1. The precise facts forming the background of this miscellaneous application are that the employees of Northern Education Project (NEP) filed a writ petition for implementation of the order of the Prime Minister issued on 17-6-1997, whereby these employees were directed to be brought on the normal budget according to their nominal roll, as were mentioned in Government Notification dated 1-7-1999. After hearing the parties, this Court accepted the writ petition in the following manner:-- "In light of the circumstances, record and rule of law laid down in the cases referred to and relied upon, I have no hesitation in holding that the petitioners are entitled to be brought on the normal budget in the same manner and through the same process according to their nominal roll by which the other employees and posts had been brought on the normal budget through the afore- stated notifications. This brings me to the next arguments of the learned Advocate regarding the implementation of the order of the Chief Executive which has been made on 17-6-1997. Secretary, Education on 3-6-1997 submitted a summary to the Chief Executive through Minister Education for bringing the technical staff on the normal budget. This proposal was even accepted by the Finance Department and ultimately by the Chief Executive on 17-6-1997. The approval of the Prime Minister remained unimplemented uptil now. This is an unfortunate state of affairs which tells upon the working of the bureaucracy.
2. ' It appears from the departmental file that a duly processed summary was submitted by the Secretary, Education on 3-6-1997 with concurrence of the Finance Department and is approved by the Prime Minister on 17-6-1997. The petitioners have also placed on the record a copy of the summary/order. The file was summoned. The order sought to be implemented has been issued on a duly processed file and is still holding the field. The order has not C been denied by the respondents nor any other record has been placed on the record, from which it can be believed otherwise. Under the Interim Constitution Act, 1974, the Prime Minister is Chief Executive of the State and the Executive Authority of the State vests in him who exercises the authority either directly or through the Ministers. The business of the Government, is regulated by the rules known as Azad Jammu and Kashmir Government Rules of Business, 1985. Since 1997, no further proceedings were taken as per record made available in the Court, which is a clear proof that subordinate bureaucracy has subverted and undermined the authority of Chief Executive as the order sought to be implemented has neither been carried out nor referred back as visualized by rule 8(G) and rule 9(4) of the Rules of Business. Therefore, the petitioners are also entitled to this relief. However, at that time the other petitioners were not inducted in service who were inducted subsequently and their rights have been protected in view of notification dated 1-7-1999. Therefore, apart from implementing the order of the Prime Minister issued on 17-6-1997, other petitioners herein are also entitled to the relief of adjustment."
3. The Azad Jammu and Kashmir Government went in appeal before the apex Court against the aforementioned order. The appeal was dismissed by the apex Court vide judgment and order, dated 14-5-2004. The petitioner herein and other employees who were petitioners in the said case have not been adjusted by the Education Secretariat in light of the direction of this Court. Thus, application was treated as an application for contempt on July, 30, 2004 and the respondents have filed the objections on 10-8-2004. After perusing the objections the explanation furnished by the respondents was not reasonable, thus, a notice was issued to the respondents to show cause as to why they may not be proceeded for violation of the order of the Court. The respondents placed on the record some of the orders on 5-8-2004, however, the orders of Sardar Muhammad Iqbal, Kh. Muhammad Arif and Mr. Tariq Mehmood Mirza, petitioners herein, were not produced.
4. Their orders have been produced on 10-8-2004 along with a break-up showing the manner and detail of adjustment and implementation of the judgment. An unconditional apology has also been tendered by the Secretary, Education and D.P.I. Schools.
5. In view of aforementioned background the learned Advocates representing the parties were heard at some length. The learned counsel for the petitioner contended that vide judgment, dated 30-10- 2003, a clear-cut direction was issued to the respondents to bring the petitioners therein on the normal budget according to their nominal roll in light of Notification, dated 1-7-1999. The petitioners though have been adjusted conditionally, but it appears that deliberate attempt has been made to frustrate the judgment of this Court by attaching conditions to the orders. The learned Advocate maintained that no authority can be allowed to frustrate the object of the judgment or to nullify the same through an erroneous interpretation or by issuing notification contrary to the spirit of the order. The learned. Advocate further maintained that some of the petitioners have been treated discriminatory. It was argued that orders issued in favour of petitioners Nos.7 to 43, of Petition No.344 of 2003, appeared to have been issued properly without any condition whereas the orders in favour of petitioners Nos.1, 3, 4 to 6 have been issued conditionally which have not only an overriding effect but is also a practical violation of the judgment of this Court. The learned Advocate further submitted that petitioner No.2, Iftikhar Ahmed Khilji, was refused relief in writ petition but he has been adjusted through the order, placed on the record. The learned Advocate further submitted that delay in implementing the judgment since 14-5-2004 till filing of the present application has not plausibly been explained, therefore, .Unconditional apology may not be accepted and the contempt proceedings may be completed so that respondents may be taken to task and public confidence may be restored on the one hand and supremacy of the Constitution and dignity of the Court on the other.
