' CH. MUHAMMAD IBRAHIM ZIA, J. -- The captioned petition for leave to appeal is filed from the judgment of the High Court dated 20.6.2013, whereby three writ petitions filed by the respondents herein, have been accepted.
2. According to the summary of facts as depicted from the record, respondents No, 1 to 4, herein, invoked the writ jurisdiction of the High Court through Writ Petition No, 2318/12 challenging therein the vires of the advertisement got published by the Azad Jammu & Kashmir Council (hereinafter to be referred as AJ&K Council) Secretariat, Islamabad. They averred that in the advertisement, the condition of being State Subject for applying against the posts has been omitted only to deprive them of opportunity of competition and to provide an opportunity to the non-state subjects for appointments against the said posts.
3. In Writ Petition No, 2432/12 filed by respondents No, 5 to 8 herein, it has been averred that all of them are the members of the legal fraternity of Azad Jammu & Kashmir. They invoked the writ jurisdiction for compelling the petitioners, herein, to perform their duties within the Constitutional framework of Azad Jammu & Kashmir. They also averred that the Azad Jammu & Kashmir Council through the Azad Jammu & Kashmir Adaptation of Laws Act, 1979, has adapted various laws in force in Pakistan including Service Tribunals Act, 1973 and Civil Servants Act, 1973 in derogation of the provisions of AJ&K Interim Constitution Act, 1974. The AJ&K Council as visualized in AJ&K Interim Constitution Act, 1974 was not in existence at the relevant time. They also raised the objection regarding induction of non-State subjects into AJ&K Council Services challenging the vires of advertisement published in daily newspaper Nawa-i-Waqt, dated 13.11.2012 and 14.11.2012. In the third Writ Petition 101/2013 same grounds as raised in Writ Petition 2432/2012 have been agitated.
The petitioners herein resisted all the three writ petitions by filing comments/objections. After necessary proceedings, while accepting all the writ petitions, the High Court issued the prayed writ in the following terms against the AJ&K Council: "(a) The Azad Jammu & Kashmir Council is directed to amend the Federal Public Service Commission Ordinance, 1977 and establish its own Public Service Commission as the delegation of the authority to the Federal Public Service Commission has already been declared un- Constitutional.
(b) The Azad Jammu & Kashmir Council is further directed to substitute the qualification entered in clause (b) of paragraph 5 of the AJ&K Council Notification No, AI-2/16/79-AJKC, dated 3.1.2008, under heading "Qualification, Experience and Age Limit for Direct Recruitment," as "be a citizen of Pakistan or a State Subject of Jammu and Kashmir" by qualification "be a State Subject of Jammu and Kashmir".
(c) The impugned advertisements of the AJ&K Council which appeared in Daily Nawa-e-Waqt.
Rawalpindi/Islamabad dated 13.11.2012 and 14.11.2012 inviting applications for various posts from citizens of Pakistan are set aside and it is directed that the condition of being State Subject for the applicants may be incorporated in the advertisements."
4. The petitioners feeling aggrieved from the judgment of the High Court have challenged the same through the instant petition for leave to appeal. Alongwith the petition, an application for interim relief for suspension of the impugned judgment has also been filed.
5. Sardar Karam Dad Khan, Advocate, raised a preliminary objection regarding maintainability of the petition for leave to appeal. He submitted that writs have been issued against the AJ&K Council who can be an aggrieved party but no petition for leave to appeal on behalf of AJ&K Council has been filed. The petitioners in the instant petition for leave to appeal do not fall in the definition of AJ&K Council rather they are the functionaries of the AJ&K Council. Thus, this petition for leave to appeal is not maintainable. To substantiate . His arguments, he further submitted that the power- of-attorney (wakalatnama) is signed only by one Shahid Ullah Baig, Secretary, AJ&K Council Secretariat, Islamabad. In the power-of-attorney, it is not mentioned that it has been signed on behalf of AJ&K Council through its Secretary. According to the celebrated principle of law, the power-of-attorney has to be construed strictly. So far as the question of application for deletion of word 'Secretariat' is concerned, it is not worth consideration as in view of the peculiar facts and context, such-like application is not maintainable. Moreover, the same has been filed after a lapse of almost 5 months' period from the date of the impugned judgment and three months beyond the prescribed limitation provided for filing of petition for leave to appeal. He placed reliance upon the case reported as WAPDA and another Vs. Muhammad lqbal and 10 others (2015 SCR 35), Muhammad Malik Vs. Karam Elahi and others (2011 SCR 431) and Raja Nasim and 2 others Vs. Ehtesab Bureau, AJ&K (2004 SCR 274) in support of his contention.
