1. ' GHULAM MUSTAFA MUGHAL, J.---Through this petition filed under section 44 of the AJ&K Interim Constitution Act, 1974, a direction is sought to the respondents for issuance of a formal notification in light of the advice of the Prime Minister of Azad Jammu and Kashmir.
2. ' Precise facts of the case are that the petitioners were appointed respectively as Chairman and Members of the AJ&K Public Service Commission for a period of three years on the terms and conditions mentioned in the notifications of their appointment. It is stated that before expiry of the contract period, under proviso to section 4 of the AJK Public Service Commission Act, 1986, the President was advised by the Chief Executive on 20-2-2006 for extension of their appointments for a period of two years, who has not acted on the advice as required by A section 7 of the Interim Constitution Act, 1974. It is alleged that the nonacceptance of the advice tendered by the Prime Minister is illegal and unconstitutional. The respondents have filed comments which were treated as written statement at the request of their learned Advocate. It is admitted in the written statement that the Chief Executive/Prime Minister of Azad Jammu and Kashmir sent an advice to the President for extension of the tenure of the petitioners on 20-2-2006, but the President has not approved the proposed extension rather a new panel is solicited from the Prime Minister.
3. ' Raja Muhammad Hanif Khan Advocate, appearing for the petitioners inter alia contended that under section 7 of the AJK Interim Constitution Act, 1974, in performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. The delay, in approving the advice, on part of the President, according to the learned Advocate, is violative of the Constitution and law declared by this Court and the Apex Court of AJK in Reference No,1 of 1977 made by the President of Azad Jammu and Kashmir reported as PLD 1978 SC AJK 37, Sardar Muhammad Ayyub Khan's case PLJ 1998 AJK (HC) 127 and 1999 SCR
235. The learned Advocate further contended that in view of the provisions contained in section 52 of the AJK Interim Constitution Act, 1974, the President cannot be impleaded for any act done or not done by him, therefore, has been impleaded as such and in view of the various judgments of the Superior Courts, the Government is impleaded for the purpose. The learned Advocate argued that the law declared by the apex Court of AJK under section 42-B of the AJK Interim Constitution Act, 1974, is binding on all the State functionaries and everyone of them is bound to act in aid of the Supreme Court in view of subsection (3) of the section 42-A of the said Act. Besides the above mentioned cases the learned Advocate also placed reliance on Amanullah Khan's case (PLD 1990 SC 1092).
4. ' Raja Gul Majeed Khan Advocate appearing for the respondents controverted the arguments, however, he frankly admitted that the advice for extension of the tenure of the petitioners was sent to the President but the same was not approved, rather a new panel/proposal has been sought by the President. The learned Advocate also submitted that in view of the clear provision contained in section 7 as well as the law declared by the ,apex Court, the President is bound to approve the advice sent by the Chief Executive. However, the learned Advocate raised an objection to the maintainability of the petition on the ground that the President was liable to be impleaded as a party and exemption mentioned in section 52 of the AJK Interim Constitution Act, 1974 is not attracted in the present case as the petitioners have specifically alleged mala fide and violation of the Constitution against the President.
5. ' I have heard the learned Advocates for the parties and also perused the record of the case as well as relevant file.
6. ' The proposition involved in the case in hand has been thrashed out by the apex Court in various cases. Same like controversy received attention of the apex Court firstly in Reference No,1/97 made by the President of Azad Jammu and Kashmir (PLD 1978 SC (AJK) 37). The question in the above mentioned reference was formulated and referred for opinion of the apex Court as to whether the powers of appointment of Chairman and Members of the Public Service Commission vest in the President under Schedule III of the Azad Government of State of Jammu and Kashmir Rules of Business? The apex Court examined the point and it was opined that no valid order can be issued by the Government without approval of the President in cases enumerated in Part-A of Schedule III.
