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Petitioner: JAVED IQBAL KHAWAJA VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR THROUGH ITS CHIEF SECRETARY, MUZAFFARABAD
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Khawaja Muhammad Saeed, Syed Manzoor Hussain Gilani Title:JAVED IQBAL KHAWAJA vs AZAD GOVERNMENT OF THE STATE OF JAMMU AND
KASHMIR THROUGH ITS CHIEF SECRETARY, MUZAFFARABAD Case No.: Writ Petition No. 164 of 1994, Date of Judgment:1995-03-27 Reported As: K.L.R. 1995 Labour & Service Cases 133 , Result: N/A Judgment ORDER SYED MANZOOR H. GILANI, J.- This writ petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is addressed in the background of the cases decided by the High Court and Supreme Court of Azad Jammu and Kashmir, whereby an Act of the Assembly known as "Azad Jammu and Kashmir Civil Servants (Regularization of Adhoc Appointments) Act, 1992 (Hereinafter to be called as Regularization Act) was declared as unconstitutional. 2. True perception of the controversy involved in this petition can be had from the facts forming the background of the cases reported as PLD 1994 AJK- 26; 1994 CLC-2339 and 1994 SCR-297 which are hereby briefly stated. 3. A bill was introduced in the Azad Jammu and Kashmir Legislative Assembly on 29-7-1992, which was passed by the Assembly on 18-8-1992, as Act No. XXH of 1992, whereby all the civil servants holding adhoc appointments till the date of commencement of the Act, were de'emed to have been validly selected and appointed to the posts held by them on regular basis with effect from the date of commencement of the Act. The Act was assented by the President on 16-8-1992 and published in the Azad Jammu and Kashmir Official Gazett No. 264 of 1992. The Act, on challenge before the High Court,, was declared unconstitutional and ultravires the law. The petition was accepted in the following terms as reported in PLD 1994 AJK-26:
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"The impugned enactment has been found quite inconsistent and in contravention to the provisions of Section 4(15) and (17) of the Interim Constitution Act, in addition to the provisions of Civil Servants Act, Public Service Commission Act and Rules framed thereunder. It is also derogatory to the scheme of civil services provided under sections 48 and 49 of the Interim Constitution Act. It cannot be allowed to perpetuate its effect. It is, therefore, struck down. The adhoc appointments desired to be regulated by virtue of these provisions shall remain adhoc appointment in nature and character. Consequently, all orders and notifications whereby adhoc appointments of respondent-civil servants have been regulated, are declared null and void and of no legal effect These appointment are to be regulated in accordance with law. Here, it may be observed that since various persons holding adhoc appointments may have passed . The upper limit of age of initial recruitment, they may not be punished due to enforcement of the impugned enactment and its consequences. Therefore, the Government may, in exercise of its powers, relax the[Vol. Xivupper limit of age of such persons, to enable them to avail an opportunity of appearance in tests/examinations held by the Commission. The petitions are, therefore, accepted with costs. It is directed that let a writ to that effect be issued in favour of the petitioners and against the respondents." 4. On appeal against the judgment before the Supreme Court by the Azad Jammu and Kashmir Government and adhoc employees, the learned Court felt pleased to order as follows, as reported in 1994 CLC-2339: The Azad Jammu and Kashmir Civil Servants (Regularization of Adhoc Appointments) Act, 1992 is found to be void as it was violative of the Fundamental Right No. 15. All the appeals are, therefore, dismissed with costs." 5. After the above referred judgment, the Supreme Court has in Another case reported as 1994 SCR-297, declared that adhoc appointment confirmed under Section 22 of the Civil Servants Act, 1976, without determination of merit and reference to the Public Service Commission, is violative of the Constitution and illegal% 6. After the declaration of law by the High Court and upheld by the Supreme Court in the cases referred in Para 2 above (hereinafter to be referred as 'Adhoc Appointment Cases') for brevity, the Government of Azad Jammu and' Kashmir felt pleased to issue the following two even number and dated notifications. The text of the notifications is as follows: "No. S&GAD/A-4(170) /VI-R/90. The Azad Government of the State of Jammu and Kashmir is pleased to decide that:- (i) The Public Service Commission, while making selection for the posts, shall give due consideration to the experience and training to the candidates; (ii) The upper age limit in case of candidates who have served as on adhoc/work charge basis to the extent of their services rendered as such, shall be relaxed." "No. S&GAD/A-4(170)/VI-R/90. In exercise of the powers vested in this behalf under Rule 16 of Azad Jammu and Kashmir Civil Servants ' (Appointment and Conditions of Service) Rules, 1977, the Government is pleased to delete items 3, 4 and the Note thereunder of Schedule 'O' attached to the
