1. M. Tabassum Aftab Alvi, J.--The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, we proposed to decide the same through this single judgment.
2. The precise facts culminating into filing of Writ Petition No, 1390/2011 are that petitioner being qualified as B.A., LL.B. and requisite length of legal practice in Bar was appointed as Civil Judge on recommendations of the Public Service Commission, on 10.02.1987, who was promoted against the post of Senior Civil Judge on 22.05.1999. The petitioner after due process of law was promoted against the post of Additional District and Sessions Judge, on 15.01.2002 and then after due course of time was promoted as District and Sessions Judge, on 10.04.2004. As per claim of petitioner, he being qualified to be appointed as Judge of the High Court, was eligible to be appointed against the post of Chairman Azad Jammu & Kashmir Service Tribunal, therefore, was appointed as such by the Government-respondent vide notification dated 06.04.2011. The petitioner on the basis of the aforesaid notification also assumed charge of the aforesaid post on the same date i,e, 06.04.2011.
3. However, it was notified in the said notification that terms and conditions of petitioner's service would be determined later on. After elapsing more than two months period, the terms and conditions of service of petitioner were determined to the effect that he shall be entitled to pay, allowances and other privileges equal to Judge of the High Court, while serving against the post of Chairman Service Tribunal, however, he will be retired as being civil servant on completing superannuation period, vide notification dated 13.06.2011. The petitioner challenged vires of condition attached with the aforesaid notification on various grounds including discrimination through the instant writ petition which was filed on 14.09.2011 and after obtaining comments was admitted for regular hearing vide order dated 17.02.2012. However, during pendency of supra writ petition the petitioner was retired from service vide impugned notification dated 19.05.2015, The veracity and propriety of the aforesaid notification was also challenged by petitioner through amended Constitution petition dated 19.06.2015.
4. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioner is a civil servant, therefore, on the basis of completion of superannuation period notification of his retirement dated 19.05.2015, was issued in accordance with law. It is asserted that petitioner was appointed as Chairman Service Tribunal vide notification dated 06.04.2011, which was accepted by him, therefore, due to principle of estopple writ petition is bad-in-law. It is further averred that the instant writ" petition has become infructuous, after issuance of the aforesaid notification pertaining to retirement of petitioner, as the same could be challenged before an appropriate forum. It is maintained that vide notification dated 26.06.2002, a ban was imposed that in future further posts shall not be declared as equivalent of constitutional designation, hence, while appointing petitioner as Chairman Service Tribunal, the post was not declared as equal to Judge of the High Court. It is claimed that Law Department on the basis of agreement with Finance Department, issued notification dated 13.06.2011, through which salary, allowances and privileges to Judge of the High Court were accorded in favour of petitioner till his retirement on superannuation as a civil servant. It is alleged that examples of former Chairmen M/s. Sidique Farooqi, Sardar Rafique Mehmood Khan, Sardar Muhammad Sajawal Khan, Malik Abdul Rasheed, Muhammad Rasheed Khan and Raja Bashir Ahmed Khan are not applicable in the given case. It is further maintained that retirement is included in terms and conditions of service, therefore, writ petition is bad in law.
5. The contents of Writ Petition No, 257/2014 are similar to Writ Petition No, 1390/2011, which are not repeated here for the sake of brevity and convenience. However, in the later writ petition, the petitioner added that as Chairman Service Tribunal he has been passing various orders and judgments against the Government, therefore, Chief Executive of the State and Ministers have determined either to remove or transfer him from the position of Chairman, hence, he solicited writ of prohibition against respondents jointly and severely restraining them from his removal and posting.
6. The writ petition has been contested by respondents through comments which were treated, on request of their learned counsel, as written statement vide order dated 24.06.2014. The contents of the aforesaid written statement are similar as filed in Writ Petition No, 1390/2011, therefore, same are not repeated here for the sake of brevity. However, it is added that answering respondents can remove and transfer petitioner from the position of Chairman Service Tribunal, therefore, he is not entitled to any relief under writ jurisdiction, hence, prayed for dismissal of writ petition.
