' CHAUDHURY RAHIM DAD KHAN, C. J.-This judgment will dispose of the five Civil Appeals, by leave, four of them filed by the Government-which are Nos. 27, 28, 29 and 30 of 1979, and the fifth filed by Ghias-ul-Haq respondent-which is Appeal No, 26 of 1979. All these appeals are directed against a consolidated judgment delivered by a Division Bench of the Azad Jammu & Kashmir High Court on 15th January, 1979, whereby four writ petitions filed individually by each of the respondents, challenging the vires of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, were accepted. All these appeals raise a common question of law and fact in relation to the validity of rule 6 of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977.
2. The fasts briefly stated are that Azad Government of the State of Jammu & Kashmir, in order to probe into the persistent and serious allegation of favouritism, nepotism, misappropriation, embezzlement and gross misuse of powers etc. By certain officers/officials in some of the departments of the Government, constituted a Commission of Inquiry in exercise of powers conferred on it by the Commission of Inquiry Act, 1956, of Pakistan as adapted in Azad Jammu & Kashmir by Act I of 1959. After necessary inquiry, the Commission submitted reports on basis of which the Chief Executive directed the issuance of show-cause .Notices to the respondents herein proposing penalty such as dismissal, removal from service, compulsory retirement and recovery of the amounts of losses suffered by the Government at their hand. On receipt of reply to the show- cause notices, every one of the respondents was personally heard by the Chief Executive.
Consequently Ghias-ul-Haq, Mahmood Ahmed Lodhi and Hanif Akhar Ranjha respondents were dismissed from service, whereas Sardar Ali Afsar Khan was retired compulsorily from service of the Government.
' Thereupon, they (respondents) invoked the writ jurisdiction of the High Court by mean of petitions under section 44 of the Azad Jammu & Kashmir Interim Constitution Act of 1974 (hereinafter referred to as the Constitution Act). The case of writ petitioners themselves before the High Court was, that though they could not challenge the validity or otherwise of the orders passed against them, yet the writ petitions were being filed only for the limited purposes of calling in question the vires of sub-rules (2) to (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, on the ground that the said rule to the extent, the same provides two different sets of the procedure for taking disciplinary action against the Government servants, were violative of the guarantees contained in sub-clause (15) of the Fundamental Rights enshrined in section 4 of the Constitution Act. They have also filed separate appeals before the Services Tribunal. However, their mainstay in the writ petitions was that Services Tribunal had no power to pronounce upon the validity or otherwise of an Act or a Rule, and that the Services Tribunal, therefore, could not declare them to be repugnant to any of the Fundamental Rights guaranteed by the Constitution Act. The relief claimed was that sub-rules (2) to (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, had been promulgated without lawful authority and that the same were of no legal effect and were void.
3. In written statement, the Government took preliminary objection that the High Court had no jurisdiction to entertain writ petitions in view of the provisions of section 47 of the Constitution Act; that none of the petitioners was an aggrieved person within the meaning of section 44 of the Constitution Act,, and since they had adequate remedy by way of an appeal before the Services Tribunal, the writ petitions were incompetent. On merit, it was pleased that the Rules in question were not violative of sub-clause (15) of section 4 of the Constitution Act.
4. A Division Bench of the High Court, by a single judgment, accepting the writ petitions declared that sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, `being violative and inconsistent to the Constitution' are void. In view of their Lordships sub-rules (2) and (3) of Rule 6 without making any reasonable classification confer discretion of a very wide nature upon the authorised officer who may act arbitrarily, or capriciously according to his will or whim. In support of their decision, reliance was placed on PLD 1957 SC 157, PLD 1957 Pesh. 100, PLD 1957 Quetta 1, PLD 1958 Pesh. 73 and PLD 1975 SC 66.
' As regard to the question of maintainability of the writ petitions it was observed by the High Court that it is the High Court alone which could under section 44 of the Constitution Act, pronounce upon the validity or otherwise of a provision of statute, and that since the writ petitioners had not sought any relief so far as the final orders passed against them were concerned, the Services Tribunal shall have the right to go into the merits of the cases and decide whether or not the decisions of 'authority' were justified in law. The question that writ petitioners were not 'aggrieved' parties within the meaning of me Constitution Act, was not even adverted to.
5. Sardar Muhammad Iqbal Khan the learned Advocate for the appellant (Government) made following submissions in support of the appeal challenging the validity of the judgment of the High Court:-
(1) That he High Court had no jurisdiction to entertain the writ petitions for reasons- (a)that in view of subsection (1) of section 44 of the Constitution Act, the High Court has only such jurisdiction as is conferred on it by the Constitution Act or by any other law; (b)that the powers under subsection (2) of section 44 of the Constitution Act, can be exercised by the High Court subject to the other provisions of the Constitution Act itself, that is to say that if mere is any other express provision which ousts the jurisdiction of the High Court in any particular matter, section 44 must give place to that;
(c) that subsection (2) of section 47 of the Constitution Act, in matters to which jurisdiction of administrative Court or Tribunal extends,' operates in supersession of all preceding provisions of the Constitution Act including section 44;
(d) that after passing of the Azad Jammu & Kashmir Services Tribunal Act, 1975, the jurisdiction of the High Court to the extent of the matters detailed in section 47 of the Constitution Act came to an end and could not be exercised in such matters thereafter; and
(e) that Azad Jammu & Kashmir Civil. Servants Act, 1976, read with Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, regulate terms and conditions of the Government servants and prescribe procedure to be followed in taking disciplinary action. They fall within ambit of the phrase 'matter relating to the terms and conditions of the persons who are or have been in the service of Azad Jammu & Kashmir, including disciplinary matters' as used in section 47 of the Constitution Act.
(ii) That the finding given by the learned Judges of the High Court, that under section 44 of the Constitution Act, the High Court alone could pronounce upon the validity of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, is not correct in law inasmuch as while dealing with an appeal, the Services Tribunal has plenary powers to go into the vires of the rules and hold whether or not any of their provisions is repugnant to one or more of the Constitutional guarantees ;
(iii) As an alternative remedy by way of an appeal to Services Tribunal is available, so the writ petitions could not be entertained;
(iv) That the petitioners were not otherwise competent to file the writ petitions because the same can be filed only by aggrieved party/persons. As the writ petitioners had not challenged the order of punishment, abstract question cannot be canvassed in writ jurisdiction which pertains to adversely litigation and can be exercised when there is /is between the parties and not in vacuum.
No relief had been claimed by the writ petitioners except that it be declared that rules 3 and 4 had been framed without any lawful authority, It is again being a condition precedent to the exercise of writ jurisdiction, the High Court could not entertain the writ petitions.
(v) That the impugned rules are not ex facie discriminatory because reasonable classification is permissible and that classification contained in rule 6 is based on intelligible differentia which has a rational relation to the object said to be achieved. The judgment of the High Court, declaring sub-rules (3) and (4) of rule 6 of the Azad Jammu & Kashmi Civil Servants (Efficiency and Discipline) Rules, 1977, as void, is not sound in law.
6. Mr. Basharat Ahmed Sheikh, the learned counsel for the respondents, contended that the appellants were debarred from objecting to the assumption of jurisdiction by the High Court and to entertain the writ petitions. His precise argument was that since the leave had been granted only in regard to questions whether or not sub-rule (3) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, was ultra vires, the appellants could not, under sub- clause (15) of Fundamental Rights guaranteed by the Constitution Act,'1974, be permitted to argue any other question, including that of lack of jurisdiction of the High Court to entertain the writ petitions. In support of his submission, reliance was placed on Jan Muhammad and others v. R. B.
Karm Chand and others (1), Amar Nath Ghosh v. Sukhraj Rai and others (2), Albert West Meads v.
The King (3), Guru Prohit Pandit Bharat Raj v. B. Parshottam Thus and others (4) Sri Raja Yarlagadda Siva Rama Prasad Bahadur v. Majeti Potharaju and others (5) and Rana Muhammad Afzal v.
Inspector-General of Police, West Pakistan, Lahore and another (6). In Jan Muhammad and others v. R. B. Karm Chand and others a mixed question of law and facts which had neither been pleaded nor raised in the Courts below, was sought to be raised during the arguments before the Privy Council, which point their Lordships declined to allow to be taken before them. In this context it was observed at page 73 of the report that "their Lordships would add that at the hearing before them, Sir Thomas Strangman sought to argue that although Parma Nand applied to take the new lease for his own benefit, he by reason that his only interest in the serai was that of a mortgagee held the new lease as part of the mortgaged property for the benefit of all those interested in the original lease. (See section 90, Trusts Act, and section 3, illustration (d), Specific Relief Act.) The point was neither pleaded nor argued in the Court below, and their Lordships therefore refused to allow the point to be taken before them". In Amur Path Ghosh v. Sukhraj Rai and others the counsel for the appellant attempted to argue that the suit was premature and that there had been no default under clause 10 of the Mortgage Deed and, therefore, the respondents had no right to institute a suit. This point was abandoned before the High Court. It was for this reason that their Lordships of the Privy Council did not permit the appellant to blow hot and cold. In this context it was observed that "it would not be right for them to allow this appeal to proceed upon a point which was so clearly abandoned in the Court below. They must however, add that, having heard the matter to some extent argued by the appellant's counsel, they see no reason to doubt that the point was wisely abandoned in the High Court in India". In Albert West Meads v. The King, the point sought to be raised before the Privy Council was admittedly abandoned by the appellant himself who personally argued the case. Their Lordships, in this view of the matter, observed at page 186 that "their Lordships did not think it right to allow the appellant to argue matters which he had elected not to argue before the Federal Court and on which, in consequence, that Court had given no decision". In Guru Prohit Pandit Bharat Raj v. B. Parshottam Doss and others the question whether or not the respondents were agriculturists was neither raised in any of the Courts below nor a ground to that effect was urged in the appeal before the Board. In the circumstances, their Lordships proceeded to decide the case on the assumption that the respondents were agriculturists. In Sri Raja Yarlagadda Siva Rama Prasad Bahadur v. Majeti Potharaju and others the counsel for the appellants raised a contention before the Privy Council that the suit land was uncultivated at the time when Madras Estate Land Act (I of 1908) was passed. The argument was disallowed by observing that "Without expressing any opinion about the soundness or otherwise of this argument, their Lordships think that it is not necessary to pursue it further, as in their opinion the defendant should not be permitted to raise this question now for the first time before the Board. At no stage of the case was this argument ever put forward by the defendant. No reference to it is to be found in the pleadings or in the judgments of the Courts in India, nor has it
(1) PLD 1947 P C 62 (2) PLD 1947 P C 126
(3) PLD 1948 P C 182 (4) PLD 1948 P C 197
(5) PLD 1949 P C 65 (6) PLD 1974 SC 31 ' been raised in the petition to the Board asking for special leave. The case of the defendant so far has been that the plaintiffs have no title to the land, and if they had any title they have abandoned it or lost it by adverse possession. That the land has not been proved to be `ryoti land' in the sense now indicated has not been put forward as a specific ground of complaint in any of the proceedings thus far taken by the defendant. Their Lordships are of opinion that in a case brought before the Board after obtaining special leave the defendant should not be permitted to travel beyond the specific grounds on which special leave was granted to him by the Board. Their Lordships would therefore disallow this argument." That case is distinguishable on facts from one in hand_ on more than one ground namely; objection was not taken in the pleadings in that case, it had no reference in any of the judgments of the Courts below, it was not raised in the petition to the Privy Council for leave and the question was raised for the first time during the course of arguments, but, here the objection had unmistakably been taken in written statement filed on behalf of the Government; the question of jurisdiction, as is apparent from the observation in the judgment of the High Court, itself, was taken even at the time of arguments and in the petition for leave to appeal also the question has been raised specifically. Therefore, the decision of the Privy Council, in the aforementioned case, is of no help to the respondents. In Rana Muhammad Afzal v.
