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Petitioner: Sardar MUHAMMAD RAZZAQ VS Respondent: CHAIRMAN EHTESAB BUREAU OF AZAD JAMMU AND KASHMIR, MUZAFFARABADHonorable Justice Mohammad Azam KhanSheikh Masood Iqbal,Mir Khalid Mehmood
2016 P L C (C.S.) 601
[Supreme Court (AJ&K)]
Present: Mohammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
Civil Appeal No.106 of 2014
Sardar MUHAMMAD RAZZAQ
Versus
CHAIRMAN EHTESAB BUREAU OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 4 others
(On appeal from the judgment of the High Court dated 15.01.2004 in Writ Petitions Nos.1425 and 1426 of 2012].
Civil Appeal No.107 of 2014
Sardar ZIA HAMEED KHAN
Versus
CHAIRMAN EHTESAB BUREAU OF AZAD JAMMU AND KASHMIR and 3 others
(On appeal from the judgment of the High Court dated 15.01.2014 in Writ Petitions Nos.1425 and 1426 of 2012).
Civil Appeals Nos.106 and 107 of 2014, decided 17th August, 2015.
(a) Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009---
----Azad Jammu and Kashmir Ehtesab Act, 2001, Ss. 5, 6, 32 & 42---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition before High Court---Maintainability---Civil service---Employees of Ehtesab Bureau---Termination of employees by the Chairman Ehtesab Bureau---Ehtesab Bureau---Necessary party---Contention of employees was that Chairman Ehtesab Bureau had no power to terminate their services as appointing authority was the President---Writ petitions filed by the employee were dismissed by the High Court---Validity---Any order passed by the Chairman would be deemed to be the order of Ehtesab Bureau---Powers for appointment against the posts of officers and staff in the Ehtesab Bureau were exercise-able by the Ehtesab Bureau---Such powers would vest in the Chairman who should exercise the same and might delegate such powers to any of the officers---Chairman Ehtesab Bureau passed the termination order and he had been arrayed as party in the line of respondent---Ehtesab Bureau was not a juristic person and it was not necessary to array the same as respondent---Chairman Ehtesab Bureau was the necessary party but not the Ehtesab Bureau---Appointment orders of the employees were made by the President with the condition that same would be temporary in nature---Temporary appointment did not confer any right for permanent induction---President was to make Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 in consultation with the Chief Justice of the High Court and were to be consistent with the Azad Jammu and Kashmir Ehtesab Act, 2001---Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 had not been made by the President with the consultation of the Chief Justice of High Court which were not valid having no legal value---President had no power to frame Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 without the consultation of Chief Justice of High Court---Said Rules, were not a statutory provision and had no legal force---Chairman Ehtesab Bureau had powers only to appoint the officers and staff in the Ehtesab Bureau when petitioners were appointed---President had no power on the relevant date to appoint a person in the Ehtesab Bureau---Person who had not come in the court with clean hands had no right to maintain a writ petition---Appointment order of employees being an ill-gotten gain, writ could not be issued for retention of ill-gotten gain---Writ petitions of employees before the High Court were liable to be dismissed on the said sole ground---Appeals were dismissed by the Supreme Court.
Raja Nasim and 2 others v. Ehtesab Bureau AJ&K 2004 YLR 2292 and Ehtesab Bureau v. Rashid Ahmed Katal and 4 others 2011 SCR 512 ref.
Ehtesab Bureau Azad Jammu and Kashmir through Chief Prosecutor, Muzaffarabad v. Ch. Abdul Razzaq and 15 others 2004 YLR 1446; Ehtesab Bureau Azad Jammu and Kashmir v. Ch. Muhammad Hanif 2004 YLR 2278; Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 48; Habibullah v. D.I.G. Police and 3 others 2004 SCR 378; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Messrs Qureshi Vegetable Ghee Mills v. Dy. Collector Excise and Taxation, Mirpur and others 1994 SCR 123; AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others 2014 SCR 382; Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Writ jurisdiction---Scope---Extraordinary remedy by way of writ jurisdiction was an equitable remedy which could not be exercised for retention of ill-gotten gains.
(c) Civil service---
----Temporary appointment---Scope---Temporary appointment did not confer any right for permanent induction.
(d) Administration of justice---
----When a thing was provided to be done in a particular manner then it had to be done in same manner or not at all.
