JUDGMENT: Ch. Muhammad Ibrahim Zia, J The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 5.8.2015, whereby the writ petition filed by the contesting respondent has been accepted.
3. The precise facts giving rise to this appeal as stated are that the contesting respondent was appointed as Mohtasib /Ombudsma n of Azad Jammu and Kashmir for a period of 3 years on 31.8.2012. As per appointment notification, the terms and conditions of respondent?s service were to be determined later on. The respondent alleged that the terms and conditions for the office of Mohtasib/Ombudsman have been approved by the President of Azad Jammu and Kashmir on 18.10.2012 but the notification has not been issued by the Government in this regard. He further alleged that instead of implementing the orders of the President, the official respondents, vide notification dated 16.7.2013 have constituted a committee for recommendations to fix the pay, perks and privileges of the respondent. The matter could not be concluded by the committee, hence the respondent herein was constrained to invoke writ jurisdiction of the High Court.
4. The petition was disposed of by the High Court on 30.12.2013 with the direction to the concerned committee to finalize the case within a period of one month. The committee, after a considerable delay issued the notification dated 12.11.2014, whereby the perks and privileges of the respondent have been determined equal to the civil servant of grade B-21. The notification dated 12.11.2014 was challenged by the respondent through a writ petition before the High Court on numerous grounds.
His main stress is that the said notification has been issued contrary to the approval accorded by the President. The respondent relied upon a notification marked as annexure 'PH' regarding the appointment of Mohtasib in the Province of Baluchistan, whereby his terms and conditions of service have been determined equal to Judge High Court. He also relied upon some other notifications marked as annexure 'PK' and 'PK/1' in support of his claim. The writ petition was admitted for regular hearing vide order dated 26.1.2015 and the next date was fixed for filing written statement on 7.3.2015. Despite availing a number of opportunities, written statement could not be filed by the official-respondents therein, consequently their right of defence was closed. The High Court, after necessary proceedings, while accepting the writ petition filed by the respondent, ordered that notification dated 31.8.2012 shall be amended in the terms that respondent is entitled to receive pay, perks and privileges and other emoluments equal to Judge High Court from the date of his appointment. The appellant-Government feeling aggrieved from the judgment of High Court has challenged the validity of the same before this Court on numerous grounds.
5. M/s. Mansoor Pervaiz Khan, Advocate-General and Muhammad Noorullah Qureshi, Advocate, the learned counsel for the appellants after narration of the required facts of the case, seriously objected to the impugned judgment of the High Court and submitted that the same is against law and the statutory provisions on the subject. According to law, the President is authorized to determine the terms and conditions of the Ombudsman and since the enforcement of this law, the terms and conditions have already been determined by the President keeping in view the status of the incumbent and his qualification. In past, the same were never uniformly determined, even when the Chief Justices of the Supreme Court were assigned the duty, they were given the terms and conditions admissible to the Chief Justice. Same like, when a Judge Shariat Court was assigned the duty of Ombudsman, his terms and conditions were determined as of Judge Shariat Court. Same like when a Bureaucrat was appointed as Ombudsman, his terms and conditions were determined quite differently. Thus, even the claim of the respondent is not according to the practice consistently prevailed in past. They further submitted that so far as the reference to the other offices, such like Chairman Ehtesab Bureau, Custodian of Evacuee Property etc. Is concerned, the appointment in both the offices are made under different provisions of law as these are the offices created under the statutes having different nature of duties, hence, cannot be made basis for claim of such terms and conditions. They further submitted that the provision of statutory law on the subject has not been challenged as under the prevailing law the appointing authority is vested with the powers which cannot be interfered with against the spirit of law and Constitution.