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Notification No. S&GAD/A- 4(170)/VI-R/90, dated August 4,1990. (The Notifications shall be referred hereinafter as Notification No. 1 and Notification No. 2). 7. The petitioner seeks the cancellation of above referred notifications and a direction to the Government to refrain from acting upon the impugned Notifications on the fallowing grounds: A. That the respondent No. 1 with malafide intention issued the said notifications to make the judgment of the Supreme Court ineffective, whereas the respondent No. 1 is constitutionaDy bound to act in aid of the Supreme Court as provided by Section 42-A of the Interim Constitution Act, 1974. Therefore, the whole practice of respondent No. 1 is unconstitutional and. Also miuse of its powers; B. That the respondent No. 1, while issuing notification marked as Annexure 'A/T has. Referred rule No. 16 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, whereas under the sdid rule, respondent No. 1 has at all no legal powers to issue such a notification. The said rule for reference is reproduced hereunder: 'Initial appointment to the post in grade-16 to 20, except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the. Commission shall be made on the basis of examination or test conducted by the Commission! The above referred rule is very much clear and does not provide any power or authority to respondent No. 1 to issue the notification on the subject as it had issued the impugned notification, there the respondent No. 1 acted without lawful authority, C. That the respondent No. 1 issued the notification marked as Annexure'A' in arbitrary, capricious and fanciful manner, which amounts to clear discrimination among the State Subjects, which is a clear violation of fundamental rights guaranteed under Section 4 Sub section 15 of the Interim'Constitution Act, 1974, and also violative of rule 20 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977; D. That the respondent No. 1 through impugned notifications on the one hand directed the respondent No. 2 to discharge its constitutional functions in discriminatory manner and on the other hand tried to exclude all the posts of civil service except A.C and ASP from the purview of the Commission, this futile and illegal exercise of the respondent No. 1 clearly indicates its malafide intention to retain the illegal appointed persons into the services, in violation of law, on the subject. The respondent No. 1 has got no such constitutional or legal powers for this reason the impugned notifications without lawful authority and are void. The copy of notification No. S&GAD/A- 4(170) /VI-R/90 issued on 4-8-1990 is attached herewith and marked as Annexure 'C'. E. That when the initial appointments are illegal and without lawful authority, which does not confer any right, therefore, the whole super structure is illegal and ineffective; F. That the respondent No. 1 has power to specify posts which may be filled without reference to the Commission but this power is conditional, which can be only exercised in public Interest and not against the public Interest as provided by rule 7 of the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, 1978, whereas in the present case, the respondent No. 1 has issued
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the impugned notifications clearly against the public interest only for the benefit of its some favourite persons. Therefore, the impugned notifications are also against law on the subject and are discriminatory. "8. Respondents in their written statement accepting the striking down of the Act by the superior judiciary have denied the other averments made in the writ petition. 9. The learned counsel for the petitioner arguing his case, interalia contended that: (a) Both the notifications run counter to section 42(A) (3) and Section 42(B) of the Interim Constitution Act, 1974; (b) The Notification No. 1 obliges the Public Service Commission to give due consideration to the experience and departmental training of the candidates and relaxation of upper age limit in case of candidates serving on adhoc/work charge basis, amount a direction to favour the adhoc employees and an interference in the affairs of Public service Commission, which is obliged under law and the legal declarations Of the superior Courts to make selection on merit; (c) The Notification No. 1 amount to give an undue and discriminatory edge to the adhoc employees over others not so employed for their experience and training gained on the Government expenses, thus having the effect of unequal treatment and discrimination against the petitioner and other candidates not serving on adhoc/work charge basis; (d) That adhoc appointment under rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 confers no right for regular appointment, the impugned notification has the effect of creating a right in the adhocees against rules;. (e) Through Notification' No. 2 except the posts of AC and ASP, rest are excluded from the purview of the Public Service Commission, rendering all the posts in the service of the Government as discretionary, (f) That under rule 7 of the Public Service Commission (Functions) Rule, 1978, exclusion of a post or posts from the purview of the Public Service Commission can be made in the public interest only, but in the instant case the impugned notification has the effect of favouring the adhocees only without any public interest; (g) That except AC and ASP, none of the other posts in the service of Government remains to be filled in by a test to be duly conducted by the Public Service Commission; (h) That notification runs counter to Rules 16, 20 and 23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Azad Jammu and Kashmir Lateral Entry Rules, 1989, Azad Jammu and Kashmir Section officers Rules 1978 and the Government Order regulating the adhoc appointments etc etc; 9. The learned counsel placed reliance on 1994 SCR-297 & 341, PLD 1994 AJK-26, PU 1987 SC-107, 1992 CLC-219 and 1992 Federal Shariat Court- 412. 10. The learned Advocate General controverting the arguments contended that Notification
