GHULAM MUSTAFA MUGHAL, C.J.----Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is prayed for:- "It is therefore, most respectfully submitted that:--
(a) The item No,3 of the decision of the' Cabinet meeting held on 25th' November 2015, circulated vide Memorandum No, Admin/CS-2(6)/ 2015 dated 30th November 2015 and Notification No, Secretariat/ E&SE/24500-24510/15 dated 26th November 2015 and Notification No, SHE/1st/7911- 30/2015 dated 26th November 2015, commonly known as "Education Package" may kindly be declared without lawful authority.
(b) The respondents may kindly be restrained from creating an exploitation throughout the Azad Jammu and Kashmir with a view to achieve their political objectives;
(c) The Finance Department of Azad Jammu and Kashmir Government may kindly be directed to implement the objects of Notification of the Finance Division Govt. Of Pakistan dated 4th June 2015 as well as the Rule Governing the financial discipline in Azad Jammu and Kashmir in letter and spirit.
(d) The respondents may also be directed to implement the National Education Policy 2009 as adapted in Azad Jammu and Kashmir with the name and-style of "Kashmir Education Policy" in letter and spirit.
(e) Any other relief admissible under law may also be granted."
Brief facts necessary to be noticed for the purpose of decision of the captioned petition are that a joint declaration was made on 16.09.2011 by the elected leaders of the Government of Pakistan, Government of Punjab, Sindh, Balochistan, Khyber Pakhtunkhwa Azad Jammu and Kashmir and Gilgit and Baltastan, whereby Federal and Provincial Govt. Decided to reaffirm their commitment to the education as priority., The Chief Executive/Prime Minister of Azad Jammu and Kashmir is also signatory of the Joint Declaration: The National Education Policy 2009 enforced in Pakistan was considered by the Cabinet in its meetings dated 10.12.2010 and 03.01.2011 and adapted the same vide notification dated 05.12.2012 in Azad Jammu and Kashmir. To achieve the target of the Education Policy, lain share of the funds were to be provided by the Federal Government, but due to financial constraints, same were refused. The Government, of Azad Jammu and Kashmir to achieve the said target from its own sources imposed and enhanced some taxes vide Azad Jammu and Kashmir Finance Act, 2015. Thereafter, a proposal was sent by Secretary Elementary and Secondary Education Schools for up gradation of different institutions and creation of posts to the Finance Department on 2.08.2015. Through this proposal 2266 posts of different categories and up gradation of various schools were requisitioned. After scrutiny the Finance Department agreed for creation of 1037 posts vide letter dated 02.10.2015. The Secretary Higher Education also sent a proposal on 06.08.2015 for creation of the posts and up gradation of the different institutions for college side. Instead of requisitioned posts only 437 posts were concurred by the Finance Department as is evident from letter dated 02.10.2015 for college side. Thereafter, the matter remained pending. Meanwhile on 16.11.2015 the Finance Department issued a letter to the Secretary Higher Education stating therein that the Finance Division has not sanctioned the creation of the posts because estimated target of taxes on the basis of Finance Act, 2015 could not be achieved, therefore, implementation of the Education Package is regretted. The Cabinet met on 25.11.2015 and considered the aforesaid letter of the Secretary Finance under item No,3 of the agenda under the heading of "Implementation of National Education Policy in Azad Jammu and Kashmir." After deliberation the Cabinet overruled the view point/sanction of the Finance Department in view of provisions contained in Rule 15(3) of the Rules of Business, 1985 and directed to Secretary Elementary and Secondary Education as well as Secretary Higher Education to proceed further for implementation of National Education Policy. The decision of the Cabinet was notified vide notification dated 30.11.2015. While implementing the decision, the cabinet has upgraded the institutions mentioned in the notification and has also created different posts. Similarly on 26.11.2015 Secretary Higher Education has also issued the notification in light of their proposal earlier submitted to Finance Department. It is stated that Cabinet has bulldozed the opinion of the Finance Department while exercising powers under Rule 15(3) of the Rules of Business without any reason and the decision of the Cabinet is arbitrary, politically motivated and without lawful authority and militate against the good governance. It is further stated that implementation of the package is practically impossible in view of Financial constraints and restriction imposed by the Federal Government and creation of the posts is not possible until and unless sufficient funds are provided by the Government of Pakistan for the purpose. The implementation of the education package is also not possible due to non receipt of estimated taxes and income which was imposed through Finance Act, 2015.