6. So far as the question of parity with Punjab and other provinces is concerned, also is fruitless as the notifications in this regard were only stopgap arrangement which after enforcement of Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Act, 1974) have no application. Neither it can be enforced as principle of law nor this practice is having status of law rather it is totally against the spirit of Constitution. They further submitted that as per notification dated 25.6.2002, the matter of grant of terms and conditions equal to that of Judge High Court is concerned, cannot be considered as the terms and conditions of Judge High Court are determined according to the constitutional provisions which cannot be subverted through a notification by the Executive, especially, when the mode of appointment, removal and nature of duties and status of the office is quite different. Therefore, the High Court fell in error of law while handing down the impugned judgment. They further submitted that the High Court has also misconceived the principle of law enunciated in the case reported as Raja Shahnawaz Khan, Chairman Azad Jammu and Kashmir Zakat Council vs. Azad Govt. Of the State of Jammu and Kashmir and 3 others [PLJ 2013 SC (AJ&K) 186], which has no application according to peculiar facts of the case. They placed reliance on the cases reported as Azad Govt. & others vs. Shahjahan Kiani & others [2015 SCR 690], Bashir Ahmed Mughal vs. Azad Govt. & others [2014 SCR 1258] Muhammad Riaz Khan vs. Inspector General of Police and 19 others [2010 SCR 131] and submitted that while accepting the appeal, the impugned judgment of the High Court be recalled.
7. Conversely, Raja Sajjad Ahmed Khan, Advocate, the learned counsel for the respondent, forcefully defended the impugned judgment and submitted that the same is quite in accordance with the principle of law enunciated by this Court in a number of cases, especially, regarding the discriminatory exercise of powers by the Executive. He submitted that the Government notification dated 25.6.2002 cannot be taken as shelter as the Government itself has violated the same by granting the terms and conditions equal to that of Judge High Court in the cases of Chairman Ehtesab Bureau, Chairman AJ&K Ushr & Zakat Council and Custodian of Evacuee Property etc. He submitted that in this case, the President has determined the terms and conditions equal to that of Judge High Court but the cabinet committee has illegally altered the same which is against law.
However, he conceded on the point that the respondent has not challenged the vires of the statutory provision dealing with the subject matter. He placed reliance on the cases reported as Azad Government & another vs. Raja Muhammad Nasab Khan and 20 others [2011 SCR 257] Azad Govt. & others vs. Syed Tayyab Gilani & others [2009 SCR 415] AJ&K Govt. & others vs. Raja Muhammad Farooq Haider Khan and 11 others [2014 SCR 43] and Raja Shahnawaz Khan, Chairman Azad Jammu and Kashmir Zakat Council vs. Azad Govt. Of the State of Jammu and Kashmir and 3 others [PLJ 2013 SC (AJ&K) 186] and submitted that this appeal having no substance is liable to be dismissed.
We have heard the learned counsel for the parties and examined the record made available. The factual proposition as depicted from the record is that the respondent who was appointed as Ombudsman of Azad Jammu and Kashmir under the provision of Establishment of the office of Mohtasib (Ombudsman) in AJ&K Ordinance (hereinafter to be referred as (Ombdusman Ordinance), the matter of terms and conditions of his appointment remained under consideration which was finalized by the cabinet committee in a meeting held on 30.5.2013, and after due deliberation, his terms and conditions were determined equivalent to an officer of grade, B-21.
It is admitted position that the respondent accepted the order of appointment made under the provision of special law i.e., Establishment of Ombudsman Ordinance. Thus, it will be relevant to refer here the relevant statutory provision of section 6 which reads as under:- "6. Terms and conditions of service and remuneration of Mohtasib.- (1) The Mohtasib shall be entitled to such salary allowances and privileges and other terms and conditions of service as the President may determine and these terms shall not be varied during the term of office of a Mohtasib.
In addition to remuneration fixed under sub-section (1), the Mohtasib shall be entitled to receive rupees three thousand per month as sumptuary allowance and rupees one thousand per month as maintenance of residence charges in case the Mohtasib resides at his own house.
(a) Mohtasib shall to entitled to use:-
(i) an official car; and
(ii) a telephone one at office and one at residence.
(b) A Mohtasib who is a retired Judge of Supreme Court or High Court and he has availed the facility of car and driver after retirement, he shall not be entitled to get this facility again on completion of his tenure as Mohtasib.
