' AZHAR SALEEM BABAR, J. --- The above titled writ petition, under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 has been filed to challenge the notification dated 19.01.2014, whereby Azad Jammu & Kashmir Bar Council Employees Rules, 1999 have been amended. The writ petition was initially filed by all the employees of the Bar Council, however, petitioners No, 2 to 6 decided to withdraw on 26.02.2014 and an order was accordingly passed. The petition in the present shape is alive to the extent of Shaukat Hussain Awan only.
2. It is the contention of the petitioner that he was appointed as Secretary Azad Jammu & Kashmir Bar Council, vide notification dated 12.07.1999 and was declared as regular employee of the Council since his inception in service. Azad Jammu & Kashmir Bar Council allowed the petitioner and other employees of the Bar Council, pay and allowances admissible to civil servants of Azad Jammu & Kashmir Government through an amendment in Rules on 03.12.2012. The petitioner was allowed basic pay scale 20, vide notification dated 22.08.2009 and has been drawing his pay and allowances in pursuance of the notification. It has been contended that the petitioner was granted grade B-20 on account of parity with Punjab. Azad Jammu & Kashmir Bar Council has now amended the Employees Service Rules, 1999 and pay scale and allowances have been withdrawn by introducing new grades I, II and IV instead of basic pay scales prevailing in the Government.
Departments. Pay of the petitioner has now been fixed as Rs, 50,000/- by Bar Council and he has been placed in grade I alongwith 10% annual increment. The amendment has been notified in the official gazette on 29.01.2014. This notification has been challenged on the grounds that:--- i. Notification dated 29.01.2014 is without jurisdiction and without lawful authority. Pay and allowances allowed to the petitioner could not be withdrawn as rights had accrued in favour of the petitioner; ii. That the impugned notification is self-contradictory because Rule 2.1 still exist at the statute book, which provides for pay scale for the posts in Azad Jammu & Kashmir Bar Council, whereas, provision of Rule 2.1 have been substituted and substantial grades have been provided. It has further been alleged that employees of Azad Jammu & Kashmir Bar Council are entitled to pay, allowances and T.A. D.A. Under Rule 7.2, equal to Government servants in the comparative pay scales. Appendix to Rule 2.1 speaks otherwise and a fixed pay with a different grade has been provided. Iii. The impugned notification has been issued unilaterally and is arbitrary in nature.
Furthermore that this notification is in violation of the well-recognized principle of parity with Punjab. It has also been alleged that the impugned amendment is against the principle of natural justice and no reason has been assigned for making such an amendment. It has also been contended that the petitioner has not been afforded an opportunity of hearing. Iv. The notification under challenge is violative of fundamental rights guaranteed by the Interim Constitution Act, which provides a protection to life and liberty of a person. It has been mentioned that livelihood of the petitioner has been snatched through the impugned notification, so the notification is contradictory to the Constitution as well.
3. Parawise comments/written statement on behalf of the non-petitioners transpire that:-
(a) Shaukat Hussain Awan, the petitioner intends to protect the order of his promotion dated 22.08.2009, which is an illegal order. The petitioner cannot seek relief to protect an illegal order.
Reliance placed on PLD 1973 SC 326, PLJ 1997 SC AJ&K 99, PLD 1992 SC AJ&K 49 and 1998 SCR 221.
The notification of promotion/upgradation of the petitioner is illegal on the ground that the petitioner has himself signed the order and has become a judge in his own cause. It has been contended that notification relating to terms and conditions of an employee is to be notified by Chairman Executive Committee, so the petitioner was not competent to issue such an order.
(b) that appendix to Rule 2.1 provides that Secretary Bar Council is entitled to salary of BS-18 which starts from Rs, 5085, it shows that up-gradation of the post to BS-20 is fake and fictitious. It has further been alleged that no amendment under Rule 2.1 (appendix) has been effected but the impugned notification states that the post has been up-graded_to BS-20. It has also been contended that the order of up-gradation of the post has not been notified in the Official Gazette, so it carries no legal effect.
(c) that order dated 22.08.2009 has been issued by the Secretary on the basis of minutes of the meeting of Bar Council held on 20.08.2009. All the proceedings of the meeting of the Bar Council are illegal, in view of Rules 64 to 71 of the Azad Jammu & Kashmir Bar Council Rules. It has been stated that minutes of the meeting show that 18 members including the Vice Chairman participated in the proceedings, whereas, the quorum for the meeting was 20 i,e, simple majority of 38 total members. It has been emphasized that when the quorum was pointed out, the meeting was adjourned for 5 minutes only and in the guise of adjourned meeting, quorum was stated to have been completed. It has been emphasized that established practice is that meeting of the Bar Council should have been adjourned for 15 to 20 days in such circumstances but the needful was not done and Secretary Bar Council himself issued the order of his up-gradation, which could be issued by Chairman Executive Committee of the Bar Council, under Rule 71.
