1. Ghulam Mustafa Mughal, J.--The above captioned petitions filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 raise common questions of facts and law, hence, were heard together and are decided as such.
2. Sheikh Masood Iqbal, petitioner in Petition No,677/1999, is an Advocate of the Supreme Court having 10 years practice claiming to be eligible for appointment as Additional District & Sessions Judge, whereas petitioners in Petition No,333/2003 are Judicial Officers of the subordinate judiciary of Azad Jammu and Kashmir. In both the petitions, the petitioners have challenged the vires of the Azad Jammu and Kashmir Judicial Service Rules, 1999 and amendment made therein vide Notification dated Sep 5, 2003. It is alleged by them that quota reserved for appointment on the posts of District & Sessions Judges and Additional District & Sessions Judges for the officers of the Law Department is violative of Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, mala fide and against the concept of independence of judiciary. Through these Rules, according to the petitioners, a backdoor channel has been introduced and set-up for induction of the executive officers in the Judicial Department and this course, if permitted, will spoil the concept of independence of judiciary as well as free, fair and impartial administration of justice. It is also alleged that the mode of appointment is also discriminatory because the suitability of the Law Department's officers for appointment on the judicial posts is to be determined by the Law Department whereas their counterparts are promoted by the Selection Board consisting of the Judges of the High Court.
3. Petition No, 677/1999 has not been contested seriously by the respondents so far facts are concerned, however, in their preliminary objections they claimed that grievance raised through the petition relates to the terms and conditions of service of the petitioner, therefore, the petition is not maintainable in view of the bar contained in Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is further claimed by them that Government has the prerogative to make rules for regularization of services in the State, which cannot be challenged by anybody nor can be struck down on the ground of mala fide etc. The other petition filed by Mrs. Nargis Aftab Raja and others, also raises common points of law and resisted almost on the same grounds. It alleged by the respondents that the petition has been filed with delay. It is also alleged that the petitioners are civil servants, thus they have an alternate and efficacious remedy, provided by law. It is further alleged that the Rules have been framed competently with prior consent and consultation of the High Court, therefore, grievance of the petitioners is misconceived and is liable to be rejected. It is further pleaded that the Rules have been framed for eliminating the discrimination between the officers of the Law Department and the Judiciary. It is stated that Secretary Law has always been posted by transfer from the judiciary.
4. Similarly the post of Draftsman (B-20) can also be filled in through transfer from the judicial officers serving in the respective grade. It is further claimed that there is no harm to post the officers of the Law Department of the equal grades in the judiciary on reciprocal basis.
5. Ch. Muhammad Ibrahim Zia, the learned Advocate for Mrs. Nargis Aftab Raja and others, inter alia, argued that allocation of quota to the officers of Law Department in the Azad Jammu and Kashmir Judicial Service Rules, 1999, and Notification dated 5.9.2003 is violative of Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which militates against the concept of independence of judiciary. The learned Advocate maintained that a complete procedure is provided for appointment and promotion of the officers in the subordinate judiciary of Azad Jammu and Kashmir. After due course of time they are promoted as Additional District & Sessions Judges and District & Sessions Judges. The learned Advocate maintained that their suitability for the purpose of promotion is determined by the High Court in whose supervision they are directly working whereas in the Law Department the promotion is made on the recommendation of the respective selection board without having regard to the judicial experience. The learned Advocate contended that the legislature has wisely and purposely vested the control and superintendence of subordinate judiciary in High Court by enacting Section 46 in the Azad Jammu and Kashmir Interim Constitution Act, 1974, which is necessary for free, fair & impartial justice whereas the Executive. Officers of the Law Department will not be able to achieve this target because of having no background of judicial work. The learned Advocate also contended that quota of the lawyers has been minimized by amending the rules, thus, well qualified lawyers have been deprived of the right of induction on the basis of earlier rules which were framed on the basis of parity with Punjab province. The learned Advocate also submitted that the present Rules are discriminatory and have been framed in derogation to the principle of parity because in. Punjab no such quota is allocated to the Draftsmen or Additional Secretaries Law. The learned Advocate lastly argued that the Rules, have been framed by the Law Department whereas under the Rules of Business this is the sole prerogative and authority of the Services & General Administration Department. According to the learned Advocate, the departure from the Rules of Business has been made without any genuine reason because of self-interest of the Law Department. In support of his submissions the learned Advocate placed reliance on the following cases:--
(i) Azad Govt. and 6 others v. Faqir Hussain Shah and another [2004 SCR 23]
(ii) State u. Naseer Ahmed and another [2004 SCR 104] (iii)Habibullah v. D.I.G. Police and 3 others [2004 SCR 378].
