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Petitioner: ABDUL KABIR QURESHI AND 3 OTHERS VS Respondent: THE ACCOUNANT-GENERAL, AZAD JAMMU AND KASHMIR, MUZAFFARABAD AND 2 OTHERS-Non
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Raja Muhammad Akram Khan Title:ABDUL KABIR QURESHI AND 3 OTHERS vs THE ACCOUNANT-GENERAL, AZAD
JAMMU AND KASHMIR, MUZAFFARABAD AND 2 OTHERS-Non Case No.: Writ Petition No, 51 of 1986 Date of Judgment:1986-07-13 Reported As: PLD 1986 Azad J & K 239 Result: Petition accepted Judgment ORDER ' This is a writ petition under section 64 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the peiitioners Abdul Kabir Qureshi, Ghulam Muhammad Khan, Altaf Hussain Khan and Manzoor Muhammad Durrani, Personal Assistants to Judges of Azad Jammu and Kashmir High Court, have challenged the impugned order. Annexure 'F', whereby four advance increments granted to them earlier vide Government Order, Annexure ID', passed on June 4, 1981, were withdrawn. The Government Order, Annexure 'ID', No, Administration/ 11095-11165/81, dated June 4, 1981 was acted upon by the Accountant-General, respondent No, 1 as it appears from the documents appended with the writ petition as Annexures D/1 which pertains to Abdul Kabir Qureshi, D/2 which pertains to Raja Ghulam Muhammad Khan, D/3 regarding Altaf Hussain Khan and D/4 about Manzoor Muhammad Durrani. 2. The facts that led to this Writ Petition briefly stated, are (a) That the Annexure 'A' is a Government Order issued by the Law and Parliamentary Affairs Secretariat of Azad Jammu and Kashmir Government under No, 820/23/75 dated 22-3-1975 whereby the sanction of the President of Azad Jammu and Kashmir Government was accorded to certain extentions and creation of posts and redesignation of certain posts in the Judicial Department. Vide Item No, 1(4), the existing posts of the judgment-writers were redesignated as Personal Assistants. This Government Order was issued by the Azad Jummu and Kashmir Government in consultation with the Finance Department of the Government and while the petitioners were working as such, the Azad Government, vide order issued under No, Administration 11095-11165/81 dated 4-6-1981 (Annexure `D'), sanctioned four advance increments in favour of all
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types of Stenographers, Steno Typists and Personal Assistants working in the Secretariat of the Government as well in the offices situated outside the Secretariat. Resultantly, the petitioners were given the benefit of the said Government Order (Annexure 'D') and their pay was thus increassed as under :- (i)Mr. Abdul Kahir Qureshi, P A to that Chief Justice High Court who was drawing Rs, 825 per month in N. P. S.-16 on 14-1-1981, was allowed four increments vide Government Order No, 1109511165/81, dated 4-6-1981, of Rs, 200 per month and his pay was fixed as Rs, 1,025 per month w. e. f. 15-1-1981 as it is evident from the pay fixation order of the Accountant-General No, 96/A. G.-GAD/81, dated 20-7-1981 (Annexure 'D/1') with the writ petition ; (ii) Raja Ghulam Muhammad Khan, P. A. To the Judge High Court was also drawing Rs, 825 per month on 14-1-1981 in N. P. S. 16 and after allowing four increments amounting Rs, 200 his pay was fixed as Rs, 1,025 on 15-1-1981 vide Pay fixation Order No, 90/AGGAD, dated 20-7-1981 (Annexure 'D/2') ; (iii) Mr. Altaf Hussain Khan, P. A. To the Judge High Court, was drawing Rs, 785 per month on 14-1- 1981 in N. P. S. 16. He was allowed Rs, 190 as four advance increments and thus his pay was fixed as Rs, 975 per month w. e. f. 15-1-1981 vide pay fixation order of the A. G. Dated 20-7-1981 (Annexure 'D/3'). (iv) Mr. Manzoor Muhammad Durrani, P. A. To the Judge of the High Court, was drawing Rs, 665 per month in N. P. S. 16 on 14-1-1981. After giving him the benefit of four advance increments of Rs, 160, his pay was fixed as Rs, 825 per month vide pay fixation order No, 91/AG-GAD/81, dated 20-7-1981 w. e. f. 15-1-1981 (Annexure (0 That after allowing the petitioners the benefit of the said increments for a regular period of nine months and acting upon the Government Order referred to above, a querry was made by the Accountant-General vide his Letter No, 6048-50/AG/GAD/81, dated 18-11-1'-81 (Annexure `E' with the writ petition) to the Deputy Secretary Services and General Administration Department of Azad Jammu and Kashmir Government that as the Government Order Annexure 'D' did not specifically mention the P. As. Of the Judges of the High Court, as it might be clarified as to whether the said Government Order (Annexure 'D') applied to the cases of the Personal Assistants working in the Azad Jammu and Kashmir High Court because the said Government Order had used the words stenographers and P. As. Working IN the Secretariat and the Offices situated outside the Secretariat{{URDU TEXT}} The reply to the querry was yet to be made by the Deputy Secretary Services and General Administration Department, when a letter was sent by the Accountant- General to the Registrar of the Azad Jummu and Kashmir High Court under No, 6519/AG/GAD/81, dated 1-12-1981, to the effect that the payment of four advance increments, already to the credit of the petitioners w. e. f. 15-1-1981, was being discontinued w. e. f. 1-12-1981, till the time their case is finally resolved by the comptent authority. This is Annexure 'F' attached with the writ petition. 