6. ' The arguments advanced on behalf of the learned Advocate for the petitioner have been controverted by Mr. Muhammad Zulf Khan, the learned counsel for the respondents. It was vehemently contended that after tendering unconditional apology the Courts have dropped the proceedings and in the present case, time has been consumed in processing the file, therefore, there is no wilful delay on behalf of the respondents, as has been argued by the learned Advocate for the petitioner. The learned Advocate further maintained that the petitioner had not signed the power of attorney for filing the writ petition, therefore, neither the judgment sought to be implemented can read in his favour nor could be implemented on his application. Moreover, the learned Advocate maintained that the petitioner was on deputation, and is to be repatriated to his parent department. The learned Advocate also argued that even no caveat was filed on behalf of the petitioner in leave to appeal before the apex Court which shows that it was in his subconscious that he will be repatriated to his parent department. It was also claimed that the petition has been filed with unclean hands, therefore, merits dismissal. The learned Advocate argued that as the petitioner has already approached the Service Tribunal, therefore, implementation of the judgment may be refused.
7. ' I have heard the learned counsel representing the parties and perused the record carefully. After giving careful thought to the judgment as well as record appended with this application. I am of the view that the submissions made by Mr. Ashfaque Hussain Kiani, have a force. A clear-cut direction was given to the respondents for implementation of the order of the Prime Minister whereby the petitioners listed in the Government Notification dated 1-7-1999 were directed to be brought on the normal budget according to their nominal roll. By issuance of the Government Notification dated 18th June, 2004, it cannot be said that the order of the Court has been complied with as the Notification, has not been issued according to the nominal roll of the petitioners therein.
8. It may be observed that under section 42(a) of Azad Jammu and Kashmir Interim Constitution Act, 1974, it is provided that Supreme Court has power to issue such direction, orders or decree as may be necessary for doing complete justice in any case or matter pending before it including the order for the purpose of securing the attendance of any person or discovery for production of any document. Subsection (2) of section 42(a) further postulates that such direction, order or decree shall be enforceable throughout Azad Jammu and Kashmir as if it has been issued by the High Court. Clause (3) of the said section further commands that all executive and judicial authorities throughout Azad Jammu and Kashmir shall act in aid of Supreme Court. Similarly under section 42(b) any decision of the Supreme Court to the extent that it decides the question of law or has based upon or enunciates the principle of law be binding on other Courts in Azad Jammu and Kashmir. The High Court is also vested with similar powers under section 44(b) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. All the executive authorities including the Courts subordinate to the High Court are bound to act in aid to the Supreme Court and non- implementation of the orders and judgments of the superior Courts intentionally attract section 45 of the Interim Constitution Act, 1974. A Division Bench of this Court in Javaid Iqbal Khawaja's case 1995 CLC 1362 opined that the decision by the High Court unless reversed by the Supreme Court, on the question of law, and final pronouncement of the Supreme Court thereon would be as good as Constitution or law itself in view of section 44(b) of the Constitution. At page 1369 of the report a Division Bench of this Court opined as under:--
12. 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 section 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 petitions."
9. ' Again at page 1372 of. The same report following observation has been recorded.
10. "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 declaration of law by the Supreme Court is further exalted by obliging all the executive and judicial 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 for 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 superior judiciary. A decision between the parties by the Superior Court creates a right in the successful party for implementation of the decision 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 overriding 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." (Underlining is mine).
11. ' Again in para.20 of the same report it has been opined as under:-- "20. The jurisdiction with respect to different matters may be regulated and conferred upon different Courts, Tribunals or 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."