6. (iv)Accountant General & another v. Shahid .Mehmood and another [2006 SCR 255].
(v) Finance Department of AJ&K & 2 others v. Mazhar Iqbal [2003 SCR 155] and
(vi) Kh. Ghulam Muhammad v. Azad Govt etc. [PLJ 2001 SC (AJK) 153].
7. In Faqir Hussain Shah's case, it was held that if a thing is to be done in a particular way it should be done in that way and manner as prescribed or should not be done at all. In the other cases reported at pages 104 and 378 of the same report, and in Shahid Mehmood's case, the same principle has been reiterated.
8. Mir Sharafat Hussain, the learned Advocate for Sheikh Masood Iqbal, has adopted the arguments of Ch. Muhammad Ibrahim Zia, Advocate.
9. Mr, M. Tabassum Aftab Alvi, the learned Advocate for the respondents, raised some preliminary objections with regard to the maintainability of petition No,333/2003 on the ground that all the petitioners therein have been promoted as District & Sessions Judges, therefore, at present they have no grievance and the petition has become infructuous. The learned Advocate alternatively argued that the petitioners being civil servants cannot challenge the vires of the Rules through writ in view of bar contained in Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The petitioners, according to the learned Advocate, have an adequate, efficacious and alternate remedy before the Azad Jammu and Kashmir Service Tribunal, therefore, the present petition is misconceived. The learned Advocate also submitted that the Government, as employer has the prerogative to frame Rules under Section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 and these Rules cannot be challenged on any ground whatsoever. The learned Advocate further contended that mere departure from the Rules of Business does not invalidate the Rules. He maintained that the Rules in fact have been framed in order to remove the discrimination between the officers of the Law Department on one hand and judicial officers on the other. According to him, the judicial officers have been posted on the posts of Secretary Law and Draftsman (l3,20). An opportunity has been provided for posting of the Officers from the Law Department in the judiciary on reciprocal basis, therefore, it cannot be said that the Rules have been made in violation of any law. The learned Advocate also contended that Sheikh Masood Iqbal, is also not an aggrieved person, therefore, his petition is not maintainable. In support of his submissions the learned Advocate placed reliance on the following cases:--
(1) Ghiasul-Haq v. Mad Govt. and others [PLD 1980 SC (AJK)
(2) Azad Govt. and others v. Muhammad Hameed Mughal and others [1994 PLC (CS) 637].
(3) Kh. Ghulam Muhammad v. Azad. Govt. etc." [2001 PSC 2051 Mr. Mumtaz Hussain Kiani, the learned Additional Advocate General, while defending the respondents in writ petition No,677/1999 has adopted the arguments of Mr. M. Tabassum Aftab Alvi, the learned Advocate for the respondents.
10. Ch. Muhammad Ibrahim Zia, the learned Advocate for the petitioners, in rebuttal stated that Sheikh Masood Iqbal, an Advocate having 10 years practice, is eligible for appointment as Additional District & Sessions Judge, therefore, it cannot be said that he is not an aggrieved. According to the learned Advocate, an Advocate even otherwise becomes aggrieved if some rules are framed against the concept of independence of judiciary or create hurdle in the administration of justice.
