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Petitioner: JAVED IQBAL KHAWAJA And Other VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Through Its Chief Secretary, Muzaffarabad And Other
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Abdul Majeed Malik Title:JAVED IQBAL KHAWAJA And Other vs AZAD GOVERNMENT OF THE STATE OF
JAMMU AND KASHMIR Through Its Chief Secretary, Muzaffarabad And Other Case No.: Writ Petitions Nos.91, 89 and 85 of 1992 Petitions Nos. 91 and 85 of 1992 Date of Judgment:1994-03-24 Reported As: PLD 1994 Azad J&K 26 Result: Petition accepted Judgment ORDER The petitions are addressed in exercise of power under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the vires of Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointment) Act, 1992, are assailed. Since the points in dispute are common in all the petitions, it is expedient to render disposition of the position by common order. 2. Arguments were concluded in Petitions Nos. 3 and 4 on December 22, 1993, at Mirpur. Petitions Nos. 1 and 2 were heard at Headquarters. The written arguments were submitted by January 19, 1994. Thus, Petitions Nos. 3 and 4 were also postponed so that all the petitions were dealt with jointly. 3. Javed Iqbal Khawaja is a Graduate. He is also President of Un--employed Post Graduates' Association, Muzaffarabad. It was averred that the Public Service Commission advertised posts of Section Officer. He applied as one of the candidates. The Public Service Commission announced the schedule for written examination, with effect from July 20 to 28, 1992. Roll No. 120 was assigned to the petitioner. It was alleged that in addition to petitioner, 1191 other candidates had applied before the Public Service Commission. Likewise, 153 candidates applied for appearance before the Public Service Commission as Electric Inspectors and 200 candidates applied for appearance in examination for the posts of Sub-Judges, scheduled to be held at the requisite time. Respondent No. 1 manoeuvred the postponement of all the examinations, including the examination of Section Officers, to which the petitioner was a candidate. In the meantime, a Bill was introduced in the Assembly, on July 24, 1992, whereby all ad hoc appointments made by respondent No. 1, from time to time, were duly protected by regulating the same. The Bill was passed in the Assembly on
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August 18, 1992. By virtue of impugned legislation, notwithstanding anything contained in any law or rule, decree, order or judgment of the Court, all civil servants holding ad hoc appointments till the time of commencement of the Act, were declared as duly recruited civil servants. Since the petitioner was affected by the impugned legislation, he invoked the jurisdiction of this Court, to declare and annul the impugned legislation violative of provisions of Civil Servants Act, Civil Servants (Appointment and Conditions of Service) Rules, 1977, Public Service Commission Act, provisions of section 4(2) of Fundamental Rights Nos. 15 and 17 and provisions of section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was also averred that the impugned legislation was in conflict with the Injunctions of Islam. 4. It was claimed that the impugned legislation was mala fide on the following grounds:-- (i) That it was affected at the time when the Public Service Commission had already announced the schedule of written test of the candidates for the examination of Section Officers and other posts; (ii) that the written test was postponed without sufficient cause and without reasons; (iii) that the ad hoc appointments were made under the cover of impugned legislation; (iv) that the ad hoc appointments were made in large scale by unfair means; (v) that the ad hoc appointments were made in derogation to the law holding the field at the relevant time; and (vi) that the impugned legislation was against the interest of State and public policy. The Public Service Commission, constituted in compliance with the provisions of Interim Constitution Act, was rendered non-functus. 5. In support of the aforesaid allegations, original copy of Roll Number issued to the petitioner and the copy of impugned legislation was appended. The respondents repudiated the claim of the petitioners and sought rejection of the petition on the following grounds:-- (i) Non-joinder of the beneficiaries of the impugned legislation; (ii) absence of jurisdiction; (iii) the petitioners are not aggrieved persons; (iv) the impugned legislation was justified to avoid time, expenditure and constitutional authority of the legislature; (v) advice of the Public Service Commission was not binding on the Government; and (vi) the impugned legislation was made' to advance the objective of section 49 of the Interim Constitution Act. Identical points were raised in the petition of Shiraz Kiani and defence of respondents was also on the same footing. 