JUDGMENT: Mohammad Azam Khan, CJ.-The titled appeals with the leave of the Court arise out of the judgment of the High Court dated 16.12.2013, whereby the writ petition filed by the respondents, herein, has been accepted and Ordinances No.LD/Legis-Ord./728-38/2012 dated 27.11.2012 and No.LD/Legis-Ord/312-323/2012 dated 9.7.2012 have been declared to be ultra vires the Azad Jammu & Kashmir Interim Constitution Act, 1974 (to be referred hereinafter as the Constitution Act) and the Public Service Commission Act, 1986 (to be referred hereinafter as the Act, 1986) and the appointments of Chairman and Members made on the basis of the said Ordinances, have been declared illegal for having been made without lawful authority. The High Court has also declared that the President cannot re-enact an ordinance while exercising powers as visualized by the Constitution Act.
2. The President of Azad Jammu & Kashmir on 9th July 2012, issued Ordinance No.XXX of 2012, whereby Section 2 of the Act, 1986 has been substituted, section 3 has been amended and Section 4-A has been added in the said Act. On 27.11.2012, the same ordinance has been reissued by the President under No.LXVIII of 2012 and under the provisions of the amended Ordinance, on 9.7.2012, appellants No.1 to 10 in Civil Appeal No.9/2014 were appointed as Chairman and members of the AJ&K Public Service Commission. Respondents, Raja Muhammad Faruq Haider Khan, ex-Prime Minister of Azad Jammu & Kashmir and Leader of the Opposition and a member of the Legislative Assembly of Azad Jammu & Kashmir, along with respondent No.2, challenged the said ordinances by filing writ petition on 13.4.2013 on the ground that the amendment is ultra vires Sections 4(1)(2) and 48 of the Constitution Act and provisions of the Act, 1986. The powers of the President under Section 41 of the Constitution Act for re-enacting an ordinance were also challenged and it was prayed that the appointment of the appellants, herein, may be declared against the Constitution, law and the procedure. After necessary proceedings, the High Court vide its judgment dated 10.9.2013 accepted the writ petition, declared the ordinances ultra vires the Constitution and set aside the appointment orders of the appellants, herein. This Court vide judgment dated 28.11.2013 accepted the appeals filed by the appellants, herein, and respondents, herein, and remanded the case to the High Court for decision afresh apart from the others on the following points, after hearing the parties:- i) the scope and power of the president under the provisions of section 41 of Act, 1974 in relation to promulgation of the ordinance specially, despite session of Azad Jammu & Kashmir Assembly and not laying the same before the Legislative Assembly; ii) whether the president can re-enact or promulgate fresh ordinance on the same subject matter or not in presence of Legislative Assembly; iii) whether in the light of the record appointment of Chairman and members of public service commission have been made in a prescribed mode according to law or not, and; iv) the point of inconsistency of promulgated ordinances with the constitutional provision on the touchstone of which the promulgated ordinances have been declared as ultra vires the Constitution.
The matter was placed before the larger bench of the High Court consisting of the full Court. The High Court accepted the writ petition in the terms indicated above. Since both the appeals arise out of the same judgment, hence these are proposed to be decided through this single judgment.
3. Mr. Abdul Rasheed Abbasi, advocate, while arguing on behalf of the appellants, submitted that the judgment of the High Court is against law and the record. The Azad Jammu & Kashmir Public Service Commission Act was enforced in the year 1986. No qualification for the members of the Public Service Commission is provided in the said Act. An amendment has been introduced in the Public Service Commission Act through an Ordinance on 9.7.2012, whereby the definition clause has been substituted. The qualification of members has been introduced and number of the members has also been increased. In the amending ordinance an education committee has been provided for the improvement of education services. Through Section 4-A of the amending Ordinance, oath of the office has been provided. None of the provisions of the amending ordinance is ultra vires the provisions of Sections 4(1)(2) and 48 of the Constitution Act and the provisions of the Act, 1986. The provisions of a law cannot be struck down on the ground that these are based on mala fide. The provisions of a law can be struck down only if these are against the provisions of the Constitution.
The respondents challenged the ordinances on three grounds that the amendment is against the constitutional provisions, it is against fundamental rights and it has been affected with mala fide reasons to promote nepotism. A law cannot be struck down on the ground that it is based on mala fide or it will promote nepotism. The law can be struck down only if it is against the clear constitutional provisions or against the fundamental rights. Respondents failed to point out any violation of the fundamental rights or violation of any other provisions like Sections 4(4)(1) and 48 of the Constitution Act in the amending ordinance. The Court cannot substitute its wisdom to that of the legislature. The learned counsel referred to and relied upon the cases reported as Pir Sabir Shah vs. Shad Muhammad Khan, Member Provincial Assembly NWFP & another [PLD 1995 SC 66], Dr. Muhammad Akram vs. Allotment Committee, Mirpur Development Authority [PLD 1985 SC (AJ&K)
113], Chief Election Commissioner AJ&K & others vs. Abdul Majid & 2 others [PLD 1985 AJ&K 120], Gul Sher Khan vs. Muhammad Ilyas & others [1994 SCR 281], Azad Government & 3 others vs. Genuine Rights Commission AJ&K & 7 others [1999 SCR 1] and Fauji Foundation & another vs. Shamimur Rehman [PLD 1983 SC 457]. The learned counsel submitted that the amending ordinance has been issued for improvement of the functions of the Public Service Commission. In the original Act, 1986 no qualification was provided for appointment of a member of the Public Service Commission.
Now, through the amending ordinance it has been provided that an outstanding person having good reputation and educational background of not less than a graduate is eligible for appointment as member, which is in clear terms an improvement in the functioning of the Public Service Commission. The learned counsel submitted that number of the members as provided in Section 3(3) of the Act, 1986, has been increased in Section 3(3) from seven to ten. Three of them should be from education service. Increase in the number of members is not ultra vires the provisions of Sections 4(1)(2) and 48 of the Constitution Act. The number has been increased due to heavy load of work. Even otherwise, the President is empowered under Section 3 of the Act, 1986 to increase the number of members as and when required, therefore, there is no effect of amendment. Through Section 4 A of the Act, 1986, the Chairman and members have to take oath before entering in the office. This all has been done to ensure impartiality. The learned counsel submitted that the High Court has observed in the judgment that definition clause has been substituted, and definition of education service of Azad Jammu & Kashmir has been deleted and instead education service has been provided in the amending ordinance, therefore, the purpose of the Public Service Commission has been reduced only to education service. This finding is not maintainable because the functions of the Commission have been provided in Section 7 of the Act, 1986 and in Section 7(a), the function of the Public Service Commission is shown to conduct the test and examination for recruitment to the civil service of Azad Jammu & Kashmir and such post in connection with the affairs of the Government as may be prescribed by the Rules. No amendment has been affected in Section 7, therefore, the finding recorded by the High Court that the purpose of the Public Service Commission has been reduced to the education service only, is not correct interpretation of the law, which is not maintainable. The learned counsel submitted that education policy was introduced in Pakistan in the year 2009, which was adapted in Azad Jammu & Kashmir and for achieving the goals of education policy, the amendment has been brought in the Act 1986 for the improvement of quality education and number of members has been increased to meet the load of work in the Public Service Commission. The learned counsel submitted that the Ordinance was promulgated on 9.7.2012. The appointment orders of the appellants were issued on 20.11.2012 when the first amending ordinance was not in existence. For the sake of arguments, if it is admitted true that the ordinance cannot be repeated, then too, the appointments were made in the light of original ordinance because at the expiry of temporary legislation, permanent legislation is restored, therefore, the appointments are valid. The learned counsel submitted that the service of Azad Jammu & Kashmir is defined in the original Act, 1986 as the service of Azad Jammu & Kashmir means as defined in the Constitution Act. The definition in the Constitution is intact. The deletion of definition of service doesn?t affect the function of the Public Service Commission.