(1-C) If a person, who is not a Judge of the High Court or Supreme Court is appointed as Mohtasib, his pay, allowances and other privileges shall be fixed by the President under sub-section (1).
(2) The Mohtasib may be removed from office by the President on the ground of misconduct or, of being incapable of properly performing the duties of his office by reason of physical or mental incapacity.
Provided that the Mohtasib may, if he sees fit and appropriate to refute any charges, request an open public evidentiary hearing before the Supreme Judicial Council and, if such a hearing is not held within thirty days of the receipt of such request or not concluded within ninety days of its receipt, the Mohtasib will be absolved of any and all stigma what so ever. In such circumstances, the Mohtasib may choose to leave his office and shall be entitled to receive full remuneration and benefits for the rest of his term.
(3) If the Mohtasib makes a request under the proviso to clause (2), he shall not perform his functions under this Act, until the hearing before the Supreme Judicial Council has concluded.
(4) A Mohtasib removed from office on the ground of misconduct shall not be eligible to hold any office of profit in the service of Azad Jammu and Kashmir or for election as a member of Legislative Assembly or any local body."
When this statutory provision is minutely examined, it becomes crystal clear that the law itself has created a reasonable classification of persons in determination of the matters relating to the terms and conditions of the office of Ombudsman. One class is; appointment from amongst the Judges of Supreme Court, High Court and Shariat Court, whereas the other class is; the appointment other than Judges i.e bureaucrat etc. The protection given under law is that the terms and conditions of service shall not be varied during the terms of the office. It also transpires from the statutory provision that some additional terms and conditions have also been determined by the law as the sumptuary allowance, use of the official car, telephone at office and residence etc.
10. As the respondent has not challenged the vires of these statutory provisions, thus, resultantly, the statutory provision as existed on the statute book has to be enforced and applied in the matters of determination of terms and conditions. It will be useful to have a glance perusal of the past practice in this regard.
11. The examination of record further reveals that when appointment is made out of the Judges, the terms and conditions were differently determined. Reference in this regard may be made to the appointment of one Tariq Masood, (a retired bureaucrat) former Ombudsman, whose terms and conditions were determined equal to those of Minister of the Cabinet of Azad Jammu and Kashmir.
Whereas when the Chief Justice or Judge Supreme Court, High Court or Shariat Court was appointed as Ombudsman, the terms and conditions of his office were determined as equal to that of Chief Justice or Judge as the case may be. Thus, it is obviously clear that the appointing authority has applied this statutory provision keeping in view the incumbent Ombudsman?s status.
The terms and conditions of Ombudsman have never been determined universally. Therefore, it can be safely held that according to the enforced law, the appointing authority is vested with the powers to determine the terms and conditions of the office of Ombudsman while exercising the powers under the enforced statutory provisions. Unless and until these statutory provisions are not specifically challenged or set-aside by the judicial forum while exercising the powers of judicial review, the same cannot be made redundant or inoperative on any other pretext. As the respondent has not challenged the vires of the statutory provisions, therefore, it can be safely held that for determination of the terms and conditions of the office of Ombudsman as existing on the statute, the same has to be applied and enforced.
12. The respondent has based his case mainly on the principle of equality before law. The examination of the impugned judgment also reveals that this ground prevailed in the High Court and the whole conclusion has been drawn on the basis of the principle of equality before law.
Having due regard to the opinion of the learned Judges of the High Court, we are unable to affirm the same as the principle of equality before law has to be applied among the equals and not in violation of the reasonable classification or the provision of statutory law. It is celebrated principle of law that the principle of equality before law shall apply among the equals otherwise, the whole system shall collapse. If the equal treatment of law is applied without legal condition, it means that everyone has right to claim occupation of any office or demand for any type of terms and conditions without any restrictions imposed by law.