6. Muhammad Younus Tahir, Advocate, in his petition averred that he was a practising Advocate. He was appointed Sub Judge on ad hoc basis, on October 14, 1990. His appointment was regularised on March 30, 1991. On April 6, 1991, his services were extended for another period of six months, subject to approval of Public Service Commission. As no test was held by the Commission, his services were terminated on October 14, 1991. The Public Service Commission invited applications for the posts of Sub-Judges. Advertisement appeared in the Daily `Jang', Rawalpindi, of January 16, 1992. The petitioner applied for one of the two posts reserved in quota for Mirpur. Call letter was issued to him on July 18; 1992, for appearance in examination with effect from August 1 to 4, 1992. He was assigned Roll No. 71. The schedule was modified again through advertisement in Daily `Jang', Rawalpindi of July 26, 1992. The examination was to take place with effect from September 6 to 9, 1992. Call letter was issued to the petitioner. Meanwhile, Ch. Mumtaz Hussain and Miss Shamaila Mahmood, respondents Nos. 4 and 5 were appointed on ad hoc basis against the said vacancies. Respondent No. 1 moved a Bill in the Assembly to frame law to regulate the ad hoc appointments. The law was enforced on August 18, 1992, whereby ad hoc appointments of
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respondents Nos. 4 and 5 were also regulated. The petitioner challenged the vires of the impugned legislation and appointments of respondents Nos. 4 and 5 on the following grounds:-- (i) That the impugned legislation and notification in respect of respondents Nos. 4 and 5, were violative of provisions of Interim Constitution Act and Fundamental Rights guaranteed therein; (ii) that the impugned legislation was discriminatory in nature as it protected the interest of specific class of ad hoc appointees by depriving rest of the citizens enjoying equal qualification, status and efficiency; (iii) that the impugned legislation was mala tide; (iv) that the impugned legislation was in conflict with the provisions of Civil Servants Act, Civil Servants (Appointments and Conditions of Service) Rules, 1977, Public Service Commission Act and Islamic Injunctions. It was also averred that respondents Nos. 4 and 5 were not duly qualified for even ad hoc appointments. The orders of ad hoc appointments were also illegal as the same were violative of relevant provisions of law. The respondents, in their written statements, repudiated the claim of the petitioner on all scores and sought dismissal of the petition-- (i) for want of jurisdiction;. (ii) non-joinder of parties; (iii) misjoinder of causes of action; (iv) petitioner being not an aggrieved person; and (v) petitioner having not come in the Court with clean hands. 7. Mansha Ghaus Mughal, in his petition, challenged the impugned legislation and the appointment of respondent No. 4, as Sub-Judge against the reserved quota of District Kotli. It was averred that in compliance with the calling of applications Public Service Commission for written test for appointment of post of Sub-Judges, made in Daily `Jang', Rawalpindi, of January 19, 1992, petitioner also applied. The application was moved on February 4, 1992. It was rejected by respondent No. 3 on July 22, 1992, for want of reserved quota for District Kotli. However, respondents Nos. 1 and 2 relaxed the quota restriction and made ad hoc appointment of respondent No.4, on August 6, 1992. Vide Notification of October 6, 1992, the condition of age was also relaxed. In the meantime, the impugned legislation was made and was enforced with effect from August 18, 1992, whereby among others, the ad hoc appointment of respondent No. 4 was also regulated. The ad hoc appointment of respondent No. 4 and impugned legislation were assailed on the grounds listed in the petition of Mr. Muhammad Yunus Tahir. The respondents, in their written statement, took up the same defence as in case of Muhammad Yunus Tahir. 8. The civil service in Azad Jammu and Kashmir is regulated in the light of provisions of section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It postulates that subject to the Act, the appointment of persons to, and terms and conditions of service. Of persons in, the service of Azad Jammu and Kashmir, may be regulated by law. 9. Section 48 of the Act provided that there shall be a Public Service Commission which shall consist of such number of members, including a Chairman, and perform such function as may be prescribed. The infra structure of civil service and Public Service Commission, both were conceived by scheme of the Interim Constitution Act. In compliance with the provisions of section 49, the Azad Jammu and Kashmir Civil Servants Act, 1976 was framed. The Act contemplates the scheme of civil service, mode of appointment, promotion, posting and transferring termination and retirement from service, employment after retirement, pension and gratuity and other privileges, including the right of appeal or representation. In exercise of powers conferred by section 23 of the Civil Servants Act, 1976, the Appointments and Conditions of Service Rules, 1977 were enforced. These rules further provided the scheme of recruitments, appointments by promotion or transfer, constitution of Departmental Selection Committees, Selection Boards, determination of seniority, ad hoc