12. ' The facts of the case were that Azad Jammu and Kashmir Civil Servants (Regularization of Ad hoc Appointments) Act, 1992, was challenged by Javaid Iqbal Khawaja and others before this Court.
13. The petition was accepted and the said Act was declared ultra vires of the Constitution. The judgment is reported as PLD 1994 AJ&K 26. The Government of AJ&K and other affectees went in appeal before the apex Court but the appeal met the same fate and the Act mentioned above was declared invalid and ultra vires of the Constitution. After decision of the Supreme Court, the Government issued two Notifications on 4th August, 1980 wherein it was directed that while making the selection for the posts occupied by ad hoc employees. The Public Service Commission shall give due consideration to the experience, training of candidates. This part of the Notification was challenged for being violative of the judgment of the Supreme Court and High Court 1994 CLC 2339, PLD 1994 (AJ&K)
123. The petition was accepted. In this background the aforementioned observation was recorded by a learned Division Bench of this Court. In the afore-stated judgment the ratio laid down in "Works Cooperative Housing Society and others v. Karachi Development Authority PLD 1969 SC 430" was followed wherein the apex Court of Pakistan declared that a right declared by a competent Court cannot be nullified by the executive action. I would like to reproduce the relevant observation which is to the following effect:-- "In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart 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-Society? Was this Court thereby only declaring a right contingently? I think not.
14. 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 Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute this Court any intention of authorizing 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.
15. ' 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- 1964 had not been altered till then the commitment subsisted and the appellant-society was entitled to the allotment. It could never 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 own judgment." (underlining is mine).
16. Thus, I am of the confirmed view that though the petitioners have been adjusted but their orders have been issued in a discriminatory manner as well as in violation of the Court order. Petitioners Nos.7 to 43 have been appointed without any conditions whereas petitioners Nos.1, 3, 4 to 6 have been appointed conditionally and these orders are not only violative of the order of the Prime Minister and pronouncements of the Courts but also have an effect of nullifying the judgments, therefore, the orders on the face of it are discretionary and violative of the Court order. For ready reference and comparison only two orders are reproduced as under:- {{URDU TEXT}} In view of the rule of law laid down in the authorities reproduced hereinabove it can safely be concluded that the executive authority cannot be allowed to advance its own erroneous interpretation of the judgments of the superior Courts. This brings me to the objection of Mr. Muhammad Zulf Khan, the learned Advocate for the respondents, who has contended that the petitioner herein and one Sardar Muhammad Iqbal could not be adjusted for the reason that the petitioner herein has not signed the power of attorney for prosecution of the petition. Similarly he had not filed any caveat before the apex Court. Muhammad Iqbal, Executive Engineer, was removed from the service prior to the institution of the writ petition, therefore, the question of his adjustment hardly arises.
17. ' I have considered the objections after scanning the record appended with the earlier petition. In the said petition no regular written statement was filed. Only comments were filed by the respondents and the same were treated as written statement on the request of their Advocate. In these comments no such objection has been raised. The purpose of pleading is to confine the parties to a particular stand so that they should not change their position without prior leave of the Court. Be that as it may, the contention is misconceived on the basis of principle of res judicata as it embodies in section 11 of C.P.C. Which postulates that no Court shall try any suit or issue in which the matter directly and substantially- in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
18. Respondents were alive of the fact and the record was also in their possession and they raised no objection in the pleadings and now they cannot be allowed to travel beyond the pleadings and reopen the past and closed transaction after final verdict of the apex Court. So far as the case in hand is concerned, explanation (iv) of section 11, C.P.C. Is fully attracted which is to the following effect:-- "Explanation (iv) Any matter, which might and ought to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
19. ' In view of the aforesaid explanation respondents ought to have raised the question of removal of Sardar Muhammad Iqbal as well as Mirza Tariq Mehmood but they kept mum and raised no objection, therefore, now it shall be deemed to have been raised and decided against them on the basis of the principle of constructive res judicata. 1996 M LD 355. The objection can be answered in light of the rule of law laid down in Pir Bakhsh's case PLD 1987 SC 145. At page 166 of the report it was opined that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. As the respondents in earlier proceedings had not based their defence on these orders, therefore, provision of section 11, explanation (iv) of the C.P.C. Would be applicable. At page 167 of the report the apex Court also explained the principle of estoppel by judgment in the following manner:-- "If he was party then the judgment of the competent Court as a plea is a bar or as an evidence conclusive between the same parties upon the same matter directly in question in another Court or in another action between the same parties in the same Court. In legal parlance this bar is known as estoppel by judgment or res judicata.