3 Now the petitioners have come up to the High Court and seek to call up and quash the order of the Accountant-General issued under No, 6519/ AG-GAD/81, dated 1-12-1981 (Annexure 'F'), whereby the benefit of four advance increments sanctioned by the Government in consultation with the finance Department on 4-6-1981 (Annexure 'D') has been withdrawn despite the fact that the petitioners enjoyed the benefit for full nine months. 4. After the withdrawal of the benefit by the Accountant-General, the petitioners made several representations to the Government whereupon no decision was taken by the Government. The last representation in this respect was made on 15-5-1586 (Annexure 'G') with the writ petition. The copies of the letter of the Services and General Administration Department issued under No, Admin./Section II/M. C./5001/84, dated 19-3-1985 and No, Admin/Section 11/(91)/81, dated 22-6-1985 addressed to the Registrar of the High Court, show that the matter is still under the active consideration of the Azad Jammu and Kashmir Government and has not yet been finally resolved.
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5. Mr. Mujahid Hussain Naqvi, the learned counsel for the petitioners, has impeached the impugned Order (Annexure 'F') on the following grounds :- (a) That the four advance increments in favour of the petitioners were sanctioned by the Government of the Azad Jammu and Kashmir and acting upon that Government order, the Accountant-General paid the enhanced pay to the petitioners for regular nine months, and therefore, the Accountant-General could not retrace his steps. The precise argument of Mr. M. H. Naqvi, Advocate is that the Accountant-General or even the Government has got no locus poenitentiae and, therefore, cannot turn a voile face and refuse the benefit of four advance increments to the petitioners. In this respect, he has cited the following authorities :- A 1 R 1938 Nag. 513, PLD 1955 Lab. 65, PLD 1956 FC 46, PLD 1960 SC 310, PLD 1963 Dacca 422, PLD 1963 (W. P.) Lah. 53, PLD 1964 SC 503, PLD 1964 SC 438, PLD 1965, Pesh. 31 PLD 1969 SC 407, PLD 1970 SC 439, PL D 1973 Quetta 14, PLD 1978 Lab. 468, PLD 197.9 Q 131, PLD 1980 SC (A J & K) 14, PLD 1980 Pesh. 128, PLD 1985 Azad J & K 17. (b) That the impugned order was passed by the Accountant-General while the benefit of four advance increments was sanctioned, by the Government. Hence, the Accountant-General, being the functionary of the Government, had no jurisdiction to withdraw the benefit himself. The Accountant-General has therefore, gone beyond the sphere allotted to him by law. So, his order was absolutely without jurisdiction and unwarranted by law. ' In this respect, the following authorities were cited L D 1973 SC 236, 13 L D 1975 Lah. 825 PLD 1980 Lah. 571. (c) That the action of the Accountant-General was violative of the Fundamental Rights given under section 4(4)(15) which provides for the equality of all the citizens before law, and guarantee equal protection of law and (4)(4)(17) which contemplates that no discrimination shall be made in services. The grant and payment of four advance increments to the counter-parts of the petitioners appointed and working in the Secretariat and refusal to the petitioners who are working in the High Court is a clear instance of the violation of the Constitutional guarantees. This discrimination is against the Government order (Annexure 'D') which also grants four advance increments to those stenographers and P. As. Who are working in the High Court or "outside the Secretariat". ' In this respect, the following authority was referred to. ' PLD 1983 SC (Azad J & K) 95, paras. 20 and 21 especially this sentence from page 9 of Basu's Constitution of India : "A law enacted by the Legislature cannot transgress or violate the provisions of fundamental law." and the following sentence from Shukl's Constitution of India :- "Judicial review in India is based on the assumption that the Constitution is the supreme law of the land, and all governmental organs which own their origin to the Constitution and derive their powers from its provisions, must function within the framework of the Constitution, and must not do anything which is inconsistent with the provisions of the Constitution ................ ' Pages LXIII and LXXVII referred to in Muhammad Abdul Qayyum Khan's case PLD 1983 SC (A J & K) 95 at pages 112-113). (d) That the writ lies under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 in this case because the impugned order has not been made or issued by the competent
