SINDH HIGH COURT BAR ASSOCIATION vs FEDERATION OF PAKISTAN through Secretary Ministry of Law, Justice and Human Rights, Islamabad and 4 others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHARY, C.J.---This petition has been filed by the Sindh High Court Bar Association with the following prayer:-- "The petitioner, therefore, prays that his Hon'ble Court may be pleased:--

(i) To declare that the respondents No,3 and 4 are and continue to be Judges of the High Court of Sindh and would continue as Additional Judges till 25th August, 2010 and that their term of appointment has not expired as opined by Justice Abdul Hameed Dogar; i) To declare and direct Registrar of the High Court of Sindh that the respondent should be assigned regular work as Judges of the Sindh High Court;

(iii) To issue writ of mandamus directing the respondents to act in accordance with Constitution and the Law in the matter of appointment of Judges, in particular, the respondents Nos. 3 and 4, further directing the continuance of respondents Nos. 3 and 4 to perform functions and duties as Judges of the High Court of Sindh unless justiciable reasons are placed on record to ignore the recommendations by constitutional consultees asked through office memorandum dated 13th March, 2009;

(iv) To issue directions to the respondent No,1 and the Registrar of the High Court of Sindh to place the entire record of proceedings of consultation leading to issuance of notification dated 12th March, 2009 before this Hon'ble Court;

(v) To issue a writ of mandamus to appoint the respondents Nos. 3 and 4 as permanent Judges of the High Court of Sindh under Article 193 of the Constitution of the Islamic Republic of Pakistan; i) To grant costs of the petition; and

(vii) To grant any other relief or reliefs as may be considered appropriate and just in the circumstances of the case."

2. The learned counsel contended that respondents Nos. 3 and 4 (Mr. Justice Zafar Ahmed Khan Sherwani and Mr. Justice Abdul Rasheed Khalwar were illegally directed to cease to hold office in pursuance of the Proclamation of Emergency of 3rd November, 2007, which was incorrectly validated by a 7 Member Bench of this Court in the case of Tikka Iqbal Muhammad Khan v. General Pervez Musharraf PLD 2008 SC 178 holding, inter alia, that the Judges who had not taken oath under the Provisional Constitution Order, 2007 (PCO 2007) had ceased to hold office. According to the learned counsel this judgment was per incuriam in view of the 12 Member Bench judgment in the case of Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 wherein it was held in unambiguous terms that after the pronouncement of this judgment, no Judge of a Superior Court could be removed except by following the procedure laid down in Article 209 of the Constitution, According to him, in the case of Tikka Iqbal Muhammad Khan, the judgment in the case of Zafar Ali Shah was not examined in the correct perspective. Therefore, the judgment of the 12 Judges would prevail.

3. The learned counsel further contended that the respondents Nos.3 and 4 were reappointed for a period of one year vide Notification dated 26-8-2008, which, in effect, was the revival of their original appointment as they were given the seniority position prevailing on 2nd November, 2007.

He pointed out that later on vide Notification, dated 15-9-2008 the period of their appointment as Additional Judges of the High Court was extended for six months with effect from the date when their present term expired. Thus, according to the learned counsel this period of six months would be added to the earlier period of appointment as Additional Judges, which was to expire on 25-8- 2009 and for all intents and purposes they would be entitled to continue their service as Additional Judges up to 25-2-2010. He submitted that although the Chief Justice, High Court of Sindh earlier misunderstood and misinterpreted the Notification dated 26-8-2008 and 15-9-2008, but on a representation made by the respondents Nos. 3 and 4, corrected the error and assigned them Court work. Subsequently, the Ministry of Law as well as the then incumbent of the office of Chief Justice of Pakistan, through their separate letters, interpreted the Notifications dated 26-8-2008 and 15-9-2008 in a manner that their period of appointment as Additional Judges had already expired, which according to the learned counsel, was not the correct interpretation of both the Notifications.

4. The learned counsel also contended that without prejudice to his plea with regard to the interpretation of the Notifications, dated 26-82008 and 15-9-2008, the Chief Justice and the Governor of Sindh both recommended the two Additional Judges for their appointment as permanent Judges under Article 193 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel maintained that after recommendation of the Chief Justice and the Governor of Sindh regarding permanent appointment of the respondents Nos. 3 and 4, in view of the law laid down in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324, the respondents ought to have been appointed accordingly.

5. Issue notice to the respondents for filing of parawise comments/written statement, if desired by them, in the meanwhile, notice be also issued to the learned Attorney-General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 read with Order XXIX of the Supreme Court Rules, 1980 as important questions regarding interpretation of the constitutional provisions are involved in the case. Let the parawise comments/written statement be filed within a period of three weeks and on receipt of the same, the case shall be listed for hearing.

C.M.A. No,1032 of 2009

6. Notice in the miscellaneous application be also issued.