Iqbal
Bhatti Advocate, Lahore
(6) Mr. Amir Alam
Khan President, Lahore High Court Bar Association, Lahore
(7) Mr. Tassaduq
Hussain Jillani Additional Advocate-General Punjab, Multan
(8) Miss Talat
Yaqub Advocate Lahore
(9) Mr. Mohammad
Asif Jan Advocate, Lahore
(10) Mr. Sharif Hussain Bokhari
Advocate Lahore
(11) Mrs. Nasira Javed Iqbal
Advocate Lahore
(12) Mr. Ahmad Saeed Awan
Advocate, Faisalabad
(13) Ch. Iftikhar Hussain Dy
Attorney-General Islamabad/Rawalpindi
(14) Mr. Javed Ahmad Butter
Advocate, Lahore
(15) Mr. Riaz Hussain Advocate,
Jampur
(16) Mr. Muhammad Aaqil Mirza
Advocate Lahore
(17) Mr. Karamat Nazir Bhindari
Advocate Lahore
(18) Rana Muhammad Arshad Khan
Additional Advocate-General Punjab
(19) Mr. Abdul Hafeez Cheema
District and Sessions Judge Lahore
(20) Ch. Muhammad Nasim
District and Sessions Judge, Bahawalpur
34. On 1st of June, 1995,
following 11 out of 20 Judges were made Judges while the remaining in the same
batch continued to be Additional Judges:--
(1) Mr. Justice Ch.
Mushtaq Ahmed Khan
(2) Mr. Justice
Raja Abdul Aziz Bhatti
(3) Mr. Justice
Arif Iqbal Hussain Bhatti
(4) Mr. Justice
Abdul Hafeez Cheema
(5) Mr. Justice Ch.
Muhammad Naseem
(6) Mr. Justice Ch.
Khurshid Ahmed
(7) Mr. Justice
Ahmed Saeed Awan
(8) Mr. Justice
Fakhur-un-Nisa Khokhar
(9) Mr. Justice
Iftikhar Hussain Chaudhry
(10) Mr. Justice Tassaduq
Hussain Jillani
(11) Mr. Justice Muhammad Aqil
Mirza
35. For a short period,
by order of the then Chief Justice of the Lahore High Court, the
afore-mentioned Judges were made senior to those of the same batch who
continued to be Additional Judges. However, subsequently on 19th of March,
1996, when those Additional Judges were made Judges of the Lahore High Court
under Article 193 of the Constitution, the seniority list of those who were
made Judges earlier vide notification dated Ist of June, 1995 was altered and
the seniority was re-determined with effect from the date when they were
appointed as Additional Judges.
36. Similarly on a query
from this Court, the Registrar of the Peshawar High Court confirmed this
practice. Vide his letter dated 13-5-2014 addressed to the Registrar of this
Court, he has referred to various instances in which this principle was
followed. The letter reads as follows:--
"Subject:
SENIORITY OF HON'BLE JUDGES
Dear
Sir,
Apropos
telephonic ......................., the following instances have been found:-
(1) In the year
1994, the following three Hon'ble Judges were elevated vide notification dated
5-6-1994 as Additional Judges of this Court;
(i) Hon'ble
Mr. Justice Jawaid Nawaz Khan Gandapur (From Cadre, Date of Birth 17-1-1943)
(ii) Hon'ble
Justice Mrs. Khalida Rachid (From cadre, Date of Birth 25-9-1949)
(iii) Hon'ble Mr. Justice
Nasir-ul-Mulk (From Bar, Date of Birth 17-8-1950)
Accordingly
seniority list was issued in the same order.
Subsequently
vide notification dated 31-5-1995, Hon'ble, Justice Mrs. Khalida Rachid and Mr.
Justice Nasir-ul-Mulk were confirmed while the tenure of Hon'ble Mr. Justice
Jawaid Nawaz Khan Gandapur as Additional Judge was extended vide notification
dated 31-5-1995. On this a fresh seniority list was issued on 18-10-1995 in
which Hon'ble Mr. Justice Jawaid Nawaz Khan Gandapur was placed junior to the
other two Hon'ble Judges.
Vide
notification dated 30-9-1996 the appointment of Hon'ble Mr. Justice Jawaid
Nawaz Khan Gandapur was regularized, therefore, a fresh seniority list was
issued on 8-10-1996 in which again Hon'ble Mr. Justice Jawaid Nawaz Khan
Gandapur was placed senior to the other two Hon'ble Judges on the basis of age.
(2) The second
instance is that vide No. F.8(1)/97-AII dated 1-2-1997, the following Hon'ble
Judges were elevated:-
(i) Hon'ble
Mr. Justice Malik Hamid Saeed (From Bar, Date of Birth 4-4-1943)
(ii) Hon'ble Mr.