Inspector-General of Police, West Pakistan, Lahore and another the appellant challenged before the High Court the order of the Police, opening his history sheet. The challenge was based on the ground that the facts on which the Police relied for opening his history sheet were not sufficient for creating a reasonable plea that he was habitual addicted to crime. The writ petition was dismissed by the High Court. In the petition for special leave to appeal also, the same point was taken and leave was granted to consider that question alone. Later on, the appellant moved an application to take an additional ground, namely; that no show-cause notice was issued to him before opening his history sheet, which was in sheer disregard of the rule of natural justice that no one shall be condemned unheard. The application was opposed by the respondents. The Supreme Court however, allowed the same by observing that "after hearing the learned counsel for the parties, we are of the opinion that no prejudice will be caused if the additional ground is allowed to be taken in support of the appeal. We would, therefore, permit the appellant to add this ground".
7. Sardar Muhammad Iqbal in reply to preliminary objection, submitted that the question that High Court had no jurisdiction to entertain the petitions, was specifically raised in the writ petitions filed on behalf of the Government as the first preliminary objection. The fact that the learned Judges had themselves mentioned in the judgment, under appeal, that High Court alone can go into the vires of rules, further establishes that the question of jurisdiction was raised even at the time of arguments. In the petition for special leave to appeal also the assumption of jurisdiction of the High Court had been specifically called in question and that there is no finding in the order granting leave whereby a contention about the jurisdiction of the High Court might have been repelled. His submission is that after the leave is granted, there is no difference between an appeal as of right and an appeal by special leave. Only those contentions cannot be permitted to be urged again which have been specifically repelled at the time of granting leave.
8. There is much force in the contention of the learned counsel for the appellant because there is nothing in the judgment of the High Court that any of the points, viz. That the High Court had no jurisdiction to entertain the writ petitions; that the respondents were not aggrieved persons or parties; and that they had an adequate alternative remedy before Services Tribunal had been abandoned. In Pakistan, the question of jurisdiction had been permitted to be raised for the first time even in Supreme Court. [See Hamad and another v. Khushi Muhammad and another (1)].
' So far as the contention that writ petitioners were not aggrieved persons or party, and that they had an adequate alternative remedy available to them are concerned, these are the conditions precedent to the, exercise of jurisdiction by the High Court under section 44 of the Constitution Act.
If either of the conditions is not specified it is incompetent for the High. Court to entertain the writ petitions and if it does regardless of a mandatory condition for exercise of the jurisdiction the entire proceeding which follows would be illegal. Both these objections have been raised in the written statements filed on behalf of the Government, the same cannot be excluded from consideration. In Sha Shivaraj Gopalji v. Edappakath Ayissa Bi and others (2), the plea of res judicata, though not pressed in the lower Court, was allowed to be taken up for the first time in the High Court of Madras.
The Judgment of the High Court was upheld by the Privy Council by observing that "the plea, being a plea in law, was open in the Appellate Court, though it had not been pressed in the lower Court".
' In Sri Sri Shiba Prasad Singh v. Maharaja Srish Chandra Nandi and another (3), the High Court overlooked the provisions of section 72 of the Indian Contract Act while dealing with the question of return of money over paid to lessor by lessee in respect of lease of an estate, the section was only mentioned in passing by the Sub-Judge and it would seem that it was not argued or only faintly argued before the Sub-Judge or in the High Court, that section 72 applied to the case. The objection was overruled by observing that "the learned Chief Justice appears to have overlooked the provisions of section 72 of the Indian Contract Act. This section was only mentioned in passing by the Subordinate Judge and it would seem that it was not argued or only faintly argued before the Subordinate Judge or in the High Court that section 72 applied to this case. The appellant, the respondent in the Cross Appeal, submitted to their Lordships that in these circumstances their Lordships should not now receive an argument based on section 72 but their Lordships are unable to exclude from their consideration the provisions of a public statute. It is regrettable that their Lordships do not have the assistance of the views of the High Court on this matter. Their Lordships impute no blame to the learned Judges of the High Court, but they feel bound to consider the argument which has now been adduced". Chief Kwante .Asante, Tredehene v. Chief Kwame Tawia (4), is a case on almost all fours. In that case when the case reached the West African Court of Appeal, it was for the first time suggested and made a ground of appeal that the trial Court was not validly constituted for the rehearing of the case in that certain Chiefs had sat as Judges in that Court who were not qualified to sit and that the proceeding before that Court must accordingly be regarded as "coram non judice" and its judgment a nullity. The West African Court of Appeal observed that this additional ground of appeal was filed without the leave of the Court and that it was too late in the proceedings to raise a point of this nature, which was not raised in any of the three Courts below or at
(1) 1971 S CMR 365 (2) PLD 1949 P C 143
(3) PLD 1949 P C 178- (4) PLD 1954 P C 74 ' the beginning of the hearing of the appeal in that Court. They accordingly dismissed the appeal.
An appeal was taken to the Judicial Committee of the Privy Council. While reversing the decision of the West African Court of Appeal it was observed at page 76 "an order against which an appeal has been brought was made without jurisdiction it could never be too late to admit and- give effect to the plea that the Order was a nullity".
' In Pakistan, in Hayat v. The State (1), Muhammad Munir, C. J. Observed at pages 208 and 209 that "when the petition for special leave to appeal from the judgment of the High Court came up before us we saw no reason for any further consideration of the cases of Tahri and Muhammad Yar. In the case of Hayat, however, we gave leave to appeal in order to consider the question whether the ocular evidence against him could have been rightly accepted but having heard counsel we are unable to hold that any special reason exists for interfering with the High Court's finding that the appellant was one of persons who took part in the criminal assault on the deceased and his brothers. Though leave was not given on this ground we have, however, heard counsel at length also on the question whether the appellant could be convicted of murder". In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (2), it was laid down at page 691 that "the proposition is not open to contest that pure questions of law can be raised at any stage". In Mansab All v. Amir and 3 others (3), it was held that "it is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any orders passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction". The same view was taken in Chittaranjan Cotton Mills Ltd. v.
Staff Union (4) and Rashid Ahmed v. State (5).
' In Noora and another v. The State (6), Mr. Justice Hamoodur Rahman, C. J. (as he then was) has reported at page 493 of the Report that "once, however, the Court has come to the conclusion that injustice has been done and has granted leave to appeal I, for my part, do not see any reason as to why an appeal by special leave should be treated differently to an appeal as of right. Both appeals should, in my view, stand on the same footing and should be determined according to the same principles of administration of justice by this Court. Now that we are no longer merely exercising a prerogative jurisdiction but are exercising powers conferred by the Constitution, there appears to me no valid reason for this Court to be inhibited by the limitations ' which the Judicial Committee of the Privy Council had imposed upon itself. I cannot, therefore, persuade myself to agree that we should go back again to the rule in Dillet's case and narrow down the scope and content of our own constitutional jurisdiction. We should have the fullest power to do full justice without fettering ourselves with any self-imposed restrictions which are no longer necessary in the context of the changed circumstances in which we now function".
(1) PLD 1957 SC (Pak.) 207 (2) PLD 1965 SC 690
(3) PLD 1971 SC 124 (4) PLD 1971 SC 197
(5) PLD 1972 SC 271 (6) PLD 1973 SC 469 ' In Kedar Nath Bajoria and another v. The Stale of West Bengal (1), though constitutionality of the West Bengal Criminal Law Amendment (Special Court) Act (XXI of 1949) was not challenged in the High Court, the counsel for the appellant made it a principal issue in the appeal before the Supreme Court of India. He contended that Special Court had no jurisdiction to try and convict the appellant inasmuch as section 4 of the Act, under which the case was allotted by the State to the Special Court, offended against Article 14 of the Constitution. In that it enabled the Government to single out a particular case for reference to the Special Court for trial by the special procedure which denied to person tried under it certain material advantages enjoyed by those tried under the ordinary procedure. The contention though raised for the first time in the Supreme Court was given effect to.
Under section 42-A(1) of the Constitution Act the Supreme Court o Azad Jammu & Kashmir is obliged to do complete justice in a cause of matter coming before it, and for that matter can issue any direction of order or decree as may be necessary. When jurisdiction of the High Court to entertain such matters, in its extraordinary jurisdiction of writ under section 44 of the Constitution Act, is challenged a refusal to decide the point on accepting technical objection is likely to cause more harm as it would keep the door open for the mischief to continue. The High Court would go on entertaining such cause or matter in spite of the lack of jurisdiction, therefore, it is the duty of this Court to decide, in the interest of justice, such question authoritatively in one or the other way.
' So far as the present cases are concerned, the Government cannot be debarred from raising the question of jurisdiction of the High Court, as also that the writ petitioner had declined alternate remedy available before the Services Tribunal that they were not in the circumstances, aggrieved persons or party. These were very vital questions which should have attracted the attention of the learned Judges of the High Court but, with due respect to them, their judgment is conspicuous by an absence of reference to the same which shows that this important point, on which the exercise of their own jurisdiction depended, had completely escaped notice of the learned Judges of the High Court.
' Another preliminary objection was also raised that whereas the High Court had declared unconstitutional sub-rules (3) and (4) of rule 6, but in the petition for Special Leave to Appeal no reference was made to sub-rule (4) and an application was at a subsequent stage filed to say that the decision of the High Court to the extent that it also declared sub-rule (4) as void, was not competent. No doubt, the Additional Advocate-General, who submitted special petition for leave to appeal, failed to make reference to sub-rule (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, but it may be mentioned here, as said elsewhere, that in the first instance, it is the decision and the judgment as a whole which has been challenged in appeal, and not any particular portion thereof. Moreover, a reference to the judgment of the High Court itself would make it clear that the learned Judges of the High Court were themselves not quite sure as to how many sub-rules of rule 6, were either under challenge or they were to pronounce upon their constitutionality. In the very first paragraph of their judgment, it was mentioned: "in all the four writ petitions a common point is involved as the vires of sub-rule (3) of rule 6 of Azad Jammu & Kashmir Civil Servants (Efficiency (1) A 1 R 1953 SC 404 and Discipline)
Rules, 1977". Then in the 7th paragraph it was stated: "In this Court the only point under consideration is the vires of sub-rule (3) of rule 6 ". In paragraph 9 of the judgment, the discussion is about sub-rules (2) and (3). In paragraph 13, it was held ". . . . We are of the view that the provisions of sub-rule (3) of rule 6 being violative and inconsistent of the Interim Constitution are void". There is not a single word in the entire judgment about sub-rule (4). It was only in the last paragraph of the judgment that while granting declaration, the sub-rule (4) was also said to be violative of the Constitution. There is no discussion whatever about sub-rule (4) in the entire judgment. Moreover, as said earlier, the High Court's decision as a whole having been called in question the objection that sub-rule (4) was not mentioned in the petition for leave to appeal as originally presented, is not of much significance. Moreso, in view of the constitutional obligation of the Supreme Court to do ful and complete justice, the preliminary objections raised by the learned counsel for the respondents are, therefore, repelled.
9. Having thus disposed of preliminary objections raised on behalf of respondents the first and the primary question that arises for determination is whether the High Court could entertain the writ petitions or that the ouster of the jurisdiction of the Courts under section 47 of the Constitution Act is absolute and unqualified, and the Legislature has left it to the exclusive jurisdiction of the Services Tribunal to decide all questions relating to the terms and conditions of the service of an employee of the Government, including the disciplinary matters.
' In a country where the Courts are established or created by a written Constitution which also clearly demarcates their respective spheres of jurisdiction, they can exercise their powers subject to the alternative condition in the Constitution, with regard to the subject over which they are given jurisdiction and in the manner prescribed. They should scrupulously avoid treading upon prohibited area. 'A Constitution' says Cooley in his Treatise on Constitutional Limitations, is "the fundamental law of a State, containing the principles upon which the Government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confined, and the manner in which it is to be exercised". In Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Hague (1), it was observed by Hamoodur Rahman, J.
That "the fundamental principle underlying a written Constitution is that it not only specifies the persons or authorities in whom the sovereign powers of the State are to be vested but also lays down fundamental rules for the selection or appointment of such persons or authorities and above all fixes the limits of the exercise of those powers. Thus the written Constitution is the source from which all governmental power emanates and it defines its scope and ambit so that each functionary should act within his respective sphere. No power can, therefore, be claimed by any functionary which is not to be founded within the four corners-of the Constitution nor can anyone transgress the limits therein specified".
