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Petitioner: FAZAL-E-RABBI KHAN VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIRHonorable Justice Raja Saeed Akram KhanAbdur Rashid Abbasi,Noorullah Qureshi
2013 P L C (C.S.) 357
[Supreme Court (AJ&K)]
Present: Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ
FAZAL-E-RABBI KHAN
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others
Civil Appeal No.83 of 2012, decided on 12th October, 2012.
(On appeal from the judgment of the High Court dated 29-5-2012 in Writ Petition No.1831 of 2011).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Writ petition before High Court, competency of---Civil service---Promotion---Promotion was one of the terms and conditions of service of civil servants; and proper remedy available to the civil servants was before the Service Tribunal---Service Tribunal, however had no jurisdiction to issue any sort of direction to any authority to perform an act strictly in accordance with law; and if direction was sought, the proper remedy was to invoke the writ jurisdiction of the High Court---Contention that writ petition was not competent, was misconceived, especially when same was not hit by the principle of laches.
Syed Riaz-ul-Hassan v. Azad Government and 4 others 2012 PLC (C.S.) 1426 rel.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S. 44---Azad Jammu and Kashmir High Court (Procedure) Rules, 1984---Writ petition before High Court---Duty of High Court---Issues raised before High Court, were required to be attended properly and dilated upon comprehensively, but High Court failed to discharge its duty; and instead of deciding the real controversy through a speaking order, dismissed the writ petition in limine---Such practice was violation of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, which had not been followed in letter and spirit---High Court was to look into the matter of the case and decide all the issues involved in the writ petition.
(c) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----Ss. 4 & 8---General Clauses Act (X of 1897), S.6---Azad Jammu and Kashmir Electricity Department Service Rules, 1993---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Appointment---Promotion---Appellant, who was inducted into the service in the year 2002 as Sub-Engineer in leave arrangement, later on was appointed on regular basis after test and interview on the recommendations of the concerned Selection Committee in year 2006---After acquiring the degree of B. Tech (Honours) name of appellant was included in the seniority list and was placed at serial No.10 of the seniority list---At the time when the seniority list was prepared, the services of the appellant were governed by Azad Jammu and Kashmir Electricity Department Service Rules, 1993 [as amended in year 2007], which had been enacted in the year 2010 repealing the earlier Rules of 1993/2007, and under said new Rules the quota for promotion of the officials of the appellant's cadre was reduced from 15% to 5%---Said Rules had not been given any effect, question was, whether the Rules could be applied retrospectively or prospectively---If any new law was enacted, its effect would be prospective, and not retrospective, unless it was expressly given retrospective effect---When a right had accrued to a person, that could not be taken away through a repealing law---Case of the appellant was to be judged for promotion on the yardstick of the Azad Jammu and Kashmir Electricity Department Service Rules, 1993 [as amended in 2007]---Under said Rules, if any right had accrued to him, that could not be taken away by way of any amendment in the Rules---Case was remanded to High Court to be decided afresh after considering all controversial points, through a speaking order after providing full opportunity of hearing to both the parties.
Muhammad Hafeez Khan v. Mst. Sabiha Khanam PLD 1996 SC (AJ&K) 1; Nizam Din and another v. Custodian and 15 others 2011 SCR 390; Azad Government and 4 others v. Shezad Naseem Abbasi 2006 SCR 396; Basharat Hussain and 2 others v. Muhammad Imtiaz and 6 others 2009 SCR 530; Saeed Ahmad v. The State PLD 1964 SC 266; Janardhan Reddy and others v. The State of Hyderabad and others A1R 1951 SC 217; Isamdad Khan and others v. Muhammad Khurshid Khan and others Civil Appeal No.52 of 2005 and Rehmatullah Zia v. Aziz-ud-Din Qureshi and others 1998 PLC (C.S.) 132 rel.
(d) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----S. 8---Promotion---Officiating charge---Civil servant could not claim promotion on the basis of officiating charge, however, the fact of being senior could not be left unattended, while considering matter of promotion.
