' MUHAMMAD AZAM KHAN, C.J.--- The above titled appeal with leave of the Court arises out of the judgment of the High Court dated 17th December, 2012, whereby Writ Petition No,1797 of 2009 has been accepted with a direction to the respondents, appellants herein, to implement the orders of the Prime Minister dated 15th February, 2007 and 18th February, 2009.
2. Necessary facts for disposal of the appeal are that the respondents filed a writ petition in the High Court, alleging therein, that they are serving as Calligraphers in different departments of the Government. The post of Calligrapher is of BPS-6 and on revision of pay scale the same was placed in grade BPS-9, They have no venue for further promotion. The post of Calligrapher is at par with the post of Section Clerks who at present were serving in BPS-14. They moved application to the Prime Minister for up-gradation of the posts of Calligraphers. The Prime Minister on 15-2-2007 and 18-2-2009 approved the up-gradation of the posts. The respondents, appellants herein, are not issuing the order on the direction of the Prime Minister. The learned Chief Justice of the High Court after necessary proceedings, accepted the writ petition vide impugned judgment on 17-12-2012 and issued the requisite direction.
3. Ch. Shoukat Aziz, Additional Advocate-General, while arguing on behalf of the appellants submitted that the judgment of the High Court is against the facts, law and the record. The up- gradation of the posts can only be ordered after the concurrence with the Finance Department.
The case was forwarded to the Finance Department for financial concurrence, but the Finance Department refused to approve the same, on the ground of financial crunch. Under the Rules of Business, without financial concurrence; up-gradation cannot be ordered. The learned Additional Advocate-General submitted that the Prime Minister has delegated the powers to a Committee constituted by hint for looking into the matter. Without the report of the Committee, the Prime Minister has no power to order for up-gradation of the posts. He further argued that the matter relates to the terms and conditions, of service of civil servants. The writ petition in relation to the terms and conditions of civil servant is not maintainable. The respondents have not challenged the relevant rules. The rules can only be challenged before the Service Tribunal.
4. While controverting the arguments, Syed Shahid Bahar, Advocate, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The Prime Minister has authority to issue direction for up-gradation of the post under the Rules of Business and the Prime Minister has ordered accordingly. The respondents were not implementing the legal orders or the Prime Minister therefore, the High Court has correctly issued the direction. No law point is involved in the case, hence this appeal merits dismissal.
5. We have heard the learned counsel for the parties and perused the record. The respondents filed a writ petition in the High Court, alleging therein that they were appointed on the posts of Calligraphers in different departments in BPS-6. The posts of Calligraphers were later on, up- graded to BPS-9. There is no further venue for promotion. They moved an application to the Prime Minister, for up-gradation of the post of Calligrapher to BPS-14, which is at par with the post of Section Clerk. The Prime Minister on 15th February, 2007 and 18th February, 2009 approved the up- gradation of the posts. It appears from the record that the case of up-gradation of the posts for concurrence was sent to the Finance Department. A perusal of the record further reveals that the Prime Minister on 15th February, 2007 and 18th February, 2009 ordered for up-gradation of the posts and sent the file to Finance Minister and Secretary Finance. The Section Officer Implementation of the Prime Minister Secretariat on 8th December, 2007 sent the file to the Finance Secretary for implementation of the orders of the Prime Minister. The Secretary Services and General Administration again sent the file for up-gradation of the posts to the Secretary Finance on 16th April, 2009. The President of the Azad Jammu and Kashmir also recommended to the Finance Secretary for implementation of the orders of the Prime Minister. The orders passed by the Prime Minister for up-gradation of posts have not been implemented by the Secretary Finance.
6. The Government is being run under the Azad Jammu and Kashmir Interim Constitution Act, 1974, (hereinafter referred to as Constitution) and for regulating the system of Government the Rules of Business, 1985 have been made under the Constitution. The Prime Minister is the executive head of the Goverment. Section 12(1) of the Constitution says that the Prime Minister shall be the Chief Executive of the Azad Jammu and Kashmir and the Government shall consist of the Prime Minister and the Ministers. For the sake of convenience subsections (1) and (2) of section 12 are reproduced as followed:--- "12(1) Subject to this Act, the executive authority of Azad Jammu and Kashmir shall be exercised in the name of the president by the Government, consisting of the Prime Minister and the. Ministers, which shall act through the Prime Minister who shall be the Chief Executive of Azad Jammu and Kashmir.
