GHULAM MUSTAFA MUGHAL, C J.---The captioned petitions, filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, raise common questions of facts and law hence, were heard together and are decided as such.
2. In Petition No,2318 of 2012 filed on behalf of Sajjad Hussain Shah and others, it is alleged that the service of the Azad Jammu and Kashmir is defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter referred as Interim Constitution Act) and is regulated by the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 wherein it is provided that only a State Subject shall be entitled to be inducted in the service of Azad Jammu and Kashmir. It is alleged that the Azad Jammu and Kashmir Council has advertised some posts through advertisement dated 13-11-2012 and 14-11-2012 published in daily "Naw-i- Waqat" Rawalpindi/Islamabad. The petitioners possess the qualification required for the advertised posts but the respondents with mala fide intention and to accommodate non-State Subjects have not mentioned in the advertisement the condition of State Subject. They have challenged the vires of the laws, whereby Council service is regulated, on the ground that the same are ultra vires of the Constitution, discriminatory and violate of the fundamental rights enshrined in section 4(4) of the Interim Constitution.
3. The petition has been contested by the respondents by filing written statement. It is alleged by them that the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977 are not applicable to the AJK Council employees. It is further alleged by them that the quota system has been declared against the Constitution by the apex Court of Pakistan in a case reported as 1997 SCMR 1043. It is further contended that the petitioners are not aggrieved; therefore, the petition is liable to be dismissed. It is submitted that the Council has the authority to regulate its services and frame rules for induction of persons in the Council service. In parawise reply respondents have denied the claim of the petitioners,
4. In Petition No,2432/12 filed on behalf of Fazal Mehmood Baig and others, it is claimed that petitioners are members of legal fraternity of Azad Jammu and Kashmir and office bearers of different Bar Associations. As Advocates they believe in supremacy of the Constitution and law, hence, are entitled to invoke the extraordinary jurisdiction of this Court in order to compel the respondents to perform their duties within the constitutional framework and not to violate the fundamental rights of the State Subjects. It is alleged by them that the Azad Jammu and Kashmir Council through the Azad Jammu and Kashmir Adaptation of Laws Act, 1979 has adapted various laws of Pakistan in Azad Jammu and Kashmir including Service Tribunal Act, 1973, Civil Servants Act, 1973 and the rules made thereunder. They have claimed that the AJK Council visualized by the Interim Constitution Act was not in existence at the relevant time, hence, adaptation of the laws in the name of the Council was ultra vires of the Constitution. In alternative, they have prayed that as the service of the AJK Council is included in the service of Azad Jammu and Kashmir, hence it may be declared that only a State Subject can be inducted in the service of the AJK Council and that the advertisements issued by the Council in daily `Nawa-i-Waqat' dated 13-11-2012 and 14-11-2012 inviting applications from citizens of Pakistan for induction on the advertised posts in the service of Kashmir Council on open merit are also mala fide and without lawful authority. It is alleged by them that under section 48 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, only one Public Service Commission can be established for induction in the service of Azad Jammu and Kashmir including the Council and the Council has no authority to delegate its powers to Federal Public Service Commission for induction of persons in the Council service. It is contended that extension of the scope of Federal Public Service Commission is not only violative of the legislative mandate given by the Interim Constitution Act to the Council but is also contrary to the law laid down by the apex Court of Azad Jammu and Kashmir.
5. The petition has been contested by the respondents by filing written statement. The precise stand of the respondents is that petition is not maintainable for having been filed with ulterior motive. It is pleaded by them that petitioners are not aggrieved because none of them is a candidate for appointment to the posts advertised through the advertisements in question. It is stated that writ petition cannot be filed as pero bono publico because the same can be filed only by an aggrieved person for enforcement of his fundamental rights. In parawise reply respondents have also refuted the facts pleaded in the petition. It is claimed that Council has validated all the laws which were enacted when the Council was not properly constituted, hence, on that score petitioners have no case. It is contended that Chairman of the Kashmir Council has been impleaded in line of the respondents and under section 52 of the Constitutions no process can be issued against him from any court.
6. The facts of petition No. 101 of 2013 filed on behalf of Tariq Zaman Awan and others common and the defence taken by the respondents is also same, hence, need not be reiterated.
7. Sardar Karm Dad Khan, the learned Advocate for the petitioners in petitions Nos. 2432 of 2012 and 101 of 2013 argued that the Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979 and its schedule has been enacted and adapted by the AJK Council without legislative competence because the Council visualized by the section 21 of the Inter4im Constitution Act was not in existence at the time of adaptation of the aforesaid Act, are ultra vires of the Interim constitution.
The learned Advocate further argued that under section 21(7) of the Interim Constitution Act the executive authority of the Council is to be exercised in the name of the Council by the Chairman who may act either directly or through Secretariat of the Council but it cannot be delegated to an authority/institution not functioning in connection with the affairs of the Council. He maintained that adaptation of Federal Public Service Commission Ordinance, 1977 which has been established by the Federation of Pakistan under Article 242 of the Constitution of the Islamic Republic of Pakistan is violative of the Interim Constitution Act. The learned Council contended that under Section 48 of the Interim Constitution Act nly one Public Service Commission is provided for Azad Jammu and Kashmir which includes the Council, therefore, Council has no authority either to establish its own Public Service Commission or to authorize the Federal Public Service Commission for selection of persons for the Council service. The learned advocate further contended that Fundamental Right No. 8, under section 4(4) of the Interim Constitution, guarantees fundamental right of every State subject to enter upon any lawful profession or occupation but rule 13 of the AJK Council, (appointment, Promotion and Transfer) Rules, 1973 does not visualize the qualification of State subject. He argued that under the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 non-State Subjects cannot be inducted into service of the Government or in any other service of Azad Jammu and Kashmir. The learned Advocate maintained that Rule 13 to the Civil Servants (Appointment, Promotion and Transfer) Rule, 1973 is ultra vires of fundamental rights Nos.15 and 17 which ensure equality before law and equal treatment of law and also provide safeguard against discrimination in services. The learned Advocate contended that petitioners are practicing Advocates and also office bearers of different Bar Associations and in that capacity in order to fulfill their professional duties they have come forward to challenge the enactments and the rules which have been adapted against the spirit of sections 2,21,48 and 49 of the Interim Constitution. He argued that petitioners have filed petition for protection of the fundamental rights of the State subject mentioned in section 4 of the Interim Constitution Act, as they believe that status of the State Subjects has been curtailed through the enactment of the law in violation of the Constitution, hence, they are aggrieved. The learned counsel further contended that the condition of being a citizen of Pakistan, stipulated in the AJK Council Notification No. AI-2/16/79-AJKC dated 3-1-2008, in clause (b) of paragraph 5 under heading "Qualification, experience ce and age limit for direct recruitment" issued in pursuance of sub-rule (2) of the Civil Servants (appointment, Promotion and Transfer) Rules 1973, is void being against the parent law. He further contended that in the light of the definition of 'State Subject' given in the Interim Constitution, State Subjects Class-I have a right to be given preference in recruitments to State Service and this right has been curtailed by inviting applications from the citizens of Pakistan along with the State Subjects. In support of his submissions the learned Advocate placed reliance on the following case-law:-- (1)Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi, [PLD 1965 SC 698]; (2)Mst. Sakina Bibi v. Federation of Pakistan [PLD 1992 Lahore 99]; (3)Federation of Pakistan and another v. Malik Ghulam Mustafa Khar [PLD 1989 SC 26]; (4)Pakistan, through Secretary, Cabinet Division, Islamabad and others v. Nawabzada Muhammad Umar Khan (deceased). [1992 SCMR 2450]; (5)Inamur Rehman v. Federation of Pakistan and other [1992 SCMR 563];
(6) Excise and Taxation officer, Karachi and another v. Burmah Shell Storage and Distribution Company of Pakistan Ltd. and 5 others [1993 SCMR 338];
8. In the first case it was observed that if the rights of a person can be affected or if a person can gain an advantage as regards his rights by getting a declaration it cannot be said that the declaration cannot be granted to him for want of locus standi.
9. In Sakina Bibi's case referred to herein above it was observed that it is the duty of every Court to gather the intention of the Legislature and give meaning and import to every word and provision of the Constitution and let not any word and provision get redundant or superfluous.