10. With this background let us now examine the extent of power and jurisdiction conferred on the High Court of Azad Jammu & Kashmir by the Constitution Act. Besides the power to commit for its own contempt (section 45); to superintend and control all Courts subordinate to it (section 46); to make rules in consultation with the Government regulating (1) PLD 1963 SC 486 the practice and procedure of the Courts subordinate to it (section 44-A), the jurisdiction of the High Court is regulated by section 44 of the Constitution Act, which is to the following effect: "(I) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court, may, if it is satisfied that no other adequate remedy is provided by law- (a)on the application of any aggrieved party, make an order-
(1) directing a person performing functions in connection with the affairs of Azad Jammu & Kashmir or a local authority to refrain from doing that which he is not permitted' by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority; and is of no legal effect; or (b)on the application of any person, make an order,-
(1) directing that a person in custody in Azad Jammu & Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in as unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu & Kashmir to show under what authority of law he claims to hold that office; or
(c) On the application of any aggrieved person, make an order giving such directions to the person or authority including the Council and the Government, exercising any power or performing any function in, or in relation to Azad Jammu & Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act.
(3) An order shall not be made under subsection (2) of this section on application made by or in relation to a person in the Defence Services in respect of his terms and conditions of service, in respect of any matter arising out of his service or in respect of any action in relation to him as a member of the Defence Services.
(4) Where-- (a)application is made to the High Court for an order under clause (a) or clause (c) of subsection (2); and (b)The Court has reason to believe that the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or otherwise being harmful to the public interest, the Court shall not make an interim order unless the Advocate-General has been given notice of the application and the Court, after the Advocate-General or any officer authorised by him in this behalf has been given an opportunity of being heard, is satisfied that the making of the interim order would not have the effect referred to in clause (b) of this subsection.
(5) In this section, unless the context otherwise requires, 'person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the Supreme Court of Azad Jammu & Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
' The language of this provision of the Constitution Act admits of no ambiguity. It is plain and clear and leaves no room for any doubt whatsoever, that the High Court is not all powerful and omnipotent and cannot claim to enjoy an all-pervading jurisdiction. Its own 'inherent' jurisdiction is distinguished from 'Judicial Power'. In view of subsection (l) of section 44, it is 'such jurisdiction as is conferred on it by' the Constitution Act, or by `any other law'. Again subsection (2) on the one hand confers jurisdiction on the High Court and on the other places restraints and embargoes on the exercise thereof. The opening words of subsection (2), viz. "subject to this Act" in their ordinary sense, in the English language are not susceptible of more than one meaning, nor the Legislature can be attributed to have expressed its intention in its slovenly manner. The words are plain and intention is clear. They mean nothing more nothing less than that whatever jurisdiction has been conferred on the High Court under subsection (2) which is exerciseable subject to the other provision of the Act, Meaning thereby that if there is an express provision elsewhere in the Constitution Act which ousts the jurisdiction of the High Court with regard to any particular subject- matter, the general jurisdiction of the High Court conferred by subsection (2) stands ousted to that extent. In Muhammad Khan v. The Border Allotment Committee (1), Kaikaus, J. Observed that "the words 'subject to this Constitution' in Article 98 (2), mean that the jurisdiction provided for in Article 98 (2), can be exercised except where the Constitution itself creates a bar.". Thus, it would appear that the ambit of the High Court's jurisdiction under subsection (2) rests upon the language used in other excluding provisions, Moreover, a duty is cast on the High Court to satisfy itself, before making an order, that to the person who has elected to invoke its jurisdiction 'no other adequate remedy is provided by law'. Therefore before entering upon an inquiry, it is constitutional obligation of the High Court to see whether there is equally adequate remedy elsewhere, and if so to insist upon a resort there to by the person who complains of wrong done to him. This is a clear policy of the Legislature, and there is no escape from it. But it is not all except that under sub-clause (b) of subsection (2) 'any person' can make an application for a writ of habeas corpus and writ of quo warranto, the person, who invokes the jurisdiction of the High Court under section 44, must be an aggrieved party (sub-clause (a)) or an aggrieved person (sub-clause (c) ) by the action taken by a pet son discharging functions in connection with the affairs of Azad Jammu & Kashmir State or local authority. The applicant must further show that a public functionary is doing something which, under law, be cannot do, or that he is required by law to do something, which he is wrongfully refusing to do or that he has done something without lawful authority, or that he has fundamental right conferred on him by the Constitution Act which a `person' or an authority has declined to enforce. In simple terms, an aggrieved party or person is the one; in prohibition whose rights are threatened, in a matter falling under section 44 (2) (b) (which is in the nature of mandamus) whose rights are being denied and in a case under section 44 (2) (b) (which is in the nature of certiorari) whose rights have been affected by a decision. Thus it is a condition precedent to the exercise of the jurisdiction by the High Court under sub-clauses (a) and (c) of subsection (2)
(1) PLD 1965 SC 623 of section 44 that the application should be by an aggrieved person or a party. The question whether or not the writ petitioners in the cases in hand, were aggrieved parties or persons, and whether they had adequate alternate remedy, will, be attended to presently' but let us first of all see whether there arc provisions of the Constitution itself which expressly or impliedly affect the jurisdiction of the High Court conferred by it by subsection (2) of section 44 of the Constitution Act.
11. Subsection (3) of section 5 has ousted the jurisdiction of all Courts, Tribunals and other authorities, including High Court, from calling in question the election of the President, the validity of any proceedings in the Council, the Assembly or joint sitting cannot, in view of subsection (4) of section 34, be questioned 'in any Court' which term includes the High Court as well. Under subsections (2) and (3) of section 52, no criminal proceedings whatsoever can be issued from any Court or Tribunal, against the President, or the Chairman of the Council whether in a personal capacity or otherwise, while he is in office. While proclamation is in operation, the President can, in the exercise of the powers under section 54, suspend the right to move any Court for the enforcement of any of the fundamental rights. Subsection (2) of section 55 also ousts the jurisdiction of all the Courts including the High Court, to question validity of any proclamation issued or order made under section 53, 54 or 54-A. Subsection (2) of section 57 lays down that no Court, including Supreme Court of Azad Jammu & Kashmir and the High Court, shall call into question or permit to be called in question the validity of the Constitution Act or any Act to amend it. Section 47, with which we are concerned in these appeals, then confers exclusive jurisdiction on administrative Courts or Tribunals inter (Via among others in respect of matter relating to the terms and conditions of the persons who are or have been in the service of Azad Jammu & Kashmir including disciplinary matters" and jurisdiction of all other Courts "to grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends" has been expressly barred.
12.-Section 47 is reproduced for convenience of reference :-- "47. (1) Notwithstanding anything hereinbefore contained, the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of- (a)matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu & Kashmir including disciplinary matters; (b)matters relating to claims arising from tortious acts of the Council or the Government or any person in the service of Azad Jammu & Kashmir or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to acquisition, administration and disposal of any property which is deemed to the enemy property under any law.
(2) 'Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may he pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of Azad Jammu & Kashmir from a Judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu & Kashmir being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
The opening words of section 47, viz. 'notwithstanding anything herein-before contained' are clear and comprehensive enough to override preceding provision of the Constitution Act itself. Article 329 of the Indian Constitution is to the following effect :- "Notwithstanding anything in this Constitution- (a)the validity of any law relating to the delimitation of Constituencies or the allotment of seats to such Constituencies made and purporting to be made under Article 327 or 328 shall not be called in question in any Court; (b)no election to either House of Parliament or to the House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
While interpreting this Article in Durga Shankar Mehta v. Raghuraj Singh and others (1). B. K.
Mukherjea, J., who delivered the judgment of the Court, observed at page 522 that "the 'non- obstante' clause with which Article 329 of the Constitution begins and upon which the respondent's counsel lays so much stress debars us, as it debars any other Court in the land, to entertain a suit or a proceeding calling in question any election to the Parliament or the State Legislature. It is the Election Tribunal alone that can decide such disputes, and the proceeding has to be initiated by an election petition and in such manner as may be provided by a statute". In The State v. Zia-ur- Rehman and others (2), interpreting clause (1) of the Article 281 of the 1972 Constitution of Pakistan viz. "All proclamations, President's Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court." Hamoodur Rahman, C. J. Observed, at pages 81 and 82 of the Report that "this clause not only validates all such measures but also nullifies the effect of the judgment of this Court in Asma Jilani's case by using the words 'notwithstanding any judgment of any Court' and further completely ousts the jurisdiction of the Courts to question either the validity of these measures or the competence of the authorities enacting them. As a result of this clause, it is no longer possible for any Court to declare any legislative measure enacted or promulgated between the 25th day of March 1969 to the 21st of April 1972, to be void or invalid, (1) AIR 1954 SC 520 (2) P L D 1973 SC 49 on account of it having been made or enacted by a person or authority having no power to do so." In other words, it was held that the nonobstante clause in Article 281, was implied to enact that the said provision was to prevail despite anything to the contrary in any law. Similar views were expressed in Federation of Pakistan v. Saeed Ahmed Khan and others (1). The purpose and scope of a similar phrase implied in Article 212 of 1973 Constitution of Pakistan came under examination in Muhammad Aslam Bajwa v. Federation of Pakistan (2), where it was observed at page 554 that "the phrase 'notwithstanding anything hereinbefore contained' in Article 212, has reference to Article 199, which conferred relevant jurisdiction on the High Court A question arises that if in ordinary course a law is always to be made by an appropriate Legislature then why was it said that it can make such and such laws 'notwithstanding anything herein-before contained' and by using this phrase is any such new power being conferred on the appropriate Legislature which it otherwise-(but for this phrase)-did not possess. It appears that the establishment of Courts or Tribunals of exclusive jurisdiction has an implication of course of jurisdiction of other Courts some of which may be those which have been set up by the Constitution itself and vis-a-vis them ordinary legislative machinery may not be sufficient to oust their jurisdiction-the manner of ousting their jurisdiction being to amend the Constitution every time this process was to be employed. The Constitution-makers, therefore, to avoid (if we can say so) that cumbersome procedure laid down a different scheme. They stated that notwithstanding the fact that establishment of Courts and Tribunals of exclusive jurisdiction will result in ousting jurisdiction of other. Courts-(including Courts established under the Constitution itself for example High Courts for which method of amendment of Constitution was otherwise laid down in the various other Articles and jurisdiction whereof was contained in Articles preceding Article 212, e.g., Article 199) the appropriate Legislature may of its own provide for the establishment of Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters mentioned in Article 212. After so permitting the Constitution- makers in clause (2) of Article 212, then stated that `notwithstanding anything hereinbefore contained' where any Administrative Court or Tribunal is established under clause (1) no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matters which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal. This means that Courts and Tribunals of exclusive jurisdiction are to be set up under ordinary laws in accordance with the manner hereinbefore mentioned but when so set up their effect will be as has been laid down in the Constitution itself. This is the purpose of and explanation for the use of the sentence 'notwithstanding anything hereinbefore contained' in clauses (I) and (2) of Article 212, and not the one which was being advanced by the learned counsel for the petitioners, namely, that it overrides or affects only the Articles prior to Article 212 and not the one occurring subsequent thereto, i,e, Article 264, which even otherwise is we have explained earlier is per its own force not attracted to the (1) PLD 1974 SC 151 (2) PLD 1974 Lab. 545 cases of the present kind if a law with regard thereto is made for establishing Courts or Tribunals of exclusive jurisdiction."