Abdur Rashid Abbasi, Advocate for Appellant.
Noorullah Qureshi, Advocate for Respondents.
Date of hearing: 10th July, 2012.
JUDGMENT
RAJA SAEED AKRAM KHAN, J.--- This appeal, with the leave of the Court, is directed against the judgment passed by the High Court on 29-5-2012, whereby the writ petition filed by the appellant, herein, is dismissed in limine.
2 The brief facts forming the background of this appeal are that a writ petition was filed by the appellant, herein, claiming therein that he was inducted as Sub-Engineer; Electricity, on 26-12-2002. Subsequently, he was appointed on the recommendations of the Selection Committee against a development scheme vide order dated 31-3-2005. His appointment was regularized after due process of law vide order dated 8-5-2006. The appellant acquired the degree in B.Tech. (Honours) and was placed at serial No.10 of the final seniority list of B,Tech (Honours) degree holder Sub-Engineers. He claimed that initially, the services of the Azad Jammu and Kashmir Electricity Department were regularised by the Rules known as the Electricity Department Service Rules, 1993 which were amended on 24-9-2007. In these Rules 15% quota was reserved for promotion of Sub-Engineers on the basis of seniority-cum fitness as Assistant Engineers possessing B.Sc. Electricity Engineering/ B.Tech (Honours) degree provided that they have three years and five years service respectively in their credit. The appellant was given additional charge of the post of Assistant Engineer/Sub-Divisional Officer, Thorar, vide notification dated 17-8-2010 and later on vide notification dated 6-12-2010 was promoted on current charge basis against the said post. On the recommendations of the Chairman of Selection Board, he was promoted as Assistant Engineer on officiating basis vide notification dated 30-12-2010. The appellant claimed that at the time of his officiating promotion, there were 55 posts of the Assistant Engineers in the Electricity Department out of which 9 posts fell in the quota of appellant's category and cadre. It was alleged by the appellant that being qualified for promotion, he had a right to be considered against the said quota. It was claimed by him that the respondents have amended the Rules of the Electricity Department on 2-9-2010 which were enforced in 1992 and amended in 2007, whereby the quota for promotion of B.Sc./B.Tech (Honours) degree holder Sub-Engineers was decreased from 15% to 5%. He claimed that he was qualified and eligible for promotion in the year 2007 but the matter was procratinated and delayed by the department and the case of the appellant was not forwarded to the concerned Selection Board till 2010, therefore, decrease in quota was not applicable to his case.
3. Mr. Abdur Rashid Abbasi, the learned counsel for the appellant, has argued that the judgment passed by the High Court is against law and facts of the case. The same has been delivered without due application of judicial mind. The High Court failed to interpret the provisions of section 56-C of the Azad Jammu and Kashmir Interim Constitution Act, 1974 as well as section 6 of the General Clauses Act. He submitted that under the aforesaid sections, a right, privilege, obligation or liability acquired, accrued or incurred under any repealed law is not affected by the repeal and any investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act or Regulation had not been passed. He further submitted that the High Court erred in law while not considering the important fact that a right of consideration for promotion of the appellant had accrued to him in the year 2007 which was not affected by the repeal/amendment made in the Rules in the year 2010. He contended that the High Court was not justified to dismiss the writ petition in limine without admitting the same for regular hearing which is otherwise against the High Court Procedure Rules, 1984. The High Court failed to judge the ability of the appellant for promotion in the light of the Rules in force at the relevant time and the Rules which are no more in existence cannot be implemented which is otherwise a sheer violation of section 56-C of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and section 6 of the General Clauses Act. He further urged that the posts falling in the said quota were available but the process of promotion was not initiated by respondents Nos.1 to 4 for no fault of the appellant. He emphasised that the Rules which were amended in year 2010 are not applicable in the case of the appellant, therefore, the curtailment of the quota of B.Sc./B.Tech (Honours) degree holders Sub-Engineers from 15% to 5% is against law. He further contended that the Rules of 2010 can only be applied to such posts which fell vacant after the promulgation of the said Rules. The case of the appellant was matured in the year 2007 for promotion but the name of the appellant was never sent to the concerned Selection Board for consideration, therefore, the High Court erred in law while not taking into consideration this important aspect of the case.