Justice Shah Jehan Khan (From Bar, dated 3-4-1950)
(iii) Hon'ble Mr. Justice
Tariq Pervez Khan (From Bar, date of Birth 15-2-1948)
The
then Hon'ble Chief Justice of this Court vide letter dated 24-2-1997 brought to
the notice of Minister of Law, Justice and Parliamentary Affairs that since
Hon'ble Mr. Justice Tariq Pervez Khan was elder than Hon'ble Mr. Justice Shah
Jehan Khan, therefore, the seniority was re-determined vide notification dated
17-3-1997 and Hon'ble Mr. Justice Tariq Pervez Khan was placed senior to Mr.
Justice Shah Jehan Khan.
(3) The third
instance is that vide notification dated 13-12-2007 the following Hon'ble
Judges were elevated:-
(i) Hon'ble
Mr. Justice Shaji Rehman Khan (From Cadre, Date of Birth 14-8-1949)
(ii) Hon'ble Mr.
Justice Ghulam Mohayuddin Malik (From Cadre, Date of Birth 13-1-1950)
(iii) Hon'ble Mr. Justice
Syed Yahya Zahid Gillani (From Cadre, Date of Birth 27-4-1953)
(iv) Hon'ble Mr. Justice
Ziauddin Khattak (From Cadre, Date of Birth 19-2-1995)
(v) Hon'ble Mr.
Justice Syed Mussaddiq Hussain Gillani (From Cadre, Date of Birth 1-1-1953)
(vi) Hon'ble Mr. Justice
Muhammad Alam Khan (From Bar, Date of Birth 15-1-1949)
Subsequently,
another seniority list was issued on 18-8-2008 wherein Mr. Justice Muhammad
Alam Khan being elder than the other Hon'ble Judges of his batch was placed
senior to them."
37. Vide notification
dated 1-2-1997 following Judges were appointed as Additional Judges of the
Peshawar High Court and the inter se seniority mentioned in the notification
dated 1-2-1997 was as under:--
(1) Malik Hamid
Saeed
(2) Shah Jehan Khan
(3) Tariq Pervez
38. However, the Hon'ble
Chief Justice of Peshawar High Court sent a letter on 24-2-1997 to the then
Secretary Law with a request that their inter se seniority be determined on the
basis of age since all the afore-referred Judges were appointed the same day.
The letter reads as follows:--
"My
dear Law Secretary,
Please
refer to your Notification No. F.8(1)/97-AII dated Ist February, 1997 whereby
Mr. Justice Malik Hamid Saeed, Mr. Justice Shah Jehan Khan and Mr. Justice
Tariq Pervez were appointed as additional Judges of this Court.
The
inter se seniority mentioned in the Notification is as under:
(1) Malik Hamid
Saeed
(2) Shah Jehan Khan
(3) Tariq Pervez
The
date of birth of the 3 additional Judges is as under:-
(1) Mr. Justice
Malik Hamid
Saeed 4-4-1943
(2) Mr. Justice
Shah Jehan Khan 3-4-1950
(3) Mr. Justice
Tariq
Pervez 15-2-1948
All
the 3 additional Judges had taken oath of office on one and the same day,
namely, Ist of February, 1997. Therefore, Mr. Justice Tariq Pervez being elder
in age is to rank senior to Mr. Justice Shah Jehan Khan. Their inter se
seniority may, therefore, be re-determined accordingly."
39. The Judicial
Commission of Pakistan in its meeting dated 13-2-2014 while deciding the
question of confirmation of Additional Judges/their appointment as Judges
followed this practice and held that the inter se seniority of Judges shall be
reckoned from the date of their initial appointment as Additional Judges. A
reference to the minutes of the said meeting would be pertinent in this regard,
which record as under:--
"(2) The Secretary
informed that Chief Justice, Peshawar High Court has recommended the names of
the two batches of Additional Judges for confirmation. The Additional Judges in
the first batch were initially appointed in 2012 but their tenure was extended
for another year, whereas the Additional Judges in the second batch were
appointed in March 2013 and therefore are due for confirmation or otherwise.
The names are:-
First
Batch
(1) Mrs. Irshad
Qaiser
(2) Mr. Shah Jehan
Khan Akhundzada
(3) Mr. Asadullah
Khan Chamkani
(4) Mr.
Rooh-ul-Amin Khan
Second
Batch
(5) Syed Afsar Shah
(6) Mr. Muhammad
Daud Khan
(7) Mr. Abdul Latif
Khan
(8) Malik Manzoor
Hussain
(9) Mr. Ikramullah
Khan
(10) Ms. Musarrat Hilali
(11) Mr. Lal Jan Khattak
(3) The Chairman
invited the Chief Justice, Peshawar High Court to brief the members about the
nominations initiated by him. The Chief Justice responded that he has, in
consultation with the Senior Puisne Judge, considered and initiated
simultaneously the names of both the batches of Additional Judges for
confirmation, so as to ensure that inter se seniority of Additional Judges in
the two batches is not disturbed. The Senior Puisne Judge endorsed the views of
the Chief Justice, Peshawar High Court."