4. It is next argued by the learned counsel for the appellants that under Section 41 of the Constitution Act, the President has powers to issue the ordinance. These powers are not restricted to be exercised only once rather these can be exercised repeatedly. The Court has to interpret the law as it is and not as it ought to be. The learned counsel heavily relied upon the judgment of this Court reported as Raja Muhammad Niaz Khan, Ex-Chairman Azad Kashmir Mineral & Industrial Development Corporation vs. Azad Government of the State of Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K) 53] and argued that this Court has observed in the said case that under Section 41(3) of the Constitution Act, the President has power to issue ordinance and repeat the same and the President can prorogue the session of the Legislative Assembly for issuing the ordinance. He referred to the cases reported as Chief Election Commissioner AJ&K & others vs. Abdul Majid & 2 others [PLD 1985 AJ&K 120], [PLD 1985 SC 66], Novelty Enterprises Ltd. Vs. Deputy Collector & 5 others [2001 SCR 191] and Federation of Pakistan & others vs. M. Nawaz Khokhar & others [PLD 2000 SC 26]. The learned counsel submitted that the ordinance has validly been issued by the President. He argued that under Section 42(b) of the Constitution Act, the judgment of this Court is binding on all the Courts and authorities to the extent it decides the question of law. The President has been enacting and reenacting the ordinance in the light of law laid down by this Court in Raja Niaz Ahmed Khan's case. The judgment of the apex Court was binding on the High Court. The High Court cannot hold contrary to the judgment of this Court, which was holding the field till the judgment of the High Court. The learned counsel vehemently argued that the High Court has misinterpreted the provisions of the Rules of Business, 1985. The Public Service Commission is a special institution of the Services & General Administration Department as laid down at serial No.18 of schedule 1 of the Rules of Business. No specific procedure for approval of the President has been provided in the Rules of Business. Item 18, schedule V of the Rules of Business only provides the list of cases to be submitted to the President for his approval before issuance of order. Under Section 7 of the Constitution Act, the President has to act on the advice of the Prime Minister. The Prime Minister advised the President for appointment of Chairman and members and the President accorded the approval. The appointment orders of the appellants are perfectly legal.
The finding recorded by the High Court on this score is not maintainable. The learned counsel requested for acceptance of appeal.
5. While controverting the arguments Raja Sajjad Ahmed Khan, advocate, counsel for the respondents in both the appeals, submitted that the judgment of the High Court is perfectly in accordance with law. By issuing the amending ordinance, provisions of Sections 4(1)(2) and 48 of the Constitution Act and provisions of the Act 1986 have been violated by deleting the definition of service of Azad Jammu & Kashmir. By deleting the service of Azad Jammu & Kashmir and instead of that providing the definition of Education Service?, the scope of the Act 1986 has been curtailed only to the education service and virtually the purpose of the Public Service Commission has been confined to education service and all other services have been kept out of the purview of the Act, 1986. The learned counsel submitted that the purpose of brining the amendment is only to accommodate the kith and kin of the Government and for promoting nepotism in an indirect manner. The learned counsel relied upon the cases reported as Azad Jammu & Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341] and Azad Government & 3 others vs. Genuine Rights Commission AJ&K & 7 others [1999 SCR 1]. It was further argued by the counsel for the respondents that under Section 41(3) of the Constitution Act, the President has no power to repeat an ordinance. The learned counsel vehemently argued that the appointments of the appellants have been made against Rule 11 of the Rules of Business, 1985. He argued that no summary for appointment of the appellants was initiated. The appointments were made without advice of the Prime Minister, without any record and these are in clear violation of law and not maintainable. The High Court has correctly declared the appointments being against the provisions of the Rules of Business. The learned counsel submitted that the function of the Public Service Commission is to conduct test and examination to the recruitment in the civil service of Azad Jammu & Kashmir and such purpose can only be achieved by appointing the persons of extraordinary knowledge and reputation but the amendment has been introduced to accommodate the favorites. The learned counsel referred to the cases reported as Chief Secretary Punjab & others vs. Abdul Raoof Dasti [2006 SCMR 1876] and Corruption in Hajj Arrangements, in 2010, in the matter of suo motu case No.240/20120[PLD 2011 SC 963]. He defended the judgment of the High Court on all counts and requested for dismissal of appeals.
6. We have heard the learned counsel for the parties, perused the record and the judgment of the High Court with utmost care. Three questions need resolution by the Court are;
(a) whether the amending ordinances are inconsistent with the constitutional provisions and are ultra vires the Constitution;
(b) whether under Section 41 of the Constitution Act, the President can re-enact or re-promulgate ordinance on the same subject matter in the presence of Legislative Assembly; and
(c) whether in the light of record, the appointments of Chairman and Members of the Public Service Commission have been made in prescribed mode provided by law or not.
7. Firstly, we would like to look into the vires of amending ordinances whether these are inconsistent with the provisions of the Constitution and fundamental rights guaranteed by the Constitution.
Section 48 of the Constitution Act provides for the establishment of Public Service Commission.
Section 48 of the Constitution Act lays down that there shall be a Public Service Commission for Azad Jammu & Kashmir. It shall consist of such number of members including a Chairman and perform such functions as may be prescribed and Section 49 of the Constitution Act provides the service of Azad Jammu & Kashmir which lays that the appointment of persons to and the terms and conditions of service of persons in service of Azad Jammu & Kashmir may be regulated under the law subject to this Act. In the light of Section 48 of the Constitution Act, Azad Jammu & Kashmir Public Service Commission Act, 1986 (Act XVII of 1986) was enforced on 9.3.1986. It may be observed that before the enforcement of Azad Jammu & Kashmir Interim Constitution Act, 1974 there was no Public Service Commission in existence. For the first time the Public Service Commission (Functions) Rules, 1978, were introduced and thereafter the Act, 1986 was enacted. The Act, 1986 has been amended a number of times and last amendment was introduced through amending ordinance No.LXVIII of 2012, issued on 9.7.2012, whereby Section 2 of the Act, 1986 was substituted, section 3 was substantially amended and Section 4-A was added. For proper appreciation Sections 2 and 3, enforced before July 2012 and amended sections as well as permeable of the amending ordinance are reproduced as under:- "2. Definitions: In this Act, unless there is anything repugnant in the subject or context:
(a) "Commission" means the Azad Jammu & Kashmir Public Service Commission;
(b) "Government" means the Azad Government of the State of Jammu & Kashmir;
(c) "Member" means a member of the Commission and includes the Chairman thereof;
(d) "President" means the President of Azad Jammu & Kashmir;
(e) "Service of Azad Jammu and Kashmir" means the service of Azad Jammu and Kashmir as defined in the Azad Jammu & Kashmir Interim Constitution Act, 1974
3. Composition of Commission, etc.-(1) There shall be an Azad Jammu & Kashmir Public Service Commission consisting of the following four members:-
(i) one Chairman;
(ii) an honorary Member;
(iii) an ex-officio member; and
(iv) Director Ammor-i-Deenia, Member
(2) The Chairman and other members of the Commission shall be appointed by the President.
(3) Two members of the Commission shall be persons who have held office in the service of Azad Jammu & Kashmir for not less than twenty years.
(4) The pay and other conditions of service of members shall be such as may be determined by the President.
Provided that the salary, allowances and privileges of a member of the Commission shall not be varied to his disadvantage during his term of office."
Preamble and amended Sections 2, 3 & 4-A of the Amending Ordinance as under: "Whereas, it is expedient to amend the Azad Jammu & Kashmir Public Service Commission Act, 1986 (Act XVII of 1986), in order to improve the education standard and to ensure the recruitment to teaching and administrative cadre of education service on merit in accordance with National Education Policy, 2009 as adapted in Azad Jammu & Kashmir and the matter connected therewith and ancillary thereto: .......................
(1) ................
2. Definitions: In this Act, unless there is anything repugnant in the subject or context:
(a) "Act" means Azad Jammu & Kashmir Public Service Commission Act, 1986.
(b) "Commission" means the Azad Jammu & Kashmir Public Service Commission;
(c) "Education Service" means civil servants belonging to teaching and administrative cadre of Education Department.
(d) "Education Service Committee" means a committee constituted for recruitment to the posts of Education Service.
(e) "Government" means the Azad Government of the State of Jammu & Kashmir.
(f) "Member" means a member of the Commission and includes the Chairman thereof.
(g) "President" means the President of Azad Jammu & Kashmir;
(h) "prescribed" means prescribed by rules made under the Act.
3. Amendment of Section 3-(i) In sub- section (1) the word "seven" shall be substituted by word "ten".
(ii) Sub-section (3) shall be substituted as under:- (3)(i) seven members of the commission shall be appointed from amongst the retired civil servants or other outstanding persons having good reputation and educational background of not less than graduation from any recognized university.
(ii) Three members of the Commission shall be educationists to be appointed from amongst the eminent educationists or scholars having good reputation and experience of not less than ten years of teaching or administration or both.
(iii) The Education Service Committee shall be comprising of three members including at least two educationist members.
4-A Oath of office. Before entering upon his office Chairman and member shall take oath in the form set out in the schedule to this Ordinance before the President in case of Chairman and before the Chairman in case of a member."