4. On the other hand, Mr. Noorullah Qureshi, Advocate, who entered his appearance on behalf of the respondents, strongly controverted the arguments advanced by the learned counsel for the appellant, and argued that the judgment passed by the High Court is perfect and legal. At the very outset, the learned counsel for the respondents raised an objection that the promotion is one of the terms and conditions of service of the civil servants, therefore, the writ petition was not competent and was liable to be dismissed on this sole ground. He further urged that the case of the appellant is also hit by the principle of laches. He urged that nobody can claim the promotion on the basis of the Rules which are no more in field. He submitted that the Rules promulgated in year 2007 have been repealed and have been substituted by new Rules of 2010, through which the quota of B.Sc./B.Tech (Honours) Sub-Engineers has been curtailed from 15% to 5%, therefore, the case of the appellant does not fall within the purview of the said Rules, He further averred that the Rules which were promulgated in the year 2010 were never challenged before any forum, therefore, at this stage, the appellant cannot be allowed to take a different stand. It is the prerogative of the Government to frame Rules and this right of the Government cannot be taken away at the sweet-will of any person. He strongly argued that the High Court, while dismissing the writ petition, has correctly interpreted the law in the light of the facts of the case while taking into consideration sections 6 and 21 of the General Clauses Act, whereas the appellant wants the interpretation of his own choice. At the time of promulgation of the Rules, the appellant was not qualified for promotion under the relevant Rules. He submitted that even otherwise as per Rules of 2007, a person holding B. Tech, (Hons.) degree requires five years minimum experience for promotion. The appellant was entered into service on regular basis vide order dated 8-5-2006 as Sub-Engineer and his minimum experience completed on 8-5-2011, whereas the Rules were amended on 2-9-2010, therefore, he is not an aggrieved person. He lastly argued that no right of the appellant has been infringed. His promotion right accrued in the year 2011, whereas the Rules were amended in the year 2010. As he did not fulfil the requisite qualification, therefore, his case was not considered.
5. We have heard the arguments, perused the record and also gone through the judgment of the High Court. While attending the preliminary objection raised by the learned counsel for the respondents about the maintainability of the writ petition, it may be observed that there is no cavil with the proposition that the promotion is one of the terms and conditions of service of the civil servants and proper remedy available to the civil servants is before the Service Tribunal, However, it is also not denied that the Service Tribunal has no jurisdiction to issue any sort of direction to any Authority to perform an act strictly in accordance with law and if direction is sought, the proper remedy is to invoke the extraordinary Constitutional jurisdiction of the High Court, therefore, the argument of the learned counsel for the respondents that the writ, petition was not competent is misconceived. In this regard reliance can be placed on a case reported as Syed Riaz-ul-Hassan v. Azad Government and 4 others 2012 PLC (C.S.) 1426, wherein it has been observed as under:---
" .. We are conscious with the legal aspect of the case that the writ petition is not competent in the matters relating to terms and conditions of civil servants and neither any question of determination of terms and conditions of civil servants can be competently adjudicated and resolved in exercise of writ jurisdiction, but at the same time when the authority fails to resolve the matter relating to terms and conditions of civil servant the High Court may, in appropriate cases, in absence of any other adequate remedy, direct the authority for deciding the matter in either way."
6. While coming to the next objection raised by the learned counsel for the respondents that the principle of laches was applicable in the instant case, therefore, the writ petition was liable to be dismissed on this sole ground, it may be stated that admittedly the new Rules were framed on 2-9-2010 and after framing the said Rules, the process of appointment through initial recruitment was started. For that purpose a requisition was forwarded to the Public Service Commission and the advertisement was published in the daily newspaper `Ausaf' on 23-11-2011 which was challenged by the appellant through writ petition on 29-11-2011. Therefore, the argument of the learned counsel for the respondents that the writ petition is hit by the principle of laches is misconceived.