13. Sub-clause (1) of section 47 of the Constitution Act authorises the appropriate Legislature to provide for, by Act, the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of matters specified therein. Pursuant to this provision the appropriate Legislature has enacted the 'Azad Jammu & Kashmir Services Tribunal Act, 1975'. In the preamble of the Act it is laid down: "whereas it is expedient to provide for the establishment of Administrative Tribunals to exercise exclusive jurisdiction regarding the matters relating to the terms and conditions of service in respect of the persons in the service of the Azad Jammu & Kashmir Government and for matters connected therewith or ancillary thereto, in the manner hereinafter appearing". Again in subsection (1) of section 3, it is provided: "There shall be one or more Tribunals, each' consisting of a Chairman and one or two Members possessing the qualification hereinafter provided to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters." Under section 4 of the Act: "Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal". Subsection (1) of section 5 then empowers the Tribunal to "confirm, set aside, vary or modify the order, appealed against". In subsection (2) of section 5 it is laid down that "(2). A Tribunal shall, for the purpose of deciding any appeal be deemed to be a civil Court and shall have the same powers as are vested in such Court under Code of Civil Procedure, 1908 (Act V of 1908)".
Under section 8 "All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal."
' The Services Tribunal has already been established; it is functioning and the respondents who were writ petitioners before the High Court, have also, after filing writ petitions filed appeals calling in question the validity of the order passed against them. The moment the Services Tribunal is established, subsection (2) of section 47 of the Constitution Act came into operation, and by virtue of that no other Court could grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Tribunal is extended. The provisions of the Interim Constitution Act, 1974 and those of the Services Tribunal Act, 1975, unmistakably show that the scheme of the Legislature was to entrust e decision in respect of the matter relating to the terms and conditions of persons who are or have been in the service of Azad Jammu & Kashmir, including disciplinary matters, to the Services Tribunal. The intention obviously was to oust the constitutional jurisdiction of the superior Courts and ordinary jurisdiction of the civil Courts.
14. Under section 9 of the Code of Civil Procedure, the civil Courts have been conferred general jurisdiction to try all suits of civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. Section 9 thus concedes to the civil Courts ultimate jurisdiction to give a decision with regard to a civil right, duty or obligation, save where its jurisdiction has been barred either expressly or impliedly. Apart from other laws ousting expressly or impliedly jurisdiction of the civil Courts the Code itself absolutely bars the jurisdiction of the civil Courts to entertain the suit, for instance, sections 11, 47 and 144 and rule 2 of Order II, rule 9 of Order XI, rule 9 of Order XX1I, rule 1 of Order XXIII, etc. (Likewise the jurisdiction of the High Court under section 44 of the Constitution Act has been barred in respect of the matter covered by section 47 of the said Act). The jurisdiction of the civil Courts can be barred by creating Special Tribunal for determining all peculiar claims or rights or obligations. Ouster of jurisdiction of the civil Courts will be complete if the authority empowered to determine the matter has been constituted as required by the statute. The parties are subject to such jurisdiction; the subject-matter of the dispute fairly, and squarely falls within ambit of the jurisdiction of such authority, and the order made is the one which could be made under law. In Zafar-ul-Ahsan v. The Republic of Pakistan (1), while considering the ouster clause in clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958, which expressly said that an order of the authority mentioned in clause (3) of that order "shall not be called in question in any Court", Munir, C. J. Observed: "If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of Law." Taraprasad Sukul v. Abul Kasem Khundkar (2), was a case under the Bengal Local Self-Government Act, 1885, section 148 of which barred the jurisdiction of the Courts to question the decision of the Tribunal appointed under section 138 to decide the disputes relating to election under the Act. Election of the petitioner having been declared to be void, the High Court was approached where it was contended that "This Court should not surrender its jurisdiction lightly in favour of special Tribunal". The contention was repelled by observing that "section 9, Civil Procedure Code, recognizes that the jurisdiction of the civil Courts may be limited expressly or impliedly. If there is a special tribunal appointed by an Act to decide questions as to rights created by that Act, then the jurisdiction of that tribunal is exclusive, except in so far as is expressly provided for or necessarily implied". The High Court of Allahabad in Joti Prasad Upadhiya v. Amba Prasad (3), observed: "When the Legislature has prescribed a particular method for the redress of an alleged wrong that method alone is open to the aggrieved party and in such a case the civil Court has no jurisdiction to deal with the matter reserved by the Legislature to a specially appointed tribunal. We hold therefore that the jurisdiction of the civil Court to try the suit giving rise to the present appeal was impliedly barred and we accordingly dismiss this appeal with
(1) PLD 1960 SC 113 (2) AIR 1938 Cal. 359 (3) AIR 1933 All. 358 ' costs.". To the same effect are observations in Secretary of State v. Meyyappa (1).
15. We have referred to some of the provisions of the Constitution by virtue of which jurisdiction of the High Court is ousted. Some of these provisions have also received authoritative judicial pronouncements. In Pakistan v. Ahmed Saeed Kirmani and others (2), while construing the provisions of Article 89 of 1956 Constitution of Islamic Republic of Pakistan viz. "the validity of any proceeding in Provincial Assembly shall not be questioned in any Court". The Supreme Court of Pakistan observed: "Everything that happened of which complaint was made in the case happened in the Chamber of the House, under the very eye of the Chairman. It happened in the course of a division, which was essentially and peculiarly a proceeding of the Legislative Assembly. On consideration of all the facts as they appear in the case, I feel no hesitation in concluding that the proceedings in question were wholly within the privilege of the House, and wholly outside the jurisdiction of the Courts". A similar question arose in Muhammad Khan v. The Border Allotment Committee (3), where Hamoodur Rahman, J., is reported to have said at pages 629 and 630. "The question then is as to whether the order of the Border Allotment Committee itself can be challenged now? The Border Area Regulation, as already pointed out, is a Regulation which has been preserved by clause (4) of Article 225 of the Constitution and it now enjoys the status of an Act of the Central Legislature. Now an Act of the Central Legislature can take away the jurisdiction of the High Court and even of this Court by reason of the provisions of Article 130 of the Constitution, which clearly provides that no Court shall have any jurisdiction that is not conferred upon it by the Constitution or by or under the law. Thus since the Border Area Regulation now has the effect of an Act of the Central Legislature, it is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and this Court to call in question any order made or direction issued under the said Regulation, that protection must prevail and the order of the 25th of August 1960, will not be open to challenge even now. In this view of the matter we would dismiss this appeal, not because of the provisions of paragraph 7 of President's Order No, 26 but because in our view, the Border Area Regulation is a valid subsisting law which competently takes away the jurisdiction of the High Court and this Court not only to call in question the validity of any order made or direction issued thereunder but also of any provision of the said Regulation.". In Dost Muhammad Malik v. The Returning Officer and another (4), Article 171 of 1962 Constitution relating to the election dispute came up for interpretation. The writ petition was held not to be competent by holding: "Where the right is created by a statute and the statute provides the remedied for its breach and sets up a complete machinery for its administration certiorari will ordinarily be refused.
Another approach to this subject is that the disputes arising in connection with an election lie in the domain of the Legislature and if by a law it delegates its functions to another forum then that forum alone has the jurisdiction to decide them, and the jurisdiction of civil Courts, including the jurisdiction of superior Courts to issue prerogative writs is excluded.". In Mian Jamal Shah v. The Member, Election Commission and others (5), while interpreting Article 171 with reference to writ jurisdiction of the High Courts of
(1) AIR 1937 Mad. 241' (2) PLD 1958 SC (Pak.) 397
(3) PLD 1965 SC 623 (4) PLD 1965 I,ah. 560
(5) PLD 1966 SC 1 ' Pakistan it was observed at pages 25 and 26 that "The High Courts were given jurisdiction under Article 98, and on the other hand, the final determination of election disputes was placed within the exclusive jurisdiction of specified authorities by Article 171. The power given by Article 98 comes as a matter of first conferment by the Constitution and it cannot be placed on any higher footing than the authority which can be claimed for Article 171 in the same Constitution. It is to be noted with care that Article 171, subsection (1) is not made expressly 'subject to this Constitution', and that Article 98 confers power on the High Court `subject to the Constitution'. Consequently, the terms of Article 171(1), are to be construed and given their fullest meaning irrespective of anything contained in any other Article of the Constitution. Proceeding on that basis, it is plain that Article 171 requires, with respect to election disputes, that their determination should be in accordance with the law specially made for that purpose, and not determination only, but final determination, that is to say, determination once for all". Yaqub Ali, J., observed at page 65 of the same judgment that "In construing the finality clause in Article 171 (1) a note should first be made that the jurisdiction conferred by Article 98 on a High Court is 'subject to this Constitution' namely subject to the bar contained in more than one Article . . . .
'. . . The authorities designated in Article 171 (1) are, thus, the final Judges of facts as well as of law, including the interpretation of law and, with due respect, it would be incorrect to say that their determinations are 'without lawful authority' because the High Court does not agree with them. In this view, I would hold that on the facts of the instant case the High Court had no jurisdiction to interfere with the impugned order of the learned Member of the Commission.". The precise scope of jurisdiction of the superior Court came under examination in the case The State v. Zia-ur-Rehman.
Hamoodur Rehman C. J. Speaking for the Court observed. "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to oust the jurisdiction of this Court.". After referring to the case-law on the subject he remarked : "These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny."
16. Subsection (2) of section 47 ousts the jurisdiction of the High Court conferred on it by section 44 inasmuch as it opens with the words `Notwithstanding anything hereinbefore contained' and proceeds to command that where any administrative Tribunal is established 'no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administra tive Tribunal extends " The term `no other Court' whether the word 'Court' is written with capital 'C' or not will include the superior Courts, i. e. High Court and Supreme Court. Thus there can be little doubt that ouster of jurisdiction of the High Court in respect of 'matte relating to the terms and conditions of the persons who are or have been in service of Azad Jammu & Kashmir including disciplinary matters' I absolute. If the Legislature wanted not to bar the jurisdiction of the High Court and not to give exclusive jurisdiction to the Services Tribunal, nothing would have been earlier to give expression to such an intention by express words in the Constitution Act itself. The High Court can claim no inherent jurisdiction to deal with the matters reserved by the Legislature to a specially appointed Tribunal. Since the intentions of Legislature and the law indicated by it are too clear to admit of any doubt whatsoever, it is the duty of this Court as also, of every other. Court, to give effect to the same, without attempting to enquire into the reasons for the enactment, because it will becomes the judiciary and it would be in violation of the oath of the offices of the Judges, that the Court should strain to enter territory forbidden to them by law.
17. The learned Judges of the High Court, it appears, were also cognizant of the fact that they could not go into the correctness or otherwise of the order of punishment recorded against the respondents. But, they assumed jurisdiction on the ground : "in this Court, the petitioners have challenged the vires of the rule. Under Article 44 of the Constitution, this Court is the only competent forum which can determine that a particular statute or provisions of a statute are ultra vires to the Constitution or not". Thus if it can be held that it is within lawful competence of the Services Tribunal to pronounce upon the validity or otherwise of a rule being inconsistent with any of the provisions of the Constitution Act, including the fundamental rights, then the judgment of the High Court is liable to be set aside on this short ground because if foundation laid is not available, the superstructure based thereon must of necessity vanish away.
' It is true that ground on which the reliefs enumerated in subsection (1) of section 5 of Azad Jammu & Kashmir Services Tribunal Act, 1975, may be granted by Tribunal, are not set out anywhere, but it does not follow that the dispute of the kind with which we are concerned, here, falls outside the scope of an appeal to be tried by the Tribunal under section 5 of the 1275 Act, read with section 47 of the Constitution Act, 1974. There being no particularization of the grounds which may be taken in an appeal, the aggrieved civil servant is at liberty to take all conceivable grounds based on facts and law to throw a challenge to the validity of the order complained against. The Tribunal is to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of the services of the civil servants, including disciplinary matters. The terms "matters relating to the terms and conditions" and "disciplinary matters" are of wide connotation. If a person has been dismissed, removed from service, reduced in rank or retired compulsorily, these terms would embrace the entire process beginning with the initiation of the proceedings and culminating in the final order, including the question as to which of the procedure laid down in sub-rules (2) and (3) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 should have been observed by the authorised officers. When the respondents had approached the High Court with the prayer that sub-rule (3) of rule 6, which provided for a summary procedure, be declared ultra vices, being repugnant to the equality clause, guaranteed by the Constitution Act, did it not mean that, on their own view of law, sub-rule (3) being inconsistent with paragraph 15 of the Fundamental Rights, was deemed to be non-existent in their case, and the only valid provision applicable to their case was sub-rule (2) of rule 6? There is no provision in the Constitution Act or in any other enactment ousting the jurisdiction of the Tribunal to determine such a question. It is well established that in order to decide a dispute or a matter, it is competent for a Court or Tribunal to determine all questions arising therefrom, connected or ancillary thereto, determination of which is necessary for the decision of the main dispute or matter, unless its jurisdiction to determine the same is expressly or impliedly barred. In this view of the matter also the Services Tribunal is competent to determine, whether or not sub-rules (2) to (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 is hit by equality clause and as to which of the two procedures prescribed by rule 6 should have been observed by the authorised officers in the case of respondents.