(e) Interpretation of statutes---
----When a temporary statute repealed the permanent statute or its provision, such deletion would remain in force or operative till the existence of temporary statute.
(f) Interpretation of statutes---
----Legislature had power to apply an Act with retrospective effect and retrospective effect should not affect any right accrued to a party.
(g) Words and phrases---
----"Necessary party"---Meaning---Necessary party was one in whose absence no effective order or decree could be passed.
(h) Words and phrases---
----"Consultation"---Meaning.
Sheikh Masood Iqbal for Appellant (in Civil Appeals Nos.106 and 107 of 2014).
Mir Khalid Mehmood, Chief Prosecutor, Ehtesab Bureau for Respondents (in Civil Appeals Nos.106 and 107 of 2014).
Date of hearing: 17th June, 2015.
JUDGMENT
MOHAMMAD AZAM KHAN, C.J.--- The above titled appeals by leave of the Court arise out of a consolidated judgment of the High Court dated 15th January, 2014, whereby the writ petitions filed by the appellants, herein, have been dismissed. Since both the appeals arise out of the same judgment, these are being decided through the consolidated judgment.
2. The appellant, Sardar Muhammad Razzaq filed Writ Petition No.1426/2012 in the Azad Jammu and Kashmir High Court, stating therein, that he was appointed as Deputy Director Legal (B-19) vide notification dated 18th February, 2009 and later on this notification was corrected vide notification dated 12th June, 2009. His services were terminated by the Chairman Ehtesab Bureau on 6th June 2012 and through notification dated 3rd July, 2012 respondent No.4 was appointed as Deputy Director (Legal) by deputation. He further alleged that he moved an application to the President of the Azad Jammu and Kashmir, who ordered for restoration of his services on 11th June, 2012. He requested for setting aside the notifications dated 6th June, 2012 and 3rd July, 2012 and for issuance of a direction for implementation of the order passed by the President on 11th June, 2012.
3. The appellant, Sardar Zia Hameed Khan filed Writ Petition No.1425/2012 in the Azad Jammu and Kashmir High Court, alleging therein, that he was appointed as Technical Expert Banking (B-19) in the Ehtesab Bureau on 12th June, 2009. His services were terminated by the Chairman Ehtesab Bureau on 6th June, 2012. He prayed that the order of termination passed by the Chairman Ehtesab Bureau on 6th June, 2012 be set aside.
4. After necessary proceedings, the learned High Court through a consolidated judgment dated 15th January, 2014 dismissed both the writ petitions, filed by the appellants, herein.
5. The counsel for the appellants in both the appeals, submitted that the appellants were appointed on temporary basis through order dated 12th June, 2009 till the promulgation of the Rules. The Rules were promulgated on 22nd June, 2009. The learned counsel submitted that in the light of new Rules, the case of the appellant, Sardar Muhammad Razzaq was sent to Selection Board No.1, but due to over-age his case was deferred. The appellant applied for obtaining relaxation in upper-age limit but before the grant of relaxation the Chairman Ehtesab Bureau terminated his services. The learned counsel submitted that the Chairman Ehtesab Bureau has no power to terminate the services of the appellants because the appointing authority is the President and not the Chairman Ehtesab Bureau. The learned counsel submitted that the President has ordered for restoration of the services of the appellant, Sardar Muhammad Razzaq. He further argued that the case of Sardar Zia Hameed Khan was not sent to the relevant Selection Board in the light of newly promulgated Rules. The learned counsel argued that the High Court has dismissed the writ petitions on the ground that the persons who have been appointed against the posts, have not been arrayed as party in the line of the respondents and their appointment orders have not been challenged. He referred to the record and submitted that in the prayer clause of the writ petitions the appointment orders of the incumbents who have been appointed by deputation have categorically been challenged and a prayer has been made for setting aside the said appointment orders. Lastly, the learned counsel argued that the Ehtesab Bureau is not a necessary party. The termination order has been issued by the Chairman Ehtesab Bureau. It is only the Chairman Ehtesab Bureau who is necessary party. The judgment on this score is not maintainable. He referred to the cases reported as 2004 YLR 1446, 2004 YLR 2292, 2004 YLR 2278 and [2011 SCR 512].