10. In the 3rd case listed above it was held that presumption is that legislature does not perpetuate inequity or injustice. Such presumption could be invoked while interpreting provisions of a Statute or Constitution.
11. In the 4th case mentioned above it was held that where allegations of mala fides of fact were involved or alleged, it was necessary that the parties against whom such mala fides of fact was alleged must be impleaded as a party so that it had the occasion to meet the allegation which was made notwithstanding the constitutional protection enjoyed by such functionaries under Art.248 of the Constitution of Pakistan, 1973.
12. In Inamur Rehman's case provisions of the Foreign Exchange (Prevention of Payments) Act (XXII of 1972) were declared ultra vires of the fundamental rights enshrined in Art. 25 of the Constitution of Islamic Republic of Pakistan, 1973.
13. In Excise and Taxation Officer, Karachi and another's case it was ruled that Court can supply an obvious omission in a particular provision of a statute or omit some word which is apparently redundant in the context of the provision but cannot legislate in place of the legislature.
14. Sardar Mansoor Parvez Khan, the learned counsel appearing for Sajjad Hussain Shah and others, petitioners has adopted the arguments advanced by Sardar Karm Dad Khan, Advocate.
15. Mr. Abdul Rasheed Abbasi, Raja Muhammad Hanif Khan and Barrister Humayun Nawaz Khan, Advocates were requested to assist the Court. They appeared and assisted the Court.
16. Mr. Abdul Rasheed Abbasi, the learned Amicus curiae argued that petition under section 44 of the Interim Constitution Act on behalf of the learned Members of Bar Associations is not competent for having been filed for an abstract declaration from this Court. The learned Advocate further contended that constitutional jurisdiction of this Court under section 44 of the Interim Constitution Act can be invoked only by an aggrieved person. He submitted that laws under challenge cannot be declared invalid until rights of the petitioners are adversely affected. In this regard the learned Advocate placed reliance on the following cases:--
(1) Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others [PLD 1980 SC (AJ&K) 5];
(2) Muhammad Malik v. Karam Elahi and another, [2011 SCR 431];
(3) Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others, [2010 SCR 17];
(4) Asif Hussain v. Azad Govt. And 47 others, [2008 SCR 619];
(5) Raja Iqbal Rasheed Minhas v. AJ&K Council and 3 others, [PLD 2002 SC(AJ&K) 1];
17. In the first case, the petitions filed before this Court were accepted and some provisions of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 were declared ultra vires of the fundamental rights. Appeal filed before the apex Court was accepted on the ground that petitioners had sought an abstract declaration and was concluded that petitioners could not challenge vires of the rules in vacuum because the Service Tribunal was empowered to redress their grievance and vires of the rules could also be gone into by the Service Tribunal.
18. In the other cases relied upon by the learned Advocate the question of locus standi had been considered by the apex Court in peculiar circumstances of those cases, hence needs not be discussed.
19. The learned Advocate submitted that petitioners in Petitions Nos.2318 of 2012 and 101 of 2013 are aggrieved because as per their stand they are qualified for the posts advertised through advertisements in question. He argued that these petitioners are State subjects and any law which abridges their fundamental rights can competently be challenged. The learned Advocate further contended that due to enforcement of the law in question fundamental rights enshrined in section 4 of the Interim Constitution Act, i,e, rights Nos.8, 15 and 17 have been denied, therefore, adaptation of Rule 13 of the Council Service Rules is violative of the above referred provisions of the Interim Constitution Act. The learned Advocate further argued that condition of being a State subject for induction in the State service is a constitutional requirement because in the service of. Pakistan only a citizen of Pakistan can be inducted. The learned Advocate further contended that the expression "a Public Service Commission for Azad Jammu and Kashmir" employed in section 48 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 cannot be interpreted to mean that there would be only one Public Service Commission for induction in the service of Azad Government and the Council. He argued that in presence of section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 it cannot be said that the Council is not competent to establish its own Public Service Commission. The learned Advocate maintained that both the Azad Jammu and Kashmir Legislative Assembly and the Azad Jammu and Kashmir Council are creation of the Constitution and their legislative spheres are also defined. The learned Advocate maintained that under subsection (2) of section 31 of the Interim Constitution, the Council is vested with exclusive powers to make laws with respect to all the matters in the Council Legislative list set out in the 3rd Schedule and beyond that the Azad Jammu and Kashmir Legislative assembly is vested with the legislative competence. The learned Advocate contended that the Council is competent to provide for the mode of appointment to and terms and conditions of service of persons in the service of Council subject to the restrictions imposed by the Interim Constitution Act. The learned Advocate contended that Council cannot delegate its authority to any institution or officer not subordinate to it or not under its administrative control or not functioning in connection with the affairs of the State. In this regard the learned Advocate placed reliance on the following authorities:-
(1) M/s Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and 4 others [2001 PLC (C.S.) 11];
(2) Messrs Spintex Limited, Mirpur and others v. Income Tax Officer Govt. Of AJ&K Mirpur and others, [1998 PTD 2567];
(3) Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan [PLD 1983 SC (AJ&K) 95];
20. Raja Muhammad Hanif Khan, the learned Advocate has partly adopted the arguments of Mr. Abdul Rasheed Abbasi, however, he has submitted that Fazal Mehmood Baig and others, petitioners are members of the legal fraternity and also office bearers of different Bar Associations, hence, in accordance with rules 3 and 4 of the Azad Jammu and Kashmir Bar Council (Memorandum of Association) Rules, 2001 they can competently invoke the jurisdiction of this Court under section 44 of the Interim Constitution Act and compel the respondents to perform their functions within the framework of the Constitution. The learned Advocate referred to and placed reliance on the following cases:--
(1) S.P. Gupta and others v. President of India and others, [AIR 1982 SC 149];
(2) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another. [PLD 1989 Karachi 404];
(3) Government of Sindh through Chief Secretary to Government of Sindh Karachi and others v.
Sharaf Faridi and otheRs, [PLD 1994 SC 105];
(4) Sh. Masood Iqbal and others v. Azad Government through Chief Secretary and others [2008 PLC (C.S.) 11];
(5) Muntizma Committee, Al-Mustafa Colony (REGD.) Karachi and 3 others v. Director Katchi Abadies, Sindh and 5 others [PLD 1992 Karachi 54].
21. The learned Advocate argued that the recent trend of the authorities is that a person can invoke the jurisdiction of the High Court if move in his behalf is not for his personal vendetta or interest but is for the betterment of the society, public welfare and enforcement of fundamental rights. The learned Advocate in this regard referred to the following precedents:--
(1) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another [PLD 1969 SC 223];
(2) Kashmir Council, Islamabad and 3 others v. Messrs Jabeer Hotel Mirpur and another [2001 YLR 1687];
(3) M/s Jabeer Hotel, Mirpur v. Kashmir Council Islamabad through its Secretary and others [2001 PLC (C.S.) 11];
(4) Government of N. -W. F. P . Through Secretary Forest Department, Peshawar and others v.
Muhammad Tufail Khan. [PLD 2004 SC 313];
22. Mr. Mushtaq Ahmed Janjua, the learned counsel appearing for the respondents has partly adopted the arguments of Mr. Abdul Rasheed Abbasi, however, he submitted that captioned petitions have been filed by the strangers as pro bono publico without having any locus standi, hence, are liable to be dismissed without attending the merits of the petition. The learned Advocate further argued that in view of the grounds listed in Fazal Mehmood Baig's case, petitioners are not aggrieved because due to the adaptation of laws in question they have not been affected at all and they have filed the petition with ulterior motives as pro bono public which merits dismissal. The learned counsel further contended that in view of sections 31(2)(a) and 49 of the Interim Constitution Act read with item No,4 of the Third Schedule, the Council is competent to establish its own Public Service Commission for induction of persons in the Council service. He further argued that the impugned legislation is neither discriminatory nor is suffering from any other legislative defect. It is next argued by the learned Advocate that none of the fundamental rights mentioned in section 4(4) of the Interim Constitution Act has been violated, hence, the petitions are liable to be dismissed. He also submitted that as the reservation of quota has been declared unconstitutional by the apex Court of Pakistan, therefore, this relief even otherwise cannot be granted to the petitioners, He relied upon the following cases:--
(1) Mushtaq Ahmad Mohal and others 'v. The Honourable Lahore High Court, Lahore-and others [1997 SCMR 1043];
(2) Nusrat Baig Mirza v. Government of Pakistan and another [PLD 1992 Federal Sh.C. 412].