A comparative study of the Act, 1986 enforced before July 2012, the amended ordinance and the preamble of amending ordinance reveals that the amendments have been introduced to improve the education standard and to ensure the recruitment to teaching and administrative cadre of education service on merit in accordance with National Education Policy, 2009, as adapted in Azad Jammu & Kashmir and the matter connected therewith and ancillary thereto. Section 2 of the Act, 1986 relating to the definitions, has been substituted through amending ordinance. The definition of service of Azad Jammu & Kashmir? Has been deleted in the new section and instead the definitions of "Act", "Education Service", "Education Service Committee" and "Prescribed" have been inserted and defined in the amending ordinance. By amending Section 3, the number of members of Public Service Commission has been increased from seven to ten and it has been provided that seven members of the Commission shall be appointed from amongst the retired civil servants or other outstanding persons having good reputation and educational background of not less than graduation from any recognized university. Three members shall be the educationist to be appointed from amongst eminent educationists or scholars having good reputation and experience of not less than ten years of teaching or administrative cadre or both and the education service committee shall comprise of three members including at least two educationist members. The newly introduced section 4(A) of the Act, 1986, provides for oath of the office that the Chairman before entering into office shall take oath under the form set out in the schedule before the President and a member shall take oath before the Chairman. The only difference in both the amended and un-amended sections is that the definition of service of Azad Jammu & Kashmir?
Has been deleted and Education Service? And Education Service Committee? Have been introduced. The qualification of a member has been provided which was nonexistent in the original Act and also number of members has been increased.
8. Sections 48 and 49 of the Constitution Act provide for the establishment of the Public Service Commission and service of Azad Jammu & Kashmir. The Constitution Act provides that if a person wants to enter into the service of Azad Jammu & Kashmir, he shall apply to the Public Service Commission whenever a post is advertised. The function of the Public Service Commission is that whenever the post in the service of Azad Jammu & Kashmir falls vacant and is referred to the Public Service Commission, the Commission shall advertise the same and after receiving applications, conduct test and interview for the said post, and it shall forward its recommendations to the Government for appointment, as laid down in Section 7 of the Act, 1986 and rules made thereunder. The scope of functions of the Public Service Commission came under consideration of this Court in the case reported as Azad Jammu & Kashmir Government & others vs. Muhammad Younas Tahir & others [1994 SCR 341], wherein it was observed as under:- "In accordance with the scheme laid down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the rules made under them, if a citizen wants to enter the civil services of Azad Jammu and Kashmir in grade l6 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission holds written and oral tests and on the basis of merit recommendations are formulated. For every post there are hundreds of applicants although they are less in posts of specialized nature. It means that a person stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliance and hard work prove themselves to be the best among the contestants. This is the plain requirement of the laws which apply to all State subjects but the Regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by operation of law by depriving people like Javed Iqbal Khawaja who is un-employed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existing laws but has been taken away.
It is legal requirement, as evidenced by section 48 of the Azad Jammu and Kashmir Interim Constitution Act read with Public Service Commission Act and with Public Service Commission (Functions) Rules that the merit and suitability of the candidates must be judged by the Public Service Commission. Therefore, this function cannot be performed by any other authority. In the present case this job has been performed by the legislature through the Regularization Act, which declared them validly selected without going through the selection procedure."
9. The amending ordinance has been challenged on the ground that it is ultra vires the provisions of the Constitution Act and the provisions of the Act, 1986. Section 4(1) of the Constitution Act postulates that any law or any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void. For proper appreciation Section 4(1)(2) of the Constitution Act is reproduced as under:- "4. Fundamental Rights.-(1) Any law or any custom or usage having the force of law insofar as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void.
(2) No law shall be 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 contravention, be void."
A plain reading of Section 4(1) and (2) of the Constitution Act categorically shows that any law which is inconsistent with the rights guaranteed by the Constitution in section 4(4), to the extent of such inconsistency is void and the legislature shall not make any law which takes away or abridges the rights so conferred by this Section, and shall be void to the extent of such contravention. The judiciary is the interpreter of the Constitution and has been assigned delicate task of determining the extent of the powers conferred upon the Government and the legislation by the Constitution.
The Courts are under solemn duty to protect the fundamental rights guaranteed by the Constitution zealously and vigilantly. The judicial review by the courts is the basic feature of the Constitution and the power of judicial review be exercised while keeping in view the trichotomy of power. The Court, shall not encroach upon the domain of other constitutional branches.
Constitution confers powers in the Courts to determine the legality of executive actions and the constitutionality of legislation passed by the legislature. The constitutionality of legislation is always examined by the superior Courts in exercise of power of judicial review. The legislative actions are subject to scrutiny by the superior Courts to determine their compatibility or otherwise with the terms of a written Constitution. Corresponding provisions exist in article 8 of the Constitution of Islamic Republic of Pakistan, 1973. Fundamental rights are provided under the United Nations Declaration of Human Rights, 1948 and are enshrined in almost all the constitutions of the world.
The constitutional provisions guaranteeing the rights, have to be liberally interpreted. The concept for providing the fundamental rights is that the executive has no power to interfere with the liberty of a person and fundamental rights guaranteed under the Constitution are paramount in comparison to subordinate laws. The legislature and executive have no power to take away these rights. Section 4(2) of the Constitution Act prohibits the State including legislature from making any law by which any fundamental right may be curtailed or taken away and if any law is made to this effect, then to the extent of such contraventions, it shall be void. In the case reported as Mohtarma Benazir Bhutto & others vs. President of Pakistan & others [PLD 1998 SC 388] while dealing with the question of supremacy of the Constitution it was observed in para 160 as under:- "160. Constitution is the supreme law of the land to which all laws are subordinate. Constitution is an instrument by which Government can be controlled. The provisions in the Constitution are to be construed in such a way which promotes harmony between different provisions and should not render any particular provision to be redundant as the intention is that the Constitution should be workable to ensure survival of the system which is enunciated therein for the governance of the country. It is held in opinion of the Supreme Court in Special Reference No.1 of 1957 (PLD 1957 SC 219) that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. Ln support of the proposition, reference can also be made to the cases of State v. Zia-ur-Rehamn (PLD 1973 SC 49) and Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151). In the case of Nawaz Sharif also, on the subject of interpretation of the Constitution, it is held that, while interpretation of the Constitution, it is held that, while interpreting fundamental rights, the approach of the Court should be dynamic, progressive and liberal keeping in view ideals of the people, socio-economic and politico-cultural values which in Pakistan are enshrined in the Objectives Resolution so as to extend the benefit of the same to maximum possible. In the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324), it is held that approach of the Court while interpreting a constitutional provision has to be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. Court's efforts should be to construe the provision broadly, so that it may be able to meet the requirement of ever changing society. General words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In the case of Khalid Malik v. Federation of Pakistan (PLD 1991 Karachi 1) on the subject of interpretation of the Constitution a very pertinent observation is made at page 68 which is reproduced as under:-- The Constitution is a living organism and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future. Constitution is the symbol of statehood keeping united people of different races, diverse cultural; social, economic and historical traditions. It provides a method of legitimacy to the Government. It is the power behind the organs and institutions created by it. Constitution must be interpreted keeping l view the entire canvass of national fabric be it political, social, economic or religious."
In the case reported as Fauji Foundation & another vs. Shamimur Rehman [PLD 1983 SC 457], it was held that while examining the vires of an act the powers of the Court are limited. The scope of judicial review is confined to the enforcement of Constitution as supreme law. It was observed at page 546 as under:- "Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, "its is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.
68. Clearly, therefore, the scope of judicial review is confined to the enforcement of the Constitution as supreme law. Aside from the inherent prerogative to interpret the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the legislator if however doesn?t extend."
In the case reported as Baz Muhammad Kakar & others vs. Federation of Pakistan through Ministry of Law, Justice, Islamabad, & others [PLD 2012 SC 870], it was observed as under:- "13. It may be mentioned that this Court has the power of judicial review to examine the constitutionality of any provision of any enactment, if the same is found to be contrary to the Fundamental Rights as well as constitutional provisions. A perusal of COCA 2012 suggests that it has been promulgated in haste obviously for reasons which have been admitted by learned counsel for the Federation in the wake of history of the impugned legislation narrated hereinabove, including the recent decision of 7-Member Bench passed on 26-4-2012, in pursuance whereof the then Prime Minister was found guilty of contempt of Court followed by another judgment declaring him to be disqualified from being a member of Parliament in terms of Article 63(1)(g) of the Constitution.
14. The apprehensions expressed by the learned counsel for the Federation are unfounded. Pakistan has a written Constitution and all the organs of the State, namely, legislature, executive and the judiciary are functioning within their respective domains. The judiciary has never claimed supremacy over other organs of the State. However, it has a duty to interpret the Constitution and law as well as to examine the constitutionality of any law if it is concluded that it has been promulgated in derogation of the Fundamental Rights as envisaged by Article 8 of the Constitution, or where any of the provision of any law is found contrary to the Constitution. It is also one of the recognized principles of jurisprudence that person specific laws cannot be promulgated because such exercise instead of promoting the administration of justice causes injustice in the society amongst the citizens who are being governed under the Constitution....."