In the case reported as Ehtesab Bureau Azad Jammu and Kashmir through Chief Prosecutor, Muzaffarabad v. Ch. Abdul Razzaq and 15 others 2004 YLR 1446 this Court observed that the Ehtesab Bureau being neither a natural nor a juristic person, was not competent to maintain any sort of legal proceedings including the appeal in the High Court or Supreme Court. The appeal filed by Ehtesab Bureau was thus, incompetent.
In the case reported as Raja Nasim and 2 others v. Ehtesab Bureau AJ&K 2004 YLR 2292 it has been observed by this Court that the Ehtesab Bureau is a special institution of the Law Department and special institutions have exclusive jurisdiction in the sphere of their functions assigned to them under law but they cannot indulge in the matters outside the sphere of the relevant law without the sanction of the Government. The litigation in any matter in any Court is an extraneous matter. The Ehtesab Bureau cannot indulge in litigation before the superior forums, like the High Court and the Supreme Court in any matter having penal consequences without sanction of the Government.
In the case reported as Ehtesab Bureau Azad Jammu and Kashmir v. Ch. Muhammad Hanif 2004 YLR 2278 it was observed by this Court that petition was filed in this Court without the prior sanction of the Government by the Ehtesab Bureau. It is not properly constituted and is liable to be dismissed on this ground.
In the case reported as Ehtesab Bureau v. Rashid Ahmed Katal and 4 others [2011 SCR 512], it was observed by this Court that under section 47 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, read with Rules of Business, 1985, the Ehtesab Bureau is a special institution. The Government is the authority to grant sanction for filing appeals. The Ehtesab Bureau on its own cannot file appeal in the High Court or the Supreme Court.
6. While controverting the arguments, Mir Khalid Mehmood, Chief Prosecutor, Ehtesab Bureau, argued that the judgment of the High Court is perfectly legal. There is no illegality in the judgment of the High Court. The orders have been passed by the Chairman of the Ehtesab Bureau. The Ehtesab Bureau is a necessary party and without arraying Ehtesab Bureau as party in the line of the respondents, the writ petitions were not maintainable. He submitted that neither the persons who have been appointed by deputation, have been arrayed as party in the line of the respondents nor their appointment orders have been challenged, therefore, the writ petitions were not maintainable. The High Court has correctly dismissed the same. The learned Chief Prosecutor submitted that the appellants along with others were appointed on temporary basis subject to regular appointment after advertising the posts. He argued that the appointment orders clearly provide that the appointments are temporary in nature and does not create any right for permanent induction in service and the incumbents shall hold the posts till promulgation of new Rules. He further submitted that new Rules i.e. The Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009 were promulgated on 22nd June, 2009. The appellants had no right to remain in service after promulgation of new Rules. Under law they were not qualified to be appointed. The learned Chief Prosecutor further submitted that the appellant, Sardar Muhammad Razzaq has crossed the upper age-limit and overage. He could not be appointed against the said post, therefore, he has no right to file the writ petition, whereas, the appellant, Sardar Zia Hameed Khan, at one side was not qualified to be appointed against the post of Technical Expert Banking, moreover, the appointment against the post of Technical Expert is made by transfer of suitable persons or on contract basis through selection on merit and suitability as per column 6 of the Schedule-A of the above mentioned Rules. The appellants have no right to maintain the writ petitions. They illegally remained in service for a period of around three years. The learned Chief Prosecutor lastly argued that no order has been passed by the President for restoration of the services of the appellant, Sardar Muhammad Razzaq. He requested for dismissal of both the appeals.
7. We have heard the learned counsel for the appellants as well as the learned Chief Prosecutor and perused the record with utmost care.
8. The termination orders have been passed by the Chairman Ehtesab Bureau in the light of the provisions contained in the Ehtesab Bureau Act, 2001. Any order under the Act, 2001, passed by the Chairman is deemed the order of the Ehtesab Bureau. The Ehtesab Bureau is the creation of section 5 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001. The same is reproduced as under:-
"5. Ehtesab Bureau.--- (1) There shall be constituted an Ehtesab Bureau for the whole of Azad Jammu and Kashmir.
(2) Powers exercise-able by the Ehtesab Bureau shall vest in the Chairman who may delegate any of his powers by a special or general order
(3)
(4) .
(5) .
(6) .