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regulating the relaxation of upper age limit in case of candidates serving on adhoc or work charge basis is in accordance with the decision of the High Court as upheld by the Supreme Court in the earlier round of litigation by the petitioner. It is further contended by the learned Advocate General, that it is the prerogative of the Government to prescribe the method and mode of test and syllabus for different posts and it is also the prerogative of the Government to exclude specific posts from the purview of the Public Service Commission which may be filled without reference to the Public Service Commission. The learned Advocate General also contended that the Notifications do not suffer from any legal infirmity and are in accordance with the Azad Jammu and Kashmir PuBlic Servants Act, i986 and its Functions Rules, 1978. 11. After hearing the learned counsel for the parties, we have carefully gone through the reports of the earlier cases decided by the High Court and Supreme Court on the subject The law regulating the adhoc appointments in service of the Government, initial recruitment on regular basis, the functions of the Public Service Commission, the power of the Government to make appointments etc. Has almost all been settled by the High Court and Supreme Court of Azad Jammu and Kashmir in cases referred above. The ratio decindendi of the cases referred above is:- that adhoc appointments made without fulfilling the requirement of rules and notifications allowing the adhoc appointments are without lawful authority;- that no adhoc appointee can be deemed as validly selected and regularly appointed without recruitment through the Public Service Commission and going through the selection procedure prescribed under existing laws;- that Section 22 of the Civil Servants Act does not authorize the Government to exempting a person from appearance before the Public Service Commission. The above stated legal position is the declaration of law by the superior Courts and is the law of the land. The precedent of law made by the Constitution Courts is declaratory for the Nation, while the decisions of other Courts are binding upon the parties only. The decision by the High Court unless reversed by the Supreme Court; and the final pronouncement of the supreme Court, on a question of law, is as good as Constitution or law itself in view of Section 44(B) in case of High Court for all the Courts and State authorities except Supreme Court and under Sections 42(A) (3) and 42(B) in case of Azad Jammu and Kashmir Supreme Court, for all the authorities in the State including High Court. Their binding force is not for the Courts only, but for all authorities performing functions within their respective jurisdictions in the State. Commenting upon the provisions similar to Section 42(B) of the Constitution, V. N. Shukla in 8th Edition of the Constitution of India has commented as follows: The law declared by the Supreme Court is binding on the State and its officers and they are bound to follow it whether respondents in a particular case were parties or not to the previous petition." 13. The Lahore High Court in a number of writ petitions grouped and decided together, reported as Messers Nishat Mills Limited v. Government of Pakistan and others (1989 CLC-1692) took a serious view of the executive agencies ignoring the declaration of law made by the High Courts and Supreme Court of Pakistan in cases reported as PLD 1965 P-4; PLD 1970 SC-439; PLD 1978 Lah- 463; 1986 SCMR-1917 regarding the retrospective imposition of different duties on the business establishments which were exempted from those duties on the date of their establishment under a
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valid Government Notifications. The learned Court striking down the notifications runing against the law declared by the Supreme Court and High Courts'of Pakistan observed: ," Before concluding, I would like to mention that the manner in which the Central Board of Revenue has fluted the law declared by the Supreme Court, leaves much to be desired. Under Article 5(2) of the Pakistan Constitution, 1973, obedience to the Constitution and the law is the invoilable obligation of every citizen and of every other person resident in Pakistan. I am not aware that the departments of the State are exempt from such obligation. Since under Article 189 of the Constitution, the law declared by the Supreme Court of Pakistan is binding on all Courts in Pakistan and under Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan are bound to act in aid of the Supreme Court, one would assume that all organs of the State are duty bound to act in aid of the law declared by the Supreme Courts and not flout it. One would expect that the Central Board of Revenue, with its full fledged legal cell, is aware of all laws declared by the superior Court of Pakistan relating to the subjects within their jurisdiction and does not ignore these declarations when framing or amending the law, rules and notifications on the subject. It appears that the Central Board of Revenue was aware of the rulings of the Supreme Court, PeshawarHigh Court and the Lahore High Court. This is apparent from the. Federal Government's Notification S.R.O. 489(l)/87, dat 14. ' Commenting upon the similarly worded Article 100Constitution of Pakistan 1973, Shaukat Mehmood in his treatise Constitution writes as follows: "Under this Articale all executive and judicial authorities are directed to act in aid of Supreme Court. Therefore, whenever the Supreme Court hands out a decision it is the duty of all such authorities to act upon it and to implement it in letter and spirit. It will-be unconstitutional for the executive to nullify the decisions of the Supreme Court by subsequent retro-active notifications. 15. In Works Cooperative Housing Society and another v. The Development Authority (PLD 1969 SC- 430), speaking for the Court, Ha Rehman, the Chief Justice (as his lordship then was) decided the proposition as to whether executive can nullify a judgment of a Court by a subsequent notification, the proposition was framed and decided in the following manner: " In the present case, the main question, in view is as to what was the intent of this Court when it said that the Development Authority could not deprt from the direction contained in the notification of the 9th of June 1964 "so long as it stands intact". Did it contemplate that the withdrawal of the notification by the Provincial Government at a subsequent stage would defeat the right of the appellant-Sodety? Was this Court thereby only declaring a right contingently?. I think not. It is now well settled that a notification cannot be made to operate retroactively and I think that there can be no manner of doubt that a judgment of a Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute to this Court any intention of authorising an illegality. This Court does not also as a rule deal with hypothetical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings initiated under Article 98 of the Constitution. It is difficult, therefore, to appreciate as to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government. In my view the words "so long as it stands" occurring in the last paragraph of the judgment in the appeal mean no more than this that since the relevant provisions of the notification dated 9-6-64
