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Civil Petitions Nos. 140, 141 of 1976 and 23 of 1977, decided on 28th June 1977.

----S. 35(3) read with Labour Laws (Amendment) Ordinance (IX of 1977), Sched. I-Constitution of Pakistan (1973), Art. 193-Presiding Officer of Labour Court, appointment of.-Person first enrolled as pleader in criminal and civil forums except Court of Judicial Commissioner, Baluchistan, later allowed to appear before Judicial Com missioner subject to certain conditions, and appointed Public Prosecutor and Government Pleader-Contention that appointment of such person as Presiding Officer of Labour Court was not justified in law and all orders passed by such Court are illegal and of no affect-- Held: Public Prosecutor's office-Not a judicial office - Public Prosecutor, hence, not a Judicial Officer-Judicial Commissioner's Court in Baluchistan-Not a High Court-Respondent enrolled in Judicial Commissioner's Court in Baluchistan only as a Pleader and not as Advocate-Respondent also not enrolled as an Advocate in any other High Court nor could he be treated to be an Advocate by implication-Appointment of respondent as Presiding Officer of Labour Court in contravention of provisions of S. 35(3) and illegal --Respondent's appointment not justifiable even by amendment intro duced by Ordinance IX of 1977 for reason of no previous permission of Federal Government having been obtained by Provincial Government to make such appointments.-[Judicial officer-Civil services].

Black's Law Dictionary, Revised Fourt3 Edn., p. 986 ; Ghulam Rasool v. Crown P L D 1950 Bal. 29 and Khan Hamidullah Khan v. Mst. Nuzir Begum P L D 1953 Lab. 98 ref

--- S. 35(3) react with Labour Laws (Amendment) Ordinance (IX of 1977), Sched. I -Presiding Officer of Labour Court, appointment of-- Under judicial scrutiny in High Court-Provincial Government and Public Service Commission, held, should have stayed hand from so -called regularisation of appointment and not remained ignorant, in their over-enthusiasm, even of latest amendment in law as well as of their powers whether they could regularise illegal appointment with retrospective effect.

final hearing on 10-5-1977 when a submission was made by Mr. Bashatatullah learned counsel for the respondent No. 1 and Mr. S. H. Jafri, learned counsel for respondent No. 2, Syed Abdul Haleem Shah in Petition No. 140/76 that since section 35, I, R. O , 1969 has been amended and the restriction placed there in respect of the qualifications for appointment of Presiding Officer, Lubour Court, Baluchistan that he should be qualified to be a Judge or Additional Judge of a High Court or served as a District Judge or Additional District Judge, has been removed by ordinance IX of 1977 and respondent No. 1's services also since have been regularised by the Government of Baluchistan through Public Service Commission vide Notification No. 9-2/77 Labour dated 20th April. 1977 the petitions have become infructuous which may be dismissed as such.

10. It is the case of all the petitioners that a simple reading of section 35 of I. R. O., 1969 makes it clear that a person who is not qualified for appoint ment in terms of section 35(3) cannot hold office of Presiding Officer, Labour Court and exercise any functions as such and that according to the informa tion of the petitioners, respondent No. 1 has never been appointed or acted as a District Judge or Additional District Judge nor is qualified to be appointed as a Judge or Additional Judge of a High Court. Under Article 193 of the Constitution, a person is not qualified to be appointed a Judge of High Court unless he has, for a period of, or for a period aggregating not less than 10 years, been an Advocate of a High Court.

11. That on inquiries made by the petitioners at the office of the Sind & Baluchistan Bar Council, Karachi and in the list of the Advocates available with said Bar Council, the name of respondent No. 1, does not appear as an Advocate of the High Court. It may be noted that respondent No. 1 has not denied this fact. It was further revealed teat respondents No. 1 had obtained a certificate from Judicial Commissioner, Baluchistan in 1947 authorising him to practise an a pleader in the criminal and civil forums except the Court of Judicial Commissioner in Baluchistan. The permission given by the Judicial Commissioner referred to above, dated 20-121947, is Annexure A' to the parawise Comments and reads as under;----

