CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court has arisen out of the judgment of the High Court dated 26.06.2015, through which the writ petition filed by the appellant, herein, has been dismissed.
2. The brief and necessary facts of the case are that the appellant was serving as District & Sessions Judge/Judge Ehtesab Court when vide notification dated 21.12.2011, she was appointed as Chairperson Azad Jammu and Kashmir Council Service Tribunal. The terms and conditions of her service were to be determined. In the light of the Federal Service Tribunal Chairman and Members Service Rules, 1983 (hereinafter to be referred as Rules, 1983) as adapted by the AJ&K Council. The appellant filed a writ petition before the High Court on 02.07.2012 claiming therein that through letter dated 13.06.2012, the respondents have fixed her pay on the basis of last pay drawn under rules 6 and 7 of Rules, 1983. She prayed that the aforesaid act of the respondents being against the law and rules is liable to be set aside. She also sought a direction to the respondents for fixation of her pay and privileges as Chairperson of AJ&K Council Service Tribunal, equal to the Judge of the High Court. The learned High Court after necessary proceedings dismissed the writ petition through judgment dated 05.03.2014. The appellant, feeling aggrieved, challenged the judgment of the High Court dated 05.03.2014 before this Court. This Court through judgment dated 27.01.2015 accepted the appeal and remanded the case to the High Court. The learned High Court after necessary proceedings, dismissed the writ petition through the impugned judgment, hence this appeal by leave of the Court.
3. Sheikh Masood lqbal, Advocate, the learned counsel for the appellant argued the case at some length. He submitted that the appellant was admittedly serving as judicial officer i,e,, District and Sessions Judge.. Being qualified to be appointed Judge High Court, she was appointed as Chairperson 'Azad Jammu and Kashmir Council Service Tribunal on the valid nomination and recommendation of Chief Justice of Azad Jammu and Kashmir High Court. In this context, this Court has clearly observed in previous round of litigation that regarding her eligibility to be elevated as Judge High Court, the Chief Justice has for the several times recommended her but despite this observation, the learned High Court has fell in error of law and made contradictory observations which are not only against the record but also offending opinion formed by this Court.
On the main controversy. he submitted that the appellant being qualified to be appointed as Judge High Court has been appointed as Chairperson AJ&K Council Service Tribunal. Thus, according to law, she is entitled for terms and conditions equal to Judge High Court. Her case falls under rule 5 of Rules, 1983 and the learned High Court has wrongly applied rule 6 of the said Rules.
He submitted that as the appellant was not in service of the Pakistan, thus, she was not a Government servant and the High Court has fell in error of law. He further submitted that even otherwise the interpretation advanced by the learned High Court is discriminatory and violative of constitutionally guaranteed fundamental right of equality before law. The appellant held the judicial office and, according to the concept of independent judiciary, she is entitled for terms and conditions equal to Judge High Court. He also referred to the various appointment notifications of Chairman AJ&K Service Tribunal and the judgments of the High Court in Raja Bashir Ahmed and Syed Khalid Hussain Gillani's cases and submitted that the appellant cannot be treated in a discriminatory manner. He further argued that the Rules, 1983 applied by the High Court are also against the spirit of the Azad Jammu and Kashmir Council Service Tribunals Act, 1973 (hereinafter to be referred as Act, 1973) as adapted by Azad Jammu and Kashmir Council, thus, by application of subordinate law the appellant cannot be deprived of her accrued valid rights.
4. Conversely, Mr. Khalid Rasheed Chaudhary Advocate, the learned counsel for the respondents forcefully defended the impugned judgment and submitted that the appellant has no legal justification to challenge the impugned judgment of the High Court. The arguments of the learned counsel for the appellant are self-contradictory and destructive. On one hand, she claims the right under Rules, 1983 but on the other hand, she has advanced the argument that these rules are violative of the spirit of parent law i,e, Act, 1973. Be that as it may, the appellant has not challenged the vires of the rules, thus, the Court has to interpret the law as it exists on the statute book. He further submitted that the argument of the learned counsel for the appellant that she was not a Government servant or in service of Pakistan has no substance. According to the celebrated principle of law and statutory provisions, the law has been adapted as mutatis mutandis and wherever the word 'Pakistan' appears in adapted laws it will be deemed 'Azad Jammu and Kashmir' and same like the word 'Government' will be deemed 'Azad Jammu and Kashmir Council'.
According to the appellant's own stated facts at the time of her appointment as Chairperson, she was serving as District and Sessions Judge, thus, she was admittedly in service of Azad Jammu and Kashmir and was a Government servant. The High Court has rightly applied the correct statutory provisions; and there is no illegality in the impugned judgment. Therefore, this appeal has no substance and the same is liable to be dismissed.