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departmental authority. The jurisdiction of the High Court is ousted under section 47 of the Azad Jammu and Kashmir Interim Constitution Act only in matters in relation to which the jurisdiction of the Service Tribunal exists. In this case, the impugned order, having not been made by the competent Departmental Authority, cannot be considered as final and consequently the jurisdiction of the Service Tribunal cannot be attracted. The final order in this case is to be passed by the Government and not the Accountant-General, who is simply a functionary of the Government. The High Court in the peculiar circumstances of this case has got the jurisdiction to quash this order. ' According to the learned counsel for the petitioners, the High Court in its extraordinary constitutional jurisdiction, can interfere with the orders passed and actions taken by the Executive if those orders are arbitrary or in abuse of power, where the executive authorities have travelled beyond the sphere allotted to them by law. Mr. Mujahid Hussain Naqvi, the learned counsel for the petitioners, has cited the following authorities on this point. PLD 1958 SC 201, PLD 1972 S C279 PLD 1980 Quetta 58 PLD 1980 Lab. 697, PLD 1981 Pesh. 1, 1985 PLC (C. S.) 711. PLD 1958 SC Pak. 41, 1972 SCMR 257, PLD 1974 SC 151, PLD 1980 Lah. 697, 1981 CLC 321 1968 SCMR 1139, (e) That the impugned order is mala fide and hence without jurisdiction. In this respect, reference was made to page 8 ground 'f' of the writ petition. On this point, Syed Mujahid Hussain Naqvi, Advocate has cited :- PLD 1955 FC 185, PLD 1957 Kar. 363, PLD 1958 SC 41, PLD 1963 Lah. 8, PLD 1965 SC 671, PLD 1968 Kar. 599. PLD 1969 SC 14, PLD 1973 SC 49, PLD 1974 SC 151, PLD 1974 SC 151 1976 PLC 779, 1977 PLC 139, NLR 1979 Service SC 182, PLD 1980 Pesh. 281, 1985 PL C (C. S.) 711. (f) That the learned Advocate-General has in his written statement para. 1, admitted that the petitioners are Personal Assistants, it has been admitted by the non-petitioners in para. 1 of the written statement that :- "It is true as per record that vide Annexure 'A' the petitioners have been redesignated as Personal Assistants." ' The whole dispute was that the Accountant-General considered them as judgment writers and not Personal Assistants. Now, when there is an admission on the part of the non-petitioners about the status of the petitioners as being the Personal Assistants, no dispute remains. This admission, when seen in the light of the Government Order, dated 4-6-1981 (Annexure `D'), this writ petition merits acceptance and succeeds on the admission alone. It is undisputed that the facts admitted need not be proved. Hence the Court should accept this petition and allow the relief prayed for. 6. On the other hand, Mr. M. H. Gilani, the learned Advocate-General has replied :- (a) That he was personally trying that the Government should give relief to the petitioners and for that purpose he was working heard ; (b) That the hearing of this case should be delayed because if the Government would itself grant relief to the petitioners of this writ petition shall become infructuous ; (c) That the High Court has got no jurisdiction to hear this service matter because under section 47 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, the jurisdiction of the High Court is totally barred as regards the matters terms and conditions of the service of the petitioners. As
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the matter in this writ petition pertains to the terms and conditions of the petitioners, so the High Court has got no jurisdiction to exercise its writ jurisdiction especially when the petitioners have got an alternative remedy available to them. ' The precise point of the learned Advocate-General is that the petitioners should have gone before the Service Tribunal under section 47 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 instead of invoking the Writ Jurisdiction under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974; and (d) That the action of the Accountant-General is not mala fide or coram non judice because he has passed an order for the interim period only and the order impugned shall remain effective till the matter is finally decided by the Azad Jammu and Kashmir Government. 7. I have heard the learned counsel for the parties and have perused the record of the case carefully. 8. Let me first of all take up the point of alternate remedy. ' The precise point to be determined is as to whether this writ petition is competent under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974 or the petitioners should have sought remedy under section 47 of the Azad Jammu and Kashmir Interim Constitution Act of 1974. (i) In the case of Messrs East and West Steamship Co. V. Pakistan (1), it was held :- "Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise ot its writ jurisdiction has power to grant relief to the aggrieved party." (ii) In the case of the Controller of Estate Duty Karachi v. Lt.