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Petitioner: GHIASUL HAQ AND OTHERSs VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Ch. Rahim Dad Khan, Raja Muhammad Khurshid Khan Title:GHIASUL HAQ AND OTHERSs vs AZAD GOVERNMENT OF THE STATE OF JAMMU
JUDGMENT
Reported As: PLD 1980 SC (A J & K) 5 Result: Order accordingly Judgment JUDGMENT ' CHAUDHURY RAHIM DAD KHAN, C. J.-This judgment will dispose of the five Civil Appeals, by leave, four of them filed by the Government-which are Nos. 27, 28, 29 and 30 of 1979, and the fifth filed by Ghias-ul-Haq respondent-which is Appeal No, 26 of 1979. All these appeals are directed against a consolidated judgment delivered by a Division Bench of the Azad Jammu & Kashmir High Court on 15th January, 1979, whereby four writ petitions filed individually by each of the respondents, challenging the vires of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, were accepted. All these appeals raise a common question of law and fact in relation to the validity of rule 6 of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. 2. The fasts briefly stated are that Azad Government of the State of Jammu & Kashmir, in order to probe into the persistent and serious allegation of favouritism, nepotism, misappropriation, embezzlement and gross misuse of powers etc. By certain officers/officials in some of the departments of the Government, constituted a Commission of Inquiry in exercise of powers conferred on it by the Commission of Inquiry Act, 1956, of Pakistan as adapted in Azad Jammu & Kashmir by Act I of 1959. After necessary inquiry, the Commission submitted reports on basis of which the Chief Executive directed the issuance of show-cause .Notices to the respondents herein proposing penalty such as dismissal, removal from service, compulsory retirement and recovery of the amounts of losses suffered by the Government at their hand. On receipt of reply to the show- cause notices, every one of the respondents was personally heard by the Chief Executive. Consequently Ghias-ul-Haq, Mahmood Ahmed Lodhi and Hanif Akhar Ranjha respondents were
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dismissed from service, whereas Sardar Ali Afsar Khan was retired compulsorily from service of the Government. ' Thereupon, they (respondents) invoked the writ jurisdiction of the High Court by mean of petitions under section 44 of the Azad Jammu & Kashmir Interim Constitution Act of 1974 (hereinafter referred to as the Constitution Act). The case of writ petitioners themselves before the High Court was, that though they could not challenge the validity or otherwise of the orders passed against them, yet the writ petitions were being filed only for the limited purposes of calling in question the vires of sub-rules (2) to (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, on the ground that the said rule to the extent, the same provides two different sets of the procedure for taking disciplinary action against the Government servants, were violative of the guarantees contained in sub-clause (15) of the Fundamental Rights enshrined in section 4 of the Constitution Act. They have also filed separate appeals before the Services Tribunal. However, their mainstay in the writ petitions was that Services Tribunal had no power to pronounce upon the validity or otherwise of an Act or a Rule, and that the Services Tribunal, therefore, could not declare them to be repugnant to any of the Fundamental Rights guaranteed by the Constitution Act. The relief claimed was that sub-rules (2) to (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, had been promulgated without lawful authority and that the same were of no legal effect and were void. 3. In written statement, the Government took preliminary objection that the High Court had no jurisdiction to entertain writ petitions in view of the provisions of section 47 of the Constitution Act; that none of the petitioners was an aggrieved person within the meaning of section 44 of the Constitution Act,, and since they had adequate remedy by way of an appeal before the Services Tribunal, the writ petitions were incompetent. On merit, it was pleased that the Rules in question were not violative of sub-clause (15) of section 4 of the Constitution Act. 4. A Division Bench of the High Court, by a single judgment, accepting the writ petitions declared that sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, `being violative and inconsistent to the Constitution' are void. In view of their Lordships sub-rules (2) and (3) of Rule 6 without making any reasonable classification confer discretion of a very wide nature upon the authorised officer who may act arbitrarily, or capriciously according to his will or whim. In support of their decision, reliance was placed on PLD 1957 SC 157, PLD 1957 Pesh. 100, PLD 1957 Quetta 1, PLD 1958 Pesh. 73 and PLD 1975 SC 66. ' As regard to the question of maintainability