6. Mr. Khalid Rashid Chaudhry, Advocate, the learned counsel for the petitioners, while meeting the preliminary objection submitted that the petition for leave to appeal in fact is filed on behalf of AJ&K Council but inadvertently, the word 'Secretariat' has been written in the title of petition for leave to appeal, whereas the fact is that petitioner No, 2 is in fact the AJ&K Council. The word 'Secretariat; occurring between the words 'Council' and 'through' in the title of petition for leave to appeal at serial No, 2 in the address of petitioner No, 2, has inadvertently been inserted, thus, the error occurred due to inadvertence which, on filing of application subsequently can be rectified and such bona fide error is not fatal. He further submitted that in furtherance of the Constitutional provisions and the Rules of Business, the Chairman, AJ&K Council has authorized the Secretary Incharge of the AJ&K Council Secretariat to sign, verify the plaint, written statement and other instrument in any suit by or against the AJ&K Council in any Court including the power-of-attorney on behalf of the AJ&K Council. As in this case, the power-of-attorney has validly been executed by the Secretary, AJ&K Council, thus, the objection is baseless and the petition for leave to appeal has validly been filed which is liable to be maintained.
7. With due appreciation of the arguments advanced by the counsel, we have carefully examined the record made available. As the objection raised is of vital importance which goes to the roots of the case, thus, it requires resolution before discussion on merits of the case. The learned counsel for the parties also agreed that the resolution of preliminary objection according to its nature is of vital importance.
8. According to the proposition involved in this case and the writs issued in the impugned judgment, the operative part of which (referred to hereinabove) clearly speaks that the impugned judgment is passed against the AJ&K Council. Thus, it is the AJ&K Council who can be legally termed as an aggrieved person to challenge the impugned judgment. The AJ&K Council is a Constitutional entity established under the provisions of Section 21 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Constitution Act, 1974). In the context of this case, sub-sections (7) and (13) of Section 21 of Constitution Act, 1974, are relevant which read as follows:-- "21. (1) ................................................
(2) ....................................
(3) ..........................................
(4) ....................................
(5) ....................................
(6) ................................................
(7) The executive authority of the Council shall extend to all matters with respect to which the Council has power to make laws and shall be exercised, in the name of the Council, by the Chairman who may act either directly or through the Secretariat of the Council of which a Federal Minister. Nominated by the Chairman from amongst the members of the Council and not more than three advisors appointed by the Chairman shall be incharge: ' Provided that the Council may direct that, in respect of such matters as it may specify, its authority shall be exercisable by the Vice-Chairman of the Council, subject to such condition, if any, as the Council may specify.
(8) .
(9)
(10)
(11) .
(12)
(13) The Chairman may regulate the allocation and transaction of the business of the Council and may, for the convenient transaction of that business delegate any of its function to officers and authorities subordinate to it.
' Explanation: In this section 'Chairman' means Chairman of the Council."
' According to sub-section (7) of Section 21 of Constitution Act, 1974, the authority of the Council is to be exercised in the name of the Council by the Chairman who may, under the provision of sub- section (13) of Section 21, delegate any of its functions to the officer or authority subordinate to it.
The order of delegation of powers issued by the Council dated 15th November, 1992 is reproduced as follows:-- "Azad Jammu & Kashmir Council Secretariat ' Order ' Islamabad, the 15th November, 1992 ' No, L-6/31/92-AJKC. -- In exercise of the powers conferred by sub-section (13) of Section 21 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, read with Schedule IV of the Rules of Business, 1973, and in pursuance of Rule 1 and clause (a) of Rule 8 of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (Act V of 1908) as adapted in the Azad Jammu & Kashmir, the Chairman, Azad Jammu & Kashmir Council, is pleased to appoint Secretary Incharge, Azad Jammu & Kashmir Council Secretariat to sign and verify the plaint, written statement and instrument in any suit by or against the Azad Jammu & Kashmir Council in any Court, on behalf of the Azad Jammu & Kashmir Council, its Chairman or any public officer in the service of the Council and may appoint any Advocate on behalf of the Council in any suit.