In the case reported as Wattan Party through President vs. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad &others [PLD 2006 Supreme Court 697], it has been observed as under:- "47. Article 8 of the Constitution grants the power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights. However, at the same time this Court is empowered to declare any legislation contrary to_ the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaqat Hussain v.
Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent."
In the case reported as Dr. Mobashir Hassan & others vs. Federation of Pakistan & others [PLD 2010 Supreme Court 265], it has been observed as under:- "170. It is also to be noted that while examining the vires of a Statute, the court is free to examine the same on the touchstone of different constitutional provisions as it has been held In Muhammad Mubeen-usSalam vs. Federation of Pakistan [PLD 2006 SC 602]. `52. In this behalf it may be noted that this Court, in exercise of constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well-settled by this time that being the apex Court, it has also been vested with inherent Powers to regulate its own authority of judicial review, inasmuch as, that in Zafar Ali Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that `so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the superior courts?. Arguments by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, section 2-A of the STA, 1973, can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qadir Chowdhry (ibid) would indicate that superior Courts have inherent duty, together with the appurtenant power, to entertain and enforce the provisions of the Constitution in any case coming before them.? In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that " in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the constitutional provision in the absence of any bar either expressed or implied." Similarly, in Messer Electric Lamp Manufactures of Pakistan Ltd. Vs. The Government of Pakistan (1979 PTD 42), it has been held that "the parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended, the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution." Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it High School held that " when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, it is not because the power is superior in degree or dignity to the legislative power? But because it enforces the Constitution as paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.? In the case of Liaqat Hussain v.
Federation of Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a constitutional provision. In Collector of Customs & others vs. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of preshipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights.?"
10. The question, whether the provisions of amending ordinance are against the provisions of Section 48 and fundamental rights enshrined in Section 4(4) of the Constitution Act, is to be judged in the light of provisions of the Act itself. The Constitution is a sacrosanct document which establishes various institutions, apparatus of the Government, defines the relationship between the individuals and the State and the rights guaranteed to the citizens/State subjects. It is the duty of the Court to interpret the Constitution and implement its provisions, if any law is enacted, which is against the provisions of Section 4(2) of the Constitution Act, it is a void law and cannot co-exist in the presence of Section 4(2) of the Constitution Act. Respondents have not challenged the provisions of the original Act, 1986 and only challenged the amending ordinance. If the original provisions of Act, 1986 are not ultra vires, how any amending ordinance providing similar provision is ultra vires the constitution? In section 2 of the original Act, 1986, the definition of "service of Azad Jammu & Kashmir" existed, which has been deleted in the amending ordinance and instead of that "Education Service" and "Education Service Committee" have been provided. It is argued by the counsel for the respondents that by deleting the words "service of Azad Jammu & Kashmir" and providing the definition of "Education Service" the functions of the Public Service Commission have been curtailed and confined only to the extent of "Education Service". The functions of the Commission are defined in Section 7 of the Act, 1986 which postulates that the Public Service Commission shall conduct test and examination for recruitment to the civil service of Azad Jammu & Kashmir and such post in connection with the affairs of the Government as may be prescribed by Rules made thereunder. Under section 11 of Act, 1986 the Commission has to advise the President on matters relating to qualifications for, and method of recruitment to, the services and posts referred to in clause (a) and any other matter which the President may refer to the Commission. No amendment has been brought in Section 7 and functions of the Public Service Commission have not been curtailed, primary function of which is to conduct the test and examination for recruitment to the civil service of Azad Jammu & Kashmir and such post in connection with the affairs of the Government as may be prescribed by rules. Functions of the Public Service Commission have not been affected by deleting the definition of service of Azad Jammu & Kashmir'. The service of Azad Jammu & Kashmir' is defined in Section 2 of the Constitution Act, which provides that the service of Azad Jammu & Kashmir means any service, post or office in connection with the affairs of Azad Jammu & Kashmir including the Council, but doesn't include service as Chairman of the Council, President, Speaker, Deputy Speaker, Prime Minister, Minister, Federal Minister, In-charge of the Council Secretariat or Advisor appointed under Section 21, Parliamentary Secretary, Advisor to the Prime Minister or a member of the Assembly or member of the Council. The functions of AJ&K Public Service Commission under the Act, 1986 are confined to the service of Azad Jammu & Kashmir? And such post in connection with the affairs of Azad Jammu & Kashmir and not the Council, as such the definition of service of Azad Jammu & Kashmir? Provided in the Constitution Act is fully applicable in the case. The deletion of definition of service of Azad Jammu & Kashmir will not affect the constitutionality or any fundamental rights guaranteed under Section 4(4) of the Constitution Act. It has been argued by the counsel for the appellants that the definition of "Education Service" and "Education Service Committee" have been provided in Section 2 of the amending ordinance in the light of education policy of the Government of Pakistan formulated in the year 2009 which has been adapted by the Azad Jammu & Kashmir Government in the same year. The definition has been provided for achieving the purposes of education policy. He referred to chapter 6.1(5) of the Education Policy. A perusal of Chapter 6.1(5) of the Education Policy reveals that in the education policy, it has been laid down that the "Government shall take steps to ensure the education recruitment, professional development, promotion and posting are based on merit and merit alone." The function of the Public Service Commission is to conduct test and interview for the service of Azad Jammu & Kashmir as laid down in Section 7 of the Act, 1986. The Public Service Commission conducts test and interview and makes recommendations for appointment to the service of Azad Jammu & Kashmir including the post in connection with the affairs of Azad Jammu & Kashmir. The jurisdiction of the Public Service Commission under Section 7 of the Act, 1986 extends to all civil services of Azad Jammu & Kashmir.
Specifically mentioning of Education Service? And Education Service Committee? Appears to be unnecessary. An amendment was introduced in the Act, 1986 in the year 1991, whereby Section 7-A was added which provides that the Chairman of the commission may, with the approval of the Government, make rules for regulating the conduct of the business of the commission, and such rules may provide for any of the functions of the Commission specified by it being performed by a Committee composed of two or more members, constituted by the Chairman for the purpose. This provision already empowers the Chairman to constitute a committee which shall consist of not less than two members for conducting the business of the Commission and any of its functions. In the presence of this provision, providing of Education Service' and Education Service Committee' appears surplus. The preamble indicates that the amendment is being brought to improve the education standard and to ensure the requirement of teaching and administrative service on merits. The recruitment in service of Azad Jammu & Kashmir on merit is the duty of Public Service Commission.
It appears that apparently no useful purpose will be served by the introduction of Education Service' and Education Service Committee', however, when judged on the touchstone of Sections 48, 49 and 4(4) of the Constitution Act, the provision is not in contravention of the Constitution.
11. In the amending Section 3 of the Act, 1986, the number of members has been increased from seven to ten. This power was already available in section 3(1) of the unamended Act of 1986 to the President that the President may increase the number of members for such period as he may determine and may appoint one or more persons in the service of Azad Jammu & Kashmir to be member's ex-officio for the discharge of such functions as he may determine. In the presence of said provision, the amendment specifically for increasing the number of members from seven to ten seems to be surplus, however, it is not in contravention of Sections 48, 49 and 4(4) of the Constitution Act.
12. In the newly introduced Section 3(1), the qualification of graduation has been provided which was not available in the original Act, 1986. A graduate, either from retired civil servants or outstanding persons having good reputation is qualified to be appointed a member. The Education Committee under Section 3 shall consist of eminent educationists or scholars having good reputation and experience of not less than ten years of teaching or administrative cadre or both, which shall consist of at least two educationist members.
It may be observed that the laws applicable in Pakistan particularly in Punjab province are adapted in Azad Jammu & Kashmir and rule of parity with Pakistan and Punjab is applicable in Azad Jammu & Kashmir. The privileges and benefits are claimed which are admissible in all the fields of life in Pakistan, particularly in Punjab but where the question arises to that of protection of rights of the people, instead of performing the functions or acts according to law and the Constitution, criteria based on favoritism and nepotism is fixed, which is not permissible. The Public Service Commission is the most important constitutional organ of the State, the functions of which are to conduct test and examination for the recruitment to the civil service of Azad Jammu & Kashmir and such post in connection with the affairs of the Government. The persons inducted in the service of Azad Jammu & Kashmir have to remain in the Government service for more than thirty years and future of the generations in Azad Jammu & Kashmir depends upon such persons, who are inducted in service through the Public Service Commission. The Federal Public Service Commission and Punjab Public Service Commission consist of such persons, who are highly qualified and persons of high reputation and integrity. It will be useful to reproduce here the relevant provisions of Federal Public Service Commission of Pakistan and Punjab Public Service Commission, which are as under:- Federal Public Service Commission "3. Composition of Commission, etc.---
(1) .......................