7. Raja Muhammad Hanif Khan, the learned counsel for petitioner while reiterating the grounds of writ petitions submitted that previously all District and Sessions Judges who were appointed as Chairmen Service Tribunal, were allowed same pay, privileges, terms and Conditions as admissible to Judge of the High Court, however, petitioner was discriminated against for mala-fide reasons while attaching condition of retirement as a civil servant on completing age of superannuation, by violating basic provisions of Interim Constitution Act, 1974. He further argued that after appointment as Chairman Service Tribunal, petitioner is no more civil servant, hence, against condition attached in the impugned notification dated 13.06.2011, no any alternate, adequate and efficacious remedy is available to him except invoking writ jurisdiction of this Court. The learned counsel pressed into service that while performing judicial functions as Chairman, petitioner passed various orders and judgments against Government, therefore, respondents were bent . upon to oust/transfer him, hence, Writ Petition No, 257/2014 was also filed under compelling circumstances, on 03.02.2014. He argued that this Court issued status-quo order against respondents jointly and severely on 03.02.2014, however, by violating the aforesaid stay order petitioner was retired from service prospectively vide impugned notification dated 19.05.2015 w,e,f, 12.11.2015, which was also challenged through amended writ petition, as against the same no any remedy was available, hence, submitted for acceptance of writ petitions. The learned counsel in support of his contentions referred to and relied upon the following case law:--
(i) Raja Shahnawaz Khan, Chairman Azad Jammu & Kashmir Zakat Council vs. Azad Govt. of the State of Jammu and Kashmir and 03 others [PLJ 2013 SC (AJ&K) 186].
(ii) Raja Bashir Ahmed Khan vs. Azad Govt. & others, (unreported) decided on 17.04.1998.
4. In case of Raja Shahnawaz Khan, Ex-Chairman Azad Jammu & Kashmir Zakat CoUncil, it was opined by the apex Court that equally placed persons deserve equal treatment before law which is constitutionally guaranteed fundamental right.
5. In case of Raja Bashir Ahmed Khan, Ex-Chairman Service Tribunal of Azad Jammu & Kashmir', it was held by Full Bench of this Court that notification dated 16.12.1996, whereby petitioner being District and Sessions Judge, was appointed as Chairman Service Tribunal, was unlawfully retired on completion of superannuation period as a civil servant. It was further held that petitioner will be deemed as retired on completion of 62 years age as enshrined in the Interim Constitution Act, 1974, for a Judge of the High Court. It was also held that after appointment of petitioner against the post of Chairman Service Tribunal, he was no more civil servant.
8. Mr. Asghar Ali Malik, the learned Advocate representing respondents reiterated grounds of written statements and submitted that petitioner is a civil servant, therefore, against the impugned notifications Writ Petition No, 1390/2011 is not maintainable. He further argued that petitioner accepted his appointment notification dated 06.04.2011, hence, due to principle of estopple the instant writ petition is bad in law. He pressed into service that petitioner challenged notification dated 13.06.2011, to the extent of his retirement after completion of superannlation period as civil servant, however, as he was retired from service vide notification dated 19.05.2015 w,e,f, 12.11.2015, on attaining the age of 60 years, therefore, Writ Petition No, 1390/2011 has become infructuous. He further argued that examples of Ex-Chairmen M/s. Siddique Farooqi, Sardar Rafiq Mehmood Khan, Sardar Muhammad Sajawal Khan, Malik Abdul Rasheed, Muhammad Rasheed Khan and Raja.
6. Bashir Ahmed Khan are not applicable to the case of petitioner, hence, submitted for dismissal of writ petitions. The learned counsel in support of his contentions referred to and relied upon the following case law:--
(i) Ali Azhar Khan vs. Province of Sindh [2015 SCM R 456].
(ii) Secretary Services and General Administration Department, Civil Secretariat, Chatter, Muzaffarabad vs. Bashir Mir, Civil. Appeal No, 347/2014 decided on 13.05.2015 (unreported).