5. We have considered the arguments of the learned counsel for the parties and also examined the record made available. The appellant's main grievance is regarding the terms and conditions of Chairperson Azad Jammu and Kashmir Council Service Tribunal. In this context, she has taken a specific stand in ground (C) of memo. of writ petition which reads as follows:--- "That Rule 5 of Federal Service Tribunal Chairman & Member Service Rules, 1983, applicable to the petitioner under Rule 5, if a person who is neither Judge of the High Court nor is or has been in the Service in Pakistan is appointed as a Chairman he shall be entitled to such salary allowance and privileges as admissible to a Judge of High Court. The petitioner being a judicial officer cannot be termed as Government servant of Pakistan or is Azad Jammu & Kashmir, Judicial Officer perform their function under the administrative control of High Court rather in administrative control of the Government, therefore, Rule 5 is concern to the petitioner rules 6 & 7 are not concern to the petitioner, rule 6 is about the Government servant appointed as a Chairman and rule 7 is about the retired persons appointed as a Chairman but respondents fixed the pay of petitioner under Rules 6 and 7 against the law which is without lawful authority liable to be modified."
It will be useful to reproduce here the rules 5 to 7 of Federal Service Tribunal Chairman & Member Service Rules, 1983, which read as follows:--- 5.If a person who is neither a Judge or retired Judge of a High Court nor is or has been in the service of Pakistan is appointed as Chairman, he shall be entitled to such salary, allowances and privileges as are admissible to a Judge of a High Court.
6.If a Government servant is appointed as Chairman, he shall be entitled to the same salary, allowances and privileges as are admissible to him as a Government servant: Provided that a Government servant who is promoted to a higher grade after his appointment as Chairman shall be entitled, from the date of such . promotion to the salary, allowances and privileges admissible to him in the higher grade.
7.If a retired Government servant is appointed as Chairman, he shall draw salary and allowances in accordance with the rules for the time being applicable to a retired Government servant on reemployment and, in respect of leave, medical attendance, travelling allowance and other matters be governed by the rules so applicable."
The learned counsel for the appellant has also advanced the same argument that as the appellant was not in service of Pakistan, thus, only Rule 5 is applicable to her and not rules 6 and 7.
It appears that the learned counsel has misconceived the words 'in the service of Pakistan'. In fact, the Act, 1973 was adapted by the AJ&K Council through Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979. Section 3 of this Act, reads as follows:--- "3. <i>Adaptation of laws.-- </i> (1) The laws of Pakistan mentioned in the Schedule to this. Act, and all rules, notifications and orders made thereunder and in force immediately before the commencement of this Act are adapted and shall, as far as practicable, be in force in Azad Jammu and Kashmir subject to the modifications stated below:--- (i)the expressions 'Government', 'Federal Government', 'President' or any other expressions however worded, referring to any Executive Government, shall, as far as practicable, be construed to refer to the Azad Jammu and Kashmir Council and reference to Pakistan or any part of Pakistan shall be construed to refer to Azad Jammu a Kashmir and (ii)the expression Provincial Government' shall be construed to refer to the Azad Jammu and Kashmir Government.
(2) As soon as an amendment is made, at any time after the commencement of this Act in any of the laws mentioned in the Schedule to this Act as in force in Pakistan or in the rules, notifications or orders as in force in Azad Jammu and Kashmir shall stand amended to the same extent and in the same manner."
Subsequently, the amendments in these laws have been adapted and validated vide Azad Jammu and Kashmir Council (Adaptation and Validation) Act, 1998. Thus, from the statutory provisions Section 3 of the Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979 it is clear that in the Act, 1973, and Rules the expressions 'Government', 'Federal Government', 'President' or any other expression howsoever worded, referring to any Executive Government, shall, as far as practicable, be construed to refer to the Azad Jammu and Kashmir Council and reference to Pakistan or any part of Pakistan shall be construed to refer to Azad Jammu and Kashmir. Thus, in view of this statutory provision, the term 'in the service of Pakistan' incorporated in Rule 5 of the Rules, 1983 shall be construed to refer 'in the service of Azad Jammu and Kashmir'. According to the appellant's own stated facts before appointment as Chairperson, she was in service of Azad Jammu and Kashmir as District and Sessions Judge. Thus, the argument that the bar of in service of Pakistan imposed in Rule 5 is not attracted, is without any substance and against the statutory provisions.
6. Before appointment as Chairperson the appellant was holding the post of District and Sessions Judge. The proposition "In service of Azad Jammu and Kashmir", specially, with reference to the judicial officer came under consideration before this Court in the case reported as Muhammad Yousaf Haroon v. Competent Authority and others [2014 SCR 1180], wherein, it was observed as under:-- "11. In view of the principle of law enunciated by this Court in Malick Hussain Shah's case, supra, the only question which remains to be considered is whether; a person in the judicial service, is amenable to Act, 2001 or not for proper perception, it will be useful to have a survey .of the legislative developments in this regard.