(d) that procedure for up-gradation of posts has not been provided in the Azad Jammu & Kashmir Bar Council Rules, so the concept can be borrowed from the Azad Jammu & Kashmir Up-gradation of Posts Rules, 1984, which are applicable to the Government servants. It has been stated that after up-gradation of the post, the incumbent is not automatically up-graded, so up-gradation of post of the petitioner to BS-20 does not entitle him to draw salary and allowances against the upgraded post. It has also been objected that notification dated 29.01.2014 appended with the writ petition does not fulfil the requirement of Rule 32(2) of the Azad Jammu & Kashmir High Court Procedure Rules because a certified copy has not been provided.
' The non-petitioners refuted the claim of the petitioner on facts as well and have defended the impugned notification by contending that Bar Council is competent under law to frame or amend its Rules. A detail of financial crises prevailing over the Bar Council has also been provided by the non-petitioners. Background of the restructuring and amendment in employees Rules has been explained by contending that Bar Council was not in a position to make payment of salaries to the employees out of allocated head and the Bar Council had to remunerate its employees from the head of "Enrolment Fee of Advocates" from Jan. 1997 to Jan.
2011. It has further been elaborated that under Rule 115, 20% share of the Advocate's fee is to be transferred to Benevolent Fund of the Advocates but such transfer could not be effected because of shortage of funds upto Jan.
2014. It has been calculated that 20% share, which is supposed to be transferred to the Benevolent Fund is estimated as 32,39,757/-. The Bar Council had to borrow money from Azad Jammu & Kashmir Lawyers Foundation to the extent of 9,95,495/-. Statement of account to that effect has been appended with the written statement as annexure "RE". It has been contended that financial crises prevailing over the Bar Council compelled its members to restructure the services of its employees and to reduce their pay, perks and privileges. It has further been denied that a fundamental right of the petitioner has been affected by the impugned order.
4. We have heard learned counsel for the parties and perused the available record. Mr. Abdul Rasheed Abbasi, Advocate on behalf of the petitioner has elaborated the points raised in the memorandum of writ petition and has explained that under Rule 66 of the Azad Jammu & Kashmir Bar Council Rules, 1998 provides necessary requirement of quorum for meeting of the Bar Council which is simple majority of the total members but the proviso to the aforementioned Rule elaborates that when a meeting is adjourned for want of quorum, the quorum for the adjourned meeting shall be 1/3rd of the total number of members. So, in his view, proceedings of the meeting of the Bar Council are in accordance with Rules. He has referred to the Azad Jammu & Kashmir Legislative Assembly Rules, which provides that when the quorum is not complete, bells have to be rungs for 5 minutes and it has 'nowhere been provided that the adjourned meeting would take place after a span of 15 to 20 days.
5. So far as, publication of notification in the Official Gazette is concerned, learned counsel is of the view that the Printing Press refused to publish the aforesaid notification in the Official Gazette on the pretext that Bar Council is not a Government department,' so a notification of the Bar Council cannot be published in the Official Gazette. He further stated that after obtaining legal opinion from the Law Department in the year 2012 it was concluded that orders and notifications of the Bar Council ought to be published in the Official Gazette. He further maintained that such circumstances were beyond the control of the petitioner, so law does not demand from the petitioner of such an act, which is not under his control. He has referred to PLD 1985 SC 28 in this behalf. On the point of accrued rights, learned counsel has relied on the following case-law:- i. 2008 SCR 417 ' This is a case where Benevolent Fund was proposed to be given to the employees with retrospective effect. Board of Trustees of the Employees Benevolent Fund had contended that it has sufficient funds to meet the expenses and there would be no burden on national ex-chequer, if the arrears are paid retrospectively. In such circumstances, repealing of the Act entitling the appellants to get Benevolent Fund, was held to be unjustified. Ii. 2011 SCR 390 ' Amendment under Section 2(b) of the Pakistan Administration of Evacuee Property Act, 1957 was discussed and it was held by the apex Court that the amendment would be prospective because it is evident from the amendment Act itself that it shall take effect at once. It has also been held that the repealed law shall not affect the rights, liabilities accrued to a party and the same shall continue inspite of repeal. Iii. 1983 PLC (CS) 1257 ' Section 17 of Civil Servants Act, 1973 has been discussed by the Federal Service Tribunal. It was held that remuneration attached to a post is one of the terms and condition of service guaranteed by Section 17 of the Act. This is an accrued right, which cannot be varied to a civil servant's disadvantage. Iv. 1984 PLC(C.S) 1727 ' Pay scales in the instant case were revised in the Auqaf department. The appellant had been drawing pay, according to revised pay scale for 4 months. Subsequent order stating that revised pay scale was admissible subject to certain length of service, was held to be ineffective. It was further held that such a letter cannot have retrospective effect and thus cannot deprive the official from benefit already accrued to him. v. 1985 PLC (C.S) 707 Service Tribunal Sindh.