13. As we have already discussed hereinabove that in past, the terms and conditions of the office of Ombudsman were never equally and uniformly determined rather these have been determined from time to time and from person to person, differently. The powers have been exercised by the authority as given under the statutory provisions keeping in view the status etc. Of the incumbent of the Ombudsman's office. Thus, if the principle as is applied by the High Court is accepted as correct, then everyone may claim that he should be given the same terms and conditions as are of the Chief Justice Supreme Court like Hon'ble Justice (R) Raja Khurshid Ahmed Khan and Justice (R)
Sardar Said 16 Muhammad Khan, former Ombudsmen, but surely neither this can be done nor it is spirit of law.
14. Undoubtedly, the executive order by exercise of judicial powers can be set-aside if it is against law but in the instant case, according to the peculiar facts and circumstances, the statutory provision dealing with the subject matter and the validly enforced law has vested the appointing authority with the powers, the vires of which have not been challenged. Thus, the act of determination of the terms and conditions of respondent as Ombudsman cannot be treated as unlawful or unauthorized.
15. So far as the argument that as the other offices have also been given the terms and conditions equal to those of Judge High Court is concerned, neither any other person holding the office under any other law has been made party in this case nor specifically it has been challenged. Therefore, unless the specific proposition is not raised before the Court, we cannot make conclusive opinion in this regard.
16. In our considered view, the practice of granting the terms and conditions equal to that of Judge High Court is not strictly according to the spirit of the Constitution. Such practice has been so misused that even a person who according to nature of his job is not performing any judicial functions is also getting the judicial allowance. It is very funny and mockery with the constitutional provisions. As the Government has already realized this situation and a notification which was issued on 25.6.2002 is holding the field, the validity of which has not been challenged by the respondent rather it appears to be consistent with the spirit of the Constitution, therefore, in this situation, no detailed deliberation is required. The Government and other concerned are directed to strictly and practically apply the notification dated 25.6.2002 and in future any violation of this notification will be deemed the violation of law and the Supreme Court?s direction.
17. Now we would also like to consider another legal proposition of public importance i.e., the principle of parity with Punjab. This point requires detailed deliberation in view of the legislative developments taken place in the Azad Jammu and Kashmir. This principle is basically derived from the notification dated 16.1.1969 which reads as under: {{ARABIC TEXT}} Subsequently, another notification was issued on 29.7.1970 which reads as under:- {{ARABIC TEXT}} The notifications dated 16.1.1969 and 29.7.1970 were issued before enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The phraseology of the referred notifications clearly speaks that these relate to the infancy era of the State of Azad Jammu and Kashmir. However, subsequently, major legislative developments occurred and finally the Act, 1974 was passed which is in force. In this regard the provision of section 51 of Act, 1974 is relevant which reads as follows:- "51. Continuance of existing laws.- Subject to the provisions of this Act, all the laws which, immediately before the commencement of this Act were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority Explanation.- In this section laws? Includes Ordinance, Orders, rules, bye-laws, regulations and any notification and other legal instruments having the force of law; and in force? In relation to any law, means having effect as law whether or not the law has been brought into operation." The concerned, having regard of this Constitutional provision, also have subsequently issued the notification dated 20th May, 2004 which reads as under:- {{ARABIC TEXT}} The phraseology of this notification clearly speaks that principle of parity with Punjab is no more having the force of law rather whenever there are anomalies or the laws made on the subject are silent in the matters enumerated in the notification, the concern may seek guidance.
18. The referred notifications dated 16.1.1969 and 29.7.1970 were conditionally protected on the enforcement of Act, 1974 which clearly speaks that such laws will remain continued until altered, repealed or amended by the Act of an appropriate authority. Thus, the intention of the Constitution makers is clear that all the laws enforced before framing of the Constitution Act, 1974 shall remain operative till proper legislation by the proper forum is made so that the vacuum may not be created and to avoid anomalies and hardships. However, the operation of such law was also conditional subject to provision of Act. 1974. The provision of section 51 of Act, 1974 clearly speaks that such laws shall continue until altered, repealed or amended by the Act of appropriate authority.