23. The learned Advocate further submitted that a summary has already been moved by the Council Secretariat whereby it has been proposed that 50% posts for induction in Council service shall be reserved for State subjects on the same basis as have been reserved for residents of Gilgit and Baltistan. The learned Advocate placed reliance on the following case-law:--
(a) Jammu and Kashmir Council for Human Rights through Secretary, Rawalpindi and another v.
Secretary Azad Jammu and Kashmir Legislative Assembly Muzaffarabad and 4 others [1994 CLC 1108];
(b) Raja Iqbal Rashid Minhas, Advocate v. Azad Jammu and Kashmir Council through AJ&K Council, Islamabad and 3 others [PLD 2002 SC AJ&K 1];
(c) Muhammad Aslam v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 3 others [2005 CLC 1979];
(d) United Bank Limited Employees' Union through President and General Secretary and 4 others v.
United Bank Ltd. [2000 PLC (C.S.) 930];
(e) Khan Muhammad Khan v. Azad Jammu and Kashmir Govt. Through Chief Secretary, Muzaffarabad and 5 others [PLD 2004 AJ&K 1];
(t) Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court, Lahore and others [1997 SCMR 1043];
(g) Nusrat Baig Mirza v. Govt. Of Pakistan and another [PLD 1992 F.Sh.0 412];
24. In the first case referred to hereinabove the petition was filed before this Court under section 44 of the Interim Constitution Act whereby holding of bye-elections in constituency LA-XX Poonch 4 was challenged. Sardar Khalid Ibrahim was elected as Member of the Legislative Assembly for a term of 5 years from the aforesaid constituency. The Azad Jammu and Kashmir Legislative Assembly passed an Act known as Regularization of Ad-hoc Civil Servants Act, 1992 in order to regularize the services of ad-hoc employees serving in B-16 and above in derogation to the provisions of the Public Service Commission Act, 1986, the Civil Servants Act, 1976 and the rules made thereunder. Sardar Khalid Ibrahim as a protest against the aforesaid regularization did not participate in the proceedings of the Assembly, hence his seat was declared vacant in terms of section 25(b) of the Interim Constitution Act. As stated above, bye-elections were scheduled and declaring the seat vacant and holding bye-elections were challenged by a voter of the constituency. It was concluded that the seat of the private respondent had been declared vacant and a voter from the constituency had no right to challenge the declaration of the seat as vacant.
The petition was dismissed on the ground that petitioner therein was not aggrieved.
25. In the second case controversy was with regard to appointment of Chief Election Commissioner. A petition for leave to appeal was filed before the apex Court by an advocate who was not party before this Court nor in any manner interested to be appointed as Chief Election Commissioner. He pleaded before the apex Court that he is a member of the Bar Council and also office bearer of political party, therefore, had a right to file appeal before the apex Court. In the circumstances of that case, the apex Court observed that petitioner therein had no locus standi to file petition for leave to appeal when he was not aggrieved. It was further observed that petitioner was neither a party in the writ petition nor contended for being appointed as Chief Election Commissioner, therefore, he was not aggrieved and petition could not be entertained on the application of a pro bono publico litigant.
26. In UBL employees' Union's case [2000 PLC (C.S.) 930] it was observed that banks did not perform their functions in connection with the affairs of Azad Jammu and Kashmir Government and the Azad Jammu and Kashmir Council, therefore, writ petition had rightly been dismissed by the High Court.
27. The facts of Muhammad Aslam's case [2005 CLC 1979] were that the petition was dismissed by this Court on the ground that facts mentioned in the petition required detailed probe and inquiry which could not be undertaken in exercise of extraordinary jurisdiction. The apex Court remanded the case back to this Court for decision on merits after holding an inquiry regarding genuineness of the claim of the petitioner therein to the allotment.
28. In Khan Muhammad Khan's case [PLD 2004 AJ&K 1], it was held that it is the fundamental duty of the petitioner invoking extra ordinary jurisdiction of the Court to establish a direct or indirect injury caused to him or establish a substantial interest in the subject matter of the proceedings. When no direct or indirect injury is caused to the petitioner nor is his any substantial interest involved in the proceedings, then he could not be termed as an aggrieved person.
29. In 1997 SCMR 1043 and PLD 1992 Federal Sh. C. 412 quota was declared unconstitutional and un- Islamic.
30. We have heard the learned counsel for the parties as well as amicus curiaes at length and have perused the record as well as the case law referred to and relied upon by the learned advocates.
31. From the pleadings of the parties, the following main questions emerge for decision:
(i) Whether the petitioners are aggrieved persons in terms of Section 44 of the Interim Constitution Act 1974;
(ii) Whether the AJ&K Adaptation of Laws Act 1979 made by the Council was a valid law in presence of the fact that the Azad Jammu and Kashmir Council was not lawfully constituted at the relevant time;
(iii) Whether Section 48 of the Interim Constitution Act conceives of establishment of only one Public Service Commission and in presence of the Public Service Commission already established by the Azad Government of the State of Jammu and Kashmir, no further Public Service Commission could be established by the AJK Council and whether the AJK Council possesses authority to delegate its powers to the Federal Public Service Commission for induction of persons in the service of the AJK Council and whether extension of scope of Federal Public Service Commission is violative of legislative mandate given to the AJK Council by the Interim Constitution.
(iv) Whether the laws framed by the AJK Council to regulate the service of its employees are (a) ultra vires of the Interim Constitution Act (b) discriminatory and (c) violative of the Fundamental Rights enshrined in the Interim Constitution;
(v) Whether only State Subjects and not citizens of. Pakistan are legally entitled to be inducted into the service of the AJK Council. If answer is found in affirmative, then whether the impugned advertisements of the AJK Council inviting applications for various posts from citizens of Pakistan are liable to be set aside.
32. Firstly, we would like to resolve the objection raised on behalf of the respondents regarding locus standi of Fazal Mehmood Baig and others, petitioners for filing the petition. The petitioners have admitted in para. 8 of the petition that the same is being filed as pro bono publico because in their estimation, due to the adaptation of laws in question the fundamental rights enshrined in section 4 of the Interim Constitution Act have been violated. It is correct that this Court under section 44(2)(c) of the Interim. Constitution Act, 1974 can be moved by an aggrieved person for enforcement of his fundamental rights but the recent trend of the judicial pronouncements reveals that the superior Courts of the subcontinent have liberally construed the question of locus standi and B have not closed their doors merely on the ground that a petitioner is not directly affected from action or inaction of a public functionary or from promulgation of any law against the fundamental rights enshrined in the. Constitution. In the present case the petitioners, besides being office bearers of different Bar Associations, are admittedly State Subjects and their this status has not been denied by the respondents. No material has been placed on record by the respondents that petition has been filed as proxi-game or with any ulterior motive. The right of State Subjects C though is not equal to right of citizenship in strict sense but is very important right for the State Subjects because on the basis of this status the State Subjects are entitled to some privileges vis- a-vis non-State Subjects. Under Article 260 of Islamic Republic of Pakistan, "citizen" means a citizen of Pakistan as defined by law. For that purpose Citizenship Act 1951 has been enacted and rules thereunder have been framed, In Azad Jammu and Kashmir the term citizenship is not employed in the relevant laws, however, the term "State Subject" has been defined and some of the fundamental rights and privileges have been reserved only for State Subjects.