(2) ..................................
(3) ...............................
(4) The Commission shall have:
(a) not less than one-half of the members who shall be persons having held in the service of Pakistan in basic pay scale 21 or above post; Provided that no serving Government servant shall be appointed as a member;
(b) at least one member each from
(i) retired judges of the superior judiciary;
(ii) retired officers not below the rank of Major-General or equivalent of the Armed Forces; and
(iii) Women and the private sector possessing such qualifications and experience as the Federal Government may by rules prescribe."
(5) ..................................
Punjab Public Service Commission "(3) Composition of the Commission etc.-(1)
(2) .......................
(3) ................
(4) The Commission shall have:-
(a) Not less than one-half of the members who have held office in the Service of Pakistan for not less than 21 years or above;
(b) at least one member each from-
(i) retired Judges of the superior judiciary
(ii) retired officers not below the rank of Major General or equivalent of the Armed Forces; and
(iii) Women and persons from private sector possessing such qualification and experience as the Government may by rules prescribe; and
(iv) retired professionals in basic scale 20 or above of the Government with not less than fifteen years experience in the field of engineering , agriculture, education, medicine or dentistry, forensic, environment, information technology, law or any other professional field.
(5) " ....................................
A perusal of the provisions of Federal Public Service Commission makes it abundantly clear that one member of the Commission is from amongst the retired Judges of the Supreme Court of Pakistan or the High Court, one member is a retired army officer not below the rank of Major General and at least two other members of the Commission are retired civil servants of not below grade B-21. Similar is the composition of Punjab Public Service Commission. The persons like Mr. Justice (R) Rana Bhagwan Das, a highly respected retired Judge of the Supreme Court of Pakistan, remained Chairman of the Federal Public Service Commission and similar is the case with other members in the Federal Public Service Commission, Punjab Public Service Commissions and Public Service Commissions of other provinces of Pakistan. This Court while dealing with the importance of Public Service Commission in the case reported as Azad Jammu and Kashmir Government vs. Javed Iqbal Khawaja and another [1996 SCR 40], observed as under:- "20. I may observe that the Public Service Commission of Azad Jammu & Kashmir is an institution which follows an international pattern. Such institutions exist in many countries of the world. In England recruitment of all permanent civil servants in the hands of Civil Service Commission which conducts competitive examination for that purpose. The qualification for appointment to any appointments under the Crown, whether permanent or temporary, are also subject to the approval of the Commission. The function of Canadian Civil Service Commission is to conduct recruitment to civil service. It also supervises promotion and organization of services. In Australia the Public Service Board recruits and qualifies personnel and also makes suggestions for promoting departmental efficiency and economy. It is the power of the Board to report to the House of Parliament if its suggestions are not accepted. There is a similar commission in United States and is known as Federal Service Commission? And covers practically the entire federal services. However, it is like the Public Service Commission of Azad Jammu & Kashmir, an advisory body. Public Service Commission is in existence there from the very birth of Pakistan. Such a Commission was in existence in undivided India under Government Act of 1935.
21. Service Commissions are Constitutional bodies and enjoy independence in their functioning so that best results are achieved. These commissions are manned by persons nominated by executive but it is universally recognized that they have to be free from executive control. This is not pious wish but is explicitly found in the laws of Azad Jammu & Kashmir. Section 48 of the Interim Constitution Act gives constitutional status to Public Service Commission and its functions then it is laid down in Section 10 of the Public Service Commission Act that the commission shall present to the President annually a report on the work done by the Commission and the President shall cause a copy of the report to be laid before the legislative assembly of Azad Jammu & Kashmir. It is further laid down that the report to be submitted by the Commission shall set out the cases in which the advice of the Commission was not accepted and the matters on which the Commission was, where the required, not consulted. The reasons for not accepting the advice or for not consulting it have also to be stated. It is provided in the Public Service Commission Act that Chairman and members of the commission shall be appointed by the President and on ceasing to hold office they shall not be eligible for further appointment in the service of Azad Jammu & Kashmir. All these provisions show the independency of the Public Service Commission. On the contrary there is no law which may directly or indirectly lay down that the Government may control the functioning of Public Service Commission or may otherwise give directions to that Constitutional body. Our constitution lays down separate functions for all organs set up by it. These functions cannot be controlled or circumvented except in accordance with the constitution. Thus in my view para 1 of notification No.1 is without lawful authority."
There is a dire need for ensuring the merit and induction of proper persons in the service of Azad Jammu & Kashmir. We desire that a suitable amendment shall be brought in the Public Service Commission Act, 1986 providing similar qualification for the members as in the Federal Public Service Commission and Punjab Public Service Commission. The Public Service Commission before the amendment consisted of seven members, two of whom were persons who have held the offices in the service of Azad Jammu & Kashmir without mentioning the status or grade of the civil servant, meaning thereby that any person having service as Junior Clerk in the service of Azad Jammu & Kashmir for twenty years, was eligible for appointment as the member of Public Service Commission. This is in common knowledge that some times in Azad Jammu & Kashmir the members in the Public Service Commission had been appointed, who were simple matriculate and they used to conduct the test and interview for the posts of grade B-16 and above. It is argued by the counsel for the appellants that by introducing the amendment in Section 3 of Act, 1986, it has been provided that seven members of the Commission shall be appointed from amongst retired civil servants or other outstanding persons having good reputation and educational qualification of not less than graduation. Although this amendment is an improvement but there is a number of persons who have higher education of M. A. But they are serving against the posts of peons and Junior Clerks in the service of Azad Jammu & Kashmir may be appointed as member, therefore, if this is allowed, then merit shall be violated due to nepotism. It has been provided that an outstanding person having good reputation as a graduate, a retired civil servant having ten years?
Service can be appointed. A person living in a far flung area, who is a graduate, has never been admitted to a University or a College, runs a grocery shop, has a good reputation amongst the community of being honest person, under the amended provision is qualified to be appointed a member of the Public Service Commission. Three members of the Public Service Commission shall be educationists, who have served for ten years in teaching or administration department. Again no qualification is provided. If the qualification has been amended for improvement, then it was required that the qualification of 20 years should have been provided by providing that a person of BPS-21 or above is eligible and instead the period of 20 years has been reduced to 10 years. Despite the drawbacks, the amendment brought in Section 3 is not ultra vires the provisions of Sections 48, 49 and 4(1)(2) of the Constitution Act or any other provisions of the Constitution Act. Similarly, section 4-A, which provides for the oath of the office, is also not ultra vires the provisions of the Constitution Act. It is dire need of the hour that the Public Service Commission Act, 1986 be suitably amended on the lines of Federal Public Service Commission of Pakistan and Punjab Public Service Commission. We fully endorse the desire of High Court made in para 14, at page 48 of the judgment under appeals for amendment in the Act, 1986 for appointment of Chairman and the members.
The amending ordinance is not ultra vires the provisions of the Constitution.
13. The second question which needs resolution is whether under Section 41 of the Constitution Act, the President is empowered to reenact an ordinance on the same subject or not. The amending ordinance was promulgated by the President on 9.7.2012 and after its expiration, second ordinance on the same subject was issued on 27.11.2012. The ordinances were challenged by the respondents apart from others, on the ground that the President has no power to reenact an ordinance on the same subject. For resolving the proposition it will be useful to go through Section 41 of the Constitution Act which empowers the President to promulgate the ordinance. The same is reproduced as under:- "41. Power to make Ordinance.-(1) The President may, except when the Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance as the circumstances may require. (2) An ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance;
(a) shall be laid before the Assembly and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of sub-section (2), an Ordinance laid before the Assembly shall be deemed to be a Bill introduced in the Assembly.
(4) The President shall likewise, except when the council is in session, if so advised by the Chairman of the council make, promulgate and withdraw an Ordinance as the circumstances may require; and the provisions of sub-section (2) and subsection(3) shall apply to an Ordinance so made as if references therein to Act of the Assembly and Assembly were references respectively to Act of the council? And council?.
A plain reading of Section 41 of the Constitution Act makes it clear that the President is empowered to promulgate an ordinance when the Assembly is not in session and the President is satisfied with the existing circumstances which render it necessary to take immediate action, he may promulgate the ordinance. Such ordinance shall have the same powers as an Act of the Assembly and the ordinance will be subject to restrictions on the powers of the Assembly to make law. The Section further provides that it shall stand repealed on expiration of four months from its promulgation. It shall be laid before the Assembly within a period of four months and if a resolution before expiration of four months is passed by the Assembly by which it is disapproved, then it shall be repealed. It is further laid down that the President may withdraw an ordinance at any time.