7. It was further opined that such cases are to he submitted to the President for his orders along with concise summary to be submitted through the Prime Minister containing his specific recommendations. It was opined that despite mandatory language applied in sections 7 and 12 of Act 1970 (as the position then was), the President cannot be bypassed and the orders of appointment of the Chairman or members of the Public Service Conmlission cannot be issued without his prior approval. The apex Court when confronted with the situation as is involved in this case i,e, "what would happen if the President refuses to accord his approval in spite of the advice of the Prime Minister tendered under section 7(1) of the Act", in para. 4 of the order held as under:-- "We find that in like provisions and section 36(2) where remedy is provided if the President does not accent to a bill within seven days after it has been presented to him, the Act does not provide any such solution concerning the cases referred in Schedule III Part A. This might create a constitutional impasse and probably will have to be released out through ultra constitution manner or otherwise."
8. ' The apex Court in view of the constitutional position and responsibility of the President and the Prime Minister further observed that this is a remote possibility and mere presence of even this remote possibility does not in any way render the provision of rule 11 read with Schedule III of the Rules of Business as inoperative. Secondly the matter was considered by Full Court in Mr. Justice (Retd.) Muhammad Siddique Farooqi's case in Writ Petition No,24 of 2001 decided on 2-8-2001.
9. Section 7 of the AJK Interim Constitution Act, 1974, which postulates that the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him. It is useful to reproduce the relevant observations of the Court recorded in para. 15 of the judgment, which is as under:--
15. Now we will like to deal with the next point which relates to the advice of the Council as to whether it is binding on the President or not. From the reading of the Constitutional Act, it becomes quite clear that in this Act affairs of this liberated part of the Jammu and Kashmir State are to be run through a Parliamentary form of Government. Under the Provisions of the Constitutional Act, the Executive authority of the Azad Jammu and Kashmir Government is to be exercised in the name of the President by the Government which is headed by the Prime Minister as its Chief Executive and his Ministers who have to act through him. The scheme of the Constitutional Act shows that the President has to perform his functions either on the advice of the Government or on the advice of the Azad Jammu and Kashmir Council which is given exclusive legislative powers over the subjects mentioned in Third Schedule. The Azad Jammu and Kashmir Council is also vested with executive authority over these subjects. In parliamentary form of the Government, the people who are responsible to run the affairs of the State are answerable before the people through their representatives who sit in the legislative bodies. President in a parliamentary form of Government is not answerable before any person. For this purpose, it is laid down under section 7 of the Constitutional Act that president shall perform the functions of his office in accordance with the advice tendered to him by the Prime Minister and such advice shall be binding on him. Under the provisions of Constitution, the matters which relate to the Council and which are to be performed by the President on the advice of the Council shall be performed by him in accordance with the advice tendered to him by the Council."
10. ' In para. 16, it was observed as under:- ..As said earlier, all orders are to be passed in name of the President under section 12 of the Constitution as he is Head and Symbol of the State, however, in the light of the scheme of the Constitutional Act, he is required to perform his functions either on the advice of the Government or on the advice of the Council. Therefore, keeping in view the language used in section 7, it can be said that President is bound to act on the advice of the Council in performance of his official functions in accordance with the provisions of the Constitutional Act."
11. ' In para. 17 of the judgment, it was finally concluded by this Court as under:-- "17. We are quite clear that no advice can be tendered against the express provisions of the Constitution and if an advice is tendered in accordance with law and the provisions of the Constitution by the Azad Jammu and Kashmir Council or Government, the same shall be binding on the President, any contrayention thereof is liable to be struck by the Courts."
12. ' The proposition was again considered in Sardar Muhammad Ayyub Khan's case (PLJ 1998 HC AJK 127) where the President was pleased to order for appointment of late Sardar Muhammad Ayyub Khan as a member of the Public Service Commission. It was held that as the appointment is to be made after approval of the President, therefore, the Prime Minister/the Government is bound to notify his appointment by implementing the order of the President. After a comparative study of the similar constitutional provisions from the Constitution of Pakistan and the Azad Jammu and Kashmir, this Court observed as under:-- "12. The above referred rules of business relied upon by the 'learned counsel for the petitioner are also crystal clear in stating that the President is to approve the summary submitted to him through the Prime Minister containing specific recommendation of the Prime Minister. The President is only to approve the recommendation not to direct the Prime Minister to act in any manner.