18. In Pakistan, Article 212 of the Constitution of 1973 is almost the same as section 47 of the Constitution Act and Article 199 of the Pakistan Constitution is similar to section 44 here. The Services Tribunal Act, 1973; the Civil Servants Act, 1975 and Civil Servants (Efficiency ,and Discipline)
Rules, 1977 are also identical to such Acts/Rules here. The jurisdiction of the High Court vis-a-vis that of the Services Tribunal has been considered in more than one case in Pakistan. In Muhammad 4slam Bajwa v. Federation of Pakistan (1) the Division Bench of the High Court comprising of Mr. Justice Karam Ellahi Chauhan and Mr. Justice Shafi-ur-Rahman (both of whom are now Judges of the Supreme Court of Pakistan) after quoting the necessary provisions of the Constitution, Services Tribunal Act and Civil Servants Act, observed. "A perusal of the aforesaid provisions will show that a Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters A cumulative effect of all these constitutional and other legal provisions is that the present writ petitions which pertain to the terms and conditions of service of the petitioners or arc concerned with a disciplinary action which was taken against them fall within the ambit of these provisions . . . . That the phrase "notwithstanding anything hereinbefore contained" in Article 212, has reference to Article 199 which conferred relevant jurisdiction on this Court and also to law-making power of the Central or the Provincial Legislature, because, after using the said phrase, it is stated, that the appropriate Legislature may make laws for the various subject-matters mentioned thereafter i,e, (so far as relevant for the present case)-in respect of matters relating to the terms and conditions of service of persons who are or have been in the service of Pakistan, including disciplinary matters. .
'. . . In Article 212 of 1973 Constitution now a scheme different from the one contained in old Article 216 has been adopted. Here the Supreme Court has been given jurisdiction to hear appeals in such cases which are within the exclusive jurisdiction of the Administrative Courts or Tribunals by way of special leave which also indicates that the High Court's jurisdiction remains ousted in line with the ouster of jurisdiction of other Courts." It is further observed that "where jurisdiction is (1) PLD 1974 Lab. 545 usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction on an appeal cannot be defeated on the ground that the order was without jurisdiction. The words "competent to make an order" do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed." The writ petition was disposed of as not entertainable under Article 212 of 1973 Constitution read with section 4 of the Services Tribunal Act, 1974.
' In Mohib Ullah v. Federation of Pakistan (1), the writ petitioner who was a Deputy Secretary, was promoted to Grade 20 and appointed to officiate as Joint Secretary. Later on he was informed that his appointment as officiating Joint Secretary was subject to his passing written test. The petitioner represented against the condition and asserted that the requirements of passing the written test did not apply to his case. The representation appears to have gone into by the Board inasmuch as he was again directed to take written test. Another representation filed by the petitioner met the same fate and since he did not take written test he was reverted to the post of Deputy Secretary, he filed a writ petition in the Lahore High Court and called in question the validity of the action taken against him. The learned Judge of the Lahore High Court dismissed the writ petition as being "incompetent" and for "lack of jurisdiction" by observing. "Coming to the question whether this petition under Article 199 of the Constitution is at all competent, it is to be noted that Article 212 of the Constitution of 1973 lays down that notwithstanding anything herein-before contained, in the said Constitution, the appropriate Legislature may provide for the establishment of, inter alia, a Service Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons in the service of Pakistan and where any such Tribunal is established no Court shall make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. The Federal Legislature enacted Act, LXX of 1973 (Services Tribunals Act, 1973) for the establishment of Service. Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of civil Servants, including disciplinary matters (section 3(2) ibid). The remedy of a civil servant aggrieved by a final order made by a departmental authority was by way of appeal vide section 4 ibid."
19. The precise scope of sections 44 and 47 of the Constitution Act came under examination in Mir Saddar Uddin and others v. The Government of Azad Jammu & Kashmir (2), where a Division Bench of the High Court held as follows : "The provision of section 47 of the Interim Constitution as detailed above, manifestly lays down that the Administrative Tribunal or Court established is to have exclusive jurisdiction with regard to all disputes that arise between the State and its employees, touching the terms and conditions of such employment, whether they are now in service or have, been in such service. . . . . . Their grievance concisely is that they could not be removed from service as the order of removal is passed in violation of the safeguard and guarantees promised by the Constitution, Kashmir Service Rules and Civil Service Pension Rules. Obviously, according (1) PLD 1975 Lah. 813 (2) P D 1976 Azad J & K 1 to their own stand, their removal is per se in flagrant violation of the Constitution and as well as rules. This clearly means that the petitioners' terms and conditions of service and the violation thereof are made subject of this petition".
' Muhammad Hashim Khan and others v. Province of Baluchistan and others (1) is on all fours. It was held therein as follows : "We are unable to see any limitation in the powers of the Tribunal while hearing the appeals. On the other hand, the Tribunal under section 5 of the said Act is deemed to be civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise tetra vires or that the order made is mala fide. We are further inclined to think that the conferment upon the Tribunal the exclusive jurisdiction to adjudicate upon these matters cannot be given any less effect even if it were to be assumed, though as aforesaid there is no warrant for such an assumption that one or the other ground of challenge may not be available to the petitioners before the Tribunal." A more clear statement of law on the point appears in Fazal Ellahi Ejaz and 22 others v. Government of the Punjab and 13 others (2), where writ petitions were filed in the Lahore High Court to challenge the said rules on the ground that the same were ultra vires.
Sardar Muhammad Iqbal whom we had the privilege of hearing on behalf of the Government (appellant), while Chief Justice of Lahore High Court, decided question now we are faced with, in a most clear manner by observing : "That except in regard to the validity of the rule of 1974 all other matters were within exclusive jurisdiction of the Tribunal set up under Punjab Administrative Tribunals Act, 1974, read with Article 212 of the Constitution." He also ruled it to be ultra vires and dismissed the writ petition, leaving the writ petitioners to seek their remedy in respect of other matters from Services Tribunal. In the Letters Patent Appeal, though the findings were given in favour of the appellant, yet the appeals were dismissed on the ground that; all matters including the vires of the rules, could be gone into by the Services Tribunal which has the exclusive jurisdiction for except all the matters pertaining to the terms and conditions of the person in the service of Government of Pakistan including disciplinary matters. In this context it was observed. "I also do not agree that the power of declaring a rule ultra vires of a law is the exclusive prerogative of the Courts as distinguished from Tribunals or Courts. Article 212 of the Constitution authorises the appropriate Legislature to establish Administrative Courts or Tribunals in respect of inter alia matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Once such Tribunals or Courts are established, the jurisdiction of all the Courts to grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends, is barred. The above Article does not give finality to the decision or order of the Tribunal but provides for appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal, though the Supreme Court can exercise the appellate power on being satisfied that the case involves a substantial question of law of public importance and after grant of leave to appeal. By virtue of Article 212 (1) PLD 1976 Quetta 59 (2) PLD 1977 Lab. 549 matters which are exclusively within the jurisdiction of an Administrative Tribunal or Court established by Legislature under that Article cannot be entertained by any other Court. The jurisdiction of all other Courts is excluded completely provided the proceedings in which such question arises, is within the jurisdiction of the Administrative Court or Tribunal. I enquired from Mr. Mahmood All and the other learned counsel to cite any authority or principle in support of the proposition that notwithstanding such exclusive jurisdiction the Administrative Court or Tribunal cannot go into the vires of the rule framed under any statute. No such authority or principle was cited. No proceedings over which an Administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involves determination of the vires of any rule or statute.
' The Administrative Tribunal or Court has complete jurisdiction in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of the ordinary Courts including the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal or Court, is so complete that even the orders of the Administrative Tribunal cannot be assailed either by a suit or by a writ petition. See Muhammad Aslam Bajwa v. Federation of Pakistan. See also Faizullah Khan v. Government of Pakistan (1) in which it was held that High Court or other ordinary Court have jurisdiction only in matters not amenable to the jurisdiction of the Service Tribunal Orders passed by the Administrative Tribunal or Court can be interfered with by the Supreme Court subject to the grant of Special Leave to Appeal. Such Court or Tribunal can, therefore, give a finding on the validity of the rules framed under a particular statute, if the question arises in connection with any matter within its exclusive jurisdiction." The decision reported as Muhammad Hashim Khan and others v. Province of Baluchistan and others and Fazal Ellahi Ejaz and 22 others v. Government of the Punjab and 13 others has recently been followed by the Sind High Court also in Iqan Ahmed Khurrum and others v. Government of Pakistan and 7 others (2). The contention that Service Tribunal had "no power to go into vires of the statutory rules" was repelled and it was further observed: "Reverting to the third contention that as the instant petitions involve determination of the vires of the rules, the same are not competent as the Service Tribunal has no power to go into the vires of the statutory rules, it may be observed that in our view the Service Tribunal is competent to examine the vires of the rules or order while adjudicating upon the question as to whether an impugned order affecting the terms and conditions of an aggrieved civil servant is legal or not. Needless to mention that the Service Tribunals have been constituted with the object of providing a forum with the exclusive jurisdiction in the service matter relating to the terms and conditions of the civil servants, subject to an appeal to the Supreme Court. If we were to hold that the Service Tribunal has no jurisdiction to go into the vires of the service rules or orders, it will frustrate the object for which the Service Tribunals have been constituted, as in every case, it will be open to an aggrieved civil servant to challenge the vires of a rule or departmental instructions with the object to frustrate the provisions of the Act." While dealing with the contention that rules were liable to be declared as without lawful authority being in violation of the principles of natural justice, it was (1) PLD 1964 Lab. 519 (2) PLD 1979 Kar. 610 held: "Reverting to the fifth contention that the petitioners' terms and conditions have been varied through the aforesaid notifications without hearing the petitioners and therefore, the rules framed thereunder are liable to be declared as without lawful authority being in violation of the principles of natural justice, it may be observed that in support of the above contention, the learned counsel for the petitioners have invited our attention to the fact that the reservation of certain percentage of the seats for Diploma Holder under the two impugned notifications were done in response to the representation made by the Diploma Holders working in the Department. It was urged that the Diploma Holders' above representation was accepted and acted upon without providing an opportunity to be heard to the petitioners though they were adversely affected by the aforesaid reservation. Without going into the merits of the above contention we are of the view that the question as to whether the impugned notifications can be challenged on the ground of the alleged violation of the principles of natural justice and the question as to whether in fact there has been any violation of the aforesaid principle fall within the compass of the Service Tribunal's jurisdiction."
' Thus the three High Courts of Pakistan i. e. Of the Lahore, Quetta and Sind have unanimously expressed the view that it is competent for the Services Tribunal to go into vires of the statutory rules and that the High Court cannot entertain the petition in exercise of its constitutional writ jurisdiction on the ground that the case involves determination of the vires of any of the rules. The learned counsel for the respondents has neither cited any judgment to the contrary, nor given any convincing reason in support of a different view than what had been taken in the aforementioned cases. Rather he concedes that civil Courts can strike down law, but his argument that Services Tribunal being civil Court only in fiction cannot do so, is entirely misconceived because the context does not prohibit it, so all the necessary consequences and incidents which 'flow as corollaries from the fiction are to be recognised and carried to their logical conclusion'.
20. There is yet another aspect of the matter. Subsection (2) of section 5 of Azad Jammu and Kashmir Services Tribunal Act, 1975, which has been enacted by appropriate Legislature in exercise of the power conferred by section 47 of the Interim Constitution Act, 1974, lays down that "A Tribunal shall, for the purpose of deciding any appeal be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908) ...."