33. In the Interim Constitution Act, "State Subject" has been defined as "a person for the time being residing in Azad Jammu and Kashmir or Pakistan who is a 'State Subject' as defined in the late Government of the State of Jammu and Kashmir Notification No, I-L/84 dated the 20th April 1927, as amended from time to time". The said Notification No, I-L/84 dated 20th April 1927 is reproduced below: "No, 1-L/84- The following definition of the term "State subject" has been sanctioned by His Highness the Maharaja Bahadur vide Private Secretary's letter No,2354 dated Ist January 1927, to the Revenue Member of Council and is hereby promulgated for general information:- The term "State Subject" means includes:- ' Class I- All persons born and residing within the State before the commencement of the reign of His Highness the late Maharaja Gulab Singh Sahib Bahadur and also persons who settled therein before the commencement of Samvat year 1942 and have since been permanently resided therein; ' Class II- All persons other than those belonging to Class I who settled within the State before the close of Samvat year 1968 and have since permanently resided and acquired immovable property therein; ' Class III- All persons other than those belonging to classes I and II permanently residing within the State who have acquired under a Reyatnama any immovable property therein or who may hereafter acquire such property under an Ijazatnama and may execute a Reyatnama after 10 year's continuous residence therein.
' Note 1- In matter of grants of State scholarships, State lands for agricultural and house building purposes and recruitments to State service, State Subject of Class I should receive preference over other classes and those of Class II over Class III subject, however, to the order dated 31st January 1927 of His Highness the Maharaja Bahadur regarding employment of hereditary State subject in Government service.
Note 2 ...
Note 3- ...
Note 4- ... "
(It may be stated here that Class IV was subsequently added to give status as State Subject to certain companies registered within the State along with some other amendments, which being not relevant for the present discussion, are not reproduced here.)
By adapting the aforesaid notification dated 20th April 1927 in the Interim Constitution Act for defining "State Subject", the rights attached with State Subjects Class I by virtue of this notification, namely, to receive preference over all other classes for the purpose of recruitment to State Service, stands recognized and secured by the Interim Constitution Act.
Here it may be stated that this right was protected and ensured in the Kashmir Service Regulations, which remain in force since the establishment of AJK Government except for the matters on which new laws have been promulgated by the Azad Government. Rules 17 of the (Kashmir Civil Service Rules - General) and Rule 35-B of General Rules Regulating Allowances are relevant, which are reproduced below: "17. No person shall be eligible for appointment to any service by direct recruitment unless he--
(i) Is a hereditary She subject; (ii)
(iii)
' Explanation:--The decision as to whether a person is qualified under clause (i) of this rule shall rest with the Government."
"35-B. In the case of every new entrant into. Government service, the authority empowered to make the appointment should certify that the person appointed is a hereditary State subject. The Accountant General shall not pass pay bills of such Government servants without definite orders of the Government in absence of a certificate in Treasury Form No, Miscellaneous 51 from the Revenue authorities noted below in whose charge the candidate for Government servant resides, to the effect that the candidate is a hereditary State subject.
34. In view of the above, in our estimation, the petitioners are aggrieved and can challenge the constitutionality of any law which militates against the status of subjects of the State of Jammu and Kashmir.
35. The question of locus stand of the petitioners herein can be seen from another angle. Under section 4 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 any law or custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void. Under section 4(2) no law shall made which takes away or abridges the rights so conferred and any law made in contravention of this subsection shall, to the extent of such inconsistency, be void. The above-stated constitutional provision not only declares the existing laws which are inconsistent with the fundamental rights void but also places a restriction on the powers of the Legislative Assembly and the Council to make any law in future which takes away or abridges the rights conferred by section 4 of the Interim Constitution Act, 1974. If any enactment comes within the ambit of section 4(2) than any State Subject can file petition for a declaration that the law so enacted is inconsistent with the fundamental rights of the State Subjects conferred by section 4(4) of the Interim Constitution Act, 1974. In case titled Muhammad Kamran Mullahkhail and others v. Government of Balochistan through Chief Secretary and others [PLD 2012 Balochistan 57] an identical view was taken by a learned Division Bench of Balochistan High Court. The relevant observations are recorded at page 69 of the report as under:- "Through these petitions the impugned laws have been assailed in the public interest. In Pakistan we have a written constitution and it is incumbent on everyone to comply therewith (Article 5).
Sub-Article (1) of Article 8 of the Constitution stipulates that, "any law--- in so far as it is inconsistent with the rights conferred by this Chapter [Chapter 1 - Fundamental Rights], shall, to the extent of such inconsistency, be void." And sub-article (2) of Article 8 provides, that, "The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void." Sub-Article (5) of Article 8 further lays down that, "The rights conferred by this Chapter shall not be suspended except as expressly provided by the Constitution." Article 199(2) of the Constitution also removes any barrier or obstruction that may be placed in the way of a person approaching the High Court for enforcement of Fundamental Rights as the said provision stipulates, that, "Subject to the Constitution, the right to move a High Court for enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged." Accordingly, if a person files a petition alleging that a law contravenes any Fundamental Right conferred by the Constitution this court is obliged to examine the same in its constitutional jurisdiction. To contend otherwise would render Article 8 bereft of meaning and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution."
36. In Mir Abdul Baqi Baluch's case [PLD 1975 Karachi 639] it was observed at page 641 as follows:-- "The more important question is whether the petitioner, as a citizen, is entitled to file the petition.
The question can only be decided by reference to the averments in the petition, and, as according to the petition, the territories of the country were being illegally transferred, I would accept Mr. Lqbal Haider's submission that every citizen of the country has the locus stand to file such a petition."
37. In a case titled Pakistan Lawyers Forum v. Federation of Pakistan and others [PLD 2003 Lahore 371] it was argued on behalf of the respondents that petitioners were not aggrieved. Though the petition ultimately was dismissed but the objection regarding the locus standi of the petitioners was resolved as under:- "The preliminary objection raised by the learned Dy. A.G. That the petitioner is not an aggrieved person and has no locus standi to assail the Legal Framework Order is devoid of any force. The petitioner is a registered body of the lawyers who are the Hon'ble citizens of this country groomed in law and Constitution, have every right to assail the. Legal Framework Order. In order that a person be considered an "aggrieved person" within the meaning of Article 199, he may not have a right in strict juristic sense but he must show that he had a personal interest in the performance of a legal duty. The amendment in the Constitution will affect the entire nation and the petitioner is a body of the lawyers, who are citizens of this country and likely to be affected by amendments in Constitution."
38. In Atta Ullah Khan Malik's case [PLD 2010 Lahore 605] the learned Division Bench of the Lahore High Court also considered the terms 'locus standi' and 'aggrieved person' and it was observed by their lordships that "it is settled on good authority that in matters pertaining to public interest litigation (also known as "PIL") the rule of "standing" or "locus standi" or "aggrieved person" has received a liberal interpretation over the years and any person/citizen having "sufficient interest"
(in the context of larger public interest) can maintain a petition and qualify as an "aggrieved person" under Article, 199 of the Constitution, subject to satisfying other requirements of the said Article.
39. Again in para 16 of the same report it was held that "Any citizen or person (part of the public) has "sufficient interest" and is, therefore, an aggrieved person under Article 199 of the Constitution, if public property is being acquired, held, used, or disposed of by public functionaries in violation of the law. Public functionaries as trustees of the people, cannot have any personal interest in any public property, therefore, if there is any abuse of trust or violation of law, it qualifies any member of the general public as an "aggrieved person" with the right to invoke the constitutional jurisdiction of this Court, subject to fulfilling other requirements of Article 199."
40. In Muhammad Kamran Mullahkhail's case supra [PLD 2012 Balochistan 57] the objection that petitioners therein were not aggrieved was turned down and it was held as under:- "13. Neither the learned Advocate General nor Dr. Ranjha have attributed any ulterior personal agenda or motive to the petitioners, nor have we discerned any, thus we can only conclude that they have approached this Court to assist their fellow citizens in leading their lives in the glow of the Constitution and to enjoy the rights provided therein. The Courts have opened its doors to such persons and categorized petitions seeking enforcement of Fundamental Rights as public interest litigation and not insisted on the applicability of the strict rules of locus standi. In the case of S.P.
Gupta v. Union of India, 1981 (Supp) SCC 87, advocates, who successfully assailed the manner in which Judges were appointed to the higher judiciary under Article 226 of the Indian Constitution (similar to Article 199 of the Constitution of Pakistan), were referred to as public minded or public spirited individuals. In the unreported case of Muhammad Alam v. Planning Development Department, Constitutional Petition No,351 of 2009, this Court had held, that, "Therefore, if a person, who has no personal interest and in the larger public interest comes forward and questions such spending, the doors of the Court should not be shut, but rather kept open for him. Such a public spirited person, who has taken on himself the burden of expressing public outrage or grievance can be categorized as an 'aggrieved person', in terms of Article 199 of the Constitution. He takes time out from his private life and puts in considerable effort guided by public zeal to take the matter to Court. He is part of the public whose interest he represents, thus he too can be categorized as `aggrieved' even in the narrow sense of the word."