Similar provision exists in Article 89 of the Constitution of Islamic Republic of Pakistan, 1973. The proposition came under consideration of the superior Courts of Azad Jammu & Kashmir and Pakistan in number of cases. Divergent judgments have been delivered by the Courts.
Firstly we would like to consider the judgment of this Court recorded in the case reported as Raja Muhammad Niaz Khan, Ex-Chairman Azad Kashmir Mineral & Industrial Development Corporation vs. Azad Government of the State of Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K) 53]. The facts of the case were that Raja Niaz Ahmed Khan, a Secretary to the Government, was retired from service on 18.9.1985 under Section 12(2) of the Azad Jammu & Kashmir Civil Servants Act, 1976.
Initially, he filed a review petition before the Government. Later on, he filed an appeal in the Service Tribunal by challenging the correctness of his retirement order. The Service Tribunal dismissed the appeal on 10.2.1987, whereupon he filed an appeal before this Court through petition for leave to appeal. The appellant challenged the vires of the Azad Jammu & Kashmir Shariat Court Ordinance, 1982, being temporary which was issued repeatedly by the President under Section 41 of the Constitution Act. It was observed by this Court that the provisions of Section 41 of the Constitution Act allow the President to make and re-enact an ordinance on the same subject in continuity of the previous ordinance. The Court went further that for re-enacting an ordinance, the President even may prorogue the session of the Assembly. It was observed as under:- "30. It appears that the word "shall" employed under section 41 is not mandatory in nature. It is directory in the context it is used. It is used in the context of placing the Ordinance before the Assembly for its approval or making it an Act of the Assembly. If it is not placed before the Assembly the Ordinance will cease to have legal effect after four months. The word "shall" is used in this context only. Thus, the word "shall" in the context it is used is not mandatory; it is directory in nature. It is the will of the Government to place the Ordinance before the Assembly within four months or allow it to be repealed by operation of law.
31. Our conclusion, therefore, is that notwithstanding the word "shall" used in section 41 of the Constitution Act the requirement of laying the Ordinance before the Assembly is directory. The Ordinance no doubt will cease to operate at the expiration of four months, but it would not affect the initial validity of the Ordinance and would also not render re-enactment of the Ordinance as a nugatory. D. K. Krishnan vs. Secretary, Regional Transport Authority AIR 1956 Andhra 129, is clear authority on the point. It is observed in that case:- "But, after considering the question carefully, we are inclined to adopt the view that, in the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned is not following the procedure should not be made to affect the members of the public governed by the rules."
32. We can well conceive and smell the unhealthy effect of making ordinances in continuity on the same subject spreading over years in presence of legislative forum meant for the purpose; but this unhealthy aspect would not give powers to the Supreme Court to declare such an ordinance to be invalid on that score, if the Constitution otherwise allowed promulgation of such ordinance. Such ordinances may adversely affect the spirit of democracy, but when the supreme law of the country allowed it there remains no alternative for the Courts but to respect and accept it in the way the Constitution allows it. It is to be noticed that things with the injurious consequences of the ordinance cannot be the criteria to ignore it, because the Courts are to interpret the laws of the country as they are and not to legislate on consideration of jurisprudence and policy.
33. In fact, the prerogative of the Judges is not to make law. This prerogative only relates to the legislative forum. The Judges can make law only by applying it to facts. Judicial declaration unaccompanied by judicial application is not of binding authority in most of the cases.
34. The provisions of Section 41 of the Constitution Act, as said earlier, clothe the President with the power to make and reenact an ordinance on the same subject in continuity spreading over even years and there is no express or implied prohibition in the Constitution Act on the powers of the President to do so. This constitutional power to the President, of course, may not look desirable in a democratic set up but the Constitution, being the supreme law, it is to be respected, despite the fact that its provisions may not seem to fit in within the framework of a democratic set up. It is settled law that any interpretation which may destroy the spirit of any of the Constitutional provisions of the Constitution Act is not permissible. In this view of the matter, it is beyond the competence of the Supreme Court to interpret the Constitution Act in a way which may reasonably be construed as an addition or amendment in the Constitution Act.
35. In view of the wording of Section 41 of the Constitution Act, we are even of the view that even where the session of the legislative assembly is prorogued deliberately with a view to enabling the President to promulgate the ordinance, it is a valid act of the President and this exercise of the powers of the president cannot be called fraudulent or mala fide because under the Constitution Act, it is within the powers of the President to prorogue the legislature at any time he pleases. There is, therefore, nothing wrong in the President?s proroguing the assembly with a view to enable him to issue an ordinance under Section 41 of the Constitution Act. The reason seems to be this: The legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President, after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an ordinance under Section 41 of the Constitution Act; rather than approach the legislature for the necessary legislation. A case reported as Re: K. Veer abhadrayya AIR 1950 Mad. 253, is an authority on the point.
It would be thus manifest that the President cannot only re-enact an ordinance but can even prorogue the sessions of the Assembly for the purpose."
In the case reported as The Collector of Customs, Karachi & others vs. New Electronics (Pvt.) Ltd. & 59 others [PLD 1994 SC 363], after going through all the precedents on the subject, it was observed that Article 89 of the constitution of the Islamic Republic of Pakistan expressly prohibits against reenactment of an expired ordinance even if it is not laid before the Assembly and it shall lapse on the expiration of four months period. It was observed at page 387 as under:- "19. It may be observed that Article 89 of the Constitution does not expressly prohibit against the re- enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months as pointed out by Mr. Kakikaus J. In the case of Tirathmal and others v. The State (supra) while construing more or less an identical provision of 1956 Constitution. In spite of absence of an express prohibition in some of the above cases, it has been held that the President or the Governor cannot reenact an expired Ordinance. In the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra), I speaking on behalf of the Full Bench (comprising five Judges), highlighted the rationale for holding so, the relevant portion of the above judgment has been reproduced hereinabove in para 12 and need not be repeated. However, it will suffice to observe that the underlined idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a province while the Assembly exists. The above reason will not hold good if an Assembly stands dissolved and for a justifiable reason, it has not been reconstituted within the period specified in the relevant Article of the Constitution.
I am inclined to hold that if the National Assembly doesn?t stand dissolve, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly. Kaikaus, J. Though has given weighty reasons in the case of Tirathmal (supra) for taking a contrary view, but in my humble view, it runs counter to the spirit/scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra). But if the National Assembly stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause 5 of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rahman, J. In his above-quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the re-constitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. The observations of Shafiur Rahman, J. In the above-quoted portion of his opinion, namely, "However, it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a)" are to be viewed in the context of the facts of the above case i.e. The elections were to be held on 16-11-1988 and 19-11-1988 and the above opinion was rendered on 24-10-1988 and, therefore, by the time new Assemblies would have been re-constituted, the Ordinance could have been placed before the National and the Provincial Assemblies within a period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second ordinance."
In the case reported as Raja Muhammad Niaz Khan, Ex-Chairman Azad Kashmir Mineral & Industrial Development Corporation vs. Azad Government of the State of Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K) 53], this Court observed that under Section 41(1) of the Constitution Act, the President has power not only to promulgate an ordinance but to reenact it repeatedly. It was also observed that the President has even power to prorogue the assembly session for issuing the ordinance. It is celebrated principle of law of interpretation of statutes that the plain dictionary meanings are always assigned to the words incorporated in a provision. The Courts are bound to assign the ordinary and plain meaning to a word used in a statute. The plain reading of section 41 of Constitution Act shows that the President is empowered to promulgate the ordinance; (a) when the assembly is not in session; (b) when the President is satisfied that circumstances exist which require immediate action, then he may make and promulgate an ordinance. The powers vested in the President under Section 41(1) are not unfettered. The powers of the President are subject to same restrictions which apply to the Assembly to make the laws.
Further restriction is imposed that the ordinance shall be laid before the Assembly and at the expiration of a period of four months from its promulgation it shall automatically. Further power is vested in the President that he may withdraw the ordinance at any time. The conditions for issuing an ordinance, thus, may be summarized that when the Assembly is not in session and the President is satisfied that the circumstances exist which render immediate action, he may promulgate an ordinance. The existence of circumstances for satisfaction of the President taking immediate action is necessary.
14. The Constitution is an organic whole and its all provisions have to be looked into for interpreting a provision. Under Section 41 of the Constitution Act, the President has been empowered to issue and promulgate an ordinance, which shall be repealed at the expiration of a period of four months.