40. The Commission
ultimately decided to confirm Additional Judges as Judges in terms as
follows:--
"(5) The Commission had
in-depth discussions about the professional caliber, legal acumen, judicial
skills, quality/quantum of judgments, commitment/devotion to duty of the
Additional Judges, and decided by consensus as follows:
A. The Additional Judges
at serial 1 to 4 and 7 to 11 are recommended for confirmation.
B. The
Additional Judges at serial Nos. 5 and 6 are recommended for extension for one
year with effect from the date of expiry of their tenure.
C. The seniority of
the Additional Judges in the two batches shall be reckoned from the date of
their initial appointment, and so reflected in the notification."
41. There is yet another
letter dated 25-7-2012 which the Registrar of the Peshawar High Court, Peshawar
had sent to the Secretary Law, Government of Pakistan requesting that the
seniority of Additional Judges appointed the same day should be determined on
the basis of age and not the length of their practice at the Bar. The letter
reads as follows:--
"Subject: SENIORITY
AMONG THE JUDGES OF PESHAWAR HIGH COURT
Dear
Madam,
The
President of Pakistan vide Notification No. F.7 (1)/2012-AII dated 19-7-2012
has appointed four new additional judges of this court in the sequence as
under:
(1) Mrs. Irshad
Qaiser
(2) Mr. Shah Jehan
Khan Akhundzada
(3) Mr. Rooh ul
Amin Khan
(4) Mr. Asadullah
Khan Chamkani
I
am directed to say that appointment of a judge or additional judge of the High
Court, being a Constitutional post, is an elevation and not promotion,
therefore, length of service or practice as an advocate at the Bar is not the
criteria to be taken as yardstick for fixing seniority among them when some of
the judges are from service and some from the Bar. The reasonable criteria
would be that a judge senior in age has to be considered senior to younger one
in the above mentioned circumstances. However, judges from service when are
elevated to the bench, then of course their seniority is to be reckoned on the
basis of length of continuous service.
Keeping
in view the practice prevailing in this court and the letter of Mr. Justice
Irshad Hassan Khan the then Federal Secretary Law bearing No. 126 of the year
1986 Secretary (L) dated 12-6-1986, the seniority of the above mentioned
additional judges would be as under:-
|
S #
|
Name of Hon'ble Judges
|
From
|
Date of Birth
|
|
1
|
Mr. Justice Asadullah Khan
Chamkani
|
Bar
|
21-3-1954
|
|
2.
|
Mrs. Justice Irshad Qaiser
|
Service
|
16-6-1954
|
|
3
|
Mr. Justice Shah Jehan Khan
Akhundzada
|
Service
|
21-1-1957
|
|
4
|
Mr. Justice Rooh-ul-Amin Khan
|
Bar
|
1-4-1961
|
I
am, therefore, to request you to refix the seniority and also inform this court
if any other uniform policy has been adopted for the determination of seniority
among the Judges of the High Court."
42. It appears that the
then Secretary Law, Government of Pakistan was conscious of this long standing
practice and in response to a query from the High Courts in this context,
addressed letters to Hon'ble Chief Justices of all the High Courts and apprised
them of this long standing practice. The letter addressed to the Chief Justice
of Sindh High Court reads as follows:--
"No.F.12(5)186
-AII, Dated
20-4-1987
GOVERNMENT OF PAKISTAN
MINISTRY OF JUSTICE AND PARLIAMENTARY
AFFAIRS (JUSTICE DIVISION)
Subject:
SENIORITY LIST OF HIGH COURT JUDGES
My
Dear Chief Justice,
Please
refer to the correspondence resting with High Court of Sindh letter No. Gaz-IV,
Z. 14(i) dated the 30th March, 1987, on the subject noted above.
(2) An equitable
principle consistently adopted in this regard is that Judges whose appointments
are made by a single order, take seniority according to age. If the appointment
of two or more service candidates is also simultaneously made with that of
candidate from the Bar, the service Judges will retain their existing seniority
in the department regardless of their age which of course would be the
determining factor in respect of their seniority vis-a-vis candidates from the
Bar. This principle has the approval of the President.
(3) I am to request
you to please confirm whether the seniority list of Sindh High Court Judges has
been prepared in the light of the above principle.
With
kind regards.