14. The objections taken to the maintainability of the petitions on the ground that petitioners are not aggrieved person and therefore cannot approach this Court under Article 199 of the Constitution and that the High Court does not have the power to strike down any law even if it violates the Constitution are not tenable for the reasons stated above."
41. In the case titled "Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others v. Muhammad Younas Tahir, Advocate, Mirpur and others" [1994 CLC 2339] a similar objection was raised and it was claimed that petitioners therein were not aggrieved by the enactment of the Azad Jammu and Kashmir Civil Servants (Regularization of Ad hoc Appointments) Act, 1992. The Hon'ble apex Court while meeting the objection repelled the argument and observed at page 2383 of the report as under:- "This Court has consistently held that the right necessary to invoke the Constitutional jurisdiction may not necessarily be a right in the strict juristic sense and it is sufficient for that purpose that the petitioner should show that he has an interest that the respondents should act in accordance with law."
The same view has been taken in AIR 1982 SC 149.
42. In Umar Ahmad Ghumman v. Govt. Of Pakistan and others [PLD 2002 Lahore 521] Mr. Justice Tasadiq Hussain Gillani (as his lordship then was) also highlighted the provision of Article 199 of the Constitution. At page 552 of the report his lordship observed as under:- "The expression "as may be appropriate for the enforcement of any of the- fundamental rights" appearing in the afore-referred provision confers upon the Constitutional Court a discretion to provide relief under the law to a citizen which may be necessary. The ambit of these powers was commented upon by the august Supreme Court in Darshan Masih v. The State (PLD 1990 SC 513) and it was held as under:- "The nature of the orders which can be passed in such cases is also indicated in Article i84(3); that is: such as can be passed under Article 199. Even if for the time being it be assumed that the 'nature' of the order is confined only to the orders under sub-clause (C) of "Article 199(1) and not to the other orders under 'Article 199' it would be seen that any conceivable just and proper order can be passed in a case like the present one. The principle of extension involved in the relevant phrase used in Article 199(1)(C); 'an order giving such directions to any person or authority -as may be appropriate for the enforcement of the-cannot be abridged or curtailed by the law. As to how far it cannot be extended, will depend upon each case:"
43. In view of above it is concluded that for invoking the jurisdiction under section 44(2)(c) of the Interim Constitution Act it is the constitutional requirement that a person who is approaching the Court must have locus standi and be aggrieved but the doors of Court cannot be closed when any of the member of the civil society brings into the notice of the Court that fundamental rights of the State Subjects conferred by Interim Constitution Act, 1974 have been violated or curtailed due to the enactment passed by the Legislative Assembly or the Council as the case may be, however, extra ordinary jurisdiction of this Court cannot be invoked for personal gain, political motivation or oblique consideration. The Court is duty bound to judge the bona fide of the petitioner while entertaining such like petitions, as has been held in AIR 1984 SC 280. The same view was taken and reiterated by the apex Court of Pakistan in Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others [2012 SCMR 455]. In para. 50 of the judgment their lordship after referring the various pronouncements including which have been relied upon by the learned Advocate for the petitioners observed as under:-- "50. While holding that these petitions are maintainable, we would like to strike a note of caution.
The Court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance, nor relatable to enforcement of a fundamental right or public duty. In Ashok Kumar Pandey v. State of West Bengal (AIR 2004 SC 280) the Court was seized of such a petition when it observed as follows:-- "Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest and ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate case with exemplary costs."
44. At this juncture we may refer a paragraph from the report of International Commission of Jurists:- "The lawyer has a deep moral obligation to uphold and advance the Rule of Law in whatever sphere he may be engaged or in which he has influence, and he should fulfill that obligation even if it brings him into disfavor with authority or is contrary to current political pressures. He can give effect to many of the principles underlying the Rule of Law in his daily work; for the rest, it is his responsibility as a citizen in a developing community to apply them for the benefit of society and his fellow-men."
45. The Azad Jammu and Kashmir Bar Council (Memorandum of Associations) Rules, 2001, published in Gazette Vol. XLVII dated 7-4-2001, under Rules 3- and 4 also provide the objects of the Bar Association and duties of the lawyers/Members which are reproduced as under:--
3. Objects- The objects of a Bar Association shall be:-- (a)
(b)
(c)
(d) Struggle for the civic liberties, human rights and strive to take immediate action for upholding the rule of law.
4. Duties of the Lawyers/Members:- The duties of the lawyers/members shall be (i)
(ii)
(iii)
(iv)To fight against corruption whenever found and against illegal favour from whatever source it comes or is found; and
46. The lawyers as a class in view of their professional business are obliged to ensure the supremacy of Constitution and rule of law without any fear and favour. For the sake of arguments if petitioners may not be treated as aggrieved, even then, this Court while hearing a case or a matter if comes across that any subordinate law or its provision takes away or abridges fundamental rights conferred by section 4 of the Interim Constitution Act, 1974 or is violative of any constitutional provision then this Court is duty bound to strike down such provision as has been opined in case titled "Robkar Adalat v. Sarfraz Alam Assistant Town Planner Mirpur Dev. Authority, Mirpur" [1996 MLD 1752]. In that case the full bench while hearing contempt proceedings noticed that some provisions contained in the Contempt of Court Act, 1993 were violative of sections 42, 44 and 45 of the Interim Constitution Act, 1974 and struck down all those provisions which were violative of the aforementioned provisions of the Constitution. The relevant observations of the Court are recorded in paras 51 and 56 of the report which are as under:- "51. The superior Courts are the Courts of record and by virtue of being the Courts of record, are under constitutional obligation to go into the constitutionality of law or any provision thereof, if it comes into conflict with the substantive provisions of Constitution whether conflicting with the fundamental rights or coming into the way of any other provision of the Constitution. It becomes duty of the superior judiciary to strike down the law when it conflicts with the Constitution, notwithstanding the fact as to whether that law is challenged by way of a regular petition or crops up in any proceedings connected with the subject. Being the Courts of record, the superior Courts are at liberty, rather under obligation of the Constitution to determine the extent of their jurisdiction vested under the Constitution and law; and construe strictly the provisions ousting the jurisdiction.
When it is done, it is not a case of Court interfering with the power of any other institution, it is rather a case of the Courts carrying out their constitutional obligation and interference into executive or legislative power is just incidental. As against the power/jurisdiction vested in the Supreme Court and High Court under the relevant Clauses of sections 42 and 44 of the Constitution respectively, which is subject to other provisions of the Constitution, the power of the Courts under section 45 of the Constitution is the unqualified constitutional power vested in the Constitutional authority and power to such authority comes from Constitution itself. No law making body created by the Constitution each, therefore, limit the powers which are above the law. The superior Courts are the Courts of justice while exercising the powers vested by the Constitution (as against the appellate powers vested by any subordinate legislation where these courts may be termed as Courts of law).
The Courts of justice have to care more for justice and upholding the Constitutional mandate, than for law or any rule. When a law or rule becomes an impediment in dispensation of justice, the Supreme Court and High Court exercising the powers under Sections 42, 44 or 45 of the Constitution, as the case may be, will ignore the law made by law making agency or strike it down, if need be.
56. The Supreme Court of Azad Jammu and Kashmir has in the following cases struck off the law as unconstitutional under its constitutional powers, which in its wisdom was found against the Constitution, though the law was not challenged in a regular proceedings, but was noticed by the Court during the connected proceedings. Nisar Ahmed v. The State and Muhammad Khushid v. The State (PLD 1992 SC (AJ&K) 16) "Referring Authority/Chief Secretary Azad Govt. Of Jammu and Kashmir v. Sardar Muhammad Abdul Qayyum Khan" (PLD 1983 SC (AJ&K) 95); Referring Authority Chief Secretary of Azad Government v. Sardar Sikandar Hayat Khan (PLD 1982 SC (AJ&K) 112)."