7. Zafar Iqbal Khan vs. Azad Jammu & Kashmir-Government Chief Secretary, Civil Secretariat, Muzaffarabad. Civil Misc. No, 385/2013 decided on 11.12.2013 (unreported).
8. In case of Ali Azhar Khan, supra, it was held by the apex Court of Pakistan that matter of alternation of age cannot be resolved by any Court except Service Tribunal, as the same falls within the terms and conditions of service.
9. In case of Secretary Services and General Administration Department, ibid, it was held by the apex Court that matter of correction of date of birth is included in terms and conditions of service.
10. In Zafar Iqbal Khan's case it was held by the apex Court that retirement is also included in terms and conditions of service.
9. After hearing the learned counsel for parties at great length, we have perused the contents of writ petitions, examined the appended documents minutely and have given our earnest thought to the points raised by the learned counsel for parties.
11. 10.The petitioner admittedly while performing his duties as District and Sessions Judge, was appointed against the post of Chairman Azad Jammu & Kashmir Service Tribunal, subject to terms and conditions as may be determined later on, vide notification dated 06.04.2011. The aforesaid notification was also acted upon on the same date through joining report dated 06.04.2011. The terms and conditions of petitioner, however, were determined after more than two months vide Government notification dated 13.06.2011, who was granted salary, allowances and privileges of Judge of the High Court, while performing his duties as Chairman Azad Jammu & Kashmir Service Tribunal. However, condition of retirement as civil servant on attaining the age of superannuation was ascribed with the Government notification dated 13.06.2011. The petitioner while considering himself aggrieved from later part of the notification supra pertaining to condition of superannuation period, preferred Writ Petition No, 1390/2011 before this Court on 14.09.2011, which was admitted for regular hearing vide order dated 17.02.2012. However, during pendency of the aforesaid writ petition, petitioner was retired from the post of Chairman Service Tribunal, on attaining the age of superannuation vide impugned notification dated 19.05.2015, prospectively w,e,f, 12.11.2015. The aforesaid notification was also challenged by petitioner through amended writ petition dated 19.06.2015. As the learned counsel for respondents has raised certain preliminary objections against the aforesaid writ petition, therefore, firstly we advert to resolve the same.
11. The first preliminary objection raised by the learned counsel for respondents is that as petitioner is a civil servant within the meaning of clause (b) of Section 2 of Civil Sergants Act, 1976, therefore, against the impugned notifications dated 13.06.2011 and 19.05.2015, an alternate remedy of filing appeal was available to him, hence, the instant writ petition is not maintainable. We are, however, of the considered view that petitioner upon his appointment as Chairman Service Tribunal on contract basis as per statutory provisions of Section 3(3) of the Service Tribunals Act, 1975, vide notification dated 06.04.2011, coupled with notification dated 13.06.2011, cannot be repatriated to his parent Department, therefore, ceased from the cadre of judicial officer as District and Sessions Judge, hence, is no more a civil servant. The aforesaid proposition was resolved by Full Bench of this Court in an unreported case of Ex-Chairman Service Tribunal of Azad Jammu & Kashmir,--Raja Bashir Ahmed Khan vs. Azad Govt. & others (Writ Petition No, 4/1997) decided on 17.04.1998. The ratio decidendi laid down in precedent case, in Paragraph No, 8 is reproduced herein below:-- "8. On the repeal of Schedule First, all the aforesaid provisions vanished. Thus after the amendment made in 1987, the discretion for determination of the terms and conditions solely vested in the President, who of course exercises the powers, on the advice of the Prime Minister. In the instant case, the President was pleased to determine the terms and conditions of the petitioner through notification dated 02.08.1993. On the appointment of the petitioner as Chairman Service Tribunal, he ceased to be the civil servant and as such the provisions of Civil Servants Act or the rules made thereunder were no longer applicable to him. His appointment was made under Service Tribunal Act, therefore, his terms and conditions would be regulated by this Act read with the notification dated 02.08.1993, issued under this Act."
12. As per Rule 18 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984, decision of Full Bench is binding on Division and Single Benches, therefore, by respectfully following the aforesaid precedent case the preliminary objection relating to civil servant of petitioner is overruled.