19. As in the case in hand, the legislature has passed the Ombdusman Ordinance, thus, by operation of the provision of section 51 of the Constitution Act, 1974, the Acts made by the Assembly shall prevail and the other laws and notifications such like as parity with Punjab will have to cease their effect.
20. So far as the other question of grant of equal terms and conditions is concerned, it also appears to be misconceived. The statutory provisions of special laws have always been given due regard.
When the terms and conditions of the office are determined under special law by the competent authority, the determination order has always been given due weight. Reference in this regard may be made to the case reported as Bostan Chaudhary vs. Audit and Accounts Department and 6 others [2011 SCR 279] wherein the question of grant of terms and conditions equal to that of Judge High Court came under consideration. It will be useful to reproduce here the relevant part of report which as under:- "14. The appellant has placed on record a notification dated 27.6.2001 whereby he has been granted a car on depreciated cost as a privilege and in the notification it has been clearly written that in future the Chairman Public Service Commission, Chairman Zakat Council, Chairman Service Tribunal and the head of the other institutions will not be entitled to such privileges. This notification also helped us to draw a conclusion that the authority issued such notification consciously what to grant and what to withheld. Initially the appellant?s privileges and conditions as Chairman Service Tribunal were determined equal to Judge High Court, in this context we have also considered the notification of the other persons whose terms and conditions as Chairman Service Tribunal are determined equal to Judge High Court. The notification dated 12.5.2008, the order of appointment of Chairman Service Tribunal (Mallick Abdul Rashid) is also a proof of the fact that the authority has also applied different phraseology while determining the terms and conditions of the Chairman Service Tribunal. In this notification it has been specifically mentioned that he shall be entitled to the same pay, privileges and other terms and conditions as admissible to a Judge of the High Court. The same phraseology is applied in notifications of appointment of Ex-Chairman Service Tribunal Mr. Muhammad Saddique Farooqi, Sardar Muhammad Sajawal Khan (Late), Abdul Majeed Khan (Late) Raja Bashir Ahmed Khan and Sardar Muhammad Anwar Khan. In the notifications of appointment of these Ex-Chairman the phraseology applied is {{ARABIC TEXT}} " Same like, the factual and legal proposition in another case reported as Raja Shahnawaz Khan, Chairman Azad Jammu and Kashmir Zakat Council vs. Azad Govt. Of the State of Jammu and Kashmir and 3 others [PLJ 2013 SC (AJ&K) 186] is quite distinguishable. In that case, the authority categorically while considering the matters of determination of terms and conditions of Chairman Zakat Council has taken position that:- {{ARABIC TEXT}} This order was issued by the authority but subsequently due to occurrence of political change, the new elected Government of opponent party failed to act upon this decision. The matter was brought before the Court and during pendency of writ petition, a discriminatory order was issued on the political basis which was set-aside in the light of the statutory provision of special law dealing with the subject.
21. This Court while dilating upon the scope of enforcement of special law in the case reported as Azad Govt. & others vs. Dr. Muhammad Amin [2014 SCR 258] has observed as follows:-
5. We have heard the learned counsel for the parties and also perused the record. According to undisputed facts, respondent was appointed as Chairman MDA, under the provisions of MDA Ordinance, 1974, by the Government. According to the provisions of MDA Ordinance, as well as the pleadings of the parties the appointment was made on contract basis. Subsequent to the appointment order, the terms and conditions of respondent were determined by the Government vide notification dated 8.5.2008 in which one of the conditions was that the period of contract was specified as three years. The respondent was removed from the office before expiry of the period mentioned in the terms and condition?s order. Thus, according to the facts of this case, there are only two major controversies among the parties requiring resolution. First is that whether respondent No.1 can be removed from the office before the period of contract mentioned in his terms and condition?s order and; the second is that whether he is entitled to the emoluments of remaining period of his contract. Another point which has also been forcefully raised by the appellants before High Court as well as this Court is the application of the doctrine of laches. The learned single Judge of the High Court has accepted the writ petition mainly on the ground of the doctrine of Audi alteram partem. Whereas on the merits of the case, the only appointment notification and order of determination of terms and conditions has been appreciated without taking into consideration the basic controlling and governing statutory provisions of section 6 of the MDA, Ordinance. In our opinion, in the light of peculiar facts of this case and the stand taken by both the parties, for resolution of controversial legal and factual propositions, appreciation of section 6 of the MDA Ordinance, is of vital importance. Before proceeding further, it will be useful to reproduce here section 6 of the MDA Ordinance, which was operative at the relevant time, which reads as follows:- "6. Constitution of the Board.- (1) The Board shall consist of not more than four members, to be appointed by the Government.