47. In view of above stated position of law we hold that question of locus standi or aggrieved person employed in section 44(2)(c) is sine qua non for invoking extraordinary jurisdiction of this Court but in appropriate cases where petition is filed in the larger interest of the society by a lawyer or a State Subject in which violation of the fundamental rights is pointed out then the question of locus standi can be construed liberally but subject to law laid down by the superior Courts in various pronouncements discussed hereinabove. The objection is, therefore, repelled.
48. The contention of the learned Advocate that the law known as Azad Jammu and Kashmir Adaptation of Laws Act, 1979 is ultra vires of the Constitution is devoid of any force. Though at the time of passing the Azad Jammu and Kashmir Adaptation of Laws Act, 1979, the Council visualized by section 21 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was not properly constituted and in existence but subsequently the properly constituted Council has passed the Azad Jammu and Kashmir Council Validation of Laws Act, 1995 whereby the Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979 has been validated which is mentioned at serial No,8 of the Schedule attached with the Act. The Council has also vide Act V of 1998, known as "the Azad Jammu and Kashmir Council (Adaptation and Validation) Act, 1998" validated all the amendments made in the laws specified in Schedule I of the said Act. The Service Tribunal Act, 1973, The Civil Servants Act, 1973 and The Federal Public Service Commission Ordinance, 1977 are listed in Schedule I of the Act, respectively at serial Nos.7, 8 and 9. It is in our notice that earlier the Azad Jammu and Kashmir Extradition Ordinance, 1984 was challenged before this Court on the same grounds in Writ Petition No,49/91 titled "Muhammad Parvaiz v. Chairman Kashmir Council and others" decided on 12-12-1994. A full bench of this Court declared the Ordinance unconstitutional.
An appeal was taken to the apex Court and during pendency of the appeal validation of the Act passed by the Council was produced before the apex Court. The judgment under appeal was vacated and validation of law was declared constitutional. The case is reported as "Chairman Azad Jammu and Kashmir Council through Secretary Azad Jammu and Kashmir Council, Islamabad and 2 others v. Raja Nisar Ahmed" [1995 CLC 1958]. Relevant observation is as under:-- "It is evident that the present Ordinance is much more exhaustive as is evident from section 7 of the Extradition Act. The validating provision of the Extradition Ordinance, reproduced above, stipulates that despite any decree or order of the High Court all acts taken, notifications issued, orders or appointments made, proceedings initiated, the jurisdiction or powers exercised under the Extradition Act, 1984, shall be deemed to have been validly done, issued, made, initiated or exercised under the Ordinance. Thus, even if it is assumed for the sake of arguments that the actions taken against the petitioners-respondents were not justified under the impugned Extradition Act, 1984, after the promulgation of the Extradition Ordinance those would be deemed to have been taken under the Extradition Ordinance. This would, prime facie, mean that the concerned authority can take actions under the Ordinance and as such continue the actions already initiated under the Extradition Act, 1984. It follows that the relief given to the respondents by the High Court is no longer sustainable in view of the enactment of the Extradition Ordinance. In these circumstances, the judgment of the High Court has to be vacated as was done in Kashmir Timber Corporation's case."
49. In view of the afore-stated position nothing remains for further deliberation of the Court.
50. The contention of the learned Counsel for the petitioner that as the Council service is included in the service of Azad Jammu and Kashmir and under section 48 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, only one Public Service Commission is provided for whole Azad Jammu and Kashmir, hence, Council is not competent to establish its separate Public Service Commission, is devoid of any force. The contention is to be judged with reference to the scheme of the Interim Constitution Act, 1974. We have taken into consideration preamble and sections 2, 19, 21 and 31 of the Interim Constitution Act. Under section 19 the extent of the executive authority of the Government of Azad Jatnmu and Kashmir is mentioned. It is commanded that subject to this Act the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make law. The composition of Council and its executive authority is mentioned in section 21 of the Interim Constitution. Subsection (7) of section 21 regulates the executive authority of the Council which shall extend, subject to Interim Constitution Act, to all the matters with respect to which Council shall have power to make law. Under section 31 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 the legislative competence of the Council and the Legislative Assembly is defined. Both the Council and the Legislative Assembly shall have power to make laws (a) for the territories of the Azad Jammu and Kashmir (b) for all the State subjects wherever they may be, and (c) for all officers of the Council or as the case may be, the Government, wherever they may be. So far as first category is concerned both the Council and the Legislative Assembly shall have the power to make laws, whereas in subsection (2) of section 31 the legislative powers of the Council are mentioned with reference to Third Schedule. The Council therefore, shall have exclusive power to make laws with respect to the matters enumerated in the Council Legislative List set out in the Third Schedule. Under subsection (3) neither the Council nor the legislative Assembly has power with respect to the matters listed therein. The services of the Azad Jammu and Kashmir are regulated by section 49 of the Interim Constitution Act, 1974, which is as under:-- "The services.--(1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law.
(2) Until an Act of the Council in respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such persons employed in connection with the affairs of the Government, makes provision for the matters referred to in subsection (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be amended from time to time by the Council or, as the case may be, the Government."
51. The above provision of the Constitution postulates that, subject to the Constitution, the appointment of persons to and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law. Under subsection (2) of section 49 of the Interim Constitution, both the Council and the Government are empowered to regulate their services through an Act of the Council and Act of the Assembly, as the case may be. It is thus clear that the Constitution recognizes the services of the Government and the Council both as distinct and separate, which are to be governed by laws made respectively by the Government and the Council, but this power is subject to Constitution, meaning thereby that such laws must be in consonance with the provisions of the Constitution.
52. Now we advert to the second part of the argument of Sardar K.D. Khan, as to whether the Constitution has provided for establishment of only one Public Service Commission for whole Azad Jammu and Kashmir. We are of the view that expression "there shall be a Public Service Commission for Azad Jammu and Kashmir" is to be seen in context with the other relevant provisions of the Constitution as a whole with special reference to sections 31 and 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
53. Under section 31 the Council has the legislative competence, to make law with respect to the matters enumerated in the Council Legislative List which include the regulation of Council service and establishment of Council Service Tribunal and Council Public Service Commission. The expression "a Public Service Commission for Azad P Jammu and Kashmir" employed in section 48 of the Interim Constitution cannot be given restricted meaning that despite legislative competence provided in sections 31 and 49 of the Interim Constiution Act, 1974 the Council is not competent to establish its separate Public Service Commission. The placing of indefinite article "a" before a noun does not necessarily mean one. The effect of placing an indefinite article before a Q noun has been stated in "Corpus Juris Secundum" as under:-- "The indefinite article "a" is described as a prefix of vague meaning, placed before nouns of the singular number denoting an individual object or quality individualized; but, while properly placed before a singular noun, and having the meaning "one, is not necessarily a singular term, and is often used in the sense of "any," and may then be applied to more than one individual object; and it may mean one of a number, depending upon the context. It has been referred to as a grammatical particle "whose office is frequently only to preserve euphony in the use of words and structure of sentences, and whose force often depends upon the mere accident of accentuation."
Ordinarily "a" and "the" are distinguishable.
' In words and phrases permanent edition volume 1, the word "a" is interpreted as under:- ' The word "a" has varying meaning and uses. "A" means "one" or "any," but less 'emphatically than either." It may mean one where only one is intended, or it may be any one of a great number. It is placed before nouns of the singular number, denoting an individual object, or quality individualized.
' The adjective "a" is commonly called the indefinite article, and so called because it does not define any particular person or thing. According to Webster the adjective means "one" or "any," but less "emphatically than either." He also says it is placed before nouns of the singular number denoting an individual object or quality is defined as "(1) the condition of being of such a sort as distinguished from others; (2) special or temporary character; profession, occupation."
' The article "a" is generally not used in a statute in a singular sense unless such an intention is clear from language of statute."
54. In view of above, it can safely be concluded that indefinite article "a" when used grammatically it also gives the meanings of one singular noun but when used in a general sense it denotes a host of nouns, persons and institutions, hence, the use "a" is to be seen with reference to general and specific provisions contained in an enactment. After taking into consideration sections 19, 21 and 31 of the Interim Constitution Act, 1974 we are of the considered view that the expression "a Public Service Commission" cannot be construed as one Public Service Commission for Azad Jammu .