The petition has been contested by the respondents through written statement. It is stated by them that the petitioners have no locus standi to challenge the decision of the Cabinet on factual grounds. It is further stated that no any violation of law, rules or fundamental right has been pointed out in the petition which has been filed on facts therefore, the same is liable to be dismissed. It is contended that Government has generated funds from its own sources and has implemented Education Policy as adapted in Azad Jammu and Kashmir and the Finance Department has no powers to question the wisdom/decision of the Cabinet.
Raja Muhammad Hanif Khan, the learned Advocate appearing for the petitioners argued that petitioners are State Subjects and some of them are members of legal fraternity and believe in the supremacy of Constitution and rule of law, therefore, they have a right to question the misuse and mismanagement of the State consolidated funds and can compel the respondents to utilize the funds for the betterment of the State subjects in accordance with the provisions of the Constitution and Rules of Business. The learned Advocate further argued that decision of the Cabinet dated 28.11.2015 which stood notified on 30.11.2015 is malatide, politically motivated, discriminatory and without lawful authority. The learned Advocate maintained that Cabinet has to act within the four corners of the Constitution, 1974 and Rules of Business, 1985. The learned Advocate contended that Cabinet cannot bulldoze the opinion of the Finance Department who is responsible under the Rules of Business for smooth distribution of the funds for running the affairs of the Government. The learned Advocate further contended that in view of financial constraints and refusal of the Federal Government, the opinion of the Finance Department was legal and justified which cannot be overruled by the Cabinet. The learned Advocate argued that decision of the cabinet is arbitrary and politically motivated because no reason has been listed for overruling the opinion of the Finance Department. The learned Advocate submitted that after admitting the fact that sufficient funds are not available and without aid/grant of the Federal Government the education policy cannot be implemented, the up gradation of the institutions is mala fide, discriminatory and against the public interest. The learned Advocate submitted that various institutions have been upgraded without following any criteria and policy for the purpose purely on political basis in order to obtain the favour of the people in the coming elections, therefore, up gradation is neither in the public interest nor could have been ordered in the present financial crunch. The learned Advocate contended that even dated notifications issued by the Secretary Elementary and Secondary Schools and Secretary Higher Education issued on 26.11.2015 are without lawful authority and violative of Rule 15(3) of the Rules of Business because even after decision of the Cabinet these notifications could have been issued only after scrutiny of the Finance Department. The learned Advocate placed reliance on the following case law:-
1. Sajjad Hussain Shah and others v. Azad Jammu and Kashmir Council Secretariat Sector F-5/2 Islamabad and others [PLD 2013 AJ&K 34].
2. Rehmatullah Khan and 3 others v. Azad Govt. Of State of Jammu and Kashmir through Chief Secretary Muzafrabad and 13 others [PLJ 2015 SC AJ&K 641.
3. Syed Qasim Gillani v. University of AJ&K and 5 others [2015 SCR 123)
4. Fazat Hussain v. Fatima Bibi and 2 others [2015 SCR 1384]
5. Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate and others PLD 2012 SC (AJ&K)
42.