' Though under section 4 of the 1975, Act, it is provided that an appeal shall lie to the Tribunal but, the proceedings in appeal before the Tribunal are not to be treated just like an administrative appeal as is generally understood. A reference to the Second Schedule to the Act will make it abundantly clear that the proceedings are to take the form of almost a trial of Civil Suit. Clause (b) of Paragraph 1 of the said Schedule is like Order VI, rule 2, C. P. C; clause (c) like Order VII, rule 1; clause (d) like Order VII, rule 7; clause (c) like Order VII, rule 14; clause (g) like Order VII, rule 9 (1-A); Paragraph 3 is like Order VII, rule 1; clause (i) of paragraph 4 is like Order, VII, rule 11 and Order VII, rule 9 (1-b); clause (2) of paragraph 6 is like Order V, rule 2 paragraph 8 is like Orders XIV and XV, clause (i) of paragraph 9 is like Order XVI, rule 1; clause (2) like Order XVI, rule 14; clause (3) like Order XVI, rule 4; clause (0 of paragraph 11 is like Order XVIII, rules 4 and 5; clause (3) like Order XVIII, rule 12; clause (1) of paragraph 13 is like Order IX, rule 8; clause (2) like Order XVII and clause (3) is like Order IX, rule 9, C. P. C. The procedure prescribed in the Second Schedule is to be followed by the Tribunal while dealing with an appeal. Thus, it is a full edged trial like that of a Civil Suit, where the appellant can produce and summon both documentary as well as oral evidence, in support of his claim. The civil Court has the jurisdiction to try all suits of civil nature except those which are expressly or impliedly barred. The suit in respect of terms and conditions of a civil servant is barred.
The Tribunal has instead the exclusive jurisdiction. The Tribunal, therefore, can decide all those questions which the civil Court is competent to decide while disposing of a suit.
21. A Civil Court has vested authority to determine the validity of laws. In The Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid-ud Daula and others (1), a contention was raised that since there was no specific conferment of powers on the Court to enquire into the validity of laws, it was not competent for the Court to do so. The contention was repelled by the Division Bench of the Lahore High Court. At page 999 it was observed as follows:- "The assertion of the learned Advocate-General that the Ordinance had given the Courts the power to decide the questions that arose in the exercise of powers given by those Ordinances is unassailable but his contention that the Ordinances had not given Courts jurisdiction to determine whether or not the Ordinances were valid law is entirely misconceived. No part of the Ordinances said even a single word to the effect that jurisdiction was being conferred on Courts to determine whether or not the Ordinances were valid, and indeed if such a provision had existed it would have been a departure from the long-standing practice of law-makers who have never expressed a doubt that they are acting within their powers."
' In Malik Khizar Hayat Khan Tiwana v. Punjab Province (2). Mr. Justice M. R. Kayani, J, in a civil suit, tried by him on the civil original side of the High Court, struck down Acts XIV and XVII of 1952, and Bill No, 6 of 1952, as 'bad in law' and 'ultra vires' the Provincial Legislature being 'hit' by .Section 299 of the Government of India Act. In Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co. Ltd.
And others (3), the validity of the provisions of Sholapur Spinning & Weaving Company (Emergency Provisions) Act (XXVIII of 1950), was challenged through a civil suit, on the ground that the same abridged the plaintiff's fundamental rights conferred Articles 14, 19 and 31 of the Indian Constitution.
The suit was dismissed and the appeal also met the same fate at the hands of the High Court of under Bombay. The Supreme Court of India accepted the appeal and decreed the suit. In Taher Saifuddin Saheb v. State of Bombay (4), Sri Venkataramand Deraru and others v. State of Mysore and others (5) and Raja Ganga Pratap Singh v. Allahabad Bank Ltd., Lucknow (6), the suits were filed to challenge the vires of the statute on the ground that there was violation of the constitutional provision. In the last mentioned case, the suit was based on the ground that section 2 (f) of the Uttar Pradesh Zamindar's Debt Reduction Act (U. P. XV of 1953), offended against the equality clause provided in Article 14 of the Indian Constitution which is identical with 'sub-clause 15 of section 4 of the Interim Constitution Act here'. The suit was held to be maintainable. In fact, there is a long line of cases where the jurisdiction of
(1) PLD 1961 Lab. 993 (2) PLD 1955 Lab. 88
(3) AIR 1954 SC 119 (4) AIR 1958 SC 253
(5) AIR 1958 SC 255 (6) AIR 1958 SC 293 ' civil Court was competently invoked under the declaration that the provisions of the statute were ultra vires of the Constitution or authority which had enacted the same. Now under section 5 of the Azad Jammu & Kashmir Service Tribunal Act, 1975, the Services Tribunal, for the purpose of deciding any appeal, is deemed.To be a civil Court and has the same powers as are vested in such Courts under the Code of Civil Procedure, 1908: Therefore, while deciding the appeal, the Tribunal, since it has all the powers of civil Court, will be competent to pronounce upon the validity of any of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, let alone rule 6 thereof.
The only fetter on its way is that it cannot question the validity of the law under which it is constituted.
22. The precise scope of the powers of the Special Tribunal was examined in Akhtar All Parvez v.
Altafur Rehman (1), a Full Bench case, where Manzur Qadir, C. J., who wrote the judgment, observed at pages 402, 404 and-405 as follows: "The point being of considerable importance, it seems desirable to set it out explicitly and to deal with it 'fully in the light of the earlier decisions. It seems to me that the various contentions raised here aie all reducible to the generalised question :- ' If a Tribunal of special jurisdiction is created to deal with a special field and proceedings alleged by one of the parties to be within that field are instituted in Special Tribunal and the Other party denies that those proceedings are within that special field, can the Special Tribunal proceed to exercise any of its powers before determining the issue whether the proceedings are, or are not, within the field in which he has the authority to act?
' This general question itself appears to -me to be a species of the still more general question- ' When objection is taken.To the competency of a Tribunal to deal with a certain matter, can that Tribunal deal with that matter in any way before deciding whether it is competent or incompetent to deal with that matter.
' It seems to me that a distinction exists between an issue as to the very existence of the authority to adjudicate, and those other issues which arise as between the parties and which are to be determined by the authority that has the power to resolve them. An issue concerning the very existence of the power to decide, is not an issue between the parties, though the existence of that power may be asserted by one party and denied by the other. It is, in reality, an issue between the Court itself and the party over whom the Court is asked to exercise power. The issues as to the rights or liabilities of the parties, on the other hand, affect only the parties and arise only as between them. They leave the Court unaffected. This point may be put in another way. Objection raised 'to' the proceedings must be distinguished from objections raised 'in' the proceedings.
' An objection to the jurisdiction of a Tribunal may take one of the following general forms-
(i) that the law under which that Tribunal is created is defective or invalid; (1) PLD 1963 Lah, 390
(ii) that the Tribunal is not constituted or appointed validly under the law;
(iii) that a party or the parties is or are not amenable to the jurisdiction of the Tribunal; and
(iv) that the subject-Matter is outside the field in which the particular Court is competent to act.
' On the other hand, if objections are raised which fall under the third or the fourth general categories, the Rent Controller should immediately ascertain the grounds on which those objections are based, and if those grounds can be settled one way or the other, either on the ' admission of the parties or on the materials before the Court or with reference to matters that are verifiable from official records, he should proceed to settle those grounds and give his decisions there and then."
' If in an appeal before the Service Tribunal a contention is raised that rule under which the action had been taken against the civil servant concerned was repugnant to any provision of the Constitution, it will be an objection in the proceedings and not an objection to the proceedings and will be like aforementioned objection No, (iv). The Special Tribunal will, therefore, be competent to decide such an issue while dealik with an -appeal. Thus it would appear that while dealing with an appeal the Service Tribunal has plenary powers to go into the vires of the rules and hold whether or not any of their provision is repugnant to one or more of the constitution guarantee.
23. It appears that the High Court has not been able to properly comprehend the scope and extent of the powers of the Service Tribunal. By section 3 of Azad Jammu ,& Kashmir Service Tribunal Act, 1975, the Tribunal is to be comprised of two members; one of whom would either be a sitting Judge of the High Court or should possess the qualifications necessary to be a Judge of the High Court and the other should not have less than 15 years of service under Azad Jammu & Kashmir Government and is not below the rank of a Deputy Secretary. The decision given by the Tribunal' is clothed with finality. Except that the Supreme Court may, being satisfied that the case involves a substantial question of law of public importance, grant leave to appeal. If the Supreme Court can, in its appellate jurisdiction, determine a 'substantial question of law of public importance' how is it that the Tribunal cannot determine the same question? How the final determination of all questions whether of facts or of law including a question of interpretation of the relevant law or its vires arising in connection with the matter specified in section 47 of the interim Constitution Act is placed by the said section within the exclusive jurisdiction of the Tribunal, and this is a provision of the Constitution subject to which the High Court must exercise its powers under section 44. In other words, it is not for the High Court to review an interpretation placed on the relevant law, including the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, by the Tribunal and consequently come to a different interpretation. Only the Supreme Court has the jurisdiction, in appeal, to revise the decision of the Tribunal. Even a wrong decision of the Tribunal on a question of law will not clothe the High Court with the jurisdiction to entertain a writ petition and there should be no manner of doubt that in countries with written Constitution, the exclusion of control by superior Courts is possible, if Constitution says so and reading together section 44 and section 47 of the Constitution Act, 1974, the only possible conclusion is that the field occupied by Service Tribunal is forbidden ground for the High Court. In other words as soon as the Azad Jammu & Kashmir Service Tribunal Act, 1975, was enacted and the moment the Service Tribunal was constituted, the writ jurisdiction of the High Court to the extent of the matte enumerated in section 47 of the Interim Constitution Act, 1974, read with Service Tribunal Act, 1975, was completely ousted, and the High Court could not entertain any proceedings in respect thereof nor could make any order with regard thereto.
24. The respondents had an adequate alternate remedy by way of appeal before the Service Tribunal. Without their having first resorted to the same, the writ petitions were not entertainable. It was wrong for the High K Court to entertain petition for writ when the law provided a remedy by way of appeal to the Service Tribunal, fully competent to grant. The requisite relief. The indulgence shown by the High Court in entertaining the writ petitions was not Only taken to defeat the legislative intent, but was act to create distrust in the Service Tribunal. If the right, which a person seeking a Writ, claims to base in him is the creation of a statute, it is all the more necessary for him to exhaust the remedy provided by the statute before he can be permitted to invoke the extraordinary constitutional jurisdiction of the High Court. What has the High Court done in cases in hand? The respondents were proceeded against in terms of the procedure laid down in sub-rules
(3) and (4) of rule 6, read with rule 8 of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. The High Court has held the sub-rules (3) and (4) of rule 6 to be 'void', meaning thereby that for the purpose of the cases of the writ petitioners the said sub-rules were nonexistent. The very foundation of the action taken against the writ petitioners having been held to be void and 'non-existent, the whole series of the proceedings, including the final orders, night as a necessary corollary be held to be void and non-existent. Then, what is left for the Service Tribunal ' to determine-only the formal expression that the orders are void and set the same aside? Is the judgment of the High Court not calculated to present the Tribunal with a fait accompli but, if the.