11. He submitted that notwithstanding the' question of competency of the petitions the matter involved is of public interest and relates to the terms and conditions & safeguard of the service of the judicial officers, therefore, can be decided by this Court. He placed reliance on a case titled Ghulam Mustafa Mughal v. Azad Govt. etc. [1993 SCR 131]. The learned Advocate also contended that the service Rules cannot .be challenged in the Service Tribunal unless and until case of some aggrieved officer is adversely considered under these Rules. The learned Advocate maintained that jurisdiction of the Service Tribunal is conditional and appeal is only competent against a final order of the departmental authority. The learned Advocate in this regard placed reliance on Kh.
12. Ghulam Muhammad's case, referred to hereinabove, which has also been relied upon by Mr. M.
13. Tabassum Aftab Alvi, the learned Advocate for the respondents. The learned Advocate also contended that the petitioners in fact have sought direction for framing the Rules in line with the spirit of the Constitution and on the basis of' parity with Punjab Province and this direction can only be issued by this Court and the Service Tribunal is not vested with any such power. In this regard he placed reliance on Mad Govt. and others v. Syed Shakir Shah and others [2002 PLC (CS) 821].
14. On Court notice, Raja Muhammad Hanif Khan, has also addressed the Court as amicus curiae. He traced the history of the Rules and submitted that the judiciary in Pakistan has been separated from the executive in view of Full Court judgment rendered in Sharaf Faridi and others v. Republic of Pakistan and another [PLD 1989 Kar. 404]: He submitted that the judgment was upheld by the apex Court of Pakistan and has been reported as Govt. of Sindh through Chief Secretary to Govt. of Sindh v. Sharaf Faridi and others [PLD 1994 SC 105]. The learned Advocate contended that the Rules under challenge have been framed in violation of the Rules of Business and without consultation of the High Court, therefore, have no legal sanctity. The learned Advocate also contended that the powers of superintendence and control have been given to the High Court by the legislature and it is the only High Court which can assess the suitability and fitness for the purpose of promotion and appointment of the judicial officers. The executive officers, according to him, are not able to discharge their duties freely, independently and without influence from the executive. The learned Advocate also contended that the Rules are also discriminatory because these Rules provide two parallel modes for determination of suitability. The suitability of the executive officers for appointment on the posts of District & Sessions Judges and Additional District & Sessions Judges is to be determined by the Law Department whereas in the Judicial Department same is determined by the High Court. The judicial officers are promoted after a considerable length of service which they spend in performance of judicial functions. The executive officers have no such occasion to gain such like experience. In support of his submissions the learned Advocate placed reliance on the following cases:--
(1) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another [PLD 1989 Kar. 404].
(2) Govt. of Sindh through Chief Secretaiy to Government of Sindh, Karachi and others v. Sharaf Faridi and others" [PLD 1994 SC 105] &
(3) Iftikhar Ahmed v. Muslim Commercial Bank [PLD 1984 Lah. 69].
15. We have taken into consideration the respective arguments of the learned Advocates representing the parties and given our due thought to the controversy in hand.
16. Firstly, we would like to resolve the preliminary objections raised on behalf of the respondents. So far as the first objection of Mr. M. Tabassum Aftab Alvi, the learned Advocate for the respondents, that the petitioners are not aggrieved, is concerned that is devoid of any force. Sheikh Masood Iqbal, is not a civil servant. He is a practicing Advocate and claims eligibility for appointment on the post of Additional District & Sessions Judge, against the quota reserved for Advocates. Moreover, he has also challenged the vires of the Rules on the ground that the Rules have been framed in violation of the concept of independence of judiciary enshrined under Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The other petitioners though have been promoted but at the time of filing the petition some of them were serving in the subordinate judiciary. They also believe in. independence of judiciary and framing of rules in line with Section 46 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence, it cannot be held that they are not aggrieved. In a case titled Azad Govt. and 3 others v. Genuine Rights Commission and 7 others [1999 SCR 1], responding to a similar objection the apex Court of Azad Jammu and Kashmir observed that respondents therein were leading members of the society and are practicing lawyers and are directly interested in the constitutionality of the Courts in view of their day to day professional duties. It was further observed that if a person shows an injury to his right which may not be injury to a juristic right he is entitled to invoke the jurisdiction of the High Court under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The apex Court further observed that the writ petition filed by the petitioners/respondents cannot be thrown out without going into the merits of the same on the ground that the petitioners/respondents were not aggrieved person within the meaning of relevant constitutional provisions.