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appointments etc. The Public Service Commission was constituted by an Ordinance. It became an Act of the Assembly in 1986. Under section 7-A of the Act, the Commission was empowered to make rules, with the approval of the Government, to regulate and conduct business of the Commission. It was entrusted with the functions to conduct tests, examination, interview and adjudging the suitability for recruitment to the civil services of Azad Jammu and Kashmir and such other posts in connection with the affairs of the Government, in Grade-16 and above, in the light of the rules. 10. On August 18, 1992, an Act called as Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointment) Act, 1992, was enforced with immediate effect. Under section 3 of the Act, it was postulated that notwithstanding anything contained in any law or rule, decree, order or judgment of Court, all civil servants holding ad hoc appointment till the date of commencement, of the Act, shall be deemed to have been validly selected and appointed to the post held by them on regular basis, with effect from the date of commencement of the Act. The relevant provisions are reproduced:-- "3. Regularisation of services of certain civil servants.--Notwithstanding anything contained in any law or rule, or in any decree, order or judgment of a Court, all civil servants holding ad hoc appointment till the date of commencement of this Act, shall be deemed to have been validly selected and appointed to the post held by them on regular basis, with effect from the date of commencement of this Act: Provided that-- (i) such civil servants possess the educational qualification and experience prescribed for the posts; and (ii) the Commission has in respect of the post held by such civil servant, not recommended any other person on or before the commencement of this Act. 4. Procedure for termination of services where such termination is necessary.--To accommodate the recommendees of the commission, the services of the junior most ad hoc civil servants will be terminated: Provided that in case of two or more ad hoc civil servants whose date of appointment is the same, the services of the civil servants younger in age shall be terminated. 5. Determination of seniority.--(1) The civil servants whose services are regularised under this Act, shall rank junior to all civil servants belonging to the same service or cadre, as the case may be, who are in service on regular basis on the commencement of this Act, and shall also rank junior to such other persons, if any, who, in pursuance of the recommendation of the Commission made before the commencement of this Act, are to be appointed to the respective service or cadre, irrespective of their actual date of appointment. (2) The seniority inter se of the civil servants, whose services are regularised under this Act within the same service or cadre, shall be determined on the basis of their continuous officiation in such service or cadre: Provided that if the date of continuous officiation in the case of two or more civil servants is the same, the civil servant older in age shall rank senior to the younger civil servant. 6. Discretionary appointments.--All civil servants holding discretionary appointment to a post on or before the 30th day of June, 1992 who have held discretionary post continuously for more than five years shall be deemed to have been appointed on regular basis from the date of commencement of this Act." 11. Since the selection of candidates for the post of Grade-16 and above by Public Service Commission, was excluded by the impugned legislation, the petitioners feeling aggrieved, invoked the jurisdiction of this Court. It appears expedient to resolve the controversy raised in the petitions by first attending the preliminary objections. Since all the petitions are being disposed of by