13. Appointment of the Member in the Public Service Commission under subsection (2) of the section 3 of the Public Service Commission Act, is a function of the President which is subject to the control of section 7 of the Constitution being the source of all the laws enforce in Azad Jammu and Kashmir, over which the executive authority is vested in the Prime Minister, under section 12 of the Constitution. The appointment cannot be made unless President approves the summary and recommendation submitted by the Prime Minister to him. Approval by the President before issuance of the order is a condition precedent and any order issued without approval of the President, notwithstanding the fact that executive authority with respect of all the laws made by the Assembly vests in the Government, is without lawful authority. But it does not mean that the President can act independent of the advice, though it is discretion of the President to approve anyone out of the panel, if any submitted by the Prime Minister. The Rules of Business are subject to section 7 of the Constitution. The report of the Supreme Court made in Reference No,1 of 1978 reported as PLD 1978 SC AJ&K 37 is also in consonance with what has been stated above and is respectfully followed, through an advice."
14. ' Again in para 14 of the judgment, the matter was concluded by observing as under:-- "14 The learned Advocate-General has rightly contended that the business of the Government is to be conducted in the manner it is visualized by the Constitution and the rules of business and any action contrary to it, is without lawful authority. Every case which requires the approval of the President under the above referred rules of business has to be approved on the advice of the Prime Minister. A direction without advice, approval without proposal or a subsequent ratification of the note or direction of the President by the Prime Minister is neither allowed nor recognized by the Constitution."
15. ' On appeal, the judgment was maintained by the apex Court in 2000 YLR 2868.
16. ' Same like proposition has also been considered by the apex Court of Pakistan in Al-Jehad Trust case (PLD 1997 SC 84). Facts 'of the case were that Chief Justice of Pakistan sent a panel for appointment of Judges of the Supreme Court with his recommendations to the Prime Minster for advice to the President. The advice was delayed, over which the Supreme Court expressed its displeasure and considering the repercussions of the law declared by the apex Court of Pakistan treated it as violation of the Constitution. Relevant para. Of the judgment is as under:-- "85. The last point is very thought provoking and was raised in the Court during the hearing, which is to the effect as to what will happen if the judgment of the Supreme Court in the appointment of Judges case is not implemented. Learned counsel who had appeared in these matters made different comments.
17. ' Mr. S.M. Zafar as amicus curiae stated that in such a situation President will be justified to invoke Article 58(2)(b) of the Constitution because it would amount to arising of situation in which Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. Under the four corners of the Constitution Article 189 provides specifically that any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan. Article 190 envisages that all executive and judicial Authority throughout Pakistan shall act in aid of the Supreme Court.
18. Article 204 empowers the Supreme Court to punish for contempt any person who;
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any orders of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; does anything which tends to prejudice the determination of a matter pending before the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court.
86. In the case of non-implementation of the judgment it will have to be found out as to who is responsible for not implementing it. Article 190 is a mandatory provision under which there is no alternative for the Executive but has to act in aid of the Supreme Court. Person identified as responsible for non-implementation of the judgment can be punished by the Supreme Court for contempt for disobedience of its judgment. Perusal of Articles 177 and 193 and other Articles which are relevant for the subject-matter of judiciary shows that Supreme Court has to correspond with the President for appointments as he is named specifically in the relevant Articles and all executive actions are to be taken in his name. It is expected that President shall see to it that appointments of Judges in the superior Judiciary are made in strict accordance with the Constitutional scheme contemplated in Articles 177 and 193 of the Constitution which are to be interpreted and read in conjunction with the judgment in Al-Jehad Trust case which is authoritative adjudicatory pronouncement in respect of interpretation of Articles in the Constitution relating to the judiciary.