Tribunal does not accept as correct and ignore the judgment of the High Court, because it is not binding on it, the binding nature of the decision of the High Court extends under section 44 (b) only, to 'Courts subordinate to it', the Tribunal being not one, who will be responsible for such .An unhealthy precedent? Doubtlessly it is provided in subsection (21 of section 5 of Arad Jammu & Kashmir Service Tribunal Act, 1975, that a Tribunal shall, for the purpose of decision, be deemed to be a civil Court and shall have the same- powers as are vested in such Courts under the Code of Civil Procedure No, V of 1908) but, that by itself does not mean that the Tribunal becomes civil Court. Such a deeming clause. Is added in the statute only for the purpose of investing an authority with the powers of a civil Court-'creates a status or an attribute for a person or thing which is hot intrinsically possessed by that person or thing on whom the conferment is made'-and not that had, in fact, become a civil Court; it is known as 'legislation by reference' whereas, therefore, the Service Tribunal will have, while deciding an appeal, all the powers of civil Court, it will not be a civil Court and will thus be immune from being subordinate to the High Court. Far, the same reason the Service Tribunal is not amenable even to the superintendence and control of the High Court under section 46 of the Constitution Act. The High Court is not expected to render a judgment which is not enforceable nor it should circumvent the normal process of law, even if the anxiety behind it be to do justice. Since, however,. An adequate alternate - remedy by way of appeal to the Service Tribunal was available to the respondents, the assumption of jurisdiction by the High Court was in utter disregard of the constitution itself. The respondents had filed the appeals before the Tribunal and they had raised the same questions there. The appeals were pending when the writ petitions were accepted. And since the writ petitioners had an alternate adequate remedy by way of an appeal to the Service Tribunal, the writ petitions could not be entertained, and in particular when halve preferred appeals wherein they have challenged the wires and the validity of the rules.
' In Tanbir Ahmed Siddiky v. Province of East Pakistan (1)"relief was granted in all other cases except Civil Appeal No, 28-D in which a. Regular civil suit filed by the appellant was pending in the civil Court. The appeal was dismissed by observing that the pendency of the civil suit by itself was a `sufficient ground' for denying any relief in writ jurisdiction. Hasan Din Chishti v. Chief Engineer, WAPDA (2) was a case where the petitioner who - was a Mechanical Foreman in WAPDA was removed from- service. He filed a civil suit to challenge the validity of the order removing him. The suit having been dismissed, he did not file an appeal, but filed a writ petition in the High Court. The writ petition was dismissed on the ground that a person, who had elected to avail of one of the alternative remedies. Available to him, could not be entitled to agitate the same questions for a second time after he had failed to obtain the remedy which he elected to seek. Leave was refused by the Supreme Court of Pakistan 'by observing that the High Court acted upon sound and judicial -principles in refusing leave by way of writ in the circumstances of the case and that no exception could be taken to the order of the High Court. Khuda Bakhsh Khadim Hussain v. Anwar Hussain (3) and Steel Brothers & Co. v. Central Board of Revenue (4) are the cases to the same effect where it has been held that it would amount to circumvent the provision' of law if a parallel proceedings under Art. 98 of the. Constitution are initiated to deal with the same question.
25. Under section 44 of the Constitution Act it is a condition precedent to the assumption. Of jurisdiction by the High Court that there is no other remedy provided by law. In 'Halshury Laws of England, 3rd Edition, Vol. 11, p. 130, it is stated that in mandamas the inquiry will lie only where... There is no other equally effective remedy. In The Tariq Transport Company, Lahore v. Sargodha-Bhera Bus Service, Sargodha (5) Muhammad Munir, Chief Justice. As he then was, after examining the legal objection raised in view of the facts of that case observed at page 448 that: "I consider it to be wrong on principle for the High Court to entertain petitions for writs, 'except in very exceptional circumstances, when the law provides, a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary by the High Court is calculated to create district in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent."
26. There is another aspect of the case. The High Court should have at least permitted the Service Tribunal to determine the extent of its own jurisdiction, i,e,, to say whether it could pronounce upon the validity of the (1) PLD 1968 SC 185 (2) 1970 SCMR 58(3) PLD 1976 Lah. 919 (4) 1968 SC MR 374 (5)
PLD 1958 SC (Pak.) 437 rule under which action had been taken against the respondents. Doctrine of 'primary resort' or 'primary jurisdiction' demands that statutory tribunals must first be resorted to for determination of the. Issues before going to the Courts and that such Tribunal must be allowed to ,go to its final decision before the Court can interfere. This was the view taken in Federal Power Commission v. Metropolitan Edison Company (I) where it was observed that "attempts to enjoin administrative hearings because of a supposed or threatened injury, and thus obtain judicial relief before the prescribed administrative remedy has been exhausted, have been held to be at war with the long-settled rule of judicial administration".
' In Delaware & Hudson Company v. United States of America (2) the appellants were proprietors of the rail-roads. The Interstate Commerce Commission declared tentatively valuation of the property which the several companies owned and allowed thirty days for protests. Elaborate protests were duly presented. Before they were acted upon, appellants approached the Court to annul the valuation. In the petition it was stated that "the Commission refused to investigate, ascertain, and report many facts relative to values, as required by the statute ; refused to investigate, ascertain, and report concerning properties used by the Delaware & Hudson Company for purposes of a common carrier ; refused to apply to inventories prices existing and current on June 30, 1916 ; omitted to report analyses of the methods employed for ascertaining values, costs, etc. ; also omitted to investigate and report the amount of working capital actually' used for purposes of common carriers." The Supreme Court while dismissing the appeal remarked "Under the circumstances disclosed appellants must pursue the remedy provided by the statute and give the Commission opportunity to take final action before they can properly ask interposition by the Courts."' In Public Service Commission of Utah N. Wycaff Co: (3) it was observed : Even when there is no incipient Federal State conflict, the declaratory judgment procedure will not be used to pre- empt and prejudge issues that are committed thy initial decision to an administrative body or special tribunal any more than it will be used as a substitute for statutory method 'of review.
Anticipatory judgment by Federal Court to frustrate. Action by a State, a State Agency is even less tolerable to our federalism. Is the declaration contemplated here to be res judicata so that the Commission cannot hear evidence and decide any matter for itself? If so the Federal Court has virtually lifted the case out of the State Commission before it could be heard. If not, the Federal judgment serves no useful purpose as final determination of right." The rule of primary resort could not be avoided on a totally baseless plea that the Service Tribunal cannot go into the vires of the statutory rules. The writ petitions could not be entertained for this reason.
27. Looked from another angle, it would appear that under section 44(2) (c) when the application is for the enforcement of a fundamental right, the applicant must show himself to be an aggrieved person. He must first plead the facts which should be made the basis for enforcement of any of the fundamental rights, Reference.In this behalf to the averments in the writ petitions themselves make it indubitably clear that the petitioners had challenged the vires of the rules in abstract and only as an academic exercise ; they did not challenge the order before the High Court on the ground of being without lawful authority and of no legal effect. All that they had pleaded before the High Court was that since sub-rules (2) and (3) have laid down two different procedures to be followed by an authorised officer, the
(1) 82 Lawyers' Ed. 1408-304-U S 375 (2) 69 Lawyers' Ed. 369
(3) 90 Lawyers Ed. 293 ' same were ultra sires of sub-clause 15 of fundamental rights, contained in section 4 of the Constitution Act which enjoins that 'all State subjects are equal before law and are entitled to equal protection of law'. They had thus challenged the vires of the rules in vacuum without raising a definite cause for the enforcement of the said fundamental rights. Moreover, the admitted position is that the writ petitions were filed after the final order had been passed. The Government, Which had been made a party in the writ petitions, had become functus officio, and even a review petition was not pending before it, because none of the respondents elected to do so. Could, in the circumstances, the High Court give any direction to the Government for enforcement of the said fundamental rights, knowing fully well that it was not seized of any matter concerning the writ petitions?. The answer has to be in negative. And if this is so the petition, as framed, was not maintainable under section 44(c) because the High Court cannot under the said constitutional provision grant a declaration simpliciter, nor any one the Court pro bono politico to challenge the vires of a law on the ground that the same offends against any provision of the Constitution.. The person who seeks a command from the High Court for enforcement of fundamental right must first show with reference to admitted or proved facts, as to how he is an aggrieved person ; from what particular act or action he feels aggrieved, and to which authority he wishes the writ of the High Court to be directed. Otherwise, he must fail In case of ex parte, in (1885) 1 Q B D 224 it was held that an aggrieved person must be a than who has suffered a legal grievance. In that case it is obs6rved as follows :- "The words, 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made.' A 'person aggrieved' must be a man who had suffered a legal grievance. A man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him of something or wrongfully affected his title to something."
' Similar view was expressed in case of Ex parte Official Receiver In re : Reed Bowen & Co. (1). This definition is, however, not exhaustive one Whether a person is aggrieved or not has to be decided on facts of each case. The ascertainment of facts is the first essential step for the exercise of judicial power. Then follows the determination of laws applicable to the facts found or admitted.
The ultimate object is the enforcement of a right or .Obligation, and it is only when there arises a dispute as to which of the two or more laws is applicable to the right or obligation litigated, then the Court can step in to give verdict. Unless there is an adversary litigation, i,e, to say a dispute in respect of definite subject-matter, brought before the Court for its adjudication, it is not possible for any one to throw a hypothetic challenge to a legislation. Whether it be an Act of Parliament or subordinate legislation like the Azad Jammu .8c Kashmir Civil Servants (Efficiency and Discipline)
Rules, 1977. The reason is not far from understanding : the Courts do not declare invalid any legislative measure unless it adversely affects a person's right, -Courts do not act suo /nolo and, therefore, cannot nullify or veto legislative measure for academic interest. The respondents herein had not sought any relief vis-a-vis the action of the Government, which hurts them. According to their own averments, relief in respect of action taken against them can only be granted ' by the Service Tribunal.
(1) (1887) 19 Q B D 174 ' They approached the High Court for a mere declaration that sub-rules (2) and (4) of rule 6 were bad, being violative of equality clause. Such an abstract declaration for nullification of any of the rules could neither be sought by the respondents nor the Court could interpose any such relief, in the absence of a /is based on concrete facts, ascertained rights and obligations. In The Province of East Pakistan and another v. Mehdi Ali Khan (1) Muhammad Munir, C. J., after extensively reviewing the case-law from foreign jurisdiction including United States' superior Courts, observed at page 407 as follows :- "But one principle that clearly emerges from the recent decisions of the Supreme Court and the State Courts is that the Court does not veto, annul or revise legislation and that its sole function is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases. The Courts do not therefore decide abstract, hypothetical or contingent questions or give mere declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts ' of a case floats in an-atmosphere of unreality it is a determination in vacuum and unless it amounts to a decision setting. Rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power."
' The learned Chief Justice, after flouting Privy Council Judgment in Attorney-General for Ontario v.
Attorney-General for the Dominion (2), observed at page 408 as under: "And it is a simple deduction from this principle that anyone who challenges the constitutionality of a law must raise a case in the decision of which he has 'real and personal interest, in the sense that as an individual he would he adversely affected if the law which operates against him is not found and declared to be unconstitutional. He cannot move the Court as pro bono public or merely as a 'tax payer' unless the constitutionality of the statute which taxes him in itself in question. Therefore the only method known to the American Jurisprudence for a .Declaration as to the invalidity of law is the judicial method which is set in motion by the institution of a case. If in the determination of that case a law comes into conflict with a provision of the Constitution the Judge decides not according to the law but according to the Constitution, the conflicting law yielding to the supreme law. Acting in this manner when the Court determines the extent of the conflict between the ordinary law and the supreme law it has necessarily to declare that the law to the extent of conflict with the supreme law is void. From this declaration a general proposition may be formulated that a certain law is void but what is not to be overlooked is that the declaration is made because it is considered to be necessary for the determination of the right or liability in issue in the suit."
' In Talal-ud-Din and others v. Settlement Commissioner (3) the Supreme Court of Pakistan observed that 'A writ petition under Art. 98 of the Constitution can be filed only by an aggrieved person which contemplates that the relief granted by the Court must be in relation to his grievance'. Here, the relief granted by the High Court is not in relation to any particular grievance of the
(1) PLD 1959 SC (Pak.) 387 (2) (1896) A C 348
(3) 1968 SCMR 995 ' writ petitioners. They have simply exercised and assumed power of veto and declared the rules ultra vires as merely an Academic exercise because the writ petitioners themselves had made it clear in the writ petitions that they were not challenging nor they could challenge, the punishment awarded to them because for that purpose a different forum had been provided to them by law.