(7) .
(8) "
The Chairman Ehtesab Bureau is appointed under section 6 of the Ehtesab Bureau Act, 2001. The same is reproduced as under:-
"6. Chairman of the Ehtesab Bureau.--- (1) There may be a Chairman of the Ehtesab Bureau to be appointed by the President on such terms and conditions as may be prescribed.
(2) .
(3) .
Appointments of officers and staff in the Ehtesab Bureau are provided under section 32 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, which is reproduced as under:-
"32. Appointment of Officers and Staff in the Ehtesab Bureau.--- (1) The Chairman or an officer duly authorized by him may appoint such officer and staff as he may consider necessary for the efficient performance of his functions and exercise of powers under this Act.
(2) .
(3) .
(4) .
(5) "
A combined reading of sections 5, 6 and 32 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, shows that the powers for appointment against the posts of officers and staff in the Ehtesab Bureau are exercise-able by the Ehtesab Bureau and vest in the Chairman who shall exercise the same and may delegate the same to any of the officers. The Chairman passed the termination order, he has been arrayed as party in the line of the respondents. The necessary party is such a party in whose absence no effective order or decree can be passed. This Court in the case reported as Ehtesab Bureau Azad Jammu and Kashmir through Chief Prosecutor, Muzaffarabad v. Ch. Abdul Razzaq and 15 others 2004 YLR 1446, observed as under:--
"... The Ehtesab Bureau being neither a natural nor a juristic person, was not competent to maintain any sort of legal proceedings including the appeal in the High Court or Supreme Court. The appeal filed by Ehtesab Bureau was thus, incompetent."
It was further observed by this Court in the case reported as Raja Nasim and 2 others v. Ehtesab Bureau AJ&K 2004 YLR 2292 as under:---
"The Ehtesab Bureau is a special institution of the Law Department and special institutions have exclusive jurisdiction in the sphere of their functions assigned to them under law but they cannot indulge in the matters outside the sphere of the relevant law without the sanction of the Government. The litigation in any matter in any Court is an extraneous matter. The Ehtesab Bureau cannot indulge in litigation before the superior forums, like the High Court and the Supreme Court in any matter having penal consequences without sanction of the Government."
The Ehtesab Bureau is not a juristic person. It was not necessary to array the Ehtesab Bureau as party in the line of the respondents. Thus, we draw the conclusion that the Chairman Ehtesab Bureau is a necessary party. The Ehtesab Bureau is not a necessary party.
9. Both the appellants challenged the order dated 6th June, 2012, through which their services were terminated, by way of separate writ petitions. They prayed in their writ petitions for setting aside the appointment orders of the persons, who have been appointed against the posts of Deputy Director Legal and Technical Expert Banking on deputations. The appointment orders of the appellants were made by the President, Azad Jammu and Kashmir on 12th June, 2009 in the light of the provisions contained in sections 32 and 42 of the Ehtesab Bureau Act, 2001 with the condition that the appointment orders are purely temporary in nature. These do not confer any right for permanent induction and continue till the rules are enforced under section 32 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001. It is necessary to reproduce the appointment order of the appellants which is reproduced as under:
10. The Azad Jammu and Kashmir Ehtesab Bureau Service (Composition, Terms and Conditions of Service) Rules, 2009, were made by the President on 22nd June, 2009. The Rules making powers under section 42 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 vest in the President with consultation of the Chief Justice of the High Court. Rule 42 is reproduced as under:-
"42. Powers to Make Rules.--- The President, in consultation with the Chief Justice of the High Court, may make Rules for carrying out the purposes of this Act."
The provision in an unambiguous term provides that the President may make the Rules in consultation with the Chief Justice of the High Court. The authority which is vested with the powers to make the Rules, may frame the Rules consistent with the Act. The Rules making power vested in the President in consultation with the Chief Justice of the High Court. A perusal of the notification dated 22nd June, 2009, reveals that "the President has been pleased to make Rules in the light of section 42 read with section 32 of the Azad Jammu and Kashmir Ehtesab Bureau, Act, 2001." It appears that these Rules have not been made by the President with the consultation of the Chief Justice, High Court. It is a celebrated principal of interpretation of statutes that if a thing is provided to be done in a particular manner it has to be done in same manner or not at all. This Court in the case reported as Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 48 has observed as under:--
"26. It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all. "
In another case reported as Habibullah v. D.I.G. Police and 3 others [2004 SCR 378] it observed by this Court as under:--
" . It is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method along or not at all."