(2) The Government shall appoint a chairman and a Financial Advisor from amongst the members.
(3) The Chairman and other members shall hold office during the pleasure of the Government and unless sooner removed the Chairman and the Financial Advisor shall hold office for a period of five years and other members shall hold office for a period of four years.
(4) Any person, ceasing to be Chairman, Financial Advisor or member of the Board, by reason of the expiry of the term of his office shall be eligible for reappointment for another term or for such shorter term as the Government may decide.
(5) No act or proceedings of the Board shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution of the Board.
(6) The Chairman, Financial Advisor, or any member may at any time, resign; Provided that his resignation shall not take effect until accepted, by the Government." (underlining is ours)
6. Undoubtedly, respondent No.1 has accepted his appointment order which is made by appellant No.1 while deriving powers under these statutory provisions which clearly speaks that the appointed Chairman shall hold office during the pleasure of the Government. Before specifying the period of five years it is clearly mentioned "unless sooner removed". Thus, this very basic and governing clause speaks that ordinarily the period of the office of Chairman shall be five years unless he is sooner removed. A careful examination of the referred statutory provisions clearly convey the intention of legislature that the appointing authority is vested with the powers to remove the Chairman before the specified period. It is clear that respondent has accepted the appointment keeping in mind these very basic statutory provisions. According to celebrated principle of law, the notifications of terms and conditions will have to be interpreted while keeping in mind the domain and scope of the basic statutory provisions under which the appointing authority is vested with the powers of appointment. If an eventuality arises that any of the terms and conditions is violative to the basic statutory provisions, same shall be deemed ineffective and invalid to the extent of inconsistency with the statutory provision."
In another case reported as Brig (Rtd) Muhammad Saeed Akhter & others vs.Azad Jammu & Kashmir Govt. Through Chief Secretary, Muzaffarabad & others [2013 SCR 365] this Court while dealing with almost identical proposition has held as under:- "5. The only question is; whether the appellants are entitled for the emoluments of remaining period of their fixed tenure or not. This controversy has to be judged from two angles; firstly that whether without specific prayer in the writ petition this relief can be granted and; secondly whether in the presence of the provision of subsection (1) of section 4 of the Azad Jammu & Kashmir Public Service Commission Act, 1986, the prayed relief is admissible? The statutory provision clearly speaks that although; the appointments of Chairman and Members of the Public Service Commission shall be for a specific period but at the same time the legislature has empowered the Government to terminate the services for the reasons to be recorded, even before the expiry of this period. Thus, it can be safely held that it is not a legal position that the services of Chairman or Members of Public Service Commission cannot be terminated before the expiry of their fixed tenure."
Thus, the principle of law laid down has no application to the case in hand according to the peculiar facts and circumstances.
22. The appellants have also advanced the argument that the High Court has closed the right of defence of the appellants against the principle of justice due to which the case has been decided on the basis of unilateral facts and material brought by the respondent. In our considered opinion, as the material proposition is mainly legal one requiring interpretation of constitutional provisions as well as the statutory provisions of special law dealing with the subject matter; the other factual propositions are also relating to the official record which has been examined; hence, in view of the peculiar facts and circumstances of this case and the conclusion drawn by us, there remains no requirement to further dilate upon this point.
For the above stated detailed reasons, we are constrained to accept this appeal and recall the impugned judgment of the High Court. Consequently, the writ petition filed by the respondent stands dismissed with no order as to costs.