GOVT. OF PUNJA Versus MUHAMMAD MAHMOOD, ADVOCATE

ORDER

1. NASIM HASAN SHAH, J‑‑This petition for leave to appeal is directed against the order dated 1‑3‑1988 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.4702 of 1987.

2. The relevant facts are that the petitioners in Writ Petition No.4702 of 1987 and the petitioners in the connected writ petitions were candidates for the posts of Additional District and Sessions Judges in Punjab. According to the said petitioners, they had taken an examination conducted by the Lahore High Court and having qualified in the written examination as well as having done well in the interview, which was conducted by a Committee of three Senior Judges of the High Court, they were expecting to be appointed as Additional District and Sessions Judges because the appointment to the said posts is to be made by the Provincial Government on the recommendation of the High Court. However, in the list of appointees, which was subsequently published in the Press, they were surprised to see that some of the appointees were persons who had not passed the written test and had not even been called for the interview while the others, according to their belief, had been placed below them. Considering, therefore, that these appointments had not been made on the recommendation of the High Court they filed writ petitions in the High Court praying that "the appointment of respondents Nos.3 to 20 as Additional District and Sessions Judges be struck down and declared to be null and void and of no legal effect."

3. The learned Single Judge, before whom the writ petitions were placed for disposal, sent for the Advocate‑General at pre‑admission stage to clarify the matter. The learned Advocate‑General appeared before the Court on 23‑11‑1987 and also submitted parawise comments on behalf of the Government of the Punjab (respondent No.2 therein). In the‑ aforesaid comments, it was submitted that respondents Nos.3 to 20 were appointed as Additional District and Sessions Judges strictly in accordance with the recommendation of the Lahore High Court. Since this assertion was difficult to accept on its face value in so far as amongst the appointees were persons who had failed in the written test and had not even been called for interview by the Committee of the High Court dealing with the matter, it was prayed by the writ petitioners that the letter of recommendation sent by the High Court on the basis of which the appointment had been allegedly made, should be produced before the learned Judge with a view to confirming the veracity of the stand taken by respondent No.2 before the Court. This prayer was opposed by the learned Advocate‑General.

4. The learned Judge after hearing the parties passed an order on 29‑11‑1987 directing the Advocate‑General to produce the relevant letter. This order was expressed in the following words:‑

5. "It appears to me that the perusal of the letter of recommendation is essential to the just decision of the case. The Advocate‑General will, therefore, produce the recommendation letter in original or a copy thereof on 12‑12‑1987."

6. The Provincial Government feeling dissatisfied with the above order moved this Court seeking leave to appeal against this interim order. This petition was disposed of by this Court on 13‑1‑1988 with, inter‑alia, the following observations:‑

7. "The learned Advocate‑General, Punjab categorically stated (on instructions) that the appointment of respondents Nos. 5 to 22 had been made strictly in accordance with the recommendation of the High Court. He vehemently urged that his only worry was that such a recommendation between the Chief Justice of the High Court and the Chief Executive of the Province, made by the former during the performance of his official duties has never been previously required to be produced in a Court of law and that such a precedent may encourage even the civil judges to requisition the record of the High Court, which would be highly detrimental to the prestige and dignity of the Institution, namely, the High Court.

8. His second grievance was that he was not given sufficient opportunity to argue this question and make his submissions ,on the matter, by the learned Single Judge hearing the case.

9. We have no doubt that the High Court itself would be more conscious, than anyone else, of its obligation to protect and maintain the prestige, honour and dignity of the Institution. Knowing the administrative structure of the High Court and its practice in dealing with such matters, we are sure that the learned Chief Justice and Judges of the High Court can, in their wisdom and sagacity, themselves resolve the question in issue, best.

10. It is quite possible that, in the peculiar circumstances of this case, the learned Judge hearing the matter may himself have had the same purpose in mind when he required the letter in question to be produced. He probably did so in order to ascertain the correct position and thus put an end to the controversy, because the production of the recommendation may be more conducive to the maintenance of the prestige and dignity of the Institution than withholding it.

11. All that the Advocate‑General seeks is further opportunity to canvass his point of view.

12. Mr. Raza Kazim, Advocate appearing for the caveators?respondents has fully agreed with this plea of the learned Advocate‑General.

13. The petition is, therefore, disposed of with the observation that the learned Advocate‑General Punjab may move the learned High Court for further opportunity to canvass his point of view, before h6 is required to comply with the Court's order .dated 29th November, 1987" .

14. Accordingly, the learned Judge in the High Court gave a further opportunity to the Advocate‑General to canvass his point of view but after hearing him at length was not persuaded to agree with him that he did not have the jurisdiction to send for the document in question. In this connection he observed:‑

15. "I have anxiously attended to the contentions of the learned Advocate‑General and am not persuaded to agree with him for the reasons that the letter relates to the subject‑matter challenged in this writ petition to which Government of the Punjab is a party; that in comments, the Government of the Punjab has relied on this letter; that in view of the plea of the petitioners that the appointments were made by the Government in utter disregard of the recommendation of the Lahore High Court and the unambiguous stand taken by the Government of the Punjab in parawise comments that the appointments have been made strictly in accordance with the recommendation of the Lahore High Court, Lahore, the letter has become a pivotal document and its examination is material for the just determination of the controversy. If the argument of the learned Advocate‑General is pushed to the extent of saying that this Court can never ask the Government to show the document on which it claimed to have acted upon then how would a Court be able to satisfy itself that the Government had really acted on the recommendation sent by the High Court."