20. ' The learned Judge relied on passage from book titled "Treatise on the Constitutional Limitation" by Cooley, which is reproduced for proper appreciation. At page 47 of the said book it has been observed as under:- "And as to the first, we understand the rule to be, that a decisioh once made in a case by the highest Court empowered to pass upon it, is conclusive upon the parties to the controversy and their privies, who are not allowed afterwards to revive it in a new proceeding for the purpose of raising the same or any other questions. The matter in controversy has become res judicata, a thing definitely settled by judicial decision; and the judgment of the Court imports absolute verity.
21. Whatever the question involved, whether the interpretation of a private contract, the legality of an individual act, or the validity of a legislative enactment, the rule of finality is the same. The controversy has been adjudged, and once finally passed upon is never to be renewed."
22. ' And further: "The rule of conclusiveness to this extent is one of the most inflexible principles of the law; insomuch that even if it were subsequently held by the Courts that the decision in the particular case was erroneous, such holding would not authorize the reopening of the old controversy in order that the final conclusion might be applied thereto."
23. ' This brings me to the question of implementation of the judgment of this Court. This question can easily be answered in view of the dictum laid down in Muhammad Sharif's case 1994 CLC SC (AJ&K) 2034.- The Supreme Court in similar circumstances with regard to the implementation of the orders of the Court observed as under:- "Now we may take up the objections taken by the appellants' counsel. It may be stated that section 151 of the Code of Civil Procedure does not confer any new power upon a Court but only saves its inherent powers already vested. The inherent powers of the Civil Courts to do right and undo the wrong are preserved under this section. Where a law confers a jurisdiction it impliedly grants powers of doing all such acts or employing such means as are necessary in its execution. The Court has inherent power to take all steps to execute its own mandates and orders. Under section 151 of the Code of Civil Procedure the powers are to be exercised to secure the ends of justice or for the purpose of preventing the abuse of the process of the Court and it is intended to prevent the Court from being rendered powerless on account of having omission in the Code and to make necessary orders. In the instant case the allegation of abusing the process is levelled against the M {{URDU TEXT}} of the Court and the same is supported by the evidence on record. In the circumstances the section is correctly invoked as for such situation there is no other specific provision in the Code. The view finds support from Syed Nazir Hussain Shah v. Allah Ditta 1973 SCM R 103 and - The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others.
24. PLD 1975 SC 331." (underlining is mine).
25. In light of the foregoing discussion and in exercise of powers conferred on this Court under Chapter 2, rule 6(xii) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, read with section 151, C.P.C., this application is decided in the following manner:--
(i) that the conditions attached to the orders of petitioners Nos.1, 3, 4 to 6 are declared to be the violative of the order of the Court and the same are declared to have been imposed without lawful authority and are of no legal effect.
(ii) That the orders of these petitioners will be issued on the same pattern as the orders of the other petitioners have been issued and the. Protection will be given to them from the date of their termination.
(iii) The fresh orders shall be issued within a period of 15 days with the intimation to the Registrar of this Court.
(iv) That the petitioner No.2 was not given relief, in the judgment sought to be implemented, therefore, his order will not be read in pursuance of the order of this Court, dated 30-10-2003.
26. ' In view of above the application to the extent of implementation of order is decided in the manner indicated hereinabove. So far as the question of contempt proceedings is concerned, in the light of the facts stated in earlier part of the order, I am of the prima facie view that a case for violation of the orders of the High Court dated 30-10-2003 and Supreme Court dated 14-5-2004 has been made out. The unconditional apology tendered by non-petitioner No.2 is not bona fide, therefore, is not accepted. So far as petitioner No.6 is concerned, he has complied with the judgment of the Court, therefore, the notice to his extent is discharge.
27. ' Now the proceedings for contempt of the Court will be completed in accordance with law, for that purpose the case shall come up on 15-9-2004. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.