' It was held by the Service Tribunal that rights of civil servants already accrued cannot be affected retrospectively by arbitrary orders. The petitioner was held entitled to selection grade. Vi. 1987 PLC (C.S.) 465 Service Tribunal Punjab It was held that pay fixed by Education Department at the time of nationalization of service, could not be reduced by virtue of a subsequent notification. Vii. PLD 1970 SC 439 ' It was concluded by the apex Court of Pakistan that executive authority cannot, in exercise of its rule making powers or power to amend, vary or rescind earlier order, take away the rights vested in the citizens by law. Person acquiring vested right, right to exemption from levy of exercise duty from all goods produced or manufactured by it for a period of 4 years, could not be deprived of his right by a subsequent notification. Under the pretext of Section 21 of General Clauses Act, it has further been concluded that exercise of powers under Section 12(a) to grant exemption as well as the power to withdraw the exemption under Section 21 of the General Clauses Act is unconditional. It is, therefore, not open to the Courts to go behind the notification by government on the ground that the exercise of power by the central government was improper.
6. On the other hand, Mir Sharafat Hussain, Advocate on behalf of the non-petitioners has stressed that an illegal appointment cannot be given protection by the High Court. He has relied on 1998 SCR 221, 2000 SCR 308 and 2000 SCI 547. It was held by the apex Court of the State in 1998 SCR 221 that writ jurisdiction cannot be exercised for perpetuation of an illegal order. He has further stressed that grounds for striking down a law have been elaborated in 2013 SCR 34, AIR 1979 SC 83, 2001 SCR 380 and PLD 1995 SC 66.
2001 SCR 380 ' The condition of Matriculation for eligibility to contest election for Legislative Assembly was a matter of dispute in this case. It was held that disqualification can be provided by enacting law. It was further held that law has been enacted under Section 24(2)(f) of the Constitution Act, which empowers the legislature to provide "disqualification" and "qualification". The President can promulgate Ordinance at any time and it is his prerogative to select the time for the purpose.
AIR 1979 SC 83 ' Admission of Girls to a Boys School was a subject-matter in the case. Regional Deputy Director and District Education Officer restricted the management of the Boys School to give admission to Girls in the institution. Indian Supreme Court held that such a restriction was bad in law.
PLD 1995 SC 66 ' The vesting of jurisdictional competency has been held to be of vital importance and a Court can take notice of jurisdiction even if it has not been pressed by the parties. It has further been held that provisions of General Clauses Act cannot be called in aid while interpreting the provisions of Constitution. It has further been contended by the Court that legislative act cannot be struck down by a superior Court on the grounds of male fide or no application of mind but executive action is not immune from being challenged on the said ground.
7. After considering the arguments addressed at bar, we would like to summarise the conclusion in the following manners:---
(a) Order of up-gradation of post of Secretary Azad Jammu & Kashmir Bar Council from BPS-18 to BPS-20 is bad in law for the following reasons:---
(i) It has not been published in the Official Gazette, so it does not have a legal effect. Argument of learned counsel for the petitioner that Printing Press declined to publish this order in the Official Gazette on the ground that Azad Jammu & Kashmir Bar Council is not a government institution, cannot be concurred with. The petitioner was in knowledge of the fact that correspondence between the Bar Council and the Printing Press, in this regard is under way. The matter was finally concluded in the year 2012 when the Law Department opined that orders and notifications of the Bar Council ought to have been published in the Official Gazette. Instead of waiting for a conclusion of the correspondence, the petitioner himself issued the order of up-gradation of his post, so male fide cannot be ruled out in the act of issuance 'of order of up-gradation. Obviously, the petitioner has issued this order in his own interest and without waiting for the result of correspondence between the two forums. It may be mentioned here that the petitioner could have been benefited in accordance with the decision of the Bar Council with all back benefits after a gazette notification. So, the argument that the order was issued in the circumstances which were beyond the control of the petitioner, is not valid.