16. Copious references were made by the learned Judge to the relevant provisions. of law to show that the Court has unquestionably the power to send for any document whether privileged or not privileged, from Government or person in whose possession or power the document may be and that the Government /person so directed is bound under the law to obey the sub‑poena and bring the document to the Court notwithstanding any reservation he may have.

17. Even with regard to the document which the Government or person in whose custody the document may be, desired to claim privilege it was observed:‑

18. "Where such a claim is made, the general rule is that the Court can look at document to determine the claim, as the contents of the document are the best evidence of existence or non‑existence of privilege claimed. But if the privilege is claimed on the ground that the document relates to the affairs of the State which means matter of public nature in which State is concerned and disclosure of which will be prejudicial to the public interest or endangers national defence or is detrimental to good diplomatic relations, then the general rule ceases to apply and the Court shall not inspect the document or show it to the opposite party unless the validity of the privilege claimed is determined."

19. Dealing with the plea of the Advocate‑General that the production of the document may cause injury to the prestige of the Institution (High Court), the learned Judge observed that far from doing so the production of the letter before the Court would enhance the dignity, prestige, honour and supremacy of the Court as well further the rule of law. However, in his anxiety to resolve the controversy, the learned Judge directed the Advocate‑General to produce the letter received by the Government before him to enable him to ascertain the correct position. A(,~nrdingly. a direction was issued to the Government of the Punjab (respondent Nn‑2) "to send recommendatory letter of the High Court for the appointment of respondents Nos.3 to 20 as Additional District and Sessions Judges which was received by it from the High Court through responsible officer of the department concerned within 15 days from today. The officer so deputed will bring the letter in a sealed cover and will deliver the same to the Registrar of the Lahore High Court, Lahore, for safe custody".

20. The learned Judge went on to add‑

21. "I would like to .make it clear that the letter will not be indiscriminately put on record or offered for inspection to the petitioners. After the compliance of this order, by way of delivering the letter in sealed cover to the Registrar of this Court, it would be open to Government of the Punjab, respondent No. 2, to appear on the next date and raise objection, if any, to the inspection of the document."

22. This order was passed on 1‑3‑1988 and the Government of the Punjab has again come up to this Court seeking leave to appeal against the above order.

23. The learned Advocate‑General, in support of this petition, has submitted that in view of the fact that a presumption of regularity and correctness attaches to all official acts and the fact that this presumption was further fortified by a statement in writing by the Government that the appointments in question had been made in pursuance of the recommendations of the High Court and also in view of the fact that this presumption, despite a lapse of about five months, stood unrebutted, unchallenged and uncontroverted on record, there was no justification for an investigation into such unrebutted facts by way of summoning the letter emanating from the Hon'ble Chief Justice of the High Court and addressed to the Chief Minister of the Province carrying recommendations for appointments to the offices of the Additional District and Sessions Judges. The learned Advocate‑General further submitted that before passing the order for summoning the letter, the High Court should have first determined the question about the maintainability of the writ petition, especially when it was strenuously submitted that the writ petitioners did not have any vested right to be appointed to the posts of the Additional District and Sessions Judges and, in view of this situation, the document in question was not at all relevant for adjudication of their case.

24. We have considered these submissions made by Mr. Khalil Ramdey in support of this petition but we are not inclined to agree with him that the order of the High Court is against law or improper.

25. Under Article 4 of the Constitution of 1973 to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and any Authority charged with the duty of deciding a matter affecting the rights of other persons is obliged to do so in accordance with law and the law alone. In the present case, however, according to the writ petitioners an action injurious to their right of being appointed to a post and gaining a livelihood thereby was being affected and that they were being deprived of it by an action taken by the Provincial Government contrary to the provisions of the relevant law, although under the Constitution A they were entitled to be dealt with by law and only in accordance with law. In other words, their case was that while the law applicable to them required that appointments to the posts of the Additional District and Sessions Judges were to be made only on the basis of the recommendation of the High Court but in the instant case the appointments appeared manifestly not to be based on the recommendation of the High Court in so far as amongst the persons who were appointed there were persons who had failed in the written test taken by the High Court and were not considered fit for being summoned for the interview; hence could not have possibly been recommended for appointment.

26. In the above circumstances, the stand taken by the Advocate?General before the learned Judge of the High Court that the appointments made by the Government were made strictly on the recommendation of the High Court could hardly be accepted readily and could legitimately raise a doubt as to it being quite accurate. The summoning of the letter of recommendation sent by the High Court to the Provincial Government and which was now a document in custody of the Government would have resulted in allaying all such doubts and clarifying the situation. The refusal and the insistence not to produce it was only resulting in strengthening the and doubts‑ Hence, the learned Judge in the High Court was fully justified, in the circumstances, in requiring that the relevant letter be produced before him, especially as no privilege was being claimed in regard to its production. Indeed, even if such a claim was made it would have been untenable, as explained by the learned Judge in his very able and fully considered judgment. In fact, the same view h‑ been taken by this Court in Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (P L D 1969 SC 14 at page 35?

27. The upshot is that no good ground for granting leave to appeal has been made out and this petition must fail. The document requisitioned by the High Court shall now be produced as directed by the learned .fudge in his order dated 1‑3‑1988, within two weeks from today. Order accordingly.

28. M.B.A./G‑87/S ??????????????????????????????????????????????????????????? Petition dismissed.