1. ' GHULAM MUSTAFA MUGHAL, J.--- The above captioned IA petitions are filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, a direction is sought to the Chief Secretary for implementation of the order of the Prime Minister dated 28-8-2008. As identical questions of facts, and law are involved in both the petitions and the same relief is claimed, hence, are heard together and decided as such.
2. ' Common facts of both the petitions are that the secretary, Finance of the Azad Jammu and.
3. Kashmir Government sent a summary for approval to the Chief Executive on 1-8-2008, whereby, for the reasons listed therein, it was suggested that two post of BPS-20, i.e, Director General, Budget and Director General, Monitoring and implementation, in the Finance Department may be created.
4. It was further requested that draft rules, annexed with the said summary, may also be approved.
5. The file was routed through the Chief Secretary. The Prime Minister of Azad Jammu and Kashmir, on 28-8-2008 approved the proposal and sent the file back to the Chief Secretary for further process.
6. It is alleged that the Chief Secretary has not implemented the order of the Prime Minister, which is his statutory duty. It is claimed that procrastination and non-implementation of the order is subversion of the Constitution and the Rules of Business.
7. ' Respondents, herein, have contested the petition by filing separate written statements.
8. Respondents Nos.1 to 5, in their reply, have submitted that Shehla Waqar, petitioner in petition No,597/2009 is a permanent employee of the Health Department, where her lien is intact, therefore, she cannot claim X-cadre promotion in the Finance Department. It is further alleged that the summary has been sent by the Secretary, Finance in violation of the Rules of Business and the order sought to be implemented is void and the Chief Secretary is not bound to implement the same. It is also stated that the petitioners are not aggrieved because their names are not included in the summary.
9. ' The private respondents have also contested the petitions and have raised various objections to the maintainability of these petitions. In nutshell, their case is that Dr. Shehla Waqar is junior to them in her parent 'department and if she is given X-Cadre promotion, their rights will be affected.
10. Respondent No,7 has claimed that he is the senior most employee of the Finance Department and if Petition No,597 of 2009 filed by Dr. Shehla Waqar is granted, his service rights will be infringed.
11. ' Mr. Mushtaq Ahmed Janjua, the learned Advocate for the petitioners, inter alia, argued that the proposal initiated by the Secretary Finance was routed through the Chief Secretary and ultimately, approved by the Prime Minister of Azad Jammu and Kashmir on 28-8-2008,therefore, the alleged violation of the Rules of Business, if any, stood cured and the Chief Secretary is bound to implement the order of the Chief Executive in letter and spirit in light of the command of the Constitution. He argued that procrastination on behalf of the Chief Secretary is not only mala fide but is also subversion of the Constitution and the Rules of Business. He submitted that it was enjoined upon the Chief Secretary to implement the order or refer the case back for reconsideration under the Rules of Business, 1985, but he cannot sleep over the matter for a pretty long period. He argued that after keeping the file for a period of 10 months, now referring the same back is mala fide and is colourable exercise of jurisdiction, therefore, the petitions merit acceptance. He argued that the facts pleaded in the petitions have been admitted in the comments and the written statement is not supported by an affidavit of an authorized officer, as affidavit of the counsel has no legal value because he is not well conversant with the facts and departmental functions. In this regard, the learned Advocate relied upon a case titled Muhammad Rashid Khan v. Chairman MDA and 6 others 1997 SCR 5, wherein, it was opined that an affidavit can only be acted upon if it has been sworn by a person who has personal knowledge. In that case, the affidavit with the petition was filed by an advocate, hence, was discarded.
12. ' Ch. Muhammad Lateef, the learned Advocate for the private respondents, controverted the arguments advanced on behalf of the petitioners and submitted that the move on behalf of the secretary Finance is violative of Rule 13(3) of the Azad Government of the State of Jammu and Kashmir Rules of Business, 1985, and the order passed by the Chief Executive is ab initio void and the Chief Secretary was not bound to implement the same in the circumstances of the case. He argued that under the Rules of Business, the Secretary Finance cannot be the Judge of his own cause, so far as his Department is concerned, rather for that purpose, the Chief Secretary is designated as Finance Secretary and the proposal, if any, was to be initiated by the Services and General Administration Department with prior consultation of the Chief Secretary. He submitted that the draft rules has not been approved by the relevant committee and even otherwise, person like rules cannot be made for the benefit of an individual. He added that if the proposed rules are approved, except the petitioners, none else can be considered for appointment/promotion, that is why, the comments have been filed by the petitioners themselves, and have accommodated each other by signing the same. He further submitted that private respondents are senior most officers in their departments and if the petitioner in Petition No,597 of 2009 is granted X-cadre promotion, their service rights will be infringed. He stated that Mr. Abdul Hameed/respondent No,7 is the senior most officer in the Department and if the proposed rules are accepted, then, lie will be affected.
