Law:

Section:

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Ss. 43 (2-A) & 44----Notification No. LD/AD/372-412/2011 dated 24.02.2011---Writ of quo warranto---Maintainability and pre-requisites---Appointment of Judge of High Court---Consultation process---Validity---Qualification for appointment, relevancy of---Perks and Privileges under illegal appointment---Recovery---Permissibility---Nisi, Rule of---Applicability---Petitioners challenged the elevation process along with appointment notification, whereby, the respondents had been elevated to the office of Judge of the High Court, and sought issuance of writ of quo warranto---One of the respondents having already retired, all benefits received by him under the impugned appointment notification were sought to be recovered---Petitioners contended that the proposal for appointment of the Judges submitted by the Chief Justice of the High Court did not include the name of one of the respondents, whereas, proposal by the Chief Justice of Azad Jammu and Kashmir did not contain the name of the other respondent---Letter written by the Chief Justice of the High Court could not be termed as "recommendation", "proposal" or "consultation"---Validity---High Court declared the impugned appointment notification intra vires the Constitution---Reasons elaborated. Petitioners, in the first instance, had to show that in view of the given facts of the case, the respondents were not holding the offices in question under the authority of law, but the petitioners had failed to discharge that burden. 1993 SCR 27 rel. Respondent/one of the appointees was serving as District and Sessions Judge before his elevation as the Judge of the High Court. After elevation, said respondent had performed his duties for more than four years until he had retired. Respondent was, therefore, neither holding any public office at time of filing of present petition, nor was he going to do so. Present petition was, therefore, not competent to the extent of said respondent, as conditions for issuance of writ of quo-warranto, one of which was to be in possession of the public office in dispute, had not been fulfilled. Question of issuance of…