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had not been altered till then the commitment subsisted and the appellant- Sodety was entitled to the allotment. It could neVfer have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its on judgment." 16. In the hereinbefore referred case itself, a reference is also made to 'Len v. Mitchell' (H.R. 1912 A.C. 400), wherein the Privy Councel has gone to the extent of dedaring that: "......even a legislative measure like an Ordinance expressly givenretroactive effect could not operate so as to "annul a valid and subsisting judgment as between parties whose rights had been duly determined under and according to the law which existed before the new Ordinance was passed. It was said that it would require much more explidt language" to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting." 17. Besides the binding nature of the pronouncement of the Supreme Court under Section 42(B) and unreversed judgment of the High Court under Section 44(B), the dedaration of law" by the Supreme Court is further exalted by obliging all the executice and judidal authorities in Azad Kashmir to act in aid of the Supreme Court, which means that the judgment of the Supreme Court to the extent it decides a question of law, is not only to be implemented in letter and spirit, but the authorities in Azad Kashmir shall do all that is needful far ensuring the complete compliance with the dictum and adhere to the principles enunciated therein wherever such an eventuality arises and set right and straight a wrong continuing against the pronouncement of the Supreme Court. It would include the corrective as well as the implementative measures, in absence whereof, it cannot be said that the executive or judicial authorities act in aid of the Supreme Court Any action against the spirit of the decision of the Supreme Court or failure to act according to the declaration would, therefore, amount to' violation of Sections 42(A)(3) and 42(B). 18. There is no doubt in the legal proposition that a point of law declared by the Supreme Court is a decision between the parties before the Court, but it has the effect of being a declaration of law for the Nation, the executive and the judicial authorities, as the power to state as to what the law is and what it means, vests in the |uperior judiciary. A decision between the parties by the superior courts creates a right in the successful party for the implementation of the derision at the local level through the measures provided by law and rules for implementation of decisions, but in the broader spectrum, this declaration of law obliges the functionaries of the State to abide by the declared legal position in performance of their functions. The decision of the Supreme Court on a point of law has an over-riding effect upon the functionaries and institutions of the State including High Court, as being on the apex of the judiciary and the final arbiter of the controversies. 19. The declaration of law by the High Court has the similar force unless reversed by the Supreme Court for all the functionaries in the State, judicial, quasi-judicial or executive when seized with the similar proposition of law. 20. The jurisdiction with respect to different matters may be related and conferred upon different Courts, Tribunals or other judicial authorities howsoever designated under law, who may have the exclusive jurisdiction with respect to those matters, but the settled position under the Constitution remains that the principle of law enunciated by the High Court, subject to Section 42(B) shall be binding upon all the authorities when confronted with the similar principles and propositions of law. The Lahore High Court in 'Iftikhar Ahmed v. The Muslim Commecial Bank Ltd and another' (PLD 1984
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Lah-69) discussing the scope of Articles 175,189,190,199 and 201 of the Constitution of Pakistan, which with very minor variation of words are similar in nature and spirit to Sections 42, 42(A), 42(B), 43, 44 and 44(B) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, has held as follows:" Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its dear concept will be that it is the highest Court in the Province and all other Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i.e. a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be Created by the Legislature, "the such other Courts" must necessarily be inferior to the High Courts. It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, though, according to Article 190, all executive and judicial authorities have to act in its aid and all Courts in the country shall be bound to follow its decision in view of Article 189. As for- the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that any decision of a High Court shall to the extent it decides a question of law, or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. The Constitution, however, does not specifically say as to which Courts are subordinate to it. The scheme of the Constitution,…
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