13. ' Mr. Asghar Ali Malik, the learned Advocate for the official respondents, has also adopted the arguments advanced by Ch. Muhammad Lateef, the learned Advocate for the private respondents.
14. Both the learned Advocates relied upon Rule 13(3) of the Azad Government of the State of Jammu and Kashmir Rules of Business, 1985 and a case titled Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali and another 1999 PLC (C.S.) 1439.
15. ' I have heard the learned Advocates for the parties and gone through the record of the case.
16. ' The fate of the controversy as well as implementation of the order of the Prime Minister dated 28- 8-2008, depends upon the interpretation of Rule 13(3) of the Rules of Business, 1985. It is, therefore, - appropriate to reproduce the said Rule, which is as under:--- "13(3). No order in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department shall be made and no expenditure proposal relating to that Department shall be sanctioned without prior concurrence of the Services and General Administrations Department. The Chief Secretary shall perform in respect of such matters, the functions of the Secretary, Finance Department."
17. ' Under Rule 13 of the Rules of Business, for the other departments, consultation with the Finance Department is must for the purposes, listed in the Rule. So far as the Finance Department is concerned, it is covered by Rule 13(3), reproduced hereinabove. Under the said Rule, no order in respect of emoluments, promotion and conditions of service of any officer, employed in the Finance Department shall be made and no expenditure proposal relating to 'that Department shall be sanctioned without prior Administration Department. The Chief Secretary has been designated as Secretary Finance for the purpose of consultation in respect of the matters listed in Rule 13(3) supra. The Rules of Business have been framed under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, hence, their strict compliance is mandatory for smooth functioning of the Government as well as good governance. An order which is passed in violation of the Rules of Business, cannot be implemented as has been laid down in a case titled Azad Jammu and Kashmir Government through its Chief Secretary and others v. Messrs Spintex Limited 1998 PSC 868.
18. Facts of the case need not to be discussed, however, relevant observation, which can be relied upon for the purpose of this case, is recorded in para 33 of the report which is as under:--- "(33) Even on merits the High Court fell in legal error in ordering the implementation of the order of the Prime Minister. The order was passed in the background that Secretary Industries wrote a note on 25th of August, 1994 in which he stated that Messrs Spintex Limited should be given benefit of exemption from sales tax for a period of eight years from the date it started production and for that purpose notification of 22nd of October 1988 should be amended. In para 3 of the note it is specifically mentioned that the matter was taken upon with the Finance Department but that Department had not agreed with this proposal. He proposed to the Minister Industries that the sanction of the Prime Minister may be obtained for the aforementioned amendment in the notification of 22nd of October, 1988. The Minister sent the file for approval of the Prime Minister who approved it. Mr. Umar Mahmood Kasuri, the learned counsel for the appellants, rightly contended that under sub-rule (1) of Rules 15 of the Rules of Business, 1985 no Department of the Azad Government of the State of Jammu and Kashmir can issue an order without previous consultation with the Finance Department which directly or indirectly affects the finance of the Government of which, in particular, involves remission or assignment of revenue, actual or potential. The sub-rule is as follows:---
(15) Consultation with Finance Department.--- (1) No Department shall, without previous consultation with the Finance Department, authorize any orders, other than orders in pursuance of any general or special delegation made by the Finance Department, which directly or indirectly affect that finance of the Government or which in, particular, involve,
(a) Relinquishment, remission or assignment of revenue, actual or potential, or grant of guarantee against it or grant of lease of land or mineral, forest or water power rights;
(b) Expenditure for which no provision exists;
(c) A change in the number of grading of posts or in terms and conditions of service of Government servants or their statutory rights and privileges which have financial implications;
(d) levy of taxes, duties, fees, or cesses;
(e) floatation of loans;
(f) re-appropriations within budget grants;
(g) alteration in financial procedure in the method of compilation of accounts or of the budget estimates; (h) interpretation of rules made by the Finance Department." (underlining is mine)
19. ' Again in para 34 of the report it was observed as under:--- "(34) It is obvious that the proposal was covered by sub-rule (1) reproduced above but still it was submitted for approval of the Prime Minister which was an illegal exercise. The consequent approval accorded by the Prime Minister was also illegal. Under the Rules of Business by-passing of Finance Department in such matters is not allowed."