(ii) The order of up-gradation of the post of Secretary Azad Jammu & Kashmir Bar Council has not been issued by the competent authority. Minutes of the meeting of Bar Council dated .20.08.2009 are a part of pleadings as annexure "RB". A perusal of the minutes transpires that some of its learned Members indicated during their address that up-gradation of the post should be done under legal framework. It was indicated by Raja Mehmood Ahmed Khan, learned Member Bar Council that the matter should be referred to Executive Committee and it should be placed before Bar Council, after approval of the Executive Committee, Raja Niaz Ahmed, another learned Member indicated that promotion of the Secretary Bar Council should be considered in view of the procedure adopted by Punjab Bar Council, Mr. Lshfaq Ahmed Chaudhry, learned Member also stated while addressing the Bar Council that the matter should be placed before Executive Committee for its approval. However, Sardar Abdul Hameed Khan, another learned Member Bar Council explained that Bar Council service rules provide that Executive Committee is empowered to look into the matters of employees of grade B-1 to B-15 and the employees of grade 16 and above are to be considered by Bar Council. So, the Secretary Bar Council should be promoted in view of the procedure adopted by Punjab Bar Council. Raja Sajjad Ahmed Khan, learned Member Bar Council expressed no objection towards promotion of Secretary Bar Council, however, he pressed that the matter should be resolved in line of the Rules. It was in these circumstances that learned Vice Chairman Bar Council concluded that all the Members have consented to the proposal of promotion of Secretary Bar Council to grade BS-20. It may be noted here that majority of the Members assented to the proposal of upgradation/ promotion of the petitioner to BS-20.
8. Functions of Executive Committee have been discussed in Chapter VIII of Azad Jammu & Kashmir Legal Practitioners and Bar Council Rules, 1998. Rule 72 provides that executive authority of the Bar Council is vested in the Executive Committee and shall be exercised either directly or through its Committees. Rule 73 further provides as under:--- ' "Without prejudice to the generality of the provisions contained in rule 72, the Executive Committee shall have the powers and functions of supervision and deal with all the matters regarding administration of the Bar Council, to recommend to the Bar Council the qualifications, terms and conditions of the staff of the Bar Council, to implement the decisions of the Bar Council and to receive and deal with the respective complaints by advocates and resolutions passed by the Bar Council.
' Subject to Bar Council appoint, remove and dismiss the staff of the Bar Council.
' Provided that the Executive Committee shall have the powers to appoint, suspend, remove or dismiss a member of the staff drawing salary upto the pay scale B-15.
' Provided further that in case of emergency the Chairman of the Executive committee may exercise these powers stating the reasons of such emergency and the matter may be placed before the Committee for -consideration/ approval without unreasonable delay."
(Underlining is for emphasis)
9. A bare perusal of Rules 72 and 73 would, thus reveal that Bar Council has to exercise its authority through the Executive Committee. Proviso attached to Rule 73 further clarifies that the Executive Committee is vested with the powers to appoint, suspend, remove, or dismiss a member of the staff drawing salary upto the pay scale BS-15. However, it has been provided in the afore- mentioned Rule that the Executive Committee is vested with the powers to appoint, remove and dismiss all the staff of the Bar Council subject to Bar Council. The words "subject to Bar Council" obviously indicate that employees of Bar Council in grade BS-16 and above are also under the executive control of the Executive Committee regarding their appointment, removal or dismissal.
Powers of the Executive Committee upto employees of BS-15 are conclusive and approval of the Bar Council is not required for such employees. However, if the Executive Committee intends to appoint, remove or dismiss employee of BS-16 or above, it has to obtain approval of the Bar Council. The petitioner in the instant case claims to have been promoted to BS-20 but the order of his appointment/up-gradation has been issued by himself as Secretary Bar Council. This order looks to have been issued in pursuance of decision of the Bar Council dated 20.08.2009. As discussed above, the matter of promotion of Secretary Bar Council from BS-18 to BS-20 should have been considered by the Executive Committee firstly and if the Executive Committee desired so, it should have been placed before the Bar Council for its approval. In our view the provision of ,Rule 73 ibid has been overlooked, so the order dated 22.08.2009, whereby post of Secretary Bar Council has been up-graded from BS-18 to BS-20, has been issued without lawful authority.
10. It may be stated here that Azad Jammu & Kashmir Legal Practitioners and Bar Council Act or Rules made thereunder do not contain a provision of up-gradation of posts. Bar Council Act is a special law which has overriding effect. So, post of Secretary Bar Council could not have been up- graded without express provision of law. However, if the Azad Jammu & Kashmir up-gradation of post Rules, 1984, applicable to the civil servants of Azad Jammu & Kashmir are stretched and applied to the case of the petitioner, it reveals that up-gradation of a post does not mean automatic up-gradation of its incumbent. For convenience, provisions of the Azad Jammu & Kashmir Up-gradation of Posts Rules, 1984 are reproduced as under:- "2. Up-gradation of a post shall imply the abolition of the existing post and creation of a new post in the higher grade.