Yours sincerely,
Sd/-
(Irshad Hasan Khan)"
43. It would be pertinent
to refer to yet another letter dated 6-8-1997 from Registrar of the High Court
of Balochistan, Quetta, addressed to the Registrar of the High Court of Sindh,
Karachi, which reads as follows:--
"With
reference to your letter No. GAZ/IV.8.26 (Seniority) dated 31-7-1997, on the
subject captioned above, it is submitted that this Court has been following the
decision of Lahore High Court, on the question of inter se seniority of Judges
who are elevated to the Bench on the same day that "a Judge older in age
shall rank senior to a Judge who is younger in age when an appointment is made
in the same batch whether from the Bar or from the Services". On this
formula, the question of inter se seniority of Hon'ble Mr. Justice (Retd.) Mir
Hazar Khan Khoso and Mr. Justice Munawar Ahmed Mirza, was determined. It may
further be pointed out that in the meeting of Chief Justices' Committee held on
31st October, 1996 at Murree, it was decided that "such disputes relating
to seniority of Judges can be resolved by the Chief Justices of the concerned
High Courts."
44. On a query from this
Court about the principle being followed in determining the inter se seniority
of Judges appointed as Additional Judges (under Article 197) and made Judges
(under Article 193) on later dates, the Hon'ble Chief Justice of the Sindh High
Court vide his letter dated 16-5-2014 has candidly stated that barring one
exception, the seniority lists of the Judges of the High Court of Sindh, issued
from time to time, seem to be consistent with the criteria laid in the
aforesaid order (short order of this Court dated 6-5-2014 in the instant case).
(Emphasis is supplied) The letter reads as follows:--
"Karachi, dated: 16th May, 2014
Mr.
Justice Tassaduq Hussain Jillani,
Honourable Chief Justice of Pakistan
Supreme Court Building,
Islamabad.
Dear
Sir,
As
directed by your Lordship, I am enclosing herewith documents pertaining to the
seniority of the High Court Judges from our record as per the list attached
hereto.
Amongst
the documents, the two letters at Sr. Nos. 1 and 2 are self-explanatory,
whereas reading of the second para at page-55 of the Minutes of the meeting,
listed at Sr. No. 3, would convey the gist of the decision as contained
therein. However, the dissenting note attached to the said Minutes seems to be
more in line with the order dated 6-5-2014, authored by your Lordship in C.P.
No.09/2014.
The
other documents are seniority lists of the Judges of the High Court of Sindh,
issued from time to time, which seem to be consistent with the criteria laid
down in the aforesaid order." (Emphasis is supplied)
I
remain
Yours faithfully,
-sd-(Maqbool Baqar)
Chief Justice
Sindh High Court"
45. The only exception to
which the learned Chief Justice of the Sindh High Court has alluded to is the
decision of the Administration Committee dated 12-11-1997. The reasoning given
by the Committee was:--
"In
this background, it was manifest that when two sets of persons were separately
appointed, one as regular Judges under Article 193 and the other as Additional
Judges under Article 197, such appointments could not be equated for
determination of seniority, more so when the appointments were not in the same
batch. In this context it was obvious to the Committee that an Additional
Judge, if and when subsequently appointed as a Judge, would rank as a Judge
from the date of his appointment and from the date he took oath of his office
as such Judge and the appointment as Judge could not be related back to the
point of time when his appointment as Additional Judge or administration of
oath as such Additional Judge came about. The conclusion, therefore, was that
Mr. Justice Nazim Hussain Siddiqui, who was appointed independently under a
notification pursuant to Article 193, as a Judge, was senior to those who were
appointed on the same date through a separate notification under Article 197,
as Additional Judges."
46. In the light of the
above, the Committee determined the inter se seniority of 5 Judges in terms as
under:--
(1) Justice Nazir
Hussain Siddiqui
(2) Justice Mrs.
Majida Rizvi
(3) Justice Ali
Muhammad Baloch
(4) Justice Deedar
Hussain Shah
(5) Justice Rana
Bhagwandas
47. The reasoning given
by the Administration Committee, we may observe with respect, is against the
Constitutional intent and the law declared. Because, first, it does not take
into account Article 260(1)(c) wherein a Judge in relation to a High Court
includes an Additional Judge. Second, when an Additional Judge is made a Judge
(permanent) and takes fresh oath, it does not mean that he has entered the
office of a Judge freshly. Third, the decision of the Administration Committee
is not in accord with the law laid down in Ghulam Jillani v. Mr. Justice
Muhammad Gul (1978 SCMR 110) and Supreme Court Bar Association v. Federation of
Pakistan (PLD 2002 SC 939), Justice Faqir Muhammad Khokhar's case) wherein the
service as Additional Judge was treated at par with service as Judge of the
High Court in view of Article 177(2)(a) which lays down qualifying period for a
Judge of the Supreme Court of at-least 5 years as Additional Judge or Judge of
the High Court "for periods aggregating, not less than five years".
48. It may be pointed out
that an Hon'ble Judge of the Sindh High Court had given a dissenting opinion
(Mr. Justice Amanullah Abbasi). This appears to be in consonance with
Constitutional provisions and practice being followed. The dissenting opinion
was:--
"The
meeting of special administrative committee was held on 12-11-1997. I had
agreed to the minutes which were to be recorded. After the meeting I
reconsidered the entire matter again and I feel that there are some areas of
difficulty.