(sic) assigned to a civil servant by Act, 1976 which reads as under:--
2. "(b). "Civil Servant" means a person who is appointed to any service or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State, but does not include:--- (i)A person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or Authority; (ii)A person who is employed on contract, or on work-charged basis, or who is paid from contingencies; (iii)A person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
This definition clearly includes all the persons who hold the civil post in the service of Azad Jammu and Kashmir in connection with the affairs of the State. Thus according to this definition, the persons holding the judicial office are also acting in connection with the affairs of the State.
15.According to the celebrated principle of law, a statute may be interpreted with reference to the other statute if same is pari materia. Reference can be made to a case reported as Abdul Karim v.
Ghulam Nabi [PLD 1979 SC (AJ&K) 74], wherein following observation has been made:--- "5. .... The well-recognized rule of interpretation is that a statute may be interpreted by reference to other statute if the same is pari materia. The meaning attached to a particular expression in one 'statute', either by definition or judicial interpretation may be attached to it in other..."
16.Almost identical definition has been assigned to the Government servant under the provisions of clause (d) of Section 2 of Act, 2001, which reads as follows:--- "2 (d) "Person in Government service" includes every person who is a member of a Civil Service of the Government or who holds a civil post in connection with the affairs of the Azad Jammu and Kashmir..."
Before commencement of Act, 2001, Ordinance No, XXIV of 2000, called as Removal from Service (Special Powers) Ordinance, 2000, (hereinafter to be referred as Ordinance 2000), was , promulgated. It is also relevant to reproduce here the definition assigned to the term "person in Government Service" in the Ordinance, 2000, which reads as under:--- "2(d)"person in Government Service" includes every person who is a member of a Civil Service of the Government or who holds a civil, post in connection with the affairs of the Azad Jame. aid Kashmir or any employee serving in any Court or Tribunal set up or established by the Government but does not include a Judge of trio Supreme Court or of a High Court or Shariat Court or any Court subordinate to the High Court, or any employee thereof..."
17. A comparison of the definition of "person in Government Service" in the Ordinance, 2000 and in the presently enforced Act, 2001, conveys a material difference. In the Ordinance, 2000, expressly, the judiciary was excluded from the definition of Government Service but the legislature while making Act, 2001 omitted the phraseology, excluding the judiciary from the definition of Government Service. These legislative developments clearly convey the intention of the legislature that a person holding the civil post in connection with the affairs of Azad Jammu and Kashmir, falls within the definition of "person in the Government Service", hence, it was felt advised to specifically exclude the judiciary from the definition for the purpose of application of the Ordinance, 2000. But when the Ordinance, 2000 was replaced by Act, 2001, express exclusion has been omitted, consequently, the result is obviously clear that after omission of such exclusion, such persons became subject of the definition. In the omitted exclusion clause, Judges of the Supreme Court, High Court, Shariat Court and the judiciary subordinate to the High Court or any employee thereof were excluded. But despite this omission Act, 2001 is not applicable to the Judges of the Supreme Court and the High Court simply because, for their removal, the Constitution has prescribed a comprehensive mode and mechanism. According to the celebrated principle of law, in presence of the Constitutional provisions, subordinate law has to yield and not supersede. Whenever, there will be any necessity or requirement to make modification or alteration in this regard. that can only be made through the Constitutional provisions and not through the subordinate legislation. Thus, we are also unable to subscribe to the view expressed in para 10 of the draft judgment that inclusion of the judiciary in the definition of a person holding the office in connection with the affairs of Azad Jammu and Kashmir will result into application of Act, 2001 on the Judges of the Supreme Court, High Court and Shariat Court. However, according to our study, there is ambiguity relating to the Judge of the Shariat Court. The Shariat Court has been established under the sub-Constitutional law, i,e, The Azad Jammu and Kashmir Shariat Court Act, 1993, which do not provide any mode or mechanism for removal of a Judge of the Shariat Court. Sub-section (5) of Section 3 of Shariat Court Act, only speaks that the Judge of Shariat Court, other than the Judge of High Court shall hold office until he attains the age of sixty-two years, unless he sooner resigns or is removed from office in accordance with law. But it is not clarified that which law is applicable for removal of a Judge of the Shariat Court. However, this proposition is not directly involved in this case which is left open to be resolved in any other appropriate case brought before the Court for resolution.
18. Same like for the employees of the High Court and the Supreme Court, under the provisions of Section 47-A of Constitution Act, 1974, rules-making powers have been delegated to the Supreme Court and the High Court subject to approval by the President. Presently, the special laws, i,e, Supreme Court Establishment (Appointment of Officers and Servants Terms & Conditions of Service) Rules, 1994 and AJ&K High Court Establishment (Appointment & Conditions of Service)
Rules 201.1 are made under the Constitutional provisions of Section 47-A. Regarding these laws, Act, 2001 has not been given overriding effect thus, is not applicable to the employees of the Supreme Court and High Court.
