M.D. TAHIR vs FEDERAL GOVERNMENT And 12 OTHER

ORDER

MUHAMMAD AFZAL LONE, .J.-- Through this writ petition the appointments of 11 Judges of this Court, who are respondents Nos.3 to 13 herein, made by the President vide Notification No. P.(8)(1)- A-II dated 24th October, 1988, in exercise of the powers conferred on him by Article 197 of the Constitution, is sought to be declared as illegal, arbitrary and without lawful authority.

2. We have heard the petitioner, who is an Advocate of this Court. His contention is that after the dissolution of the National Assembly, in contemplation of Art. 48(5) the President appointed a caretaker cabinet but without a Prime Minister; constitutionally these appointments had to be made on the advice of the Prime Minister, but not only there was no such advice, even the Chief Justice of the High Court was not consulted; the appointments are, therefore, wholly illegal.

3. Article 193 of the Constitution which deals with the appointments of the High Court Judges insofar as relevant for the purposes of this case, is, reproduced below:-- (1)A Judge of a High Court shall be appointed by the President after consultation- (a)with the Chief Justice of Pakistan; (b)with the Governor concerned; and (c)except where the appointment is that of Chief Justice, with the Chief Justice of the High Court."

(2)------------------------------------------------------------------------.

(3)------------------------------------------------------------------------.

The argument of the petitioner is that in making these appointments, the Federal Government bypassed the Chief Justice of the High Court and these were never routed through him. In order to highlight the connotation of the term "consultation" appearing m Article 193 the petitioner has drawn our attention to the Oxford English Dictionary, the Stroud's Judicial Dictionary and Law Lexicon by M.C. Desai.

4.In Oxford English Dictionary (1901 Ed) Vol. II, the word "consultation" is defined as:- "the action of consulting or taking counsel together; deliberation, conference."

In the Stroud's Judicial Dictionary, the definition of this word is more or less the same. It needs to be recorded that the petitioner did not object to the mode of "consultation" with the Chief Justice but contended that he was consulted not at all. This argument however, has no substance, for, per record of the Court, the names of the respondents for the office of the Judgeship were initiated and duly recommended by the Chief Justice. As regards the mode of consultation, as long as, there is reasonable passing of information, on the matter in issue, between the authorities concerned, the requirement of law is satisfied In Desai's Law Lexicon placed before us by the petitioner, it is clearly stated that the form of consultation B is not material but the substance is important.

5. As regards the absence of the advice of the Prime Minister similar argument was advanced before a Full Bench of this Court, in the case of Muhammad Sharif v. Federation of Pakistan PLD 1988 Lah. 725 but according to C the majority view interference in the matter, in exercise of discretionary power under Article 199 of the Constitution was not called for. After' hearing the petitioner we are not persuaded to act otherwise. In any case the Prime Minister does not find mention in Article 193, amongst the person, after consultation with whom the President is required to appoint the Judges.

It is Article 48(1) which ordains that in exercise of his functions the President shall act in accordance with the advice of the Cabinet or the Prime Minister. But Article 193 specifically deals with the appointments of the High Court Judges and it is well-settled that where D in a statute there are two provisions, one of which is of specific character and the other general one, then the specific provision ought to be .Applied unfettered by the general one. This principle has also been exhaustively discussed in Government of Punjab v. Naila Begum PLD 1987 Lah. 336 to which one of us (Lone, J.) was a party.

6. Towards the close of his submission the petitioner expressed a grievance that the batch of 11 appointees included three Advocate-Generals and two Deputy Attorney-Generals; that a number of competent and well deserving Advocates were available from the Bar who were not considered and undue favour was shown to the Law Officers. Obliquely, it was also urged that the President held the office for a short period, till the induction of the new Assembly and election for the office of the President thereafter; making of such a large scale appointments amounted to overstepping of the jurisdiction vested in him by law.

7. We are unable to agree with the petitioner. The Law Officers were not denuded of their status as Advocates; they fulfilled the qualifications laid down in the Constitution, for appointment as High Court Judges and as already observed they were the recommendeeds of the Chief Justice against whom the petitioner has not voiced any grievance. So far as the role of the President is concerned, he for that matter the Caretaker Government no doubt could not embark upon important policy matter or take sweeping decisions of far- reaching consequences but certainly they were expected to adequately run the day to day affairs of the Government and for that purpose, if deemed fit by them, conceivably they could also fill in the offices falling vacant. Needless to state that no motive has been assigned to the President, in making the appointments in question.

8.For all these reasons we do not find any merit in this petition. Dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.