"Under the provisions of clause (r) of section 4 of the Code of Criminal Procedure, 1898 (V of 1898) and c1: use (15) of section 2 of the Code of Civil Procedure, 1908 (V of 1908) gas in force in British Baluchistan vide Schedule I to the British Baluchistan Law Regulation, 1913 (II of 1913), the J: C. is pleased to grant authority to Messrs Iqbal Mohammad Khan, B. A., LL. B., and Mohammad Moquim Ansari. M. A., LL. B. to practise in Civil and Criminal Courts of the Sibi and the Bolan, Nushki and Kachhi Railway District witty a special condition that they can appear in appeal of revision cases at Quetta arising out of the cases originating in the said District in which parties way engage them."

12. It appears that the respondent No. 1 alongwith Mr. Mohammad Muquim Ansari was granted another permission to practise in Baluctistan in Civil and Criminal Courts by the Judicial Commissioner which is Annexure 'B' dated 21-5-1948 on the terra and condition placed by the Judicial Commissioner speaks for itself. It reads as under:---

"Under the provisions of clause (r) of section 4 of the Code of Criminal Procedure, 1898 (V of 1898) and clause (15) of section 2 of the Code of Civil Procedure, 1908 (V of 1908) as in force in British Baluchistan vide schedule I to the British Baluchistan Law Regulation, 1913 (II of 1913), the Judicial Commissioner is pleased to grant authority to---

(1) Mr. Mohammad Muquim Ansari, M. A., LL.B, Pleader, Sibi.

(2) Mr. Iqbal Mohammad Khan, B. A., LL.B., Pleader, Sibi;

to practise in all the Civil and Criminal Courts of Baluchistan. In order to ensure that legal aid will be available to the public of Sibi District the above-named two pleaders shall visit Sibi regularly during the summer months and stay in Sibi continuously from 20th of April every year."

13. After utilizing the above conditional authority from 1948 to 1959. respondent No. 1, was appointed as Public Prosecutor and Government Pleader for Kalat an 17-1-1959 and continued in that capacity until he was appointed as Presiding Officer, Labour Court, Quetta on 10-9-1975. He was relieved of his duties as Public Prosecutor on 15-9-1975, vide Notification No. 343/AG dated 17-9-1975, published in Baluchistan Government Gazette of 19-9-1975. which is Annexure 'B' and reads as under-

"In pursuance of Notification No. 9-2/70-Labour dated 101h September, 1975, issued by the Government of Baluchistan, Labour, Health and Social Welfare Department, Quetta, the Advocate-General, Baluchis tan is pleased to relieve Mr. Iqbal Mohammad Khan, B. A., LL. B., of his duties as Public Prosecutor, Kalat with effect from 15-9-1975 forenoon.

Mr. Noor Muhammad Magsi, Public Prosecutor, Kachhi will perform the duties of -Public -Prosecutor, Kalatt in addition to his own duties till further order."

14. The main grounds raised by the counsel for the petitioner, there fore, are that the very appointment of respondent No. 1: as Presiding Officer Labour Court, is patently illegal because he did not have the requisite quali fication for appointment as required under section 35(3) of I. R. O., 1969 hence his appointment accordingly is null and void and without jurisdiction. That being so all the actions and proceedings taken by him and all orders passed as such are without jurisdiction and wholly incompetent and that he has no right or jurisdiction to entertain application of respondent N o. 2 against the petitioners and all proceedings taken and orders passed thereon by him are bad in law.

15. It may be pointed out that when the4; petitions were transferred from Karachi to Quetta and came for hearing learned counsel for he petitioners submitted that it has coarse to their knowledge that any Ordinance IX of 1977, section 35(3), I. R. O., 1969 has bean one ivied after 6 months of the filing of these petitions and even under the amended section 35(3) the respondent could be appointed to the post by the Provincial Government alter consultation with the Federal Government and decidedly no such permission from the Federal Government, as required by amended sec tion 35(3) has been obtained by the Provincial Government nor produced in the Court and it is also not in the case of respondent No. 1 that such permission has been accorded. The learned counsel submitted that although qualification clause has been removed by the amendment yet requisite of prior consultation with the Federal Government has not been made. It was also argued that in spite of the notification of the Government of Baluchistan dated 20th April, 1977, no change has taken place regarding

raise the status of the Court of Judicial Commissioner to that of a High Court.