The
first area of difficulty is that the honorable Chief Justices in the meeting
held on 31st August, 1996 had decided that the disputes relating to seniority
of Judges can be resolved by the Chief Justices of the concerned High Courts.
The then Chief Justice of High Court of Sindh Mr. Justice Mamoon Qazi was
present in the same meeting and in pursuance of decision he decided the dispute
of seniority by his order dated 1-11-1997. The Para No. 7 of his order is as
under:-
"Consequently,
unless the full court before which the matter is still pending final decision
or the appointing authority as the case may be, comes to a different
conclusion, Justice Ms. Majda Rizvi, Mr. Justice Ali Muhammad Balouch, Mr.
Justice Deedar Hussain Shah and Mr. Justice Rana Bhagwandas are to be
considered senior to Mr. Justice Nazim Hussain Siddiqi. "
The
then honorable Chief Justice has left it for the full court to come to
different conclusion and till full court takes contrary view, the order of the
then Chief Justice will have to prevail. It has not lapsed as full court has
not taken a contrary decision. The grievance of Mr. Justice Nazim Hussain may
be placed before full court because this is one way where by contrary decision
can be arrived at. In case full court agrees with the order of the then Chief
Justice then the matter will stand resolved in accordance with decision of
Chief Justices dated 31-8-1996.
The
2nd era of difficulty relates to the dispute of seniority, Mr. Justice Nazim
Hussain was appointed as permanent Judge by notification dated 5-6-1994. The
other honorable Judges who are claiming to be senior to Mr. Justice Nazim
Hussain were also appointed on the same date that is 5-6-1994 as additional
Judges. Mr. Justice Nazim Hussain claims seniority on the ground that he was appointed
as permanent Judge under Article 193 of the Constitution and other honorable
Judges were appointed as Additional Judges under Article 197, his case was
separate and different. As against this the case of honorable Judges is that
they and Mr. Justice Nazim Hussain were appointed on the same date, regularized
on the same date from the date of initial appointment and took oath on same
date, therefore, the principal mentioned in letter of Ministry of Justice and
Parliamentary Affairs dated 20-4-1987 be followed as according to this
principle senior in age will become senior. At this stage I find it necessary
to reproduce relevant portions of notifications dated 30-9-1996.
1st Notification
"The
President is pleased to regularize the appointment of Mr. Justice Nazim Hussain
Siddiqi Judge of the High Court of Sindh from the date of his appointment as
such"
2nd Notification
"The
President is pleased to regularize the appointment of following Judges of the
High Court of Sindh as additional Judges and appoint them Judges of the said
Court from the date of their appointment as additional Judges.
The
2nd Notification includes names of Justice Ms. Majda Rizvi, Mr. Justice Ali
Muhammad Balouch, Mr. Justice Deedar Hussain Shah and Mr. Justice Rana
Bhagwandas. They have been appointed as Judges from the date of appointment as
additional Judges that is 5-6-1994. Therefore the initial appointment of Mr.
Justice Nazim Hussain as Judge and the other honorable Judges is on the same
date. The other honorable Judges have been made Judges from the date of their
initial appointment. Although there are separate notifications but one
seniority list has to be maintained. Therefore the principle of senior in age
to be senior is to be followed.
On
administrative side we cannot say that 2nd notification is incorrect. There is
no bar in Constitution which restricts the power of President to give
retrospective effect to appointment so far as the notification remains in
field. It has to be followed and decision will have to be taken in accordance
with the rights conferred by the notification. Apart from this the two
notifications were issued in pursuance of decision of the Supreme Court
reported in PLD 1996 SC 324. This fact is also mentioned in the two
notifications mentioned above."
49. An examination of the
practices/precedents from the High Courts in determining the inter se seniority
of Judges (appointed under Articles 193 and 197 of the Constitution) would
indicate that in all cases seniority was determined with effect from the date
of the initial appointment as Additional Judges and in accordance with the
principle laid down in the letter dated 20-4-1987 issued by the Ministry of
Justice and Parliamentary Affairs. The solitary exception from Sindh would not
offset the effect of the consistent practice being followed by the High Courts
in this regard and the said practice may qualify to be called a Constitutional
convention. Moreover the order of the Administration Committee of the Sindh
High Court was an administrative order and does not have even the trappings of
a judicial order. An administrative decision would not assume the character of
a precedent to be followed but a judicial decision may assume such a character.