of the writ petitions it was observed by the High Court that it is the High Court alone which could under section 44 of the Constitution Act, pronounce upon the validity or otherwise of a provision of statute, and that since the writ petitioners had not sought any relief so far as the final orders passed against them were concerned, the Services Tribunal shall have the right to go into the merits of the cases and decide whether or not the decisions of 'authority' were justified in law. The question that writ petitioners were not 'aggrieved' parties within the meaning of me Constitution Act, was not even adverted to. 5. Sardar Muhammad Iqbal Khan the learned Advocate for the appellant (Government) made following submissions in support of the appeal challenging the validity of the judgment of the High Court:- (1) That he High Court had no jurisdiction to entertain the writ petitions for reasons- (a)that in view of subsection (1) of section 44 of the Constitution Act, the High Court has only such jurisdiction as is conferred on it by the Constitution Act or by any other law; (b)that the powers under subsection (2) of section 44 of the Constitution Act, can be exercised by the High Court subject to the other provisions of the Constitution Act itself, that is to say that if mere is any other express provision which ousts the jurisdiction of the High Court in any particular matter, section 44 must give place to that;
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(c) that subsection (2) of section 47 of the Constitution Act, in matters to which jurisdiction of administrative Court or Tribunal extends,' operates in supersession of all preceding provisions of the Constitution Act including section 44; (d) that after passing of the Azad Jammu & Kashmir Services Tribunal Act, 1975, the jurisdiction of the High Court to the extent of the matters detailed in section 47 of the Constitution Act came to an end and could not be exercised in such matters thereafter; and (e) that Azad Jammu & Kashmir Civil. Servants Act, 1976, read with Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, regulate terms and conditions of the Government servants and prescribe procedure to be followed in taking disciplinary action. They fall within ambit of the phrase 'matter relating to the terms and conditions of the persons who are or have been in the service of Azad Jammu & Kashmir, including disciplinary matters' as used in section 47 of the Constitution Act. (ii) That the finding given by the learned Judges of the High Court, that under section 44 of the Constitution Act, the High Court alone could pronounce upon the validity of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, is not correct in law inasmuch as while dealing with an appeal, the Services Tribunal has plenary powers to go into the vires of the rules and hold whether or not any of their provisions is repugnant to one or more of the Constitutional guarantees ; (iii) As an alternative remedy by way of an appeal to Services Tribunal is available, so the writ petitions could not be entertained; (iv) That the petitioners were not otherwise competent to file the writ petitions because the same can be filed only by aggrieved party/persons. As the writ petitioners had not challenged the order of punishment, abstract question cannot be canvassed in writ jurisdiction which pertains to adversely litigation and can be exercised when there is /is between the parties and not in vacuum. No relief had been claimed by the writ petitioners except that it be declared that rules 3 and 4 had been framed without any lawful authority, It is again being a condition precedent to the exercise of writ jurisdiction, the High Court could not entertain the writ petitions. (v) That the impugned rules are not ex facie discriminatory because reasonable classification is permissible and that classification contained in rule 6 is based on intelligible differentia which has a rational relation to the object said to be achieved. The judgment of the High Court, declaring sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmi Civil Servants (Efficiency and Discipline) Rules, 1977, as void, is not sound in law. 6. Mr. Basharat Ahmed Sheikh, the learned counsel for the respondents, contended that the appellants were debarred from objecting to the assumption of jurisdiction by the High Court and to entertain the writ petitions. His precise argument was that since the leave had been granted only in regard to questions whether or not sub-rule (3) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, was ultra vires, the appellants could not, under sub- clause (15) of Fundamental Rights guaranteed by the Constitution Act,'1974, be permitted to argue any other question, including that of lack of jurisdiction of the High Court to entertain the writ petitions. In support of his submission, reliance was placed on Jan Muhammad and others v. R. B. Karm