Law:

Section:

(a) Income Tax Ordinance (XLIX of 2001)-------S. 130(3)---Constitution of Pakistan, Art. 193(2)---Judicial Member of Income Tax Appellate Tribunal, appointment of--- Eligibility criteria---Minimum age---Scope---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001---Interpretation of said words by way of referential legislation---Federal Public Service Commission (FPSC) published an advertisement seeking applications for appointment of Judicial Members, Income Tax Appellate Tribunal---Minimum age for applicants was set at 40 years--- Both the respondents, who were below 45 years of age at the closing date for receipt of applications, complied with the recruitment procedure and were appointed as Judicial Members, Income Tax Appellate Tribunal---Plea that S.130(3) of Income Tax Ordinance, 2001 provided that a person could only be appointed as a Judicial Member of the said Tribunal if he was qualified to be a Judge of the High Court, for which minimum age of 45 years was provided under Art.193(2) of the Constitution, therefore, respondents were not qualified to be appointed---Validity---For appointment as Judicial Member of Income Tax Appellate Tribunal, two categories of persons had been provided under S.130(3) of Income Tax Ordinance, 2001, one who had exercised powers of District Judge and the other who had been an advocate of High Court, and both categories of persons were required to fulfil one common qualification i.e. they should be qualified to be a Judge of the High Court---Article 193(2) of the Constitution provided that for appointment as a Judge of the High Court, a person had to be not less than 45 years of age---Although said minimum age was reduced to 40 years by way of Constitution (Second Amendment), Order, 2007, but said amendment was declared to be unconstitutional and void ab initio by the Supreme Court, thus the Constitution continued to lay down an age of not less than 45 years---Words "qualified to be a Judge of High Court" used in S.130(3)(a) & (b) of Income Tax Ordinance, 2001 incorporated by way of referential legislation the whole text and tenor of Art.193(2) of the Constitution,…

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