28. It may also be noted that after Partition of Indo-Pak Sub-continent, Indian Legislature having been conscious of the difficulties had considered the politic n and raised the status of some more Courts by enacting Act No. XV of 1950 called the Judicial Commissioner's (.Declaration as High Courts) Act, 1950. But in Pakistan no such legislation was passed. Section 3 of India Act XV of 1950 reads as under :---

"3. Every Court in Part C. State knows, at tine commencement of this Act, as the Court of Judicial Commissioner for that State (hereinafter referred to as Judicial Commissioner's Court) is hpro6y declared to bb a High Court for the purposes of Articles 132, 133 and 134."

28-A. Apart from the above, there is also a reported judgment of the very Court of Judicial Commissioner, Baluchistan, Ghulam Rasool v. Crown (P L D 1950 Bal. 29) wherein it was held that the Judicial Commissioner's Court in Baluchistan is not a High Court and this clinches the controversy. The judgment being a short one is reproduced hero which speaks for itself;

"This is an application under section 205 of the Government of India Act, 1935 for the grant of a certificate to enable the applicant to file an appeal before the Federal Court of Pakistan against this Court's Order of the '29th August 1949 in Criminal Reference No. 14 of 1949.

It will be seen that section 205 of the Government of India Act is restricted in its application and applies exclusively to those cases in which a "Substantial question of law as to the interpretation of Government of India Act or any other in-Council made thereunder" is involved.

No question of interpretation of the Constitution Act was raised by the petitioner before this Court and dealt with by the latter in its order of 29th August 1949 against which the petitioner proposed to lodge an appeal in the Federal Court. Learned counsel for the petitioner does not appear to have taken a correct view of section 205 of Constitution Act.

Another consideration, which in my opinion is of great significance and which debars an application of this nature rude to this Court is that Judicial Commissioner's Court in Baluchistan is not included in the list of Courts in section 219 of Government of India Act which alone constitutes High Courts for the purpose of section 205 of the aforesaid Act."

29. In view of the clear provision of Article 219 (1) of the Government of India Act, as amended, and in view of Article 193 of the Constitution of the Islamic Republic of Pakistan coupled with the judgment of the l Judicial Commissioner s Court in Baluchistan, we are of firm opinion that the Judicial Commissioner's Court in Baluchistan was not a High Court and cannot be treated as such.

30. Although not necessary, but we must make a reference to letter No. 623/29 (52) I & J, dated 26th May 1956 from the Additional Registrar, High Court of West Pakistan, Quetta Circuit, Quetta, in reply to querries made by the Registrar, High Court of West Pakistan, Lahore, with regard's to the list of Advocates and pleaders practising in the High Court, Quetta circuit wherein respondent No. 1's name finds place in Category B, Serial No. 3 as a pleader and not as Advocate of any High Court. The letter is' reproduced hereunder which finds place at page No. 129 of file No. 29 of this Court;

"With reference to your letter No. 4147-Gen./XIlI P. 4, dated the 24th April 1955, 1 have the honour to enclose a list of Advocates and pleaders etc. who had the authority to practise in the former Lahore High Court, Sind Chief Court and Judicial Commissioner in Raluchistan's Court and continue to practise in various Courts of Qaetta-Kalat Division."

List of Advocates is as under;-----

1. Sh. Muhammad Arif, B. A., LL.B., Advocate, Lahore High Court

2. Dr. M. K. Saggu, M. A. D. C. L. Bar-at-Law

-do-

3. Malik Muhammad Ashrif, B. A., LL.B. -do-

4. Malik Karam Ellahi, M. A., LL.B. (Alig.)

-do-

5. Mirza Muhammad Ahmed, B. Sc., LL.B. - do-

6. Mirza Muhammad Nawaz Ahmed, B. A., LL. B., D. D. C. P. -do-

7. Mr. Atta Elahi Asim Malik,

Advocate, Sind B. A.,

LL.B. Chief Court

8. Mr. Yahya Bakhtiar, M. A., LL.B., Bar-at-Law

-do-

Those who were not Advocates of any High Court but were permitted to practise in the Court of Judicial Commissioner is Baluchistan.