The life of an ordinance has been fixed as four months unless it is disapproved by the Assembly within that period. Subsection 2(a) of Section 41 of Constitution Act makes it abundantly clear that the ordinance shall be laid before the Assembly before expiration of four months. Fixing of period of four months for laying an ordinance before the Assembly is supported from other provisions of the Constitution. Section 22 of the Constitution Act deals with the Legislative Assembly and subsection
(3) of Section 22 provides that every assembly unless sooner dissolved, shall continue for five years and expiration of said period of five years shall operate as dissolution of assembly and subsection
(4) of Section 22 postulates that general elections to the Assembly shall be held within a period of sixty days immediately preceding the date on which the term of assembly is due to expire unless the assembly has sooner been dissolved. The provisions of conducting elections within a period of sixty days immediately before the day on which the term of assembly expires, is supportive of the argument that the life of an ordinance cannot be extended by reenacting the same. The proposition is further supported by subsection (3) of section 27 of the Constitution Act which postulates that there shall be at least four sessions of assembly every year and three months shall not intervene between the first sitting of assembly in one session and first sitting of the assembly in the next session. Meeting of the assembly after a period of three months is clear indicative of the fact that the life of an ordinance provided for a period of four months is in line with section 22(3) and (4) and section 27(3) of the Constitution Act and when the assembly is in existence, it has to meet under the provisions of section 27 after expiration of every three months. The laying of ordinance before the Assembly within fourth months also finds support from Rule 34 of the Rules of Business, 1985. It is provided in Rule 34 of the Rules of Business, 1985 that the Law, justice, Parliamentary Affairs & Human Rights Department, Azad Government of the State of Jammu & Kashmir, shall in due course of time arrange to lay an ordinance promulgated before the assembly, as required by clause (a) of subsection (2) of Section 41 of the Constitution Act. Rule 34(2) refers to clause (a) of subsection (2) of section 41 of the Constitution Act, which postulates that an ordinance shall be laid before the assembly and shall stand repealed on expiration of four months.
It is obligatory for the Law, Justice, Parliamentary Affairs & Human Rights Department that after promulgating the ordinance, it shall lay the ordinance before the Assembly within a period of four months as laid down in clause (a) of subsection (2) of Section 41 of the Constitution Act. It is mandatory that the ordinance is to be laid before the assembly before expiry of four months. The view expressed in Raja Niaz Ahmed Khan?s case [PLD 1988 SC (AJ&K) 53] that the President has power to reenact an ordinance in all the circumstances is not correct and the view that the president can prorogue the assembly session for issuing an ordinance is overruled. The judgment has been delivered in the circumstances that the ordinance was promulgated in the year 1982. The assembly was not in existence and the President remained reenacting the ordinance repeatedly on the same subject. There may be extraordinary circumstances where the assembly is not in existence, the elections to the legislative assembly are not held within time due to unforeseen circumstances. In that case for smooth running of the business of the Government, the President may reenact an ordinance.
15. There is a certification issued by the Secretary AJ&K Legislative Assembly brought on record by the respondents, herein, that after promulgation of the amending ordinance on 9.7.2012 nine sessions of the legislative assembly have been convened. Thus, it is held that under subsection (2)
(a) of Section 41 of the Constitution Act, it was mandatory to lay the ordinance before the assembly within the period of four months and the President has no power to reenact the same. Ordinance No.LXVIII of 2012, made by the President on 27.11.2012 is a verbatim copy of ordinance No.XXXVII of 2012, issued on 9.7.2012 on the same subject. The President has no power to re-enact the same. It is not a valid law.
16. The third point which needs resolution is whether in the light of record, the appointments of the Chairman and the members of the Public Service Commission have been made in a prescribed mode provided under law or not. The counsel for the appellants along with the written statements, filed copies of the notifications whereby Chairman and members were appointed. The counsel for the appellants and the learned Advocate-General produced the file of the Services & General Administration Department pertaining to the appointment of Chairman and members of the Commission. In the said file there are only photocopies and facsimile of the advice and the order passed by the President. No other file having the process for initiation of case for the appointment is on the record. The learned Advocate General frankly conceded that no other record is available with the Department. It was vehemently argued by the counsel for the appellants that no procedure has been prescribed for appointment of Chairman and members of the Public Service Commission, therefore, the advice of the Prime Minister under Section 7 of the Constitution Act, is sufficient for appointment of Chairman and members. The learned High Court has observed that "the Senior Additional Secretary Services & General Administration Department was summoned by us who stated that except Photostat copy of the above script there is no other record in the Services & General Administration Department." We have ourselves perused the record with utmost care. It appears from the record that initially in the Services & General Administration Department a summary of the retired Government Secretaries was prepared for appointment as Chairman and members which contains their qualification, their length of service and date of their recruitment but subsequently no action was taken on this summary. Instead, the Prime Minister while acting under subsection (2) of Section 3 of the Act, 1986, read with Section 7 of the Constitution Act advised the President for the appointment of six persons namely Syed Mumtaz Hussain Naqvi, advocate, as Chairman, Prof. (R) Sardar Muhammad Ibrahim, Prof. (R) Dr. Muhammad Aslam Zaffar, Ch. Muhammad Ilyas, advocate, Ch. Muhammad Ashiq, Retired District & Sessions Judge and Ch. Muhammad Arif Kataria for appointment as members. The advice is shown to be received in the Presidential Secretariat on 19.1.2012. Except Muhammad Ashiq and Ch. Muhammad Ilyas, other four persons were appointed as Chairman and members respectively and later on through other orders, appellant No.4, 6, 7, 8, 9 and 10 were also appointed as members in the above dates.
There is no other record available except the notification of appointment of these members. We are aware of the fact that no specific mode for appointment of Chairman and members of the Public Service Commission is provided in the Act, 1986 or rules but the appointing authority is the President and orders have to be passed by the President and Section 7 of the Constitution Act postulates that the President shall act on the advice of the Prime Minister. As per serial No.17 of Schedule I of the Rules of Business, 1985, the Public Service Commission is a special institution of Services & General Administration Department. All the files relating to the Public Service Commission have to be initiated and routed through the said Department. Schedule V of the Rules of Business, 1985, shows the list of cases to be submitted to the President for approval before issuance of order and entry No.18 of the schedule relates to the appointment, removal or resignation of the members of the Public Service Commission and other terms and conditions of service, its strength and nonacceptance of advice of the Commission. Rule 11(4) of the Rules of Business provides the procedure for submitting a case to the President. We deem it proper to reproduce the said rules, which read as under:- "11. Reference to the President.- (1) No order shall be issued without the approval of the President in cases enumerated in Schedule V.
(2) .............................
(3) A case submitted to the President for his orders shall be accompanied by a self-contained concise summary stating the relevant facts and points for decision. The summary to the President shall be submitted though the Prime Minister and shall contain the latter's specific recommendations."
(5) .............................................
A combined study of Rule 11(1) and (4), entry No.18 of Schedule V of Rules of Business read with Section 3(2) of the Act, 1986, makes it crystal clear that the Chairman and members of the Commission shall be appointed by the President on the advice of the Prime Minister and no order shall be issued without approval of the President as enumerated in Schedule V which contains serial No.18 relating to the appointment of Chairman and members of the Public Service Commission. Sub-rule (4) of Rule 11 postulates that whenever a case is submitted to the President for orders, it shall be accompanied by a self-contained summary stating relevant case and points for decision and said summary has to be submitted to the President for approval and shall contain latter's specific recommendations. As it has been observed that the Public Service Commission is a special institution of the Services & General Administration Department, the process of appointment of Chairman and members is to be initiated and a summary shall be prepared in the Services & General Administration Department. The words "self contained summary" signify that mere writing the name of a person for obtaining the order of the President for appointing him against a post is not sufficient. Self contained summary denotes that all the facts relevant have to be brought on the record. The qualification for appointment of Chairman and the members of the Public Service Commission is provided in Section 3 of the Act, 1986. For submitting a summary to the President for appointment of a person as Chairman and Members; (a) firstly it should come on record that for which post the summary is being sent; (b) which law is relevant for the appointment, a copy of the same is to be made part of the file; (c) what are the qualifications laid down in the said law for appointment of a person; (d) the details, that the person qualifies to be appointed for the said post; and (e) copies of decree, certificate or other necessary documents, shall also be made part of the file. Then the file shall be placed before the President for orders through the Prime Minister, who shall advise the President for appointment under Section 7 of the Constitution Act. In Sardar Muhammad Ayub Khan?s case [1999 SCR 235], it was observed that the appointment shall be made by the President on the advice of the Prime Minister. It was observed at page 239 of the judgment as under:- "Law is well settled that section 7 of the Constitution Act is applicable to all sub Constitutional laws and therefore the President has to act on advice even in those matters which are not mentioned in the Constitution Act itself. It is equally well settled by now that an express provision to the contrary made in the Constitution Act itself forms an exception to the rule mentioned above. Therefore, the sole point which needs to be decided is whether Schedule-V appended with the Rules of Business, 1985 can be treated as an exception to the general provision about the binding nature of the advice of the Prime Minister. While relying on Schedule-V in support of his arguments, Mr. M.