Chand and others (1), Amar Nath Ghosh v. Sukhraj Rai and others (2), Albert West Meads v. The King (3), Guru Prohit Pandit Bharat Raj v. B. Parshottam Thus and others (4) Sri Raja Yarlagadda Siva Rama Prasad Bahadur v. Majeti Potharaju and others (5) and Rana Muhammad Afzal v. Inspector-General of Police, West Pakistan, Lahore and another (6). In Jan Muhammad and others v. R. B. Karm Chand and others a mixed question of law and facts which had neither been pleaded nor raised in the Courts below, was sought to be raised during the arguments before the Privy Council, which point their Lordships declined to allow to be taken before them. In this context it was observed at page 73 of the report that "their Lordships would add that at the hearing before them,
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Sir Thomas Strangman sought to argue that although Parma Nand applied to take the new lease for his own benefit, he by reason that his only interest in the serai was that of a mortgagee held the new lease as part of the mortgaged property for the benefit of all those interested in the original lease. (See section 90, Trusts Act, and section 3, illustration (d), Specific Relief Act.) The point was neither pleaded nor argued in the Court below, and their Lordships therefore refused to allow the point to be taken before them". In Amur Path Ghosh v. Sukhraj Rai and others the counsel for the appellant attempted to argue that the suit was premature and that there had been no default under clause 10 of the Mortgage Deed and, therefore, the respondents had no right to institute a suit. This point was abandoned before the High Court. It was for this reason that their Lordships of the Privy Council did not permit the appellant to blow hot and cold. In this context it was observed that "it would not be right for them to allow this appeal to proceed upon a point which was so clearly abandoned in the Court below. They must however, add that, having heard the matter to some extent argued by the appellant's counsel, they see no reason to doubt that the point was wisely abandoned in the High Court in India". In Albert West Meads v. The King, the point sought to be raised before the Privy Council was admittedly abandoned by the appellant himself who personally argued the case. Their Lordships, in this view of the matter, observed at page 186 that "their Lordships did not think it right to allow the appellant to argue matters which he had elected not to argue before the Federal Court and on which, in consequence, that Court had given no decision". In Guru Prohit Pandit Bharat Raj v. B. Parshottam Doss and others the question whether or not the respondents were agriculturists was neither raised in any of the Courts below nor a ground to that effect was urged in the appeal before the Board. In the circumstances, their Lordships proceeded to decide the case on the assumption that the respondents were agriculturists. In Sri Raja Yarlagadda Siva Rama Prasad Bahadur v. Majeti Potharaju and others the counsel for the appellants raised a contention before the Privy Council that the suit land was uncultivated at the time when Madras Estate Land Act (I of 1908) was passed. The argument was disallowed by observing that "Without expressing any opinion about the soundness or otherwise of this argument, their Lordships think that it is not necessary to pursue it further, as in their opinion the defendant should not be permitted to raise this question now for the first time before the Board. At no stage of the case was this argument ever put forward by the defendant. No reference to it is to be found in the pleadings or in the judgments of the Courts in India, nor has it (1) PLD 1947 P C 62 (2) PLD 1947 P C 126 (3) PLD 1948 P C 182 (4) PLD 1948 P C 197 (5) PLD 1949 P C 65 (6) PLD 1974 SC 31 ' been raised in the petition to the Board asking for special leave. The case of the defendant so far has been that the plaintiffs have no title to the land, and if they had any title they have abandoned it or lost it by adverse possession. That the land has not been proved to be `ryoti land' in the sense now indicated has not been put forward as a specific ground of complaint in any of the proceedings thus far taken by the defendant. Their Lordships are of opinion that in a case brought before the Board after obtaining special leave the defendant should not be permitted to travel beyond the specific grounds on which special leave was granted to him by the Board. Their Lordships would therefore disallow this argument." That case is distinguishable on facts from one in hand_ on more than one ground namely; objection was not taken in the pleadings in that case, it had no reference in any of the judgments of the Courts below, it was not raised in the petition to the Privy Council for leave and the question was raised for the first time during the course of arguments, but, here the objection had unmistakably been taken in written statement filed on behalf of the Government; the question of jurisdiction, as is apparent from the observation in the judgment of the High Court, itself, was taken even at the time of arguments and in the petition for leave to appeal also the question has been raised specifically. Therefore, the decision of the Privy