1. Sh. Ghulam Sabir, R. A., LL. B.

2. Mir Muhammad Fazil Khan, M. A., LL.B.

3. Mr. Iqbal Muhammad Khan, B. A., LL.B.

4. Mr. Muhammad Muqim Ansari. M. A, LL.B.

5. Mr. Riyazul Hassan, B. A., LL.B.

6. Mr. Muftakharuddin, M. A. LL.B.

7. Mr. S. H. Jafri, M. A., LL.B.

8. Mr. Fazal-i-Raziq, B. A., LL.B.

31. Mr. Nasir Aslam zahid, learned counsel for the petitioner also relied upon Khan Hamidullah Khan v. Mst. Nazir Begum (P L D 1953 Lah. 98), wherein the entire question as to what is pleads; of the High Court or pleader of sub ordinate Court and the entitlement or otherwise of each class has been discussed and it was held amongst others by Muhammad Munir, C. J. that no person who is not entitled to practiss as a pleader in a High Court, can be described as a pleader of that Court, though he has been admitted by it under section 6 of the Legal Practitioners Act as a pleader and on the issue of a certificate under section 7 of that Act he is entitled to get himself enrolled in the Court or revenue offices mentioned in the certificate and on such enrolment he becomes entitled to practise H the enrolling Court or revenue office and the Courts and revenue offices subordinate thereto. I have, of any High Court has a restricted meaning and, apart from Advocates who are included in the definition of "pleader" by section 311 of the Constitution Act, only refers to pleaders who have been enrolled by non- chartered High Courts under section 6 of the Legal Practitioners Act in those Courts. A person who is not entitled to practise in a High court cannot be described as a pleader of that Court".

32. Apart from the above, the ratio of the judgment do not lend support to the contention of counsel for the respondent No. 1, that a pleader without being enrolled under a relevant Bar Council Act as an Advocate of a High Court can ay mare implication can be treated as an Advocate of a High Court by mere of the opinion that the Judicial Com missioner's Court, Baluchistan was never raised to the Stains of a High Court by any legislation, therefore, the claim of the petitioner that mere obtaining a permission to practise before the High Court entitled him by implication and to be treated as an Advocate of a High Court. It is a common sense when very Court is not a High Court and the respondent No. 1 was never enrolled as an Advocate he cannot be considered to be qualified as enrolled Advocate of a High Court.

33. Before parting with the cast: we are constrained to remark that Government of Baluchistan and Public Service Commission, Baluchistan should have stayed its hand from so-called regularisation of services order of respondent by Notification No. 9-2/77-Labour dated 20th April 1977 when they fully knew that this matter was subjudice before this Court, not to say that in their over enthusiasm Government of Baluchistan and Public Service Commission before passing the proper order remained blissfully ignorant even of the latest amended section 35 (3), I. R. O., 1969 as well as of the powers whether they can regularise some illegal appointment with retrospective effect. It appears they have not applied their mind at all to the case as required by law. Be that as it may, we refrain from issuing show-cause notice to Government of Baluchistan and the Public Service Commission this time, however, we cannot appreciate the manner in which respondent No. I, Iqbal Muhammad Khan's service were attempted to have been regularised by them knowing fully that the matter was pending for decision. Let a copy of this judgment be sent to the Chief Secretary, Govern ment of Baluchistan.

34. For the reasons given above, we accept these petitions with cost and hold that the Court of Judicial Commissioner, Baluchistan was not equal to a High Court and respondent No. 1, was and is not an Advocate of any High Court. He was a pleader and remained as much. That being position he was not qualified to be appointed as Presiding Officer, Labour Court, Quetta as required under section 35 (3) I R. O., 1969, nor he became qualified by the, latest amendment made under the Labour Laws 'Amendment) Ordinance, 1977. The net result is that the appointment of respondent No. 1 is without legal authority and bad in law.

S. A. H. Petition accepted.

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