And Kashmir because under section 31 read with Third Schedule and section 49 of the Interim Constitution Act, 1974 Council has ,the legislative competence to regulate its services and establish its own Public Service Commission for induction of persons in the Council service. If the contention of the learned Advocate for the petitioners is accepted then the provisions of section 31, which empower the Council to legislate with respect to the matters enumerated in the Council Legislative List, which contains "Council public services and Council Public Service Commission" at S: No, 4, and section 49, which empowers the Council to regulate its service by an Act of the Council, would be redundant.
55. In Hakim Khan's case [PLD 1992 SC 595] provisions of section 2(a) of the Constitution of Islamic Republic of Pakistan were considered by the apex Court and it was resolved at page 616 as under:- - "Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its Different provisions; the Court should harmonies them, if possible."
56. Again at pages 617 and 618 it was observed at "it is not open to Courts to invalidate a provision of the Constitutio , being creatures of the same Constitution."
57. The same view was taken in PLD 1983 SC AJ&K 95.
58. In a case titled "Federation of Pakistan through the Secretary, Ministry of Kashmir Affairs and Northern Affairs Division, Islamabad v. Malik Muhammad Miskeen and 8 others" [PLJ 1995 SC (AJ&K)
1] some principles of interpretation of the Constitution have been described and at page 23 it is observed as under:-- "Generally speaking, we have no quarrel with the proposition propounded by the learned counsel for the petitioners-respondents that the Constitutional provisions should be read together and its provisions should not be interpreted in isolation. However, it does not imply that if a Constitutional provision is clear and suffers from no ambiguity it would not be given its natural meanings and should be assigned meanings which its phraseology does not admit on plain reading. It is well- settled principle of law that while interpreting the word and phrases employed in a statutory provision, they should be given their natural meanings; nothing should be added or subtracted from a provision and a law should be interpreted as it is and not as it should be."
59. In view of the afore-stated position it is concluded that the legislature has not intended as is evident from the scheme of the Constitution, especially in presence of section 31 read with Schedule Third and section 49 of the Interim Constitution Act, 1974, that expression "a Public Service Commission" would mean one Public Service Commission for Azad Jammu and Kashmir. As stated earlier the legislative competence of the Legislative Assembly as well as the Council is defined in the Constitution, therefore, it cannot be held that Council is not constitutionally competent to regulate its service as well as establish its own Public Service Commission. However, the delegation of the authority by the Council to the Federal Public Service Commission is ultra vires of the Constitution as has already been held in Messrs Jabbeer Hotel Mirpur's case [2001 PLC (C.S.) 11].
Paras 22 and 23 are relevant, which are reproduced as under:-- "22. It is clear from the provisions noticed above that the executive authority of the Council and the Government can be delegated to officers and authorities subordinate to them. The Interim Constitution Act does not postulate that executive authority of Azad Jammu and Kashmir Council will be exercised by the functionaries or officers of the Government of Pakistan although the Prime Minister of Pakistan is the Chairman of the Council. It is equally clear that while performing functions as Chairman of the Council the Prime Minster of Pakistan cannot delegate any functions of the Council to an officer or authority in the Government of Pakistan although they are subordinate to him as Prime Minster.
23. According to the Constitution of Pakistan of 1973 and Azad Jammu and Kashmir Interim.
Constitution Act, 1974, Azad Jammu and Kashmir is not a part of Pakistan and laws of Pakistan are not applicable to the liberated territory of Jammu and Kashmir. Thus the functionaries appointed under a particular law which is in force in Pakistan do not have the jurisdiction to function in Azad Jammu and Kashmir. It is provided in subsection (4) that the Federal Government shall establish an Institution called the Employees Old-Age Benefit Institution which shall be a body corporate. The Employees Old-Age Benefit Act 1976 contains a provision in subsection (2) of section 1 that the said Act was to extend to the whole of Pakistan. The Act does not visualize that it will perform functions in Azad Jammu and Kashmir. Section 7 lays down that there will be a number of trustees appointed by the Government and that four members shall be those who have been nominated by the Provincial Governments. There is no mention that it will also have a member from Azad Jammu and Kashmir. It is thus clear that the FOB Institution is performing functions in connection with the Federation. It is set up by the Federal Government and is under its control. The functions which it performs are entrusted to it by the Federal Legislature and the Federal Government. Clearly it is not a functionary subordinate to the Azad Jammu and Kashmir Council. It follows that Azad Jammu and Kashmir Council could not delegate its functions to the said Institution."
60. As regards the next question whether the laws framed by the AJK Council to regulate the service of its employees are (a) ultra vires of the Interim Constitution Act (b) discriminatory and (c) violative of the Fundamental Rights enshrined in the Interim Constitution, we have examined the Civil Servants Act, 1973 as has been adapted by the Azad Jammu and Kashmir Council. It has rightly been contended by Mr.Abdul Rasheed Abbasi that rights Nos.1 to 4, 11, 12, 14 and 18 are available to every person who is residing in Azad Jammu and Kashmir irrespective of the status; however, rights Nos.5 to 10, 13 and 15 to 17 are available only to the State Subjects. The legislature deliberately and advisedly has made distinction between the rights available to the persons and rights available to the State Subjects. The right of service and right of entry into a lawful profession is available to the State Subjects and cannot be claimed by any other person. Despite having legislative competence mentioned in section 31, the Council is not competent to make law or rules which offend against the fundamental rights conferred by section 4(4) of the Interim Constitution.
Fundamental Rights Nos.5 to 10, 13 and 15 to 17 are available exclusively to the State Subjects. The condition of State Subject for induction in the State service remained a condition precedent. Before partition the Kashmir Civil Service Rules U were in force. In rule 17 of the said rules (already reproduced earlier) it is stated that for induction in the service of the State the person should be a State Subject. On the same line the Government has enacted the Civil Servants Act, 1976 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 have been framed for carrying out the purpose of the aforesaid Act. Under Rule 19 only State Subjects are eligible to enter into the State service, however, the Government is competent to relax the condition in case of non-availability of qualified State Subjects. By depriving State Subjects full opportunities for entry into Council Service, in the manner that first qualification for the posts in the Council Service is prescribed as "citizen of Pakistan", Fundamental Rights of the State Subjects, attached with the definition of 'State Subject', particularly fundamental rights Nos. 8 and 17 guaranteed under section 4(4) of the Interim Constitution Act are adversely affected and curtailed.
61. Now, coming to the last question whether only State Subjects and not citizens of Pakistan are legally entitled to be inducted into the service of the AJK Council and if answer is found in affirmative, then whether the impugned advertisements of the AJK Council inviting applications for various posts from citizens of Pakistan are liable to be set aside. The AJ&K Council, vide its Act IV of 1979 dated 12th July 1979, adapted and enforced five laws of Pakistan, mentioned in the Schedule, in Azad Jammu and Kashmir. The Service Tribunals Act 1973 (LXX of 1973) and the Civil Servants Act, 1973 (LXXI of 1973) were included in the schedule at serial numbers 4 and 5 respectively. The adaptation was made subject to the modifications stated in subsection (1) of section 3, which is reproduced below:-- "3. Adaptation of Laws.--(1) The laws of Pakistan mentioned in the schedule to this Act, and all rules, notifications and orders made there-under and in force immediately before the commencement of this Act are adapted and shall, as far as practicable, be in force in Azad Jammu and Kashmir subject to the modifications stated below:--
(2) the expressions 'Government', 'Federal Government' `President' or any other expressions however worded, referring to any Executive Government, shall, as far as practicable, be construed to refer to the Azad Jammu and Kashmir Council and reference to Pakistan or any part of Pakistan shall be construed to refer to Azad Jammu and Kashmir, and
(3) the expression 'Provincial Government' shall be construed to the Azad Jammu and Kashmir Government."
Similarly, while adapting Federal Public Service Commission Ordinance 1979 and all amendments, rules, instructions and orders made or issued thereunder and in force in Pakistan on or after 30th December 1998, vide AJK Council Act I of 2009, similar modifications are made.
62. It is thus clear from the above state of law that in the adapted Civil Servants Act, 1973 and the rules, notifications and orders made thereunder, wherever the expression "Pakistan" is used it is to refer to "Azad Jammu and Kashmir".