To appreciate the distinction (between an administrative and judicial
decision), a reference may be made to a judgment of Indian Supreme Court
reported as Jaswant Sugar Mills v. Lakshmi Chand (AIR 1963 SC 677) wherein
while defining a judicial decision, it was held:--
"A
judicial decision is not always the act of a judge or a tribunal invested with
power to determine questions of law or fact: it must however be the act of a
body or authority invested by law with authority to determine questions of
disputes affecting the rights of citizens and under a duty to act judicially. A
judicial decision always postulates the existence of a duty laid upon the
authority to act judicially. Administrative authorities are often invested with
authority or power to determine questions, which affect the rights of citizens.
The authority may have to invite objections to the course of action proposed by
him, he may be under a duty to hear the objectors, and his decision may
seriously affect the rights of citizens but unless in arriving at his decision
he is required to act judicially, his decision will be executive or
administrative. Legal authority to determine questions affecting the rights of
citizens, does not make the determination judicial; it is the duty to act
judicially which invests it with that character. What distinguishes an act
judicial from administrative is therefore the duty imposed upon the authority
to act judicially. AIR 1950 SC 222, Rel. on.
To
make a decision or an act judicial, the following criteria must be satisfied:
(1) it is in
substance a determination upon investigation of a question by the application
of objective standards to facts found in the light of pre-existing legal rules;
(2) it declares
rights or imposes upon parties obligations affecting their civil rights; and
(3) that the
investigation is subject to certain procedural attributes contemplating an
opportunity of presenting its case to a party, ascertainment of facts by means
of evidence if a dispute be on question of fact, and if the dispute be on
question of law on the presentation of legal argument, and a decision resulting
in the disposal of the matter on findings based upon those questions of law and
fact."
50. Can the consistent
practice being followed in determining the inter se seniority of Judges be
called a Constitutional convention? The question as to what is a Constitutional
convention has been a subject of judicial debate in several jurisdictions. In a
case decided by the Supreme Court of Canada reported at [1981] 2 SCR 753, the
Court while elaborating the concept of convention observed that requirements
for establishing a convention are:--
"2.
Requirements for establishing a convention
The
requirements for establishing a convention bear some resemblance with those
which apply to customary law. Precedents and usage are necessary but do not
suffice. They must be normative. We adopt the following passage of Sir W. Ivor
Jennings, The Law and the Constitution (5th ed., 1959) at p. 136:
We
have to ask ourselves three questions: first, what are the precedents;
secondly, did the actors in the precedents believe that they were bound by a
rule; and thirdly, is there a reason for the rule? A single precedent with a
good reason may be enough to establish the rule. A whole string of precedents
without such a reason will be of no avail, unless it is perfectly certain that
the persons concerned regarded them as bound by it."
51. The Court referred to
Professor W. Hogg (Constitutional Law of Canada, 1977), who while explaining
the concept of Constitutional convention, said:--
"Conventions
are rules of the constitution which are not enforced by the law courts. Because
they are not enforced by the law courts they are best regarded as non-legal
rules, but because they do in fact regulate the working of the constitution
they are an important concern of the constitutional lawyer. What conventions do
is to prescribe the way in which legal powers shall be exercised. Some
conventions have the effect of transferring effective power from the legal
holder to another official or institution. Other conventions limit an
apparently broad legal power, or even prescribe that a legal power shall not be
exercised at all.
If
a convention is disobeyed by an official, then it is common, especially in the
United Kingdom, to describe the official's act or omission as
"unconstitutional". But this use of the term unconstitutional must be
carefully distinguished from the case where a legal rule of the constitution
has been disobeyed. Where unconstitutionally springs from a breach of law, the
purported act is normally a nullity and there is a remedy available in the
courts. But where "unconstitutionality" springs merely from a breach
of convention, no breach of he law has occurred and no legal remedy will be
available. If a court did give a remedy for a breach of convention, for
example, by declaring invalid a statute enacted for Canada by the United
Kingdom Parliament without Canada's request or consent, or by ordering an
unwilling Governor General to give his assent to a bill enacted by both houses
of Parliament, then we would have to change our language and describe the rule
which used to be thought of as a convention as a rule of the common law. In
other words a judicial decision could have the effect of transforming a
conventional rule into a legal rule. A convention may also be transformed into
law by being enacted as a statute."
52. In a book edited by
Dawn Oliver and Carlo Fusaro titled as 'How Constitutions Change', the authors
have adverted to the conventions in Constitutional law in Canada and said as
under:--
"The
Constitution of Canada also includes informal principles. These are
Constitutional conventions that inform the way in which the formal
Constitutional powers are to be exercises. A well established institution in
the UK, conventions guide most government behaviour and detail the aspects of
governance that the written Constitution does not address. They are not legally
binding and hence, by definition, cannot form part of the formal Constitution.
That said, they enjoy de facto Constitutional supremacy because the political
culture in Canada has rendered them binding. Moreover, while a court will not
enforce conventions, it also will not shy away from considering them in
interpreting formal principles. Finally, the court may transform a convention
into a common law rule.