20. It has rightly been contended by Mr. Mushtaq Ahmed Janjua, the learned Advocate for the petitioners that it was the responsibility of the Chief Secretary to go by the Rules of Business. Before attending this argument, it is necessary to refer the relevant Rules, which are as under:--- "8(g). Where the Minister's orders appear to involve a departure from rules, regulations or Government policy re-submit the case to the Minister inviting his attention to the relevant rules, regulations or Government policy, and if the Minister still disagrees with the Secretary the Minister shall refer the case to the Prime Minister for orders;"
21. 9(4). If an order contravenes any law, rule or policy decision, it shall be the duty of the officer next below the officer making such order to point it out to the officer making the order and the latter shall refer the case to the next higher authority."
22. A perusal of the above shows that a complete scheme has been laid down in the Rules of Business for transaction of the business of the Government. Where an order passed by the Prime Minister/Minister is illegal or has been passed in total departure from Rules then under rule 9(4), it is the duty of the officer, next below the officer, making the order to point out the departure/illegality etc. It is nowhere, laid down in the Rules that any officer can himself keep the file for a pretty long period. This practice cannot be appreciated. Rules 8(g) 9(4) have not been complied with in this case. Though, no time limit is fixed for disposal of a cause but law requires that it should be disposed of within a reasonable time. This Court has already deplored such like practice and procrastination in Sardar Muhammad Arshad Khan's case 1998 PLC 217, Mr. Justice Kh.
23. Muhammad Saeed, Chief Justice, (as his lordship. Then was), at page 219 of the report in similar circumstances observed as under:--- "---It is true that no period has been fixed under Rules of Business for the issuance of any notification or for the purpose of the function allocated to different.Authorities and functionaries of the Government. However, I agree with the learned counsel for the petitioner that the matter could not be kept pending for indefinite period of time. Such exercise of jurisdiction on the part of any functionaries of the Government under the provisions of the Rules of Business shall be arbitrary and unguided."
24. ' Identical view has been taken by the apex Court in a case titled Farooq Ahmed Khan and 3 others v. Shoukat Jan Bauch and 2 others 1998 PLC (C.S.) 425.
25. Now the question emerges, as to whether, the Chief Secretary can be directed to implement the order dated 28-8-2008. In these cases, my conclusion is not in affirmative. The order dated 28-8- 2008 has not been given on a duly processed file in light of the mandatory procedure visualized by the Rules of Business. In a case titled Kh. Nazir Ahmed Qadri v. Azad Government of the State of Jammu and Kashmir, 2003 PLC (C.S.) 460, this Court has already held that an order, direction of the Prime Minister can only be implemented which has been passed in accordance with the Rules of Business on a duly processed file. The relevant observation of this Court is available at page 471 of the report which is as under:--- "---The direction dated 28-2-1996 is allegedly passed on the proposal of respondent himself and the direction dated 20-3-1996 is passed on the proposal of Media Advisor. Both have nothing to do with the Services Department which is administrative, parent and relevant secretariat regulating appointment and removal of Custodian under Rules of Business, 1985. Unless an order, direction or proposal is obtained on a duly processed file from the Competent Authority in accordance with the Rules of Business and that from part of record of that branch of Government office/secretariat and finally culminates into notification of the Government, it carries no weight and is of no legal validity.
26. The alleged directions, if any, died with the judgments of the Supreme Court in the case of the respondent. Any unusual paper carrying direction of the Prime Minister neither confers any right nor can take back a right already conferred. Like all other functionaries of the State, the Prime Minister is also a creation of law, he is thus required to act in accordance with law and Rules of Business and unless a direction of the Prime Minister finds place in a duly maintained Government file, it confers no right nor does it carry any legal weight. The practice of obtaining directions through irregular devices by irrelevant agency or person would encourage serious abuse of power which has, therefore, to lie discarded not only,in view of Rules of Business but also on the ground of administrative expediency as well."