63. The AJK Council, through Notification No, AI-2/16/79-AJKC dated 3-1-2008, has laid down method, qualifications and other conditions for appointment to the staff of the AJK Council Secretariat, in pursuance of sub-rule (2) of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973. In paragraph 5 under heading "Qualification, experience and age limit for direct recruitment", it is provided under clause (b) that a candidate must "be a citizen of Pakistan or a State Subject of Jammu and Kashmir". The condition of being a citizen of Pakistan is present in the laws of Pakistan (notifications) issued in pursuance of the rules made under the Civil Servants Act, 1973, when read with the modification of the Civil Servants Act, 1973, reproduced above in para. 61, that reference to Pakistan or any part of Pakistan shall be construed to refer to Azad Jammu and Kashmir, the condition of being a citizen of Pakistan is against the provisions of the Adaptation of Laws Act 1979 referred above. The provision in the aforesaid notification about the qualification of being a citizen of Pakistan for induction in the service of the AJK Council being against the parent law requires to be amended so as to reserve induction in the Council Service for the State Subjects.
64. Yet viewing from another angle, section 31(1) of the AJK Interim Constitution Act 1974 confers powers on both the AJK Council and the AJK Legislative Assembly, to make laws (a) for the territories of Azad Jammu and Kashmir, (b) for all State Subjects wherever they may be and (c) for all officers of the Council or as the case may be, the Government, wherever they may be. The power of the AJK Council as well as the AJK Legislative Assembly to make laws extends beyond the Territories of Azad Jammn and Kashmir only in respect of State Subjects and not in respect of citizens of Pakistan. Legislative powers of the Azad Jammu and Kashmir Council and the Azad Jammu and Kashmir Legislative Assembly under section 31 of the Interim Constitution Act came under consideration of the apex Court of Azad Jammu and Kashmir while construing the legality of the Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act 1980 (Act X of 1980) in the case titled "M/s Jabbeer Hotel Mirpur v. Kashmir Council Islamabad and others" reported as 2001 PLC (C.S.)
11. Paras. 24 and 25 of report are relevant, which are reproduced as under:- "24. In fact the constitutional position is that the Azad Jammu and Kashmir Council and the Azad Jammu and Kashmir Legislative Assembly are not empowered to legislate in respect of officers of the EOB Institution. Legislative powers of the Council and the Assembly are laid down in section 31.
Subsection-(1) is relevant here.
"31. Legislative Powers,--(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws:--
(a) for the territories of Azad Jammu and Kashmir;
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or as the case may be the Government, wherever they may be."
25. This provision manifestly lays down that the powers to make laws outside Jammu and Kashmir is restricted only to State subjects wherever they may be and to officers of the Council and of the Government wherever they may be The officers of the EOB Institution are not officers of the Council or the Government. Therefore the Council or the Assembly cannot legislate for them. It means in other words that law cannot be framed so as to confer powers or functions on the employees of the EOB Institution by the Legislative bodies of Azad Jammu and Kashmir."
65. Therefore, in making appointment of officers of the AJK Council or the AJK Government, it is the constitutional requirement that first preference be given to the State subjects. However, a citizen of Pakistan may be appointed to the service only when a qualified State subject is not available. Such is provided in Rule 19(1) of the AJK Civil Servants (Appointment and Conditions of Services) Rules, which lays down that "No person shall be appointed to a post unless he' is a State subject as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974 provided that this restriction may be relaxed by the Government in suitable cases". Also, this appears to be in consonance with Fundamental Right No, 17 guaranteed by the Interim Constitution, which provides that "no State Subject otherwise qualified for appointment in the services of Azad Jammu and Kashmir shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste or sex". Fundamental Right No, 8 is to the effect that "every State Subject possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation shall have the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business". From the above, the intention of the Constitution makers appears to be clear that in the matter of entry into any civil service of Azad Jammu and Kashmir, profession or occupation, State Subjects possessing prescribed qualifications for the relevant service, profession or occupation have a right to be given preference. Any provision in any law, rule or notification abridging this right cannot be allowed to stand.
66. We may observe that under the scheme of the Constitution and in light of sections 19(2) and 21(3) the executive authority of the Government shall be so exercised as (a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31; and (b) to secure compliance with the laws made by the Council.", which means that both the Council and the Government has to create harmony in practical implementation of laws enacted by them respectively. As it was held by the learned apex Court in the case titled "Azad Government of the State of J&K v. Nafees Bakers" reported as PLD 1995 SC(AJK) 47 that the Azad Government of the State of Jammu and Kashmir was not an authority subordinate to the Azad Jammu and Kashmir Council within the meaning of section 21(3) of the Interim Constitution Act, 1974 and that the provision of section 19(2) of the Interim Constitution Act also does not render the Azad Government of Jammu and Kashmir as a subordinate authority to the Azad Jammu and Kashmir Council but such provision was aimed at ensuring harthony in the practical implementation of laws. It was also held that such arrangement was necessary for the reason that laws made by Azad Jammu and Kashmir Council would need assistance of the Government for its implementation. For ensuring harmony in the practical implementation of laws, it would be only advisable that the AJK Council should also make clear provision in the service laws for induction of State Subjects into the service of the Council as is made in the service laws of Azad Government of the State of Jammu and Kashmir, with particular reference to Rule 19(1) of the AJK Civil Servants (Appointment and Conditions of Services) Rules, which lays down that "No person shall be appointed to a post unless he is a State subject as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974". The power of relaxing this restriction may however be left to the discretion of the AJK Council in suitable cases.
67. It may be stated here that it has been contended on behalf of the respondents that quota has been fixed by the Azad Jammu and Kashmir Government for induction in the State service while taking into consideration the geographic position which is not being followed by the Council. The learned Advocate representing the Council while relying upon 1997 SCMR 1043 and PLD 1992 Federal Sh.C. 412 vehemently argued that as the quota has been declared unconstitutional by the apex Court of Pakistan, therefore, the same cannot be implemented. It may be mentioned here that in the written arguments filed on behalf of respondents Nos. 1 to 5 and 11 it is stated that reservation of quota in services is against the Constitution and Islam and in support of this assertion an authority of the Supreme Court of Pakistan reported as 1997 SCMR 1043 is cited. PLD 1992 Federal Sh.C. 412 was also cited in this respect. It is finally contended that reservation of quota is within the domain of Executive for which summary dated 14-3-2013 has been moved to reserve 50% exclusive quota for the AJ&K State Subjects, while rest of the 50% will be reserved for all Pakistan open merit for the posts from BS-03 to BS-15. Along with the arguments, copy of a summary is attached which purportedly is prepared by the Secretary AJK Council for the Chairman AJK Council (Prime Minister of Pakistan) under the authority of the Minister in charge AJK Council in which the proposal is for reservation of 50% exclusive quota for the AJK State Subjects and the rest 50% for all Pakistan open merit. It is quite understandable that on one hand, the respondents assert that reservation of quota is un-Islamic and on the other state that summary for reservation of quota for the State Subjects is being moved. It may be stated here that the matter in dispute is not for reservation of quota for the State Subjects in the Council service, but it relates to fundamental right of the State Subjects for entry into the service of Azad Jammu and Kashmir, which includes Council service.
68. As a result of the above discussion, the writ petitions are . Accepted in the following manner:--
(a) The Azad Jammu and Kashmir Council is directed to amend the Federal Public Service Commission Ordinance, 1977 and B establish its own Public Service Commission as the delegation of B the authority to the Federal Public Service Commission has already been declared unconstitutional.
(b) The Azad Jammu and Kashmir Council is further directed to C substitute the qualification entered in clause (b) of paragraph 5 of the AJK Council Notification No, AI-2/16/79-AJKC dated 3-1- 2008, under heading "Qualification, Experience and Age Limit for Direct Recruitment", as "be a citizen of Pakistan or a State Subject of Jammu and Kashmir" by the qualification "be a State Subject of Jammu and Kashmir";
(c) the impugned advertisements of the AJK Council which appeared in Daily Nawa-e-Waqt Rawalpindi/Islamabad dated 13-11-2012 and 14-11-2012 inviting applications for various posts from citizens of Pakistan are set aside and it is directed that the condition of being State Subject for the applicants may be incorporated in the advertisements.