Jalees Ahmad Siddiqui Joint Secretary"
' This delegation of powers' order clearly speaks that the Secretary, AJ&K Council has only been delegated with the powers to sign and verify the plaint, written statement and instrument in any suit by or against the AJ&K Council in any Court on behalf of the AJ&K Council, its Chairman or any public officer or may appoint an Advocate on behalf of Council in such Court. The powers delegated on behalf of Council for the acts enumerated in this order only authorize the Secretary, Incharge of the Council Secretariat to act on behalf of Council, but the Secretary himself has not been authorized to substitute himself with the Council or Chairman of AJ&K Council. Thus, the Secretary, AJ&K Council can act on behalf of the Principal but cannot be treated as substitute of the Principal,
9. In the case in hand, in the impugned judgment, the Secretary, AJ&K Council is an independent party. Same like, the AJ&K Council Secretariat and the Chairman, AJ&K Council are also arrayed as parties separately and independently. The examination of power-of-attorney tendered in this petition for leave to appeal does not speak that it has been signed on behalf of the AJ&K Council or its Chairman through Secretary, AJ&K Council. It simply bears the signatures and stamp which reads as 'Shahid Ullah Baig, Secretary, AJ&K Council Secretariat, Islamabad' which means that the counsel is engaged and authorized only on behalf of the Secretary, AJ&K Council. According to the celebrated principle of law, the power-of-attorney requires strict interpretation. The power-of- attorney filed by the Secretary, AJ&K Council in this case can only be deemed to be executed and signed on his behalf and not on behalf of any other party, whether AJ&K Council or Chairman, AJ&K Council. Almost identical proposition came up for resolution before this Court in.a case reported as WAPDA & another Vs. Muhammad lqbal (2015 SCR 35), wherein, it has been observed as under:--
20. A perusal of the said resolution shows that the powers of WAPDA under Section 3(2) of the WAPDA Act for filing and defending suits, applications, appeals and revisions on behalf of the authority have been delegated to the Legal Advisor/Director (Legal) WAPDA. The Legal Advisor/Director (Legal) has further been authorized to engage counsel and sanction their fee in this respect in accordance with the approved schedule. This resolution has never been repealed. It is celebrated principle of interpretation of the power-of-attorney that a power-of-attorney should be construed strictly and should be interpreted to give only such authority to attorney as it confers expressly or by necessary implications. The important rule for the construction of such a document is that regard must be had to the recitals, which show the object of the power. A power-of-attorney is always subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and, in such a way, as would be necessary to carry into effect the authority that is expressly given. The power-of attorney is not open to that liberal interpretation, which is given to less formal instruments such as ordinary letters or instructions in commercial transactions. It has been observed in .The cases reported as Manzoor Begum vs. HaJi Fazal Ellahi (2012 SCR 70) as under- ' .a power-of-attorney gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond that but it really conveys. The most important rule for construction of power-of-attorney is that, regard must be had to the recitals, which, as showing the scope and object of power, will control all general terms in the operative part of the instrument. Authority is given to do a particular act followed or proceeded by general words. General words are restricted to what is necessary for proper performance of a particular act and general words in no way confer general powers, but are limited to the purpose for which the authority is given. Where special powers are followed by general words and vice versa the general words are construed as limited to what is necessary for proper exercise of special power.
6. A power-of-attorney is not open to liberal interpretation. It is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way as would be necessary to carry into effect the authority that is expressly given....'
' In the case reported as Ghazanfar Hussain Vs. Rehmat Bibi and 5 others (1989 CLC 310), it has been observed as under:- '...The general terms occurring in a document executed for the purpose of appointing an attorney should be interpreted in view of the object for which such power-of-attorney was executed.
5. It is evident from the survey of case-law cited above that it is a settled principle of law that power-of-attorney should always be construed strictly and the powers which have not been specifically given to an attorney or do not flow from the contents of document by necessary implication; those should not be deemed to have been conferred on the attorney concerned.......
' Thus, it is declared that Legal Advisor/Director (Legal) WAPDA have valid power under Resolution No, 441/1981 for filing appeal on behalf of WAPDA in the High Court and in this Court.