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Council, in the aforementioned case, is of no help to the respondents. In Rana Muhammad Afzal v. Inspector-General of Police, West Pakistan, Lahore and another the appellant challenged before the High Court the order of the Police, opening his history sheet. The challenge was based on the ground that the facts on which the Police relied for opening his history sheet were not sufficient for creating a reasonable plea that he was habitual addicted to crime. The writ petition was dismissed by the High Court. In the petition for special leave to appeal also, the same point was taken and leave was granted to consider that question alone. Later on, the appellant moved an application to take an additional ground, namely; that no show-cause notice was issued to him before opening his history sheet, which was in sheer disregard of the rule of natural justice that no one shall be condemned unheard. The application was opposed by the respondents. The Supreme Court however, allowed the same by observing that "after hearing the learned counsel for the parties, we are of the opinion that no prejudice will be caused if the additional ground is allowed to be taken in support of the appeal. We would, therefore, permit the appellant to add this ground". 7. Sardar Muhammad Iqbal in reply to preliminary objection, submitted that the question that High Court had no jurisdiction to entertain the petitions, was specifically raised in the writ petitions filed on behalf of the Government as the first preliminary objection. The fact that the learned Judges had themselves mentioned in the judgment, under appeal, that High Court alone can go into the vires of rules, further establishes that the question of jurisdiction was raised even at the time of arguments. In the petition for special leave to appeal also the assumption of jurisdiction of the High Court had been specifically called in question and that there is no finding in the order granting leave whereby a contention about the jurisdiction of the High Court might have been repelled. His submission is that after the leave is granted, there is no difference between an appeal as of right and an appeal by special leave. Only those contentions cannot be permitted to be urged again which have been specifically repelled at the time of granting leave. 8. There is much force in the contention of the learned counsel for the appellant because there is nothing in the judgment of the High Court that any of the points, viz. That the High Court had no jurisdiction to entertain the writ petitions; that the respondents were not aggrieved persons or parties; and that they had an adequate alternative remedy before Services Tribunal had been abandoned. In Pakistan, the question of jurisdiction had been permitted to be raised for the first time even in Supreme Court. [See Hamad and another v. Khushi Muhammad and another (1)]. ' So far as the contention that writ petitioners were not aggrieved persons or party, and that they had an adequate alternative remedy available to them are concerned, these are the conditions precedent to the, exercise of jurisdiction by the High Court under section 44 of the Constitution Act. If either of the conditions is not specified it is incompetent for the High. Court to entertain the writ petitions and if it does regardless of a mandatory condition for exercise of the jurisdiction the entire proceeding which follows would be illegal. Both these objections have been raised in the written statements filed on behalf of the Government, the same cannot be excluded from consideration. In Sha Shivaraj Gopalji v. Edappakath Ayissa Bi and others (2), the plea of res judicata, though not pressed in the lower Court, was allowed to be taken up for the first time in the High Court of Madras. The Judgment of the High Court was upheld by the Privy Council by observing that "the plea, being a plea in law, was open in the Appellate Court, though it had not been pressed in the lower Court". ' In Sri Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi and another (3), the High Court overlooked the provisions of section 72 of the Indian Contract Act while dealing with the question of return of money over paid to lessor by lessee in respect of lease of an estate, the section was only mentioned in passing by the Sub-Judge and it would seem that it was not argued or only faintly argued before the Sub-Judge or in the High Court, that section 72 applied to the case. The objection was overruled by observing that "the learned Chief Justice appears to have overlooked the provisions of section 72 of the Indian Contract Act. This section was only mentioned in passing