19. Time frame is also provided in the judgment within which appointments are to be finalized. If there is undue delay or impasse which shows that dilatory tactics are being adopted and sincere attempt is not being made to implement the judgment then it will become the Constitutional duty of the President to see that judgment of the Supreme Court is implemented and there is no violation or noncompliance of Article 190 of the Constitution which makes it mandatory for all Executive and Judicial Authority throughout Pakistan to act in aid of the Supreme Court. If all the Executive and Judicial Authorities in Pakistan are unable to come in aid of the Supreme Court and judgment is not implemented, then such situation would be open to be construed as impasse or deadlock and would amount to very unhappy situation reflecting failure of Constitutional machinery and one would be justified to say that a situation has arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution as is contemplated under Article 58(2)(b)."
20. ' Mr. Justice Saiduzzaman Siddiqui, (as his lordship then was) opined, in para 30 of his order, as under:-- "30. I am in respectful agreement with the above observations and inclined to hold that if the Prime Minister within the time frame fixed in the judgment of this Court in Al-Jehad Trust case fails to tender his advice, he or she shall be deemed to have agreed to the recommendations of the Chief Justice of Pakistan and that of the Chief Justice of Provincial High Court as the case may be, and the President may proceed to make the final appointment on that basis. The question of law referred by the President under Article 186 of the Constitution to this Court for opinion, is answered as stated above."
21. ' In presence of the above dictum of the Supreme Court and this Court, further litigation on the same subject is unfortunate and against the principle of good governance. As stated above, any enunciation of law made by the apex Court or by this Court is binding on the State functionaries and they are bound to carry out such enunciations in letter and spirit. A reference can be made to Javed Iqbal Khawaja's case 1995 CLC 1362. The objection raised on behalf of Raja Gul Majeed Khan that the President of Azad Jammu and Kashmir in the circumstances of the present case is necessary party is devoid of any force as in presence of section 52 of the AJK Interim Constitution Act, 1974, as no process can be issued to the President for the acts done or not done by him In such a situation, the Government is supposed to look after interest of the President by consulting his Secretariat. The objection raised on behalf of respondents hardly requires any further deliberation in view of the rule of law laid down in Sardar Muhammad Ibrahim Khan's case by this Court in PLD 1989 (HC) AJK 1 and the apex Court in the same case PLD 1990 SC (AJK)
23. Moreover, the authority cited by Raja Hanif Khan Advocate i,e, PLD 1990 SC 1092 also provides an answer to the proposition wherein the action of the Ministers were challenged without impleading them as a party in view of the immunity provided in the Constitution of Pakistan. Majority view was that even without impleading the ministers, relief can be granted to the petitioner.
22. ' In view of the allegations, I have summoned the relevant file, perusal of which reveals that the Chief Executive of Azad Jammu and Kashmir has sent a summary for extension of the tenure of the petitioners under proviso of section 4 of the AJK Public Service Commission Act, 1986, but the President instead of approving the advice, solicited fresh proposal. In my estimation and in view of law declared by the apex Court, the President is bound to act in accordance with advice of the Prime Minister and refusal in light of the above precedence is unconstitutional. The apex Court of Azad Kashmir, in the reference mentioned above, has wilfully left the matter open by observing that there is a remote possibility that if the President is advised by the Prime Minister in accordance with the provisions of the Constitution and he refuses to act on the same. The expectation was reasonable as persons performing constitutional functions as President and Prime Minister are bound to act in accordance with the Constitution because they have taken oath under the same for the said purpose, otherwise an anomalous situation may arise. If the advice is not accepted, then its implementation would be ordered by the Courts in view of observations of the apex Court recorded in PLD 1978 SC (AJK) 37.
23. ' In view of the above discussion, it can safely be concluded that the President is bound to approve the advice in light of section 7 of the F Azad Jammu and Kashmir Interim Constitution Act, 1974, and law declared by the apex Court of Azad Jammu and Kashmir in the above referred cases. The respondents are, therefore, directed to place the advice for approval before the President and if same is not approved again, it would be deemed to have been approved under the provisions contained in the Rules of Business and a formal notification whereof shall be issued.