12. The next preliminary objection raised by the learned counsel for respondents is that petitioner was appointed against the post of Chairman Service Tribunal, vide notification dated 06.04.2011, which was accepted by him on the same date through joining report dated 06.04.2011, without any objection, therefore, due to principle of estopple the instant writ petition is not maintainable. The aforesaid notification and joining report are reproduced herein below.-- "AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR LAW, JUSTICE, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS DEPARTMENT "Muzaffarabad"
13. Dated: 06.04.2011 NOTIFICATON: No, LD/AD/588-620/2011, In exercise of the powers conferred by sub-section (4) of Section 3 of the Azad Jammu &" Kashmir Service Tribunal Act, 1975, the President of Azad Jammu & Kashmir has been pleased to appoint Syed Khalid Hussain Gillani, District and Sessions Judge, as Chairman AJ&K Service Tribunal, subject to such terms and conditions as may be determined later on.
14. (Abdul Latif Shah)
15. Additional Secretary Law"
16. "SERVICE TRIBUNAL AZAD JAMMU & KASHMIR, MUZAFFARABAD Subject: JOINING REPORT.
17. In pursuance of the Notification No, LD/AD/588-620/2011 dated 06.04.2011, I have assumed the charge of the post of Chairman Service Tribunal, Azad Jammu & Kashmir Muzaffarabad today on 06.04.2011 (forenoon).
18. Dated: 06.04.2011.
19. (Syed Khalid Hussain Gillani)
20. Chairman, Azad Jammu & Kashmir Service Tribunal, Muzaffarabad."
21. A reading of notification supra reveals that condition of retirement as a civil servant on attaining the age of superannuation was not ascribed in the said notification and rather it was inserted that terms and conditions of petitioner would be determined later on. As per record, after passing more than two months period the terms and conditions of petitioner as Chairman Service Tribunal were determined vide notification dated 13.06.2011. The petitioner was granted pay, allowances and privileges of Judge of the High Court, however, condition of retirement as civil servant on attaining the age of superannuation was ascribed through the aforesaid notification. The respondents failed to bring anything on record that the aforesaid condition of superannuation was accepted by petitioner. At the time of appointment of petitioner as Chairman Service Tribunal and joining report dated 06.04.2011, there was no such like condition of retirement as a civil servant, as alleged by respondents. The petitioner, however, after issuance of conditional supra notification dated 13.06.2011, challenged the impugned condition through the instant writ petition, therefore, after deep deliberation, we have reached to the conclusion that the aforesaid preliminary objection is also baseless which is repelled.
22. 13.The last preliminary objection raised by the learned counsel for respondents is that petitioner challenged vires of notification dated 13.06.2011, to the extent of condition of retirement as civil servant on attaining the age of superannuation, however, during pendency of writ petition, he was retired from the post of Chairman Service Tribunal, vide impugned notification dated 19.05.2015, therefore, the captioned writ petition has become infructuous. The basic grievance of petitioner was against notification dated 13.06.2011, whereby condition of retirement on attaining the age of superannuation as civil servant was ascribed, against which the instant writ petition was subjudice before this Court since 14.09.2011. The petitioner while threaten his posting also filed another Writ Petition No, 257/2014 in which through detailed reasons dated 03.02.2014, status-quo order was also issued against respondents by Division Bench of this Court. However, despite pendency of writ petitions ibid and status-quo order of the Court petitioner was retired from service about six months ago prospectively w,e,f, 12.11.2015, vide impugned notification dated 19.05.2015. The petitioner in the given circumstances moved an application for seeking amendment in writ petition on 09.06.2015, which after objections and hearing was allowed vide order dated 15.06.2015. The petitioner on the basis of the aforesaid order also filed amended writ petition on 19.06.201.5. The preliminary objection is, therefore, superfluous which is devoid of force, hence, turned down.