17. Next objection of the learned Advocate for the respondents that vires of the Rules can be challenged before the Azad Jammu and Kashmir Service Tribunal, thus, the jurisdiction of this Court is ousted is also without any substance. In support of his objection the learned Advocate placed reliance on Ghiasul-Haq & Muhammad Hameed Mughal's cases, supra. Ghiasul Haq's case is a leading judgment on the interpretation of Section 44 of the Azad Jammu and Kashmir. Interim Constitution Act, 1974 which relates to the writ jurisdiction of the High Court and Section 47 read with Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. It was observed by the apex Court that the Tribunal in order to decide a dispute or a matter is competent to determine all questions arising there-from connected or ancillary thereto determination of which is necessary for decision of the main dispute or matter. It was also observed that the Service Tribunal is competent to determine the vires of the Rules if the same are violative of the fundamental rights guaranteed by the Constitution. It may be stated that the respondents in that case were dismissed from service after being proceeded under the E&D Rules. They challenged their dismissal by preferring an appeal under Section 4 of the Service Tribunal Act, 1975 before the Service Tribunal, however, they thought that vires of the E&D Rules could not be challenged or quashed by the Service Tribunal. They simultaneously filed petitions under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 in order to challenge the E&D Rules under which they were proceeded- on the ground of inequality. Their petitions were accepted and ultimately the judgment was vacated by the apex Court of Azad Jammu and Kashmir.
18. In Abdul Hameed Mughal's case, same view was reiterated by the apex Court but in our view the rule of law laid down in the cases referred. to and relied upon by Mr. M. Tabassum Aftab Alvi, is not applicable to the present case. Firstly; Sheikh Masood Iqbal, is not a civil servant, therefore, he cannot seek any remedy from the Service Tribunal. Secondly; Judicial Service Rules, 1999, as were amended by Notification dated Sep 5, 2003, were not interpreted in any manner to the disadvantage of the second set of the petitioners, therefore, the Service Tribunal has no jurisdiction to entertain their appeals. Same view was approved by the apex Court in Kh. Ghulam Muhammad's case [PLJ 2001 SC(AJK) 153]. Relevant observation recorded by the apex Court in para No,5 of the judgment is reproduced as under:-- "5. We have given due consideration to the arguments raised at the Bar. It is evident from the case law cited by the learned counsel for the parties that vires of departmental rules can be gone into by the Service Tribunal only if the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service. Except the unreported case of this Court titled Muhammad Imtiaz Khan v. Mad Government of the State of Jammu and Kashmir [Civil Appeal No,18 of 1995 decided on 17.5.1995], in all other cases relied upon by the learned counsel for the appellant, the rules were challenged before the Service Tribunal after the same were interpreted to the disadvantage of a civil servant. So far as Imtiaz Khan's case is concerned, the question as to whether the departmental rules can be independently challenged before the Service Tribunal or not was not subject matter of controversy between the parties; the point was not raised and no finding was given on any such point by this Court. However, the case was remanded to the Service Tribunal with the direction that it should also 'consider the point relating to the vires of the departmental rules and decide the matter afresh according to law. Obviously, the aforesaid case cannot be interpreted to mean that this Court has held that departmental rules can be challenged independently even if the same were interpreted to the disadvantage of a civil servant. It is clear from the provisions contained in Rule 4 of the Appeal Rules, 1991 and Section 4 of the Service Tribunals Act that the appeal etc. are competent to the concerned authority only if an order has been passed regarding the terms and conditions of service of a civil servant. There is no provision in the Rules or Service Tribunal Act to the effect that the departmental rules can be challenged even if the same were not interpreted to the disadvantage of a civil servant."
19. A reference can also be made to Syed Shakir Shah's case, referred to hereinabove. The proposition was also examined by the apex Court of AJ&K in Mst. Zabeda Begum v. .Azad Govt. and others.