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common order, the preliminary objections in the written statements, are attended in respective order. 12. In all the petitions, the petitioners have chosen to implead respective parties against whom they have sought relief. It was argued on behalf of the respondents that all the beneficiaries of the impugned legislation have not been impleaded, as such, the petitions are not maintainable for want of joinder of necessary parties. Order 1, Rule 10, C.P.C. Provided the scheme of necessary and proper parties. All such parties were described as such whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the matter. Where presence of party was not necessary, to effectually and completely adjudicate upon, and settle the questions involved in the proceedings, it was not necessary to add it as party in such proceedings. The pith and substance of principle enunciated under the Rule was that presence of a party must be essential to enable the Court to decide the controversy and not otherwise. 13. It was also deemed expedient to array such person as defendant against whom relief was sought in the matter. When no relief was sought against a person and otherwise his presence was not necessary to enable the Court to settle the controversy, such person may not be added as defendant. The multiplicity of proceedings was also considered as a reason to add parties in particular proceedings. In the present case, since the main controversy is confined to impugned legislation and the petitioners have also sought relief against particular persons who are benefited by impugned legislation, in such case, the authority which has exercised its powers and the persons against whom specific relief has been sought, are necessary and proper parties in the case. In Abdul Aziz's case (PLD 1968 Azad J & K 7), the vires of Azad Jammu and Kashmir Conciliation of Courts Act, 1962, were assailed. The mode of publication of enactment was subjected to criticism as ultra vires of the legislative authority. The defendants raised an objection that since the mode of publication of the impugned legislation was challenged, the Government, promulgating authority, was a necessary party. The objection was repelled by the Full Bench. The learned Acting Chief Justice, Muhammad Sharif, who delivered the verdict of the Court, observed:-- "We are unable to agree with the learned counsel in his contention that where the mode of publication of a certain enactment is challenged, the promulgating authority becomes a necessary party. If this argument was correct then by analogy, the enacting authority would also become a necessary party where it is sought to be declared that the enactment is ultra vires of the legislating authority. If the Courts can go into the question of ultra vires without impleading the Legislature or the enacting authority, we fail to understand why can't the Courts go into the question of promulgation of the enactment without impleading the promulgating authority. We hold that the Courts can go into the question of the proper promulgation of a certain enactment without impleading the promulgating authority as .a party. The Government, therefore, is not a necessary party in this suit:" 14. In Mst. Atiqa Begum's case (AIR 1941 Federal Court 16), the vires of Regularization of Remissions Act, 1938, was assailed. The proposition of necessary party was raised in the Federal Court. It was observed:-- "A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication. In a suit between landholder and his tenant, the Provincial Government cannot be considered a necessary party at all, as a proper decree can certainly be passed in their absence. But when in such a suit the validity of an Act of the Provincial Legislature is in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested in such an adjudication. In the present case, the Government were interested to this further extent that the effect of the High
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Court's ruling would be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act." The U.P. Government was impleaded as its presence was deemed necessary to defend a large section of the public of the Provincial Government. In this view of the matter, it is safe to hold that when the vires of a statute are assailed', the Government being representative of its citizens, adequately represents a large section of the people, the beneficiaries of the impugned legislation. 15. In Ahmed Saeed Kirmani's case (1982 CLC 590), the validity of law was assailed in, the petition. Members of the Bar, Mayor Municipal Corporation, Bar Associations etc., moved various applications for impleading them as party. The applications were opposed by the petitioner as their implemented was not necessary to effectually and completely adjudicate upon and settle the questions involved in the main petition. Mr. Justice S.M. H. Qureshi, the learned Judge disposed of the applications. The relevant observation is:-- "6. The writ petition before us questions the validity of a particular law and as such the makers of that law are the necessary party. The question whether every person who may be generally benefited by that law has also to be impleaded, is now one requiring a decision. The answer is to be found in the latter paragraph of the Supreme Court's observation, in Abdul Wali Khan's case already reproduced above. It is not possible to implead every one who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise there will be no end of parties. In any case, it cannot be said that the decision on the writ petition cannot be effectually and completely given in the absence of the applicants. The applications are, therefore, dismissed." 