| Citation(s) |
|---|
| 2021 SLG 820 2021 SLD 820 2021 YLR 470 |
Supreme Court (AJ&K)
Civil Appeals Nos. 113, 114, 111, 112, 115, 116 of 2020 and484 of 2019, decision Dated: 17th July, 2020, Dates ofhearing: 30th June and 1st July, 2020. (On appeal from thejudgment of the High Court 17.09.2019 in Writ Petitions Nos.1092, 1130, 1194, 12
GHULAM MUSTAFA MUGHAL, JUSTICE
Barrister Humayun Nawaz Khan, Advocate for Appellants (in Civil Appeal No. 113 of 2020).Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for
Respondents (in Civil Appeal No. 113 of 2020).Syed Shahid Bahar, Advocate for Appellants (in Civil Appeal
Civil Appeals Nos. 113, 114, 111, 112, 115, 116 of 2020 and484 of 2019, decision Dated: 17th July, 2020, Dates ofhearing: 30th June and 1st July, 2020. (On appeal from thejudgment of the High Court 17.09.2019 in Writ Petitions Nos.1092, 1130, 1194, 12
GHULAM MUSTAFA MUGHAL, JUSTICE
Barrister Humayun Nawaz Khan, Advocate for Appellants (in Civil Appeal No. 113 of 2020).Raja M. Hanif Khan and Bashir Ahmed Mughal, Advocates for
Respondents (in Civil Appeal No. 113 of 2020).Syed Shahid Bahar, Advocate for Appellants (in Civil Appeal
SARDAR JAVAID SHARIF, ADVOCATE, HIGH COURT OF AJ&K AND OTHERS VSGOVERNMENT OF THE STATE OF AZAD JAMMU AND KASHMIR THROUGH CHIEF SECRETARY AND OTHERS
Law: Azad Jammu and Kashmir Interim Constitution Act, 1974
Section: 432(2-A)
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--- ----Art. 43(2-A)---Judges of High Court of Azad Jammu and Kashmir (AJK), appointment of---Appointment process---Constitutionality---Consultation with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court---In the present case, the requirements regarding consultation process as stated in the Constitution of Azad Jammu and Kashmir and the precedents of the superior Courts were not fulfilled---Consultation had not been made in accordance with the spirit of the provisions of Art. 43(2-A) of the Constitution and the dictum laid down by the superior Courts---Supreme Court declared the appointments of the respondent-Judges, as ultra vires the Constitution and without lawful authority, but directed that validity shall be given to all the acts done by them as Judges on the basis of principle of de-facto doctrine including the drawing of the financial benefits etc.; and that the appointing authority shall initiate the fresh process for appointment against the vacant positions strictly in the light of the guidelines given in Muhammad Younas Tahirs case (PLD 2012 SC AJK 42). The phraseology of Article 43(2-A) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (the Constitution) was clear that the President was the appointing authority and the appointment of a Judge in the High Court shall be made on the advice of the Council and after consultation with the Chief Justice of Supreme Court (Azad Jammu and Kashmir) and Chief Justice of the High Court. The words after consultation cited in the said Constitutional provision were very significant, and provided a specific process of consultation for appointment of a Judge in the High Court. In terms of Article 43(2-A) of the Constitution the President shall initiate the process of consultation and the appointment of a Judge in the High Court shall be made after consultation, as prescribed by law, with both the Chief Justices at the same time, otherwise the process of consultation would be meaningless. Al Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and…
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