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by the Subordinate Judge and it would seem that it was not argued or only faintly argued before the Subordinate Judge or in the High Court that section 72 applied to this case. The appellant, the respondent in the Cross Appeal, submitted to their Lordships that in these circumstances their Lordships should not now receive an argument based on section 72 but their Lordships are unable to exclude from their consideration the provisions of a public statute. It is regrettable that their Lordships do not have the assistance of the views of the High Court on this matter. Their Lordships impute no blame to the learned Judges of the High Court, but they feel bound to consider the argument which has now been adduced". Chief Kwante .Asante, Tredehene v. Chief Kwame Tawia (4), is a case on almost all fours. In that case when the case reached the West African Court of Appeal, it was for the first time suggested and made a ground of appeal that the trial Court was not validly constituted for the rehearing of the case in that certain Chiefs had sat as Judges in that Court who were not qualified to sit and that the proceeding before that Court must accordingly be regarded as "coram non judice" and its judgment a nullity. The West African Court of Appeal observed that this additional ground of appeal was filed without the leave of the Court and that it was too late in the proceedings to raise a point of this nature, which was not raised in any of the three Courts below or at (1) 1971 S CMR 365 (2) PLD 1949 P C 143 (3) PLD 1949 P C 178- (4) PLD 1954 P C 74 ' the beginning of the hearing of the appeal in that Court. They accordingly dismissed the appeal. An appeal was taken to the Judicial Committee of the Privy Council. While reversing the decision of the West African Court of Appeal it was observed at page 76 "an order against which an appeal has been brought was made without jurisdiction it could never be too late to admit and- give effect to the plea that the Order was a nullity". ' In Pakistan, in Hayat v. The State (1), Muhammad Munir, C. J. Observed at pages 208 and 209 that "when the petition for special leave to appeal from the judgment of the High Court came up before us we saw no reason for any further consideration of the cases of Tahri and Muhammad Yar. In the case of Hayat, however, we gave leave to appeal in order to consider the question whether the ocular evidence against him could have been rightly accepted but having heard counsel we are unable to hold that any special reason exists for interfering with the High Court's finding that the appellant was one of persons who took part in the criminal assault on the deceased and his brothers. Though leave was not given on this ground we have, however, heard counsel at length also on the question whether the appellant could be convicted of murder". In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (2), it was laid down at page 691 that "the proposition is not open to contest that pure questions of law can be raised at any stage". In Mansab All v. Amir and 3 others (3), it was held that "it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction". The same view was taken in Chittaranjan Cotton Mills Ltd. v. Staff Union (4) and Rashid Ahmed v. State (5). ' In Noora and another v. The State (6), Mr. Justice Hamoodur Rahman, C. J. (as he then was) has reported at page 493 of the Report that "once, however, the Court has come to the conclusion that injustice has been done and has granted leave to appeal I, for my part, do not see any reason as to why an appeal by special leave should be treated differently to an appeal as of right. Both appeals should, in my view, stand on the same footing and should be determined according to the same principles of administration of justice by this Court. Now that we are no longer merely exercising a prerogative jurisdiction but are exercising powers conferred by the Constitution, there appears to me no valid reason for this Court to be inhibited by the limitations ' which the Judicial Committee of
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the Privy Council had imposed upon itself. I cannot, therefore, persuade myself to agree that we should go back again to the rule in Dillet's case and narrow down the scope and content of our own constitutional jurisdiction. We should have the fullest power to do full justice without fettering ourselves with any self-imposed restrictions which are no longer necessary in the context of the changed circumstances in which we now function". (1) PLD 1957 SC (Pak.) 207 (2) PLD 1965 SC 690 (3) PLD 1971 SC 124 (4) PLD 1971 SC 197 (5) PLD 1972 SC 271 (6) PLD 1973 SC 469 ' In Kedar Nath Bajoria and another v. The…
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