7. So far as the argument of the learned counsel for the respondents that it is the prerogative of the Government to frame the Rules is concerned, we agree with the contention raised by the learned counsel to the extent that it is the prerogative of the Government to make Rules and even otherwise this fact has not been denied by the other party. However, we are not convinced by the argument of the learned counsel that the impugned amended Rules were not challenged before the High Court because there was no dispute regarding framing of Rules which is the sole prerogative of the Government, therefore, we think it proper that appellant was justified not to challenge the same before the High Court. Therefore, the argument of the learned counsel to that extent is not tenable.
8. The real controversy involved in the case is; (i) whether the Azad Jammu and Kashmir Electricity Department Rules, 2010 are applicable in the instant case or the Azad Jammu and Kashmir Electricity Department Rules, 1993 (amended in 2007) shall prevail; and (ii) whether the amended Rules can be given retrospective effect? Although, same issues were raised before the High Court which were required to be attended properly and dilated upon comprehensively but the High Court failed to discharge its duty and instead of deciding the real controversy through a speaking order, the writ petition is dismissed in limine. Although, time and again this Court has been discouraging such like practice in different pronouncements as the same is violation of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984, which have not been followed in letter and spirit. In spite of the fact that we are of the view that it was the duty of the High Court to look into the merits of the case and decide all the issues involved in the writ petition, we are not inclined to remand the case to the High Court and have decided to take up the matter by ourselves and decide the same.
9. The appellant was inducted into the service of Electricity Department on 26-12-2002 as Sub-Engineer in leave arrangement. Later on he was appointed on regular basis as Sub-Engineer on the basis of test and interview on the recommendations of the concerned Selection Committee vide order dated 8-5-2006. After acquiring the degree of B. Tech (Honours), his name was included in the seniority list of B.Tech (Honours) degree holders Sub- Engineers and was placed at serial No.10 of the seniority list which is the part of the record. At the time when the seniority list was prepared, the services of the appellant were governed by the Rules known as the Azad Jammu and Kashmir Electricity Department Service Rules, 1993 (as amended on 24-9-2007) under which the criteria for the promotion was laid down as under:---
"15% by promotion on the basis of seniority-cum-fitness from amongst Sub-Engineers possessing B.Sc. Electrical Engineering/ B.Tech (Hons.), provided that those with B.Sc, Electrical Engineering shall have three years experience and while those who possess B.Tech (Hons.) will have five years experience as such. If none is available for promotion then by initial recruitment."
This is also the part of the record that while considering the appellant for promotion according to the aforesaid Rules, firstly he was assigned additional charge of the post of Assistant Engineer/S.D.O, Thorar vide notification dated 17-10-2010. Through another notification dated 6-12-2010, he was promoted/appointed on current charge basis as Assistant Engineer, Operation Sub-Division, Thorar. We are conscious of the fact that on the basis of officiating charge, nobody can claim promotion, however, this fact cannot be left unattended that while considering the appellant as senior, he should have been considered for promotion.
10. The new Rules have been enacted on 2-9-2010 while repealing the earlier Rules of 1993/2007. Under the new Rules the quota for promotion of the officials of the appellant's cadre was reduced from 15% to 5% whereas at the time of promulgation of the above said Rules, no effect has been given to the Rules. Now the question arises if at the time of framing of the Rules the effect has not been given, whether they can be applied retrospectively or prospectively, then what would be legal interpretation. It is celebrated principle of law that if any new law is enacted, its effect will be prospective and not retrospective unless it is expressly given the retrospective effect. If a right has accrued to a person, that cannot be taken away through a repealing law. In this regard section 6 of the General Clauses Act comes forward for the rescue which is a complete answer to the above questions. It would be advantageous to reproduce section 6 of the General Clauses Act which reads as under:---
"6. Effect of repeal.--- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:
(a) ............................................................................
(b) ............................................................................
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) ............................................................................