Doab Goods Forwarding Agency Ltd. v. Province of Punjab (1) is more or less similar to the present case. In that case the petitioners carried on the business as Goods Forwarding Agents. They filed a constitutional petition in the High Court to challenge the validity of certain actions taken by the Secretary, Regional Transport Authority in the purported exercise of the powers under section 11 of the West Pakistan Bus Stand and Traffic Control (Lahore) Ordinance, 1963, and Notification issued by the Commissioner of Lahore Division. On the assertions of the Government's representative that no action will be taken beyond the scope of the provision of the law the writ petition was disposed of by High Court. A petition for special leave to appeal was filed in the Supreme Court of Pakistan contending that it was incompetent upon the High Court to have declared whether the Notification issued by the Commissioner was valid or not so that the petitioners could be certain of their position. The Supreme Court refused leave by observing as follows :- "The High Court's function under Article 98 of the Constitution of 1962 is not to pronounce upon the validity of laws or Notifications, etc. As merely an academic exercise but it is only where a person is aggrieved, that is to say, adversely affected by such a law that he may invoke the jurisdiction of the High Court and then the High Court would in a concrete case deal with the legal position."
' Mr. B. A. Shaikh submitted that this case would not apply to the writs filed by the petitioners because in that case no action was yet taken but in the instant case the petitioners were either dismissed or placed on retirement. But he has not been able to cite any authority contrary to the view expressed in the aforementioned authorities. In Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind & Baluchistan (2), it was held at page 687 as follows: "The High Court cannot move suo motu for, it is specifically provided in each of the sub-clauses (a),
(b) and (c) of clause (2) of Article 98 that only on the application of an aggrieved party or of any person,' the High Court may make the,-orders or issue the directions therein specified. It is clear, therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power of supervision or control over investigating agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of 'all other Courts that are subordinate to it'. This position, as already pointed out, is not also disputed by the learned Advocate-General for the Province of Sind."
' In Ch. Muhammad Yunus v. The Islamic Republic of Pakistan (3) it was observed that "it is only where the rights of persons or property are involved, and when such rights can be presented under some judicial form of proceedings, that Courts of justice can interpose relief. The legal right to enforce the performance of the duty must be in the applicant himself. The right must be specific right, as distinguished from a general interest in the performance
(1) 1971 SCMR 527 (2) PLD 1971 SC 677
(3) I L D 1972 Lah. 847 ' of the public duty which a member of the public has in common with the other members equally interested".
In Muhammad Boota and 11 others v. The Commissioner, Sargodha Division and 2 others Et) the petitioners who were 77 in number were all butchers by profession had filed a constitutional petition in the High Court praying that the memorandum issued by the Commissioner, Sargodha Division, Sargodha, addressed to all the Chairman/Administrators of Municipal/Town Committees in the Division, whereby he introduced a uniform procedure for the grant and renewal of Beef Licenses in his Division be declared as without lawful authority and of no legal effect. After reviewing the case-law extensively, a Division Bench of the Lahore High Court observed :- "The sole function of the Court is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts. Any one who challenges the vires of a law or the validity of an order must raise a case to show that an action taken in pursuance of the said law or order had adversely affected his rights or interest, or that it would result in the loss of some personal benefit to the curtailment of a privilege to him.
' The Court does not veto, annul or revise legislation and its sole function is to pronounce for or against the litigated right or liability by determining the law applicable to the facts though its decision may have repercussions on a statute or a part of it in respect of future cases. The Courts do not therefore decide abstract, hypothetical or contingent questions or give mere declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts of a case floats in an atmosphere of unreality ; it is a determination in vacuo and unless it amounts to a decision setting rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power."
' It was further observed that, a law, even if it is unconstitutional, cannot be declared as invalid so long as law does not practically affect the rights of somebody. In the instant case the High Court was also faced with the similar situation. The writ petitioners had frankly conceded that the validity of the action taken and order passed against them could only be gone into by Service Tribunal.
They merely wanted an abstract declaration from the High Court that sub-rules (2), (3) and (4) of rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, were ultra vires of Fundamental Right No, 15 contained in section 4 of the Constitution Act. I other words a judgment against the statute. This was not permissible for the High Court to do. The doctrine that judicial declaration of the unconstitutionality of a statute has not the effect of a vires or nullification or abrogation of the statute so as to, in fact, strike it from the statute book, is excellently stated by the Court of West Virginia in Sheppard v. Wheeling (2) as follows :- "The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only and there is no judgment against the statute. The opinion or reasons of the Court may operate
(1) PLD 1973 Lah. 580 (2) 30 W Va. 479 ' as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book ; it does not repeal the statute. The parties to that suit are concluded by the judgment but no one else is bound. A new litigant may bring a new suit based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reasons and basis of the fundamental rule that a Court will never pass upon the Constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it."
28. Thus it would appear that there was no case before the High Court and we hold that writ petitions, as framed, challenging in abstract the vires of the rules, were not competent, because under clauses (a) and (c) of sub section (2) of section 44, the writ petitioners must have disclosed the controversy or lis to bring their cases within the requirements of the conditional provisions viz., that "they should be aggrieved party" or "aggrieved persons". This being a condition precedent to the exercise of writ jurisdiction, the High Court was not justified in entertaining the writ petitions unless the respondents herein were aggrieved party or persons claim in relief in respect of an order adversely affecting them.
29. On the question of validity of Rules, it was submitted by the learned counsel for the appellants that no valid exception should be taken to the procedure laid down in rule 6 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, on the ground that the same was repugnant to the equal protection clause laid down in sub-clause (15) of the Fundamental Rights guaranteed under section 4 by the Constitution Act, 1974 and therefore, the judgment of the High Court declaring rub-rule (3) and (4) of rule 6 ibid was not sound in law. In other words the submission was that the discretion conferred on the Authorised Officers in the matter of taking decision as to which of the two procedures should be observed, viz. Whether detailed inquiry through an Inquiry Officer or an Inquiry Committee, be conducted against the accused civil servant, or there being no need of any such inquiry the ends of justice would be met by serving on him a show-cause notice, is neither naked and unguided inasmuch as the decision of the authorised officer must rest on the facts and circumstances of each case besides having regard to the interest of justice, nor it is unfettered and uncontrolled, because ultimately his decision is subject to the incident of an appeal, review or revision, and there are also provisions for an appeal to the Services Tribunal and other to the Supreme Court, in specified matters. In the circumstances it was argued that rule in question was not ex fade discriminatory.
' Mr. Basharat Ahmed Sheikh the learned Advocate for the respondents, on the other hand, conceded that a classified legislation is permissible but it must be subject to the condition that classification is reasonable. It is unconstitutional to provide two procedures for "one category of the people and vest in the executive authority the power to pick and choose individual to be dealt with under either of the two laws".
' The question whether the order of the High Court holding sub-rules (3) and (4) of rule 6 of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, ex facie discriminatory on merits, should or should not be set aside, need not be examined by us in these cases because of our finding that High Court was debarred under section 47 of the Constitution Act, to entertain these writ petitions and that their decision in the matter being without jurisdiction is a nullity on that ground alone and also because the Tribunal being vested with the powers of a civil Court is competent to decide the vires of the rules and that the Services Tribunal has yet to decide the question of validity or otherwise of the Rules. However in view of the peculiar circumstances of these cases we may lay down certain basic and important principles as deduced from decided cases and the illuminating arguments addressed at the bar that may provide useful guidance for explaining the extent and scope of permissible classification. These basic principles may be stated as follows :- (a)When a law is challenged as offending against the guarantee in sub-clause (16) of section 4 of the Constitution Act, 'the first duty of the Court is to examine the purpose and policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the Legislature seeks to obtain'. Kedar Nath v. State of W. B. (1953) SC A 835 (845).
(b)In adjudging the reasonableness of a classification 'it is necessary for the Court first to ascertain the policy underlying the statute and the object intended to be achieved by it'. Kangshari v. State of W. B. A 1 R 1960 SC 457 (464).
(c) The purpose or object of the Act is to be ascertained from an examination of its 'title' preamble and provisions'. Kedar Nath v. State of W. P. 1953 SCR 835.
(d)Having ascertained the policy and the object of the Act, 'the Court should apply the dual test in examining its validity' ; Kangshari v. State of W. B. AIR 1960 SC 457 (464) and Hanif v. State of Bihar AIR 1958 SC 731.
(1) Is the classification rational and based on an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group ?" Kangshari v. State of W. B., AIR 1960 SC 457 (464) and Budhan v. State of Bihar (1955) 1 SCR 1045 (1049).
(ii) "Has the basis of differentiation any rational nexus or relation with its avowed policy and object ?" Kangshari v. State of W. B. AIR 1960 SC 457 (464) and Budhan v. State of Bihar (1955) 1 SCR 1045 (1049).
(e) A legislation which confers discretionary powers on the Executive may not contain any provision "which is directly discriminatory may yet offend against the guarantee of equal protection if it confers upon the Executive or Administrative authority an unguided and uncontrolled discretionary power in the application of the law". There is always presumption in favour of constitutionality of enactment and onus is on one who challenges to show that impugned legislation is arbitrary and unreasonable. Constitutional Law by Prof : Willis first Edition, page 579, 60 Lawyer Ed. 679, 82 Lawyers' Edn. 252, 82 Lawyers' Edn. 1024 and 248 U S 152 & 157. Such discretionary power may be vested in different ways :
(i) "The simplest case is where a law of limited application authorises the Executive to select the persons or objects to which it would be applicable, or to grant exemption from the operation of the law, without providing any guide or standard for such discrimination". Bibi Supply Co. v. Union of India, AIR 1956 SC 479 and Choudhury v. State of Bihar AIR 1957 Pat. 40 (43).
(ii) "That the Legislature, while enacting a special law for dealing with a special problem, may authorise the Executive at its (unguided) option, to proceed against a person either under the special law or under the general law which would otherwise have been applicable. In such cases, even though the enactment of the special law may be justified as a reasonable classification, the conferment of arbitrary power upon the Executive to apply either the general law or the more stringent special law to persons who may have committed identical acts, must be held to offend equal protection." Suraj Mall v. Viswa natha (1955) 1 SCR 448: (1952-54) C C 141 (143) and Meenakshi Mills v. Viswa natha (1955),1 SCR 787 ; (1952-54) 2 C C 146.
(iii) "If, however, the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute. The discretion that is conferred on official agencies in such circumstances is not an unguided discretion ; it has to be exercised in conformity with the policy to effectuate for which the discretion is given and it is in relation to that objective that the propriety of the classification would have to be tested." Kathi Banning v. State of Saurashtra 1952 SCR 435 (460) (Mukherjea, J.).
"In other words, if a law indicates the policy which inspired it, the mere fact that it does not itself make a complete and precise classification of the subject-matter but leaves the selective application of the law to be made by the executive authority in accordance with the policy indicated, there is no contravention of Article 14 (clause 15) by the law itself." Kathi Ranning v. State of Saurashtra, 1952 SCR 435 (460), (Mukherjea, 3.).
' To illustrate the point, "similarly, it has been held that the Industrial Disputes Act cannot be invalidated on the ground of contravention of Art. 14 (sub-clause 15 of section 4 of the Constitution Act) for having authorised the Government to refer a dispute either to a Board of Conciliation or to a Court of Enquiry or to a Tribunal, at its discretion, inasmuch as the policy of the Act was expressed to be for the purpose of 'investigation and settlement of industrial disputes' and Government was to decide what step would be conducive to this end, having regard to the exigencies of each particular case." Niemla Textile Mills v. Second Punjab Tribunal 1957 SCR 335 ; AIR 1957 SC 329.
( f ) "Where the right of appeal is provided there is lis which is liable to correction." AIR 1956 SC 676 para. 47, AIR 1960 SC 424 (426), AIR 1974 SC 2009 and PLD 1975 SC 66.
' It may be made clear to the Services Tribunal that they are free to decide the appeals on merits as well as on law, including determination of the question of the vires of rule 6, without being influenced by the judgment of the High Court in any way.
' The net result of the above discussion is that Appeals filed by the Government are accepted, judgments under appeals in all the four cases arc set aside and the appeal filed by Ghias-u1-Haq also Stands dismissed. However, the respondents are at liberty to raise the question of vires before the Services Tribunal afresh, if not raised so far. We leave the parties to bear their own cost throughout in view of complex questions being involved in these appeals.