-Col. Nawabzada Muhammad Amir Khan and Lt.-Col. Abdul Ghafoor Khan etc. (2), it was held by the Supreme Court that the appeal could not stand in the way of the exercise of Writ Jurisdiction by the High Court (128) C and where the order is challenged as wholly without jurisdiction, a petition for a writ appears to be a more appropriate remedy (128)D. (iii) In the case of the Murre Brewary Co. v. Pakistan (3), it was held that the rule that the High Court will not entertain a writ petition, when other appropriate remedy is available, is not a rule of law barring jurisdiction but a rule by which Court regulates its jurisdiction. In that case, the High Court observed that if the order of a statutory body was attacked on the ground that it was wholly without authority ' partial, unjust and mala fide, the High Court in exercise of its writ jurisdiction, has power to grant relief to an aggrieved party. The Supreme Court relied upon the case of Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others (4). (iv) In the case of Premier Cloth Mills Ltd. Lyallpur v. The Sales Tax Officer, Lahore (5), it was laid down that absence or excess of jurisdiction attracted writ jurisdiction despite the alternate remedy of statutory right of appeal which was available to a party (petitioner in that case). (v) It was held in the case of the Federation of Pakistan v. Saeed Ahmed Khan and Secretary of Education Punjab v. Mr. Toosy. Ex-Principal Government College Sargodha and others (6), that acts, orders or proceedings, which are done, taken or made without jurisdiction, mala fide or coram non judice, are liable to be scrutinized by the High Court in its writ jurisdiction not withstanding the amendments introduced in Article 281(2) of the Interim Constitution of Pakistan 1972 by President Order No, 3 of 1973. (vi) In the case of Majeeb Ullah Hajazi v. Director General Telephone (1) PLD 1958 SC 1 (2) PLD 1961 SC 119 (3) PLD 1972 SC 279 (4) PLD 1961 SC 119 (5) 1972 SCMR 257 (6) PLD 1974 SC 151 and Telegraph and 2 others (1), a Full Bench of the Quetta High Court observed at pages 516, 517 and 518 :- 8. These points would require to be considered first.
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"It is no doubt correct that want of jurisdiction in any Tribunal or the Tribunal having acted in excess of its j jurisdiction would not only render the order of the Tribunal a nullity in law but would on the other hand also attract the jurisdiction of the superior Courts under Article 199 of the Constitution to that extent there is no quarrel with the proposition in its general terms. The concept of jurisdiction being wrongly exercised or exceeded came up for consideration before the Supreme Court in the case of Raunag Ali v. The Chief Settlement Commissioner and other PLD 1973 SC 236 Hamoodur Rahman, C. J. Who delivered the judgment on behalf of the Court drew a distinction between incorrect and void decisions and expressed himself in the following terms :- ' It is no doubt true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that juridiction. Where there is jurisdiction to decide, then as it has often been sald there is jurisdiction to decide either rightly or wrongly, and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be nonexistent in the eye of law ; that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as a mere colourable exercise of jurisdiction or unlawful usurpation of jurisdiction. ' Halsbury in the Laws of England (4th Edition, para. 138 page 155) has under the title "Absence or Excess of jurisdiction" stated as under :- ' Although certiorari is taken away, it may be granted, even on the application of defendant, where the inferior Court has acted without or in unseen of jurisdiction ; for in such a case that Court has not brought itself within toe terms of the statute taking away certiorari. Thus, certiorari will lie, although taken away, where the subject-matter of the inquiry was beyond the scope of the authority of the inferior Court, either by reason of the absence of some essential preliminary. ' Mr. Munir, C. J. In "Constitution of Islamic Republic of Pakistan" (1973) Edition at page 468 has with particularity to Article 212 stated the case as follows :- "But jurisdiction has several aspects and a lack of jurisdiction may exist in respect of the subject- matter in controversy, or in respect of the person against whom an order is made or in respect of the order made. Since those Courts and Tribunals function under special laws, it may be that under law a Court or Tribunal is not competent to take cognizance of a matter or to exercise jurisdiction over a person or to make the order that it has actually made or it violates a basic principle of natural justice or acts mala fide or with an ulterior motive In any such case it is