(e) ............................................................................"
From the bare reading of the above said provision there is a clarity in our mind that a right accrued in favour of a person in the result of a repealed law cannot be taken away. Furthermore, amended law is always prospective in nature until and unless it is given the retrospective effect in the enactment itself. No repeal/amendment in law can be applied retrospectively, therefore, on the basis of such repealed Rules, a person cannot be deprived of the right which has already accrued to him. In this regard, the learned counsel for the appellant has rightly relied upon the cases titled Muhammad Hafeez Khan v. Mst. Sabiha Khanam PLD 1996 SC (AJ&K) 1, Nizam Din and another v. Custodian and 15 others [2011 SCR 390], Azad Government and 4 others v. Shezad Naseem Abbasi [2006 SCR 396] and Basharat Hussain and 2 others v. Muhammad Imtiaz and 6 others [2009 SCR 530].
In Muhammad Hafeez Khan's case PLD 1996 SC (AJ&K) 1 it has been observed as:---
"As is evident from the case-law cited above, the principle embodied in section 6 of the General Clauses Act that the suits or appeal etc. would be governed and decided according to law which was in force at the time of the institution of the suit, appeal or other cause, unless contrary has been provided either in repealing Act or procedure......."
In Nizam Din's case [2011 SCR 390], referred to above, it has been observed as under:---
"..... The golden principle of interpretation of statutes is that no statute is to be construed to have retrospective effect unless its language so necessitates or unless it is expressly so provided. Where a matter stands decided and the decision attains finality as a transaction past and closed, the subsequent amendment in the law will not affect the decision in absence of express intention of the law if it touches a right or existence of a right at that time unless expressly provided, it will not operate retrospectively...."
It was further observed in the above referred case as under:---
"The repeal will not affect the rights, liability accrued to a party and the same shall continue in spite of repeal. All proceedings can be taken or continued which could have been taken or continued, if the repealing Act did not come into force .........."
In the case titled Azad Government and 4 others v. Shezad Naseem Abbasi [2006 SCR 396], it was observed by this Court as under:---
".... The only question which needs resolution by this Court is whether the operation of amending Act (No.V1) of 2004 dated 23rd September 2004, is prospective or retrospective . The language of the amending Act is clear that clause (b) of section 2 of the Pakistan Administration of Evacuee Property Act, 1957 has been repealed and a new clause (b) has been inserted. It is evident from the language of the amending Act that it shall take effect at once. The amending Act has repealed clause (b) of section 2 and instead introduced a new clause (b) whereby new rights have been created. The golden principle of interpretation of statutes is that no statute is to be construed to have retrospective effect unless its language so necessitates or unless it is expressly so provided. Where a matter stands decided and the decision attains finality as a transaction past and closed, the subsequent amendment in the law will not affect the decision in absence of express intention of the law if it touches a right or existence of a right at that time unless expressly provided, it will not operate retrospectively...."
In the case titled Basharat Hussain and 2 others v. Muhammad Imtiaz and 6 others [2009 SCR 530]:---
".... Similarly his stand that only a diploma holder should be considered for promotion to the exclusion of the appellants, is also devoid of any force, as the factum of seniority cannot be ignored in the cases of promotion. The appellants being admittedly senior to the respondent and at the relevant time possessing the required qualification had a clear edge over the respondent and deserved to be promoted under law. The legal position needs not be repeated which provides that subsequent alteration of qualification cannot snatch a right, which has already accrued to a civil servant."
In a landmark judgment reported as Saeed Ahmad v. The State [PLD 1964 SC 266], section 6 of the General Clauses Act has been elaborately interpreted in the following manner:---
"There remains only the argument put forward by learned counsel for the appellant that as during the pendency of the appeal before the High Court the Pakistan Penal Code was amended and section 165-B was introduced, the learned Judges of the High Court should have decided the guilt of the accused not on the basis of the law as it stood on the date when he committed the offence, but in accordance with law as it stood when they decided the appeal.
As to the applicability of a statute which is…
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