19. After omission of the exclusion clause of Ordinance, 2000, there only remain the persons subject of Judicial Service Rules as their terms and conditions of service are governed under the provisions of Act, 1976 and the rules made thereunder. Act, 2001 has clearly and expressly given overriding effect to the Act, 1976 and the rules made thereunder. According to the celebrated principle of law, a provision of statute has to be interpreted in a manner which may effectively carry out the purpose of the statute and also ensure its proper and smooth functioning. Our this view finds support from the case reported as Hafiz Abdul Hameed v. Nek Muhammad [1994 SCM R 2255], wherein it has been observed as under:--- "15. The principle of interpretation of statute is that the provision should be interpreted in a manner which may effectively carry out the purpose of the statute and also ensure its proper and smooth functioning. In this regard reference can be made to Maxwell's Interpretation of Statute, 12th Edition, which succinctly states this principle at page 45. If occupation and use of a partnership firm is treated as occupation and use of the landlord partner alone then it is likely to create difficulties, confusion and give an unlimited power to the landlords who may by becoming even a sleeping partner obtain ejectment on the ground that they want to accommodate their firms. A person having only a fraction in partnership of an insignificant nature would even be entitled to seek ejectment on this ground. A partner is an agent of other partners. The business of the partnership firm is carried out for the benefit of all the partners and not only one partner alone. The possession by a partnership firm amounts to possession by all the partners. In such circumstances occupation and use by the firm even in view of the extended and liberal interpretation discussed above cannot be treated as partner landlords own use and occupation. The appeal is dismissed with no order as to costs."
20. The term "Government Service" under Act 2001, is not confined only to the persons who are under the direct control or subordination of the Government but it also includes all the persons holding the posts in connection with the affairs of the Azad Jammu and Kashmir. No one can interpret the law that the persons holding such post in judiciary of Azad Jammu and Kashmir are not holding the office/post in connection with the affairs of the Azad Jammu and Kashmir. Thus, a juxtaposed appreciation of the provisions dealing with the term "person in service of Azad Jammu and Kashmir" under Act, 1976 and Act, 2001, leads to the conclusion that subject to the Constitutional exceptions, the persons holding the post in the judicial service in connection with the affairs of the Azad Jammu and Kashmir, fall within the definition of Government service for limited purpose of Act, 2001. Therefore, in our humble opinion, the persons subject of the Judicial Service Rules fall the definition of the persons in the Government service for limited and specific purposes, without affecting the status of the independence of judiciary or interference in the judicial duties."
Thus, it can be safely held that the appellant at -the time of appointment as Chairperson was in service of Azad Jammu and Kashmir and thus the bar contained in Rule 5 is attracted and she falls in the category of person mentioned in Rule 6 of the Rules, 1983.
7.So far as the proposition that the rules are inconsistent with the parent law, is concerned, this argument is also without any substance as in the Act, 1973, no terms and conditions have been determined rather according to the provisions of sub-section (4) of Section 3 of Act, 1973 the terms and conditions have to be determined by the President and the same have been determined by the President through the Rules called the Federal Service Tribunal Chairman and Members Service Rules, 1983.
8.In the previous round of litigation the case was remanded to the High Court for decision of the application for amendment filed by the appellant to challenge the vires of the Rules but it remained fruitless. After remand, the amendment application was not pressed by the appellant, in this regard the High Court in the impugned judgment has 'observed as under:--- "'However, after remand this application has not been pressed by Mr. Saghir Javid, the learned Advocate appearing for the petitioner on 27.5.2015 in the open Court."
Thus, it is obviously clear that the appellant has not challenged the vires of the Rules, therefore, this argument has no substance.
9.So far as the objection regarding observation of the High Court relating to the appellant's eligibility as Judge High Court is concerned, although the High Court has brought on record some facts but it has not given any conclusive opinion. In our opinion, in view of the nature of the case, this preposition is irrelevant and mere of an academic nature. It has no practical aspects as the appellant has already crossed the age of superannuation for appointment as Judge High Court.
However, the observation of High Court the impugned judgment cannot be treated her disqualification and to this extent, the remarks of High Court shall be deemed expunged.
10. The question of discrimination is also weightless. The matter came under consideration before this Court in the recent case titled Azad Jammu and Kashmir Government and others v. Sardar Muhammad Mukhtar Khan [Civil Appeal No, 354 of 2015, decided on 12.01.2016], wherein the full Court held that:-- "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 thus resultant, 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."
As we have already reached the conclusion that, the appellant's case falls under rules 6 and 7 and on this proposition the High Court has drawn correct conclusion in the impugned judgment which is affirmed, consequently, finding no force this appeal stands dismissed. No order as to costs.