3. Up-gradation of a post shall not mean automatic up-gradation of its incumbent.
4. Appointment to upgraded post shall have to be made in the manner prescribed for that post.
5. If a post is upgraded with immediate effect the incumbent shall be left without any post in his grade until he is approved for appointment to higher grade. Therefore, while sanctioning up- gradation of the existing posts, it shall be clearly provided in the sanction fetter that up-gradation of the post would rake effect from the date the post is filled by a person in the higher grade. Until the incumbent is formally appointed to higher grade the post and the incumbent would continue in the lower grade."
11. If the order of up-gradation dated 22.08.2009 is examined in view of the afore-mentioned Rules, it becomes evident that post of Secretary Azad Jammu & Kashmir Bar Council has been up- graded and the petitioner has not promoted to BS-20 via the impugned order. The petitioner cannot, thus, claim title to remuneration and perquisites of grade 20 in pursuance of the order dated 22.08.2009.
12. Now comes the question that whether Bar Council is empowered to frame Rules regarding appointment etc. Of its employees? Section 53 of the Azad Jammu & Kashmir Legal Practitioners and Bar Council Act, 1995 empowers the Council to frame Rules. Clause "h" of the aforesaid Section relates to qualification and terms and conditions of service of staff to be employed by the Bar Council. The Bar Council has framed Rules of 1998 in pursuance of the Bar Council Act, so there is no cavil that Bar Council is empowered to frame Rules regarding terms and conditions of its employees. The objection raised by learned counsel for the petitioner in this context is that Rules detrimental to benefit of an employee cannot be framed or amended by the Bar Council. He has further stated that accrued rights cannot be snatched by way of using powers of amending the Rules. Section 21 of the General Clauses Act provides that power to make includes power to add, to amend, very or rescind Order, Rules, or bye-laws, whereas Section 6 of the same Act lays down effect of repeal of enactment. Clause (c) of Section 6 provides that the repeal shall not affect any right, privilege, obligation, liability accrued or included in any enactment, so repealed. A perusal of this provision of law, thus, indicates that repeal of an enactment shall not have retrospective effect unless it is otherwise intended. If the matter at hand is seen in accordance with the provision of Section 6 of General Clauses Act, it is evident that retrospective effect has not been given to the amended Rules and Rules are obviously prospective in nature. Learned counsel for the petitioner has perhaps mis-conceived the argument by contending that the impugned amendment has snatched away the rights which have accrued to the petitioner. As stated earlier, Section 21 of the General Clauses Act empowers a body to amend, vary or rescind an enactment, so, the Bar Council has competently used its powers by amending Rules and providing a different structure of service to the employees of the Bar Council. It may be stated here that if explanation furnished by learned counsel for the petitioner is admitted as true, Sections 6 and 21 of the General Clauses Act would then be self-destructive, which is not the intention of the legislature, obviously. It may also be stated here-that Bar Council has restructured the services of its employees by introducing new grades and new pay scales of its. Employees. Background of restructuring has been explained in the minutes of meeting of the Bar Council and it. Abundantly clear from the diagram appended with the written statement that a bulk of income of the Bar Council is being spent on pay and privileges of its employees and for this purpose Bar Council has to spend amount from other items of the budget as well. Financial crunch in the Bar Council is obvious from the record, annexed with the written statement, so mala fide cannot be attached to the impugned amendments on the grounds of morality as well as on legal grounds.
13. Learned counsel for the petitioner has tried to defend the order of up-gradation of the post of Secretary Bar Council on the basis of parity with Punjab. Learned counsel has referred to proceedings of the meeting of the Bar Council. In this regard, however, he could not produce any single notification which admits the rule of parity with Punjab. The only circular regarding parity has been issued by Senior Secretary Azad Jammu & Kashmir Muzaffarabad on 16.01.1969, wherein it has been stated that Government of Azad Jammu & Kashmir has admitted the rights of nongazetted civil servants in equivalence with the neighbouring Province of West Pakistan. Obviously, this circular does not benefit the petitioner.
14. The petitioner has based his claim through the instant writ petition as Secretary Bar Council BS-
20. It has been discussed earlier that the petitioner has not been promoted to BS-20 in accordance with law, so the writ petition in the present shape is not maintainable and the petitioner does not fall in the definition of an aggrieved person for the same reason.
' Nutshell of the above discussion is that the writ petition being devoid of force is dismissed with no order as to costs.