21. The counsel for WAPDA relied upon two other resolutions dated 29.7.1986 and 1.7.1997 whereby, apart from others, Chief Engineers, Superintending Engineers (Resettlement) and Project Directors have been authorized to file.' appeal and engage counsel on behalf of WAPDA. The contention of Haji Ch, Munsif Dad, Advocate, is that the resolution authorizes them to engage counsel in any Court. For; proper appreciation it is necessary reproduce Resolution No, 527/1986, passed on 29.7.1986 and Resolution No, 749/1997, passed on 1.7.1997, which are as under:- Resolution No, 527/86, dated 29.7.1986: ' In exercise of powers conferred by Section 20 of Water and Power Development Authority Act, 1958, Authority is pleased to delegate to Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of Circles/Directorates under the Authority, its powers under Section 3(2) of the said Act of filing/defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions on behalf of Authority in Trial Courts and Courts of District & Sessions Judges in cases arising out of their respective Regions, Circles and Directorates.
' The Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the regions/circles/directorates under the authority are further authorized to engage counsels from approved panel of lawyers provided by Law Divisions, WAPDA and to sanction payment of fees in accordance with approved schedule of fees.
' Cases for sanction to the payment of amount of fees in excess of schedule fee shall be referred to appropriate authorities through Law Division WAPDA.
' Cases/petitions, appeals/revisions and other proceedings involving amount exceeding Rs,1,00,000/- and those of service matters shall be first referred to Law Division, WAPDA for instructions.'
Resolution No, 749 of 1997: ' In exercise of the powers conferred by Section 20 of the West Pakistan WAPDA Act, 1958, the authority is pleased to delegate to Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Circle/Directorate under the Authority, its powers under Section 3(2) of the said Act of filing/defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions on behalf of Authority in Trial Courts and Courts of District & Sessions Judges in cases arising out of their respective Regions, Circles, Directorates.
' The Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Regions/Circle/Directorates under the Authority are further authorized to engage counsel from approved panel of lawyers provided by Law Division, WAPDA and to sanction payment of fees in accordance with approved schedule of fees.
' Cases for sanction to the payment of amount of fees in excess of schedule fee shall be referred to appropriate authorities through Law Division, WAPDA.
' Cases/Petitions, appeals/revisions and other proceedings involving amount exceeding Rs, 5,00,000/- and those of service matters shall be first referred to Law Division WAPDA for instructions."
22. A perusal of both the resolutions reveals that the authority while acting under Section 20 of the WAPDA Act, has delegated its powers under Section 3(2) of WAPDA Act to file, defend suits, other proceedings, signing, verifying plaints, written statements and other pleadings, applications, appeals and revisions on behalf of the authority in the Trial Court and the Courts of District & Sessions Judge in the cases arising out of their respective regions, circles and Directorates to the Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of the Regions/Circle/ Directorates under the Authority. These officers have been conferred powers only in respect of cases falling in their respective jurisdiction to the Trial Court and the Courts of District & Sessions Judge: In the recitals it has specifically been mentioned that they have been authorized to conduct cases on behalf of WAPDA in the Trial Court and the Court of District & Sessions Judge. They cannot travel beyond that. An attorney can exercise only such powers which are vested in him through the power-of-attorney and not beyond that.
' The argument of the counsel for the appellants that the functionaries mentioned in para 2 of the above resolutions have further been authorized to engage counsel from the approved panel of lawyers, therefore, they are authorized to engage counsel upto the Supreme Court, has no force.
The power has specifically been conferred in para 1 of the Resolutions for filing and defending of suits in the Trial Court and filing appeals in the Court of District & Sessions Judge. They have been authorized to engage counsel upto these Courts and not beyond that. A condition is imposed in resolution of 1986 that if any case involves an amount of more than Rs, 1,00,000/- then the attorney holder shall refer the matter to the Law Division, VVAPDA, for instructions, meaning thereby that if a case involves an amount of more than Rs, 1,00,000/-, the attorney holder by himself cannot proceed with the matter. He shall refer the matter to the Law Division of WAPDA who shall instruct regarding the conduct of case. Paras 1, 2 and 3 of Resolution No, 749/1997, dated 1.7.1997 is identical to that of Resolution No, 1986. In para 4 only the financial powers of the attorney holders have been raised from Rs, 1,00,000/- to Rs, 5,00,000/- and when a matter involves an amount of more than Rs, 5,00,000/- then the attorney holder shall refer the same to the Law Division, WAPDA for instructions and act according to the instructions of WAPDA. In a recent judgment recorded in the case titled WAPDA and others Vs. Raja Maroof and others (Civil Appeal No, 49/2013, decided on 7.42014), it was observed in para 8 as under:--
8. A perusal of above order reveals that WAPDA has delegated powers for engaging counsel on its behalf apart from Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers, Project Directors and Directors of circles, etc. They are competent to engage counsel for filing a suit on behalf of WAPDA, defending suits, other proceedings, signing, verifying plaints, written statements, other pleadings, applications, appeals and revisions in the Trial Courts and Courts of District & Sessions Judges in cases arising out of their respective regions, circles, directorates, from approved panel of Lawyers provided by Law Divisions, WAPDA and also to sanction their fees in accordance with approved schedule of fee. The above authorities have been conferred powers for engaging counsel in Trial Court and the Courts of District Judge and no other Court. It is a general rule of construction that a power-of-attorney is to be strictly construed, the attorney can only exercise such powers which are vested in it expressly or by necessary implications and regard must be had to the recitals of power-of-attorney. We are fortified in our view by the case reported as Muhammad Mehrban Vs. Sadrud Din and another (1995 SCR 274) observed in paras 11 and 12 as under
11. The general rule of constructions is that powers of attorney must be construed strictly as giving only such authority as those confer expressly or by necessary implication.