27. ' So far, as the approval of the proposed Rules is concerned, it is astonishing that the proposed Rules have not been processed by the S&GA Department. The draft rules have not been placed before the concerned committee which is responsible for making the Rules. Person like rules cannot be made, that too, without following the prescribed procedure of law. In a case titled "Syed Ali Asghar Shah v. Azad Government and others" Civil Appeal No,29 of 2007, decided on 3-5-2008, the apex Court of AJ&K struck down the rules which were framed without consultation of the Services and General Administration Department and approval of the relevant Committee. The relevant observation of their lordships is recorded in para 8 of the report, which reads as under:--- "(8) The rules are a part of the law as these carry out the purpose of the law and regulate the business to be conducted under the law. These have the same force as the law has. The law is not a one man business nor is to be made to benefit anyone. The framing and the promulgation of the law or rules is an institutional function of a State or the Government as the case may be. All the departments which are concerned with the framing of the laws or rules have to go through the process provided for framing or amending the law and rules as the case may be. As said above, the Government has constituted a special committee, called the Rules Committee, for processing and framing the rules in consultation with the Law Department and it is only after the process visualized hereinbefore is completed that rules can be said to have the force of law. It is celebrated principle of rule of caution propounded by the superior judiciary of Pakistan that when an act is required to be performed in a particular method, it has to be performed according to the prescribed manner alone. It shall be deemed non-existent if not performed in the manner visualized by the law. We place reliance upon a Reference No,1 of 1977 made by President, Azad Jammu and Kashmir dated 14-3-1977, PLD 1978 SC (AJ&K) 37. (underlining is mine)
28. As approval of the Prime Minister is void for having been issued in violation of the Rules of Business, therefore, this Court cannot direct the Chief Secretary to notify a void order regarding the creation of the posts and approval of Rules. An order is void ab initio, if it is passed by an authority, lacking jurisdiction or is made in complete disregard of mandatory provisions of law as has been laid down in the cases titled. The Chairman District Screening Committee, Lahore and others v.Sharif Ahmed Hashmi PLD 1976 SC 258 and Muhammad Ayub Khuhro v. Pakistan through the Minister of Interior Government of Pakistan and 2 others PLD 1960 SC 237. In Ch. Sadiq Ali's case, PLD 1996 SC (AJ&K) 29, an order was passed by the then Prime Minister on the recommendation of the Advisor who had no authority to advise the Prime Minister at the relevant time, was sought to be implemented. This Court refused to issue the writ of mandamus to implement the order because the same was passed on the recommendations of an incompetent authority. The appeal filed before the Supreme Court also met the same fate. The relevant observation is recorded at page 33 of the report, which is as under:- "-Under Rule 8 of Rules of Business, it is the Secretary of the Department who has to bring into the notice of the Minister of the concerned Department as to which of the cases were to be referred to the Prime Minister under the rules and in case of difference of opinion between the Minister and the Secretary, the matter was to be submitted to the Prime Minister under Rule 8(g) of the Rules. The Secretary of the department has to keep the Chief Secretary informed of the cases which are to be disposed of by the department. There is nothing on the record that the aforesaid provisions of the Rules of Business were complied with. Thus, the recommendations of the Advisor of the Department and the aforesaid note written on the said recommendations, being in clear violation of the Rules of Business, the Chief Secretary was not bound to refer the matter to the Prime Minister for reconsideration."
29. The petitions filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 are regulated by Chapter VIII of the Azad Jammu and Kashmir High Court Procedure Rules, 1984.
30. Sub-rule (3) of Rule 33 postulates that a bench, hearing a petition for admission, may before admitting the same direct the issuance of a notice to the other party, affected to show cause as to why the petition may not be admitted and may fix a date on which the notice is returnable.
31. Preadmission notice, in light of the above Rules are sent to the heads of the departments/Government for the purpose that if some sufficient cause is shown, then the parties may not be dragged into un-necessary and frivolous litigation. Unfortunately, the concession is always misused by the Government functionaries. Comments are either delayed or filed by some incompetent officer in connivance with the petitioners, as has been done in the instant cases. The contention of Mr. Mushtaq Ahmed Janjua, the learned Advocate for the petitioners is without substance that the Department has admitted the case of the petitioners in their comments. The comments have been signed by the petitioners, themselves, in each others' case which are collusive. Such like admission, does not bind a Court of law to apply the correct law which is the solemn duty of the Court. It needs to be observed that even otherwise, the comments are not at par with the written statement which is to be filed under the Code of Civil Procedure, as the same is applicable under Rule 42 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 to the writ petitions. In these cases, respondents have taken a categoric stand regarding the legality and propriety of the order of the Prime Minister in their written statement, therefore, admission on the part of the respondents in the comments has no value at all.
32. There are some additional reasons for dismissal of the above titled petitions on the ground that the petitioners are not aggrieved. Dr. Shehla Waqar, petitioner in Petition No,597 of 2009, is a permanent employee of the Health department and can claim promotion in the higher grade in her parent apartment. She cannot claim X-Cadre promotion as of right until she is inducted regularly in Secretariat Service Group. Neither any order in her favour has been passed by the Prime Minister nor she is mentioned in summary. The position of Mumtaz Ahmed Mir, petitioner in Petition No,692 of 2009 though is slightly different but in light of the foregoing discussion he is also not entitled to any relief.
33. ' The private respondents were impleaded as proper party and at present they have also no right to contest these petitions.
34. ' The upshot of the above discussion is that finding no force both the petitions the same are hereby dismissed.