16. In Mian Jalal-ud-Din's case (AIR 1977 NOC 210), it was held that a party merely interested in the fruits of litigation, .Cannot be impleaded as a party. In Mahuva Municipality's case (AIR 1973 Gujrat 7), the validity of acquisition proceedings under the Land Acquisition Act, was assailed. It was held that the acquiring body for whose benefit the land was proposed to be acquired, could not be said to have any interest in the subject-matter of the suit, merely because it had to pay costs to the Government. It was not deemed a necessary party to the suit. 17. In Babu Rameshwar Prasad's case (AIR 1950 Patna 527), the validity of Provincial Act was challenged. The learned Judge who spoke for the Court, observed:-- "When the Province is impleaded in a suit it comes in as representative of the executive Government. Even if the Provincial Government sponsors the bill which becomes an Act and pilots it through the different stages of legislation, it is the Legislature which is ultimately responsible for the Act and the Province does not become a necessary party to a suit merely because the validity of an Act of the Legislature is challenged in the suit: 18. The objection was also raised in petition for leave to appeal addressed against the order of admission of petition of Javed Iqbal Khawaja, in Supreme Court. It was disposed of on February 13, 1993:-- "The objection that the person who have gained benefit from the impugned Act have not been impleaded as respondents is met by Ch. Muhammad Ibrahim Zia by relying on Ahmad Saeed Kirmani v. Punjab Province (1982 CLC 590) in which a Full Bench of the Lahore High Court formed the view that in a writ petition questioning the validity of a particular law, the makers of law are not necessary party. It was also held that it was not possible to implead every one who has been benefited by law to be impleaded as a party. Reliance was placed on Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1975 SC 463). No law has been cited showing the other view. May be that it is not a settled law that a person who has benefited from a legislation is not a necessary party if validity of the law challenged, but even if the High Court does not ultimately adopt the same view as adopted by the Lahore High Court, it cannot be said at the present stage that the writ petition in
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present shape on the face of it is not properly constituted. It thus cannot be dismissed on that ground." 19. The petitioners have impleaded the Government Assembly and civil servants against whom specific relief was sought in the petitions. The Assembly has passed the impugned legislation. The Government and the Assembly, both demonstrated direct interest in the matter, not only in the written statement but by their behaviour by preferring an appeal in the Supreme Court, against the order of this Court, passed on November 3, 1992, whereby the petition addressed by Javed Iqbal Khawaja was admitted for regular hearing. That reflects that both the respondents being representatives of citizens of the State, have undertaken upon themselves to defend the impugned action irrespective of the consideration of beneficiaries of the impugned order, to defend their appointments as civil servants. Besides, in presence of Government, Assembly and the civil servants against whom specific relief was sought in the petitions, it is deemed convenient to settle the controversy at rest effectually and completely. Thus, a large section of beneficiaries whose number is disclosed more than 400, are not deemed necessary or proper parties in the case. It is relevant to state here that the Government and the Assembly despite being in a position to disclose the details of particulars of the beneficiaries (civil servants) of the impugned legislation, have failed to enlist the same in the written statement, to enable the petitioners, if need be, to implead them as respondents. The objection is accordingly repelled. A large number of authorities cited at the bar in support of the objection, are not found apt and squarely helpful in view of different and distinguishable facts. 20. Mr. Noorul Amin, the learned counsel for respondents in Muhammad Yunus Tahir's case, also raised an objection pertaining to mis-joinder of causes of action. It was argued that the petition was liable to dismissal, on account of misjoinder of causes of action. It was emphasised that in view of the averments made in para 13 of the petition, the notifications relating to appointment of respondents Nos.4 and 5 were impugned. Both the notifications were passed on different dates, as such separate relief was asked…
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