12. In Jiwibai Vs. Ramkuwar Shriaiwas Murarka Agarwala' (AIR 1947 Nag. 17) it was observed as follows:-- 'A power-of-attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and in such a way, as would be necessary to carry into effect the authority that is expressly given. The power-of-attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instructions in commercial transaction.'
23. Thus, we have reached the conclusion that Resolution of 19865 and 1997 empower the Chief Engineer/Project Director and Superintending Engineer (Resettlement) Mangla Dam Raising Project to conduct cases on behalf of WAPDA upto the Court of District & Sessions Judge, that too, involving the amount of less than Rs, 5,00,000/- and the cases involving the amount of more than Rs, 5,00,000/- have to be referred to the Law Division, WAPDA, for instructions. The Chairman, Area Electricity Boards/Chief Engineers, Superintending Engineers (Resettlement) are further authorized by WAPDA for filing appeal on behalf of WAPDA in the High Court or appeal or petition for leave to appeal in this Court. All the appeals filed by WAPDA through Chief Engineer/Project Director and Superintending Engineer (Resettlement) in the High Court and appeals and petitions for leave to appeal in this Court have been filed without lawful authority and merit dismissal."
10. Thus, in view of the record, it can safely be held that this petition is filed only on behalf of the Secretary, AJ&K Council and none of the others has executed the power-of-attorney or has authorized' any Counsel to file petition for leave to appeal on its behalf. Therefore, this petition for leave to appeal is treated to have been filed only on behalf of Secretary, AJ&K Council and not on behalf of Chairman, AJ&K Council or the AJ&K Council.
11. The next question raised is regarding the application of the petitioner filed for deletion of the word 'Secretariat. Leaving aside the question of limitation, even otherwise this application when considered in juxta-position with the contents of petition for leave to appeal; it appears to .Be fruitless. As from the examination of the title of the petition, it reveals that in this case the Secretary, AJ&K Council, the AJ&K Council Secretariat and Chairman, AJ&K Council, Minister Incharge AJ&K Council and some others have been arrayed as party in their separate entity. The counsel for the petitioner attempted to substitute petitioner No, 2 i,e, AJ&K Council Secretariat with the AJ&K Council but it appears to be contrary to the contents of the memo. Of petition for leave to appeal.
In the light of the reasons recorded hereinabove, neither power-of-attorney has been signed on behalf of the AJ&K Council through its Secretary nor any other party has authorized the delegate to appoint an Advocate on its behalf. Another reason is that the AJ&K Council is entered in the title of the appeal as proforma respondent No, 12, thus, it is clear that it is not an omission or typing mistake. The petitioner No 2 i,e,, AJ&K Council Secretariat is an independent, separate party in Writ Petition No, 2318/2012 which is arrayed as respondent No, 1 in this petition. Thus, the stand taken by the counsel for the petitioner is baseless and also stood negated from his own drafted and filed memo. Of petition for leave to appeal,
12. As it has been mentioned in pare No, 3 hereinabove that in the impugned judgment the writs have been issued against the AJ&K Council, thus, the AJ&K Council is the person who in view of the impugned judgment can be treated as an aggrieved person. As no petition for leave to appeal has been filed by the AJ&K Council, therefore, the instant petition for leave to appeal filed by the Secretary, AJ&K Council Secretariat, Islamabad, in view of the peculiar facts and circumstances of the case, is not competent.
' The preliminary objection prevails, hence, for the above-stated reasons this petition for leave to appeal alongwith application for interim relief is hereby dismissed with no order as to costs.