AJK SC verdict nullifies appointment of 5 High Court judges

Altaf Hamid Rao
MIRPUR (AJK) :      (Parliament Times)   The recently-appointed five of the judges of Azad Jammu Kashmir were Friday removed from their offices after the Supreme Court of Azad Jammu & Kashmir set aside their appointments being violative of the provisions of the Interim Constitution of Azad Jammu Kashmir 1974 declaring the appointments ultra vires the Constitution of the State and without lawful authority.Over special correspondent Altaf Hamid Rao report from Mirpur that the Supreme Court of Azad Jammu Kashmir comprising acting Chief Justice Raja Saeed Akram Khan and Justice Ghulam Mustafa Mughal while accepting the appeal from judgment of the AJK High Court, declared the appointments of above five judges of the AJK High Court against the provision of the article 43 of AJK Interim constitution 1974 besides declaring in its verdict announced in the State’s metropolis on Friday that the appointment was made without proper consultation.

“The appointments of the respondent-Judges including Mr. Raza Ali Khan, Mr. Muhammad Ejaz Khan, Mr. Khalid Yousaf Chaudhary, Raja Sajjad Ahmed Khan (private respondents) and Ch. Muhammad Munir, (District & Session Judge) made vide notification No.LD/AD/711-30/2018, dated 21.05.2018, are declared ultra vires the Constitution and without lawful authority, hence, the same are set aside”, the apex court said in its order issued on Friday.

The removed judges including Justice Raza Ali Khan, Justice Raja Sajaad Ahmed Khan, Justice Sardar Muhammad Ejaz, Justice Choudhry Khalid Yousaf and Justice Ch. Muhammad Munir had been appointed as judges of the AJK High Court by the President of Azad Jammu Kashmir on the advise of the AJK Council vide the notification No. LD/AD/711-30/2018, dated 21.05.2018.

The learned Supreme Court of AJK further declared that the consultation for appointment of the aforesaid five judges of the AJK High Court by the President of Azad Jammu Kashmir, both the chief justice of the AJK Supreme Court and the AJK High Court, was not in accordance with law laid down by the apex court of AJK in Muhammad Younis Tahir case and thus, was violative of article 43 of the AJK Interim constitution and set aside the appointments by accepting the appeal.

Through notification dated —– Mr. Justice Raza Ali Khan, Mr. Justice Raja Sajaad Ahmed Khan, Mr. Justice Sardar Muhammad Ejaz, Mr. Justice Khalid Yousaf and Mr. Justice Ch. Muhammad Munir were appointed as judges of the AJK High Court by the President of Azad Jammu Kashmir on the advise of the AJK Council.

The appointments of all of the aforesaid judges of AJK High Court were challenged by through separate writ petitions by a number of practicing lawyers from Azad Jammu Kashmir.

The writ petitions were disposed off by a consultative judgment, the appointment of the Judge Ch. Muhammad Munir was set aside, while the writ petition to the extent of other four judges were dismissed.

About two weeks back, after hearing the arguments, the apex court of AJK had reserved the judgment which was announced on Friday/+

The learned court validated all the acts performed by the judges while applying the defecto doctrine. The court also protected the emoluments and benefits received by the judges during their terms in the office.

“As we have held in paragraph No.13 of the judgment that the consultation for 134 appointment of all the five (5) Judges, respondents, herein, has not been made in the light of the spirit of the constitutional provisions as well as in accordance with the settled law, hence, there is no need to discuss the point; whether the appellant Ch. Muhammad Munir was eligible for appointment as Judge of the High Court at the relevant time or not, as it will be mere an academic discussion”, the learned apex court said.

“The compendium of the above discussion is that the appeals filed by the appellants in appeals No.111 to 116 of 2020, are hereby allowed. The appointments of the respondent-Judges, made vide notification No.LD/AD/711-30/2018, dated 21.05.2018, are declared ultra vires the Constitution and without lawful authority, hence, the same are set aside. Consequently, the offices of the private respondents are declared vacant, however, the validity is given to all the acts 135 done by them as Judges on the basis of principle of de-facto doctrine including the drawing of the financial benefits etc. The appellant, Ch. Muhammad Munir, before his elevation as Judge of the High Court was serving as District and Sessions Judge, therefore, he is reverted back to the said position. 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 Tahir’s case (supra)”, the apex court ordered in its judgment.

Renowned legal experts including Barrister Hamayun Nawaz Khan, Syed Shahid Bahar and Fayaz Ahmed Janjua, Advocates, appeared for the appellants.

Whereas seasoned jurists including Raja Muhammad Hanif Khan, Ch. Shoukat Aziz and Bashir Ahmed Mughal, Advocates, represented the respondents and the appellant Ch. Muhammad Munir.