6. Abid Akram v. Danish Zaib and 05 others [2015 SCR 732].
Conversely, the learned counsel for the respondents vehemently argued that petitioners are not aggrieved persons as no tangible proof has been appended with the petition that they are state subjects and they have suffered any loss due to implementation of the education policy. The learned Advocates contended that even the pro-bono-publico petition cannot be filed until and unless some extra ordinary circumstances are shown. The learned Advocates further contended that writ cannot be filed mere on the basis of facts until and unless it is shown that any of the fundamental right of the citizens/state subjects have been infringed or any provision of the Constitution or any law has been violated by the respondents. The learned Advocates further argued that it is not correct to say that Finance Department has not agreed to the proposal submitted by the Secretary. Elementary and Secondary Education and Secretary Higher Education and the fact of the matter is that matter remained pending before the Finance Department for couple of months and thereafter, concurrence was issued through different letters but before issuance of the appropriate notification another letter was issued by the Finance Department showing . Their inability in giving concurrence, which has been turned down by the Government.
The learned Advocate submitted that decision of the Cabinet, is in accordance with the Constitution and Rules of Business. The learned Advocates furthers submitted that under the Constitution the Cabinet is the supreme forum which has to act according to the Constitution and Rules of Business, therefore, opinion of the subordinate functionary or opinion of any department cannot be allowed to bypass the decision of-the Cabinet. The learned Advocate in support of their submissions placed reliance on the following cases:--
1. Raja Tahir Majeed Khan and 7 others v. Azad Govt. And 6 others [2014 SCR 272].
2. Watan Party and another v. Federation of Pakistan and others [PLD 2013 SC 167].
We have heard the learned counsel for the parties and gone through the record of the case.
Firstly we would like to resolve the preliminary objection raised by Barrister Humayun Nawaz Khan, the learned Advocate for the respondents that petitioners, herein, are not aggrieved persons within the ambit of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and do not have locus standi to challenge the cabinet decision and notifications issued in pursuance thereof.
By now law is well settled that it is not necessary to qualify as an aggrieved person that a right in strict juristic sense should be vested in him, yet a person must at least shown that he has some interest that the respondents should act in accordance with law.
In a case titled Raja Iqbal Rasheed Minhas, Advocate v. AJK Council and 03 others" PLD 2002 SC (AJ&K) 1, the apex Court has considered the question in depth in view of the earlier case law on the subject. In para 14 of the report, it was observed as under: "14. It may also be pointed out that there is a wide difference between a writ of certification and a writ of habeas corpus or a writ of quo warranto. Except the writ of Haber corpus and the writ of quo warranto which can be invoked by any person, the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is one in a writ of prohibition, whose rights are threatened, in writ of mandamus whose rights are being denied and in writ of certification whose, rights have been affected by a decision. The word "right" is not used here in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or, gain an advantage by observance or non-observance of law is an aggrieved party. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the Writ petition or an appeal in this Court against the impugned judgment of the High Court".
Similarly, in case titled "Noor-ul-Amin, Bar-at-law v. The Govt. Of the State of Azad Jammu and Kashmir and 2 others" [PLD 1987 AJ&K 881, amendment effected in the Azad Jammu and Kashmir Interim Constitution Act was challenged by Barrister Noor-ul-Amin, Advocate and the question was considered by a full bench of this Court and in para 7 of the report, it was opined as under:-
7. Ordinarily, an aggrieved person is he who suffers a grievance by loss of any interest or right in consequence of an act or omission caused by an order, decision or action of a tribunal or authority or person. The term "aggrieved person" received the attention of the superior Courts the subcontinent in various cases from time to time. The consensus is that a person is deemed as "aggrieved person" when he satisfies that he suffered loss or the curtailment of a privilege or right in consequence of non-performance of a duty. In this context, it is emphasized that the claimant must show any evasion of injury to his personal interest by an act or omission in order to bring his case within the purview of an aggrieved person."