20. [1998 PLC (CS) 292] wherein it was held that powers of the High Court to issue direction/order in nature of quo-warranto remain ineffective by promulgation of the Azad Jammu and Kashmir Service Tribunals Act, 1975.
21. The apex Court of Pakistan in PIA Corporation and others v. Samina Masood and others [PLJ 2006 SC 414] has also taken the same view. The observation of their lordships is recorded at page 421 of the report. In this case, the earlier view taken by the Supreme Court in Dr. Muhammad Tahir Achakzai was reiterated. Relevant observation is as under:- "14. On the other hand, this Court, in Dr. Muhammad Tahir Achakzai v. Government of Baluchistan (1999 SCMR 1689(c)), had held that a Service Tribunal cannot independently exercise jurisdiction regarding the vires of Service Rules, if there is no controversy before it relating to the violation of terms and conditions of service of any aggrieved civil servant. In the instant case as well, the question of vires of a rule required to be examined independently without such rule being violated by the departmental authority. We are, therefore, of the considered view that when a civil servant challenges the vires of a law or rule being ultra vires the Constitution without the same having been violated by the departmental authority, the remedy lies before the High Court under Article 199 of the Constitution and not before the Service Tribunal."
22. In view of above, the objections of Mr. M. Tabassum Aftab Alvi, the learned Advocate for the respondents, regarding the jurisdiction of this Court as well as on the question of locus standi of the petitioners in order to invoke the jurisdiction of this Court are hereby repelled.
23. There is much force in the arguments of Ch. Muhammad Ibrahim Zia & Raja Muhammad Hanif Khan, Advocates, that amended Rules have been framed in violation of the Azad Government of the State of Jammu and Kashmir Rules of Business, 1985. Amended Rules have been issued by the Law Department whereas under the Rules of Business framing of the service rules relating to the various departments and posts and interpretation thereof is the function of the Services & General Administration Department. These Rules are mandatory as they have been framed under Section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. A perusal of the departmental file reveals that after issuance of the Rules under challenge, the Chief Justice of the High Court directed for rectification of the matter but no steps have been taken by the concerned department. Departure from the normal procedure and mandatory rules cannot be allowed because it will frustrate the statutory rules. Now it is well settled law that thing must be done in the prescribed manner or not at all.
24. In Muhammad Idrees v. Collector of Custom and others [PLD 2002 Kar. 60], it was held that nobody can be allowed to contravene, flout or violate the statute or Rules framed there under in the name of national interest or any other.so-called high or sublime idea. Rule of law requires that every person in execution of law should follow strictly the law as laid down and should not exceed the limits of law for any reason whatsoever. The apex Court of Azad Jammu and Kashmir has also deplored the practices of .violation of Rules of Business, in Azad Govt. and others v. Messrs Spintex Ltd. [1998 PTD 3200]. At page 3216 of the report it was commanded that no department of the Azad Jammu and Kashmir can issue any, order without previous consultation of the Finance Department which directly or indirectly affects the finances of the Government or which in particular involves remission or assignment of revenue, actual or potential.
25. Again in Sardar Muhammad Ayub Khan v. Secretary S & GAD and 4 others [1999 SCR 235], same view was reiterated. In Ahmed Nawaz Shah v. Chairman Central Board of Revenue, Islamabad and 10 others [2002 SCIVIR 560), it was held that mandatory provision of consultation with the Establishment Division was not complied with for issuance of the telexes/letters whereby amendment in the Rules was made, hence, such amendment is of no legal effect. Relevant observation has been recorded at page 568 of the judgment which is as under:-- "6. After hearing the learned counsel for the parties and perusal of the record, we find force in the arguments of the learned counsel for the appellant. It may be noted that. the SRO 845(1)/74 dated 26.6.1974, SRO 249(1)/79 dated 15.3.1979 SRO 409(1)/86 dated 23.4.1986 contained an expression that the same have been issued with the concurrence/approval of the Establishment Division but in so far the questioned documents are concerned, there is no mention of any such expression which indicates that they have been issued without consulting the Establishment Division. Learned counsel appearing on behalf of respondents No,1 to 4 could not produce any documents to show that the questioned letters/telexes were issued with the prior approval or consultation of the Establishment Division, Rule 11 of the Rules of Business provides that no Division shall without previous consultation with the Establishment Division issue or authorise to issue any order other than the orders in pursuance of any general or special delegation made by the Establishment Division. Since the mandatory provision of consultation with the Establishment Division has not been complied with for the issuance of telexes/letters whereby amendment in the Rules has been made, therefore, we hold the said documents, having been issued without consultation of the Establishment Division, to be of no legal effect."