submitted that the High Court may act under Article 199, even if the Supreme Court does not consider the point involved as a substantial question of law of public importance." (1) PLD 1980 Quetta 5$ "9. There is also case law to the effect that an order without jurisdiction is a nullity in toe eye of law and such lack of jurisdiction may arise for the reason of the person exercising jurisdiction either not being qualified to exercise it or the subject-matter of the dispute falling outside the ambit of his powers by reason of absence of jurisdictional facts. The learned Advocates have also urged before us that in such cases as well as in cases when mala fides or bias in the Tribunal is established, the jurisdiction of the superior Courts under Article 199 of the Constitution would be attracted. Reliance on the other hand is placed on Article 212 as well as opening words of Article 199 which recognize finality of the decrees, orders or sentences of the Administrative Courts or Tribunals and make such decrees, orders or sentences not amenable to jurisdiction under Article 199, more so as Article 212 provides an appeal it is urged that a total exclusive field has been reserved for such Administrative Courts or Tribunals. It is illustrated by reference to exclusion or ouster of jurisdiction as is not unknown even in our Constitution. As an example it was stated that a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of these forces, in respect of his terms and conditions of service, cannot maintain a petition under Article 199 of the Constitution. Even in England several matters decided by Court Martial or Ecclesiastical
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Court are immune from interference by the High Courts of Justice. It has been stressed that an order under Article 199 of the Constitution can only be made if it is within the jurisdiction of the superior Courts to make it and the question involved is capable of being determined in such Courts. Our attention was drawn to the provisions of clause (2) of the Article 175 which states that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. So that if an ouster is created by that Constitution which alone provides for power under Article 199, the bar would appear to be insurmountable. But in such context the question of orders without jurisdiction or in excess of jurisdiction would need further consideration. One cannot overlook that the question of jurisdiction could be urged before the Administrative Tribunal or Court itself and often the High Court has declined relief for the reason that such objection has not been pressed before Administrative Court or the Tribunal. There can be no two opinions that the Administrative Courts or Tribunals have the full powers to determine the questions concerning their jurisdiction. What is more is that clause (3) of Article 212 even provides for an appeal. Such objection would even be pressed before the Supreme Court in 'appeal. It would thus seem that an alternate remedy is also available. Since arguments have been advanced in regard to the appeal being a remedy which is insufficient or illusory, this question needs to be considered in greater detail particularly to find out if Article 199 would be attracted by such reason alone." ' The learned Chief Justice Mr. Justice Abdul Hayee Qureshi who wrote the judgment, concluded that the bar imposed by Article 212 of the Constitution of Pakistan, 1973 is not total but is limited to such sphere within which the relevant laws namely the Service Tribunals Act and the Civil Servants Act occupy the field. ' In paragraph No, 16 (page 522)it was observed :- "Analysing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases :- (1) When the impugned order was passed before 1-7-1969. (2) When the Civil Servant punished is not a "Civil Servant" for the reason of his exclusion from the definition of "Civil Servant" in Section 2(1)(b) of the Civil Servants Act ; (3) When the order is not a final order ; (4) When the punishment imposed is not other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post of time-scale ; (5) When the impugned order relates to a person's fitness to hold a post to be appointed to such post or to be promoted to a higher post or grade ; and (6) When the order is not passed by a competent Departmental Authority and is for such reason void." Therefore, the ouster of writ jurisdiction in service matters does no apply where an impugned order is coram on judice because the jurisdictional aspect is the most prominent question in matters concerning exercise o power under Article 199 of the Constitution of Pakistan (1973). Moreover, even the excess of jurisdiction attracts the extraordinary writ jurisdiction of the High Court if it is so patent that no argument can be advanced I favour of the impugned order or where service law does not cover the impugned order of decision." (vii)…
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