It
is difficult to account for the creation of Constitutional conventions. Indeed,
by virtue of their informality, they require no set procedure to be followed
prior to their recognition. Generally, conventions come into existence in two
different ways; through practice over time or through an explicit agreement
between all the relevant actors. For conventions that come about through
practice, there is no established period of time that must pass before the
practice obtains 'convention' status. Some scholars have argued that a reliable
indicator of convention status is the moral obligation that attaches itself to
the practice over time. For example, the fact that members of Parliament feel
bound to follow the practice because they believe it is a principle of higher
law, is evidence that the practice has in fact obtained that higher law
status."
53. The Canadian Supreme
Court adopted the definition of constitutional convention propounded by the
Chief Justice of Manitoba, Freedman C.J.M. in the Manitoba Reference, supra,
and at pp. 13-14, held as under:--
"What
is a constitutional convention? There is a fairly lengthy literature on the
subject. Although there may be shades of difference among the constitutional
lawyers, political scientists, and Judges who have contributed to that
literature, the essential features of a convention may be set forth with some
degree of confidence. Thus there is general agreement that a convention
occupies a position somewhere in between a usage or custom on the one hand and
a constitutional law on the other. There is general agreement that if one
sought to fix that position with greater precision he would place convention
nearer to law than to usage or custom. There is also general agreement that
"a convention is a rule which is regarded as obligatory by the officials
to whom it applies". Hogg, Constitutional Law of Canada (1977), p.9. There
is, if not general agreement, at least weighty authority, that the sanction for
breach of a convention will be political rather than legal.
It
should be borne in mind however that, while they are not laws, some conventions
may be more important than some laws. Their importance depends on that of the
value or principle which they are meant to safeguard. Also they form an
integral part of the constitution and of the constitutional system. They come
within the meaning of the word "Constitution" in the preamble of the
British North America Act, 1867."
54. The mode of
determining inter se seniority of High Court Judges has been consistent in all
the four Provinces, barring one time deviation when the Administration
Committee of Sindh High Court followed a different course. It is normative
because it has been found by us to be more in accord with equity and
Constitutional intent reflected in various provisions of the Constitution. Thus
it has assumed the character of a Constitutional convention.
55. For what has been
discussed above, this petition is dismissed. These are the detailed reasons of
our short order dated 6-5-2014, which reads as follows:--
"For
reasons to be recorded later in the detailed judgment, we hold and declare as
under:-
(i) that the
inter se seniority of Judges of a High Court shall reckon from the order and
date of their appointment as Additional Judges of that Court;
(ii) that the inter
se seniority of Additional Judges of a High Court appointed vide the same order
and date shall reckon from their seniority in age. If appointment of two or
more service candidates is simultaneously made with that of the candidates from
the Bar, the service Judges shall retain their existing seniority in the
department regardless of their age, though that would be the determining factor
in respect of their seniority vis-a-vis the candidates from the Bar. This
principle has consistently been followed without exception ever-since the
establishment of the High Courts in Pakistan and is even otherwise in accord
with the equitable dispensation of justice.
(2) With the above
observations and declaration, this petition is dismissed."
|
Sd/- Tassaduq Hussain Jillani,
C.J.
|
|
|
Sd/- Nasir-ul-Mulk, J. Sd/- Anwar
Zaheer Jamali, J.
|
Sd/- Asif Saeed Khan Khosa, J.
Sd/- Ejaz Afzal Khan, J.
|
Petition dismissed.
ASIF
SAEED KHAN KHOSA, J.---I have had the privilege of perusing the proposed
judgment authored by the honourable Chief Justice and I am in respectful
agreement with the conclusions drawn and the declarations made therein. I may,
however, very briefly record some supplemental reasons for reaching such
conclusions and making such declarations.
2. It is
proverbial and universally acknowledged that the Constitution of a country is a
living organism and the case in hand is a case in point. It demonstrates how
the original words of a Constitution assume different meanings, the initial
concepts envisaged therein undergo metamorphosis and the earlier schemes
contained in the same evolve and transform into different mechanisms with
passage of time, changed circumstances and sprouting requirements.