The codal provisions vest the Rule making powers in the President with the consultation of the Chief Justice of the Azad Jammu and Kashmir High Court. The Rules were framed by the President on 22nd June, 2009 without consultation with the Chief Justice. After going through the above referred notification we summoned the original file of Rules from the Law, Justice, Human Rights and Parliamentary Affairs Department. The process for making of Rules was initiated by the President on 13th June, 2009 and Rules were notified on 22nd June, 2009. The Chief Justice of the Azad Jammu and Kashmir High Court was not consulted before framing of the Rules. Section 42 makes it clear that the President has no power to frame the Rules without consultation of the Chief Justice, Azad Jammu and Kashmir High Court. The word "consultation" has been defined in the case reported as Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others [PLD 1996 SC 324] which is reproduced as under:-
"47. The word "consultation" used in the Constitutional provisions relating to the Judiciary is to be interpreted in the light of the exalted position of the Judiciary as envisaged in Islam as stated above, and also in the light of the several provisions in the Constitution which relate to the Judiciary guaranteeing its independence ....."
Thus, the Rules made without consultation of the Chief Justice Azad Jammu and Kashmir High Court are not valid Rules and have no legal value.
11. The Ehtesab Bureau Act was promulgated in year 2001. Section 32 of the original Act deals with the appointment of officers and staff in the Ehtesab Bureau. A perusal of above referred section makes it abundantly clear that all the powers of appointment of officers and staff vest in the Chairman.
12. The Ehtesab Bureau Act, 2001 was amended through Ordinance No.XII of 2008, on 1lth June, 2008. Through this Ordinance sections 32 and 42 were substituted which are reproduced as under:--
"32. Appointment of Officers and Staff in the Ehtesab Bureau.-- (1) Appointment to the post of officers and staff in Ehtesab Bureau shall be made in the prescribed manner.
(2) .
(3) .
(4)
(5) .
"42. Power to Make Rules.--- The President may make rules for carrying out the purposes of this Act."
After expiry of the Ordinance No.XII of 2008, the same was re-enacted on 1st November, 2008 with effect from 11th October, 2008. This Ordinance expired on 7th February, 2008 and was re-enacted on 14th February, 2009 with effect from 7th February, 2008. The Ehtesab Bureau Act, 2001 was amended through Act No.V of 2010 on 1lth March, 2010 with effect from 13th June, 2009. Section 42 was again substituted which is reproduced as under:-
"42. Power to Make Rules.--- The Government may make rules for carrying out the purposes of this Act."
The amended section 42 which has been given effect from 13th June, 2009, provides that Government may make the Rules for carrying out the purposes of this Act. The Rules were framed by the President on 22nd June, 2009. Section 42 was substituted through successive Ordinance issued on 11th June, 2008 and remained in forced till 7th June, 2009. The Rules were framed by the President on 22nd June 2009 when the Ordinance had elapsed after completing its life. It is celebrated principal of law that when a temporary statute repeals the permanent statute or its any provision, such deletion shall remain in force or operative till the existence of temporary statute. On expiry of the life of the temporary statute, the permanent statute or its provision shall stand automatically revived. It was observed by this Court in the case reported as Messrs Qureshi Vegetable Ghee Mills v. Dy. Collector Excise and Taxation, Mirpur and others [1994 SCR 123] as under:-
"... There is a ring of authorities on the point that if temporary legislation repeals a permanent legislation the permanent legislation revive when the life of temporary legislation, i.e., an Ordinance, comes to an end or the same is otherwise repealed. Reference may be made to Crown v. Ghulam Muhammad (PLD 1950 Lah. 479), Arbab Muhammad Hasham Khan v. The Crown (PLD 1953 Pesh. 72), Abdur Rashid v. The State (PLD 1957 Lah. 400), The Sargodha-Bhera Bus Service v. The Province of West Pakistan (PLD 1958 Lah. 77), The State v. Muhammad Sharif (PLD 1960 Lah. 236) and Messrs Nau-Asio Trading Co. Ltd. v. Sh. Saeed Ahmed, Civil Judge, III…
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