26. The contention of the learned Advocates for the petitioners that Rules have been framed in derogation of the principle of parity with Punjab has force. A perusal of the Punjab Judicial Service Rules, 1994 issued on 31.3.1994 reveals that appointment on the post of Additional District and Sessions Judge is made 60% by promotion from amongst the Civil Judges-cum-judicial Magistrate with 10 years service as Judicial Officer whereas 40% quota is reserved for initial recruitment for members of the Bar with 10 years standing as an Advocate, thus, no quota is allocated for appointment through transfer from any other category. It is clear that the Rules have been framed in derogation of the principle of parity with Punjab which has been recognised by the Azad Govt. of the State of Jammu and Kashmir. The Courts have also implemented this principle through various judgments. Suffice it to refer Muhammad Ashraf Qureshi's case {Petition No,482 of 2000, decided on 2212002]. In para No,7 this Court has observed the necessity of observance of the parity with Punjab. Though general principle of parity has been withdrawn but still it is mentioned that each case has to be considered in its peculiar circumstances. This judgment has been upheld by the apex Court of Azad Jammu and Kashmir in civil PLA No,55 of 2002, decided on 6.5.2002. The contention of the learned Advocate that appointment through transfer from the executive officers militate against the concept of independence of judiciary and is violative of Section 46 of the Azad Jammu and. Kashmir Interim Constitution Act, 1974 is in line with the principle laid down in Sharaf Faridi's case [PLD 1989 Kar. 404 (full bench)]. The rule of law laid down in Muhammad Sharaf Faridi's case was also approved by the apex Court of Azad Jammu and Kashmir in Abdul Raheem Zubair Butt's case [2003 PLC (CS) 664]. In para No,14 of the report the apex Court observed as under:-- "14. It is held in the case reported as Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) that supervision and control over subordinate judiciary vests in the High Court under Article' 203 of the Constitution of Pakistan (which is equal to section 46 of the Interim Constitution Act, 1974) is exclusive in nature, comprehensive in extent and effectively in operation which includes administrative powers as to working of the subordinate Courts and disciplinary jurisdiction over subordinate Judicial Officers. It is further held in the same, authority that any provision in any Act, rule or notification empowering any executive functionary to, have , administrative supervision and control over the subordinate judiciary will be violative of above Article besides militating against the concept of independence of the judiciary. All laws in force have to be enacted, read and interpreted in light of section 46 of the Constitution and not beyond that. Same is the view of the Indian Supreme court as held in the cages reported as Chief Justice of Andhra Paradesh and another v. L.VA Dikshitula and others (AIR 1979 SC 193), State of Haryana v. Inder Prakash Anand and another (AIR 1976 SC 1841) and Shamsher Singh v. State-of Punjab and another (AIR 1974 SC 2192)."
27. The upshot of the above discussion is that both the petitions are accepted and the impugned Notification dated Sep 5, 2003 and item No,2 of column 6 & 8 of the Judicial Service Rules, 1999 to the extent of reservation of quota for Additional secretaries Law (B-19) on the post of Additional District & Sessions Judge are hereby declared violative of Section 46 of the Interim Constitution Act, 1974 and against the principle of parity with Punjab Province. The respondents are directed to frame Rules in line with the principle of parity with Punjab Province and in spirit of Section 46 of the Interim Constitution Act. The Registrar High Court is directed to take positive Steps for amendment of the relevant column in order to reschedule the quota on the post of Additional District & Sessions Judges, after prior approval of the Hon'ble Chief Justice.