(2) In the performance of his functions under this Act, the Prime Minister may act either directly or through the Ministers."
Under section 58 of the Constitution the President has been empowered to make rules for carrying out the purpose of the Constitution, and the Rules of Business, 1985 have been made under the aforesaid section. The functions of the Prime Minister have been prescribed under Rule 5 of the Rules of Business, 1985 which is reproduced as under:--- "5. Functions of Prime Minister:---
(1) The Prime Minister shall:---
(a) be the head of the Cabinet;
(b) be responsible for coordination of all policy matters,
(c) Perform other functions assigned under the Act and the Rules; and
(2) No order shall be issued without the approval of the Prime Minister in cases enumerated in Schedule III.
(3) The cases enumerated in Schedule IV shall be submitted to the Prime Minister for his information. The Prime Minister may require any case to be submitted to him for information."
' By juxtapose examination of subsections (1) and (2) of section 12 and Rule 5 of the Rules of Business, it clearly reflects that the Government consists of the Prime Minister and the Ministers of the Azad Jammu and Kashmir; the Government shall act through the Prime Minister; he may A perform his functions directly or through the Ministers; he being head of the Cabinet and Chief Executive of Government may perform functions assigned under the Constitution and the Rules and while performing his assigned functions he may do either directly or indirectly, through Ministers.
7. The provisions of the Rules of Business, 1985, make it obligatory for the Secretary or the officer below to implement the lawful order of the Prime Minister and under the provisions of Rules 9(4) if any order contravenes the provision of any law, rule or policy decision, it is the duty of the Secretary concerned to point it out to the Prime Minister that the order is in contravention of the Rules or policy and request for review the sonic. The record reveals that nothing has been done on the B part of the appellants to comply with the Rule 9(4) even during the period of three years of pendency of the writ petition no objection has been raised on the summary. Without pointing out any contravention of law or illegality in the order passed by the Prime Minster non-implementation of the order is a violation of the Constitution and Rules of Business. The above view is fortified by the case reported as Khurshid Anwar v. The Secretary Local Government. etc. 1992 M LD 236 wherein it was observed as under:--- "6. It goes without saying that when an action or authority is regulated by law and that action is taken or performed in accordance with law which regulates the business. notwithstanding the executive authority of the Prime Minister, time order thus passed and action taken by the authority in which power is vested, shall be final and even if the Government has supervisory or controlling power in that case, it shall not invalidate the action already taken under the authority. No doubt, the matters which are not regulated by any law on the point or with respect to which no rule exists any order may be made by the Government in respect therewith, even in the absence of specific law, provided the order is not derogatory to any of the constitutional provisions or the general law or rules and is in accordance with the principles of natural justice. But once the power is regulated by any law, the authority of the Government has to be exercised in accordance with that law and not in any other manner. In the instant case, the Government has over riding powers under sections 74 and 75 and these powers were invoked by the Secretary Local Government. Thus, it cannot be said that the Government was not vested with powers which it has exercised in the instant case; the contention of the learned counsel for the respondents that the Government has no jurisdiction in the matter is therefore, repelled.
' However, the Government has to transact its business in accordance with the rules called as the Rules of Business, 1985. Under Rule 8(g) the Secretary shall "where the Minister's orders appear to involve a departure from rules, regulations or Government policy, resubmit the case to the Minister inviting his attention to the relevant rules, regulations or Government policy, and if the Minister still disagree with the Secretary, the Minister shall refer the case to the Prime Minster for orders".
Similarly, under rule 9(4) it is laid down that "if an order contravenes any law, rule or policy decision, it shall be the duty of the officer next below the office 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". In view of the above rules, it was the duty of the Secretary Local Government when the orders of the Prime Minster dated 28-5-1991 and 30-5-1991 were communicated to him, to have pointed it out to the Minister (who at the moment was the Prime Minster himself) that his orders contravened any rules or law, I have gone though the record attached with the written statement. The Secretary has nowhere complied with the rules obliging him to make it known to the concerned higher authority that his order contravened any rule or regulation relating to the matter. His failure to point out such contravention obliged him to carry out the order in the manner it was communicated to him and issue the order in the light of rule 10 of the Rules of Business."