In a case titled "Raja Tahir Majeed Khan and 7 others v. Azad Govt. And 6 others" reported as 2014 SCR 272 the question of locus standi for filing petitions for Pro Bono Publico received the attention of, the apex Court and at page 277 in para 7 of the judgment, it was observed as under:-- "7. So far as the question of petitioner's locus standi is concerned; although this point has been raised in pleadings and argued but the High Court has not recorded any specific finding in this regard. Be that as it may, however, only an aggrieved person can be heard by this Court. In the present case, the head of the department, Chief Conservator Forest and the Additional Secretary of the Forests Department appeared before the Court. Their statements have been recorded. They have categorically stated that no action has been proposed or initiated on the part of the department in the matter in issue. In presence of well organized and fully functional department, no outsider or stranger has got locus standi to approach the Courts for protection of the department's interests. No doubt there is concept of probono publico litigation but the law does not recognize proxy litigation".
The question as to whether petitioners, herein, have no locus standi to challenge the .Cabinet decision as well as notifications issued in pursuance thereof, would be considered in light of the afore-stated settled position of law and averments made by the petitioners in this regard in their petition. In para 1 of the petition following averment has been made with regard to the question of locus standi by the petitioners:-- "That the petitioners 1 to 162 are State Subjects and residents of all the Union Councils, in Azad Jammu and Kashmir, whereas petitioners 163 to 184 are the members of legal fraternity belonging to the Central Bar Association Azad Jammu and Kashmir and District Bar Association Bagh etc. The Finance of the Azad Jammu and Kashmir e.g. The "Consolidated fund of Azad Jammu and Kashmir", which is vested to all the State, "Subjects of Azad Jammu and Kashmir has been' adversely affected by the respondents by overruling the viewpoint/ sanctions of the Finance Department and illegal exercise of powers by the Government under subsection (5) of Section 38 of the Interim Constitution Act. The Government have upgraded the various institutions i.e, Middle Schools, High Schools, and higher Secondary Schools and at the same time created a large number of posts while creating a discrimination amongst all the state subjects for achieving political objectives by the sitting Government of the propels party with a view to grab the forthcoming elections to the Azad Jammu and Kashmir Assembly and at the same time have exercised the jurisdiction not vested in the respondents and in this view of the matter the fundamental rights guaranteed to all the Petitioners have been violated. Keeping in view the aforesaid state of affairs, the petitioners did not have any other, alternate, adequate, efficacious remedy available under law, therefore, the petitioners are constrained to invoke the extraordinary. Jurisdiction vested to this Hon'ble Court under section 44 for declaring without lawful authority item No,3 of the Decision of the Cabinet meeting held on 25th November 2015, circulated vide memorandum No, Admin/cs2(6)2015 dated 30th November 2015 (Annexure "PA" consisting 17 pages) and Notification No .Secretariat/E & SE/24500- 24510/15 dated 26th November 2015 (Annexure "PB", consisting 18 Pages) and Notification No, SHE/1st /7911-30/2015 dated 26th November 2015 (Exurban "PC", consisting 6 Pages) commonly known as "Education Package", Inter alia; for the following grounds".
Raja Mohammad Hanif Khan, the learned Advocate appearing for the petitioners has relied upon a, full bench judgment of this Court titled "Sallad Hussain Shah and others. v. Azad Jammu and Kashmir, Council Secretariat and others", [PLD 2013 High Court (AJ&K) 34], and contended that question of locus standi has been liberally construed by this court in the aforesaid case and the same cannot be interpreted in a narrow sense. It was held that it is not necessary for petitioner in each case to be direct affected of an action or inaction of public functionary or by promulgation of any law against fundamental rights. In our considered view, the judgment is not attracted to the facts of the present case. Some of the members of legal fraternity in the cited case challenged the Azad Jammu and Kashmir Adaptation of Laws Act, 1979 on the ground that the same is ultra vires of the Constitution and some direct affectee who have been refused right of employment in the Council Service also challenged the same. In the peculiar circumstances of that case it was held that petitioners have a locus standi to challenge the vires of law known as Azad Jammu and Kashmir Adoption of Laws Act, 1979 passed by the Jammu and Kashmir Council. Having regard to the facts of the case and case law, this Court at page 61 of the report concluded as under:- "47. In view of the above stated position of law we hold that question of locus standi or aggrieved person employed in section 44(2)(c) is sine qua non for invoking extraordinary jurisdiction of this Court but in appropriate cases where petition is filed in the larger interest of the society by a lawyer or a State Subject in which violation of the fundamental rights is pointed out then the question of locus standi can be construed liberally but subject to law laid down by the superior Courts in various pronouncements discussed herein above. The objection is, therefore, repelled".