Tabassum Aftab Alvi, failed to notice that Schedule-V is referable to rule 11 of the Rules of Business as is indicated in the title of Schedule-V, as a cross reference. Rule 11 clearly lays down cases mentioned in Schedule-V which shall be sent to the President for his approval but, as pointed out by the High Court, it is also laid down that in these cases specific recommendations of the Prime Minister shall also be submitted to the President. It will be useful to reproduce rule 11:- 1l. References to the President.- (1) No order shall be issued without the approval of the President in cases enumerated in Schedule-V.
(2) The cases enumerated in Schedule VI shall be submitted to the President through the Prime Minister for his information.
(3) All cases of detention by Government under Sub-section (l) of Section 3 of the Public Safety Act and Rule 23 of the Civil Defence Rules, 1962 shall be submitted to the President through the Prime Minister for his orders.
(4) A case submitted to the President for his orders shall be accompanied by a self-contained concise summary stating the relevant facts and points for decision. The summary to the President shall be submitted through the Prime Minister and shall contain the latter's specific recommendations.
(5) The Prime Minister shall keep the President informed of all important political and administrative matters and major development, industrialization, etc.'
The phraseology of rule 11 clearly reflects the provisions of section 7 of the Constitution Act. It lays down that all cases in which the approval of the President is sought, shall be submitted with the Prime Minister's recommendations. It is not laid down that the President may act without advice.
Rules of Business also not visualize any order originating from the President's office."
17. The law is settled on the point that if a thing is provided to be done in a specific manner, it has to be done in that manner or not at all. In a recent judgment of this Court titled Azad Government & others vs. Mohi-uddin Islamic University & others (Civil Appeal No.113 of 2013, decided on 22.11.2013), it has been observed as under:- "11. The law is settled on the point that things provided to be done in a prescribed manner must be done in that way and no deviation can be made from it. Reliance can be placed on a case reported as Habibullah vs. D.I.G. Police and 3 others [2004 SCR 378], wherein it has been held by this Court as under:- " it is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all" In another case titled Government of the Punjab, Food Department through Secretary Food and another vs. Messrs United Sugar Mills Ltd. And another [2008 SCMR 1148], it has been held as under:- " it is also settled proposition of law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not "
In the case reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [2012 SCR 213], it has been observed as under:- "26. It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all as has been laid down in a case titled Habibullah v. D.I.G. Police & 3 others [2004 SCR 378], wherein. The relevant observation is reproduced as under:- ....It is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all." In the case reported as Munawar Hussain vs. The University of AJ&K & others [2011 SCR 27] while interpreting the Rules of Business it was observed as under:- "...The power/authority in fact is a limitation which has to be exercised as stipulated by law, rules and Regulations and if a bar is constituted, it cannot be exercised or performed particularly in absence of specific provision."
Similarly in a case titled Raja Hamayun Sarfraz Khan and others vs. Noor Muhammad [2007 SCMR 307], it was observed by the Supreme Court of Pakistan as under:- " ...It is a settled law that when a thing is to be done in a particular manner, it must be done in that way and not otherwise as the law laid down by this Court in Atta Muhammad Qureshi's case PLD 1971 SC 61."
In the case reported as Govindan Sellappah Nayar Kodakan Pillai vs. Punchi Banda Mudanayake & others [PLD 1953 Privy Council 51], it was observed as under:- "....It was common ground between the parties and is in their lordship's opinion the correct view that judicial notice ought to be taken of such matters as the reports of Parliamentary commissions and as such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed (ef. Lahore vs. Bennett (1) and both parties have referred their lordships to a number of paragraphs in the report of the Soulbury Commission of 1945.
With much of the reasoning of the Supreme Court of Ceylon their Lordships find themselves in entire agreement but they are of opinion that there may be circumstances in which legislation though framed so as not to offend directly against a constitutional limitation of the power of the legislature may indirectly achieve the same result, and that in such circumstances the legislation would be ultra vires.
The principle that a legislature cannot do indirectly what it cannot do directly has always been recognized by their Lordships? Board and a legislature must of course be assumed to intend the necessary effect of its statutes. But the maxim omina praesumuntur rite essc acta is at least as applicable to the Act of a legislature as to any other acts and the Court will not be astute to attribute to any legislature motives or purposes or objects which are beyond its power. It must be shown affirmatively by the party challenging a statute which is upon its face intra vires that it was enacted as part of a plan to effect indirectly something which the legislature had no power to achieve directly."
In the case reported as Habibullah vs. DIG Police & 3 others [2004 SCR 378], it was observed as under:- " It is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all. In a case titled Habibullah vs. Government of the Punjab & 5 others [PLD 1980 Lah. 337], the same view was expressed. In this case the decision against the appellant was taken by the Members of the Board by circulation of the letter whereas under rules the decision should have been taken in a meeting. He challenged the infringement of his service rights through a writ petition before the High Court. The case was entrusted to a very learned Judge Gul Muhammad Khan, who decided the same in favour of the petitioner. In that authority the learned Judge observed "when law provides for doing a particular thing in a particular way, then all other modes are prohibited". In that case the decision was taken by the members of the Board by circulation of matter to the members of the Board individually, whereas under rules the decision should have been taken in a meeting. On this very ground the decision taken against the petitioner was held illegal; even though in that case the competency of the members was not under challenge."
We find support from the judgment of the Supreme Court of Pakistan in the cases reported as Agha Shorish Kashmiri's case [PLD 1969 SC 14], Atta Muhammad Qureshi's case [PLD 1971 SC 61] and Government of Punjab, Food Department through Secretary Food & another v. Messrs United Sugar Mills Ltd. And another [2008 SCMR 1148]. Thus, it can safely be held that the process of appointment of Chairman and members of the Public Service Commission had to be initiated from Services & General Administration Department coupled with self-contained summary. Without a self- contained summary no file can be placed before the President for orders.
18. We have perused the file pertaining to the appointment of Chairman and members of the Commission summoned from Services & General Administration Department. There is no record of appointments. No summary was prepared by the Department. There is nothing on the record for ascertaining as to whether the appellants are qualified to be appointed as Chairman and members, as the case may be. There are only photocopies/facsimiles whereby the President has accorded approval and notification has been issued on the strength of these photocopies. No proper process was adopted. Without adopting the due process, the orders were issued by the President, these are against law and not maintainable.
19. The learned High Court in para 9, at page 33 of the impugned judgment has observed that, "the script, supra, was received in the Secretariat of Presidency vide No.3566 on 19.11.2012. The word approved seems to be written in the facsimile of the said script, however, signature of the President is doubtful." It may be observed that the observation made by the High Court relating to the signature of the President that it is doubtful is unwarranted. If the High Court was of the view that signature appears to be doubtful, then Secretary, Presidential Secretariat, had to be apprised for clarification., without clarification the observation is unwarranted. The observation to the extent, "signature of the President is doubtful" is expunged.
20. It is regrettable that Services & General Administration Department failed to maintain the record regarding the appointment of Chairman and members of an important Constitutional institution i.e. Public Service Commission.
The result of the above discussion is as follows:-
(a) We partly accept the appeals. It is declared that the provisions of ordinance No.XXXVII, issued on 9.7.2012 are not ultra vires the fundamental rights or the Constitution. The writ petition to this extent is dismissed.
(b) The President under Section 41 of the Constitution Act has no power to re-enact an ordinance on the same subject. It is mandatory to lay the ordinance before the assembly before expiry of its life. Resultantly, Ordinance No. LXVIII, issued on 27.11.2012 and the subsequent ordinance re-enacted are declared to be not valid law. All the ordinances promulgated/re-enacted on any subject in violation of Section 41(2)(a) are required to be laid before the Assembly within a period of four months.
(c) The appointments of the appellants having been made in violation of law have no legal sanctity and have rightly been quashed by the High Court.
22. Before parting we may observe that all acts done and functions performed by the Chairman and members of the Public Service Commission are valid in the light of judgment of this Court reported as Muhammad Younas Tahir & another vs. Shaukat Aziz, Advocate, Muzaffarabad and others [2012 SCR 213].
With the above observations the appeals are disposed off with no order as to the costs.