8. Rule 15 of the Rules of Business, 1985 deals with the consultation with the Finance Department in the matter relating to finance. For proper appreciation Rule 115 is reproduced as under:-- "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 or lease of land or mineral, forest or water power rights:
(b) expenditure for which no provisions exists,
(c) a charge in the number or 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 ceses;
(e) floatation of loans;
(f) re-approprations within budget grants;
(g) alteration in financial procedure or in the method of compilation of accounts or of the budget estimates;
(h) interpretation of rules made by the Finance Department.
(2) no amendment or interpretations of such Service Rules as have no Financial implication shall be made by the Finance Department without the prior concurrence of the Services and General Administration Department.
(3) No proposal, which requires previous consultation with the Finance Department under sub-rule
(1) but in which the Finance Department has not concurred, shall be proceeded with unless a decision to the direct has been taken by the Cabinet. Formal orders shall, nevertheless issue only after the Finance Department has exercised scrutiny over the details of the proposal.
(4) Except to the extent that power may have been delegated to Department under rules framed by the Finance Department, every order of an Administrative Department conveying a sanction to be enforced in audit shall be communicated to the audit authorities through the Finance Department."
' A bare reading of the rule reveals that it is mandatory for all the departments of the Government to obtain prior approval of the Finance Department before issuance of any order where such order affects the finance of the Government. The rule is mandatory in nature. Without prior approval of the Finance Department no post can be upgraded. In the present case the Prime Minister has ordered for up-gradation of the posts and Services and General Administration Department forwarded the order of the Prime Minister to the Finance Department for prior approval for up- gradation of the posts. The posts were not up-graded by the Department. A perusal or the record reveals that the Finance Department has not replied the latter addressed by the Services and General Administration Department on 16-6-2009 for up-gradation of the posts. Only in reply of para 1 of the writ petition in written statement it was stated that the Government has delegated the powers for' up-gradation of the posts to respondents Nos.1 and 2, who are Secretary Finance and Finance Department. There is a reference that a copy is annexed as annexure "RA" but there is no copy annexed with the written statement. It was also argued by the learned Additional Advocate- General that powers for up-gradation of the posts have been delegated to the Secretary Finance and Finance Department but no document has been brought on record. We summoned the Additional Advocate-General, who produced a photocopy of Rules 15 of Rules of Business and claimed that the same was referred as "RA"; in the High Court. Without any proof that powers for up-gradation of the posts have been delegated by the Government to the Finance Department and Secretary Finance, the argument is not helpful to the case of the appellants. It is also argued by the learned Additional Advocate-General that the Finance Department has not accorded the approval due to financial crunch. The arguments are contradictory. At one side, the learned Additional Advocate-General has argued that the posts cannot be upgraded due to financial crunch but on the other side it is claimed that the Government has delegated the powers to Finance Department and Secretary Finance. The Finance Department did not bother to reply the Services and General Administration Department that the posts are not being up-graded due to Financial crunch or the powers have been delegated to the Finance Department and Secretary Finance. It appears that by not responding to the case of up-gradation of posts and not re- submitting the case to the Prime Minister on the ground that Government has delegated the powers for up-gradation of the posts to the Finance Department, the Finance Department is acting in violation of the Constitution and Rules of Business. The violation of the Constitution and Rules of Business cannot be allowed.
9. The argument of the counsel for the appellant that the respondents have no right to claim up- gradation of the posts and writ petition is not maintainable, has no force. The only relevant question is that when the Prime Minster Azad Jammu and Kashmir, who is executive head of the Government passed a legal order and under the Constitution and Rules of Business it was duty of the Finance Department to implement the lawful order but the department failed to implement the same despite the fact that no objection was raised on the order nor it was resubmitted to Prime Minister on the ground that it offends any law. The respondents had no alternate remedy, except to file a writ petition in the High Court. The writ petition was competently filed.
' The result of the above discussion is that no case is made out by the appellants for interference in the judgment of the High Court. The appeal is dismissed with no order as to costs.