The reliance in that case was also placed on "Dr. Akhter Hassan Khan and others v. Federation of Pakistan and others" [2011 SCMR 455] In para 50 of the judgment their lordships after referring the various pronouncements of the superior Courts observed as under:-- "50. While holding that these petitions are maintainable, we would like to strike a note of caution.
The court has to guard against frivolous petitions as it is a matter of common observation that in the garb of public interest litigation, matters are brought before the Court which are neither of public importance, nor relatable to enforcement of a fundamental right or public duty.
Reliance in that case was placed in case tilted "Ashok Kumar Pandey v. State of West Bengal" [AIR 2004 SC 280], wherein it was observed as under:-- "Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or, publicity seeking is not lurking. It is to be used as an affective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity.. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate case with exemplary costs." As we have made up over mind to dismiss the petition on the question of locus standi, however, it is liable to be observed that in future for the purpose of upgradation of institutions in education sector there must be a high level committee who should recommend the upgradation of the institution on need in order to eliminate the impression of political involvement and motivated decisions or some policy or guidelines should be framed for the purpose of up gradation of the institutions in education sector. Accordingly ordered. As the preliminary objection is upheld and the whole petition can be disposed of on this objection, therefore, judgment on the other arguments would be an academic exercise.
Before parting with the case, we have constrained to observe that Court cannot assume the function of policy making or determine the priority of the various development project in the State because the same is in the exclusive domain of the executive/Government as has been held by the apex Court of Pakistan in the case titled "Watan Party and another v. Federation of Pakistan and others" PLD 2013 SC 167. In paras 7 and 8 it was concluded as under:-- "7. We are afraid that at the instance of Petitioners, in order to expedite the progress of the Project, we cannot assume the functions of policy making or determining the priorities of various development projects in the country, which are the exclusive domain and functions of the Federal and Provincial Government, as the case may be, who have, their own ministries, departments, commissions and consultants, etc. for policy making, Determining the priorities of various development projects and its implementation. It is pertinent to mention here that under the scheme of the Constitution having its structure based on tracheotomy of power amongst its different organs i.e, legislature, executive and judiciary, each of its organ has to work and exercise its authority strictly within its mandate, without encroaching upon or usurping the jurisdiction/functions of any other organ of the State.
8. From the bare reading of the Constitution, particularly, Arts. 29 and 38 of Chapter 2, Part-II, relating to principles of policy, it is evident that respective Federal and Provincial Governments and all decisions regarding their implementation are also to be taken by them on the basis of determined priorities of different projects and availability of financial resources at their disposal.
Obviously, this exercise cannot be ordinarily interfered with by this Court by invoking its jurisdiction under Article 184(3) of the Constitution, unless shown to be mala fide or in violation of the fundamental rights guaranteed under the Constitution to every citizen of this Country, thereby affecting the interest of public at large".
The similar view was taken in a case titled FAMEES Khalid v. Government of Punjab and others: reported as PLD 2013 lahore 45. At pages 50 para 10 of the reports, it was observed as under;- "10. It is well-entrenched by now that the courts should refrain to interfere with the policies launched by the public authorities for smooth working of the public institutions until and unless they are proved to be repugnant to the fundamental rights of the citizens of the country.
In view of above, finding no force in this petition, it Is hereby dismissed. No order as to costs.