3. There is
no denying the fact that over the last century and a half since 1861 the
concept and utility of the office of an Additional Judge of a High Court in the
Indo-Pak sub-continent have undergone a significant transformation and the same
is manifestly evident from the changing and varying provisions of section 7 of
the East India (High Courts of Judicature) Act, 1861, section 3 of Act No. 18
of 1911 amending the Indian High Courts Act, 1861, section 222 of the
Government of India Act, 1935, Articles 217 and 224 of the Constitution of
India, 1950, Articles 166 and 168(2) of the Constitution of Pakistan, 1956,
Article 2 of the Courts (Additional Judges) Order, 1958, Article 96 of the
Constitution of Pakistan, 1962 and Articles 193, 197 and 175A of the
Constitution of the Islamic Republic of Pakistan, 1973. A Judge who was
initially required only to "act" as a Judge of a High Court and was
meant to be only a temporary Judge appointed by way of a stopgap arrangement
for a period of a few days, weeks or months in order to cater for a temporary
exigency in a High Court later on came to be known as an "Additional
Judge", his services became time bound rather than being exigency based
and all and sundry started accepting that his appointment was not by way of a
stopgap arrangement but he was passing through different stages of appointment
as a Judge which stages could span over a period of one year, two years or
sometimes even three years. Over time some changes introduced through different
Constitutions or constitutional instruments themselves started indicating that
instead of an exigency based appointment an appointment of an Additional Judge
of a High Court could be made for a period to be fixed by a law and later on in
the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi
and others v. Federation of Pakistan and others [PLD 1996 SC 324] this Court
had declared that "a practice/convention had developed in Pakistan that in
the High Courts Judges are first appointed as Additional Judges --------- and
then they are appointed as permanent Judges" and that upon satisfactory
completion of his term as an Additional Judge of a High Court a person could
entertain a legitimate expectation of being appointed as a Judge of that Court
on a permanent basis. This metamorphosis in the concept attached to an
Additional Judge of a High Court has gradually led to a conceptual readjustment
vis-a-vis the initial constitutional scheme pertaining to the said office and
the practice developed in this field over the last many decades has been so
consistent that it can be said to have matured into a convention which has been
accepted by all concerned without any demur or departure.
4. It has
been argued by the learned counsel for the petitioner that at the time of his
appointment to the office of an Additional Judge of a High Court a person
enters upon that office upon making of an oath and then upon his appointment as
a Judge such Additional Judge makes another oath before entering upon that
office and, thus, the two offices are different and by virtue of the provisions
of Article 194 read with clause (3) of Article 255 of the Constitution of the
Islamic Republic of Pakistan, 1973 a term of office of a Judge starts from the
day he makes oath of the office of a Judge and, therefore, his seniority in
that office cannot be reckoned with reference to the earlier date of his
appointment as an Additional Judge. Such an argument may appear to be quite
appealing at its surface but the same cannot withstand deeper judicial
scrutiny, particularly in the backdrop of the transformed concept and utility
of an Additional Judge as observed above. Such an argument conveniently
overlooks the fact that the qualifications now prescribed by the Constitution
for an Additional Judge of a High Court are the same as those stipulated for a
Judge of such Court, the process of appointment of an Additional Judge is the
same as that of appointment of a Judge, the Constitution does not provide for a
separate and different oath of office for an Additional Judge and before
entering upon the said office an Additional Judge has to make the same oath
which is prescribed by the Constitution for a Judge of a High Court. Apart from
that the said oath of office is prescribed by the Constitution itself and by
virtue of the provisions of clause (1) of Article 260 of the Constitution a
"Judge" in relation to a High Court includes an "Additional
Judge" of that Court. In this view of the matter on the basis of the
changed and altered concept and utility of an Additional Judge of a High Court
and also on account of an evolved understanding of the constitutional scheme in
this regard besides the practice vis-a-vis such appointments developed over the
last many decades I feel no hesitation in holding that now a Judge of a High
Court is appointed in many stages and that his appointment as an Additional
Judge marks the first and initial stage and his final and formal appointment as
a Judge is the culminating stage of such appointment. Under the present
dispensation and understanding an Additional Judge's subsequent appointment as
a Judge is not an appointment to a new office but through such appointment his
initial appointment as an Additional Judge matures and merges into the office
of a Judge. Looked at from this angle and perspective the subsequent oath made
by such Judge is nothing but in continuation of his earlier oath, particularly
when the subsequent oath is the selfsame oath which he had already made before
entering upon the office of an Additional Judge. By making the said oath as an
Additional Judge he had already entered the office of a Judge and his
subsequent oath as a Judge only reinforces and confirms his position in that
office. It is, thus, with reference to making of the first oath as an
Additional Judge that seniority of a Judge is to be reckoned and such is the
spirit of the transformed scheme of the Constitution as we understand it today.
5. Apart from
what has been observed above I consider such mode of determination of seniority
of a Judge of a High Court to be a safer mode for the purpose as it obviates
the chances of tinkering or fiddling with the seniority of a Judge by the
Judicial Commission of Pakistan or the Parliamentary Committee by delaying the
matter of his nomination and confirmation as such or by the Government of
Pakistan by delaying issuance of the notification of appointment of an
Additional Judge as a Judge for reasons which may be manufactured or contrived.
Considered from this angle the mode of determination of seniority of a Judge of
a High Court being declared through the judgment in the present case is likely
to foster and advance the constitutional mandate regarding "fully"
securing the independence of the judiciary.
MWA/M-27/SC Order
accordingly.
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