23. 14.After attending the preliminary objections, now we turn to merits of the case. Before embarking upon the controversial point pertaining to condition of retirement of petitioner as a civil servant on attaining the age of superannuation through notification dated 13.06.2011, it looks appropriate to reproduce Section 47 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, which pertains to establishment of Administrative Courts and Tribunals, which speaks as under:-- "47. Administrative Courts and Tribunals:--(1) Notwithstanding anything herein before contained, [the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, ] may by act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of [Azad Jammu & Kashmir] including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of [the Council or the] Government or any person in the services of [Azad Jammu & Kashmir] or of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant; or
(c) matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where any administrative Court or Tribunal is established under sub-section (1), no other, Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of [Azad Jammu & Kashmir from a judgment, decree, order or sentence of an administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu & Kashmir] being satisfied, that the case involves a substantial question of law of public importance grants leave to appeal."
24. The Azad Jammu & Kashmir Service Tribunal, therefore, on the basis of Section 47 of the Interim Constitution Act, 1974, was established through the Azad Jammu & Kashmir Service Tribunals Act, 1975. The provisions of Section 3 of Service Tribunals Act, 1975, inter alia, relates to establishment of Service Tribunal and appointment of "Chairman which reads as under:-..
25. "3. [Tribunals:--(1) The President may, by notification in the official Gazette, establish one or more Service Tribunals and where there are established more than one Tribunals, the President shall specify in the notification the class or classes of Civil Servants in respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction, under this Act
(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, including disciplinary matters.
(3) A Tribunal shall consist of:--
(a) A Chairman, being a person, who is or has been, or is qualified to be, Judge of the High Court; and
(b) One member, who is a person, who possesses such qualifications as may be prescribed by rules: Provided that any appointment made without prescribing qualification shall be deemed to have been validly made under the Act
(4) The Chairman. and member of a Tribunal shall be appointed by the President on such terms and conditions as may be determined by the rules: ["Provided that until the rules are framed under the Act, the terms and conditions for the appointment of the Chairman and member determined by the President before the commencement of this Act shall be deemed to have been determined under this act.
26. [(4-A) Subject to sub-section (3) the Chairman and member of the Tribunal shall be appointed by the President, on the advice of the Prime Minister, who before tendering such advice shall consult the Leader of Opposition in the Legislative Assembly.
27. (4-B) The appointments under sub-section (4-A) shall be made from amongst competent persons having good moral character and on such terms and conditions as may be determined by the President: Provided that the Chairman and member already appointed shall be deemed to have been appointed under this Act].
(5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President.
(6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Azad Jammu & Kashmir or Pakistan if his remuneration is thereby increased.
(7) Notwithstanding anything contained in sub-sections (3), (4), (5) or (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases, may consist of one or more persons in the service of Azad Jammu & Kashmir to be appointed by the President.]"
28. As per sub-Sections (3) and (4) of Section 3 of Service Tribunals Act, 1975, a Chairman of Azad Jammu & Kashmir Service Tribunal can be appointed by the President, being a person, who is or has been, or is qualified to be, Judge of the High Court. A Judge of the High Court is elevated under Section 43(3) of the Interim Constitution Act, 1974, which is reproduced herein below:- "43. High Court.--(1)
29. [1-A.
30. (a)...................
(b) ......................
(c) ......................
31. (2)
32. [(2-A)
33. (a)...........
34. (b)
(3) [A person shall not be appointed] as a Judge of the High Court or Advocate-General unless--
(a) he has for a period, or for periods aggregating, not less than ten years, been an Advocate or Pleader of the High Court of Azad Jammu & Kashmir or a High Court in Pakistan: Provided that the terms 'High Court' herein shall include a High Court or an equivalent Court that existed at any time before the fourteen day of August, 1947; or(b) he has for a period of not less than ten years held a Judicial office out of which not less than three years shall have been as District and Sessions Judge.
(4) ..........
(5) .............
(6) ...................
(7) ......................
(a) ............
(b) ..................
35. (8)
36. (9)
37. The provisions of sub-section (5) of Section 43 of Interim Constitution Act, 1974, relates to retirement of Judge of the High Court which speaks as follows: "43. High Court.--(1)
38. [1-A.
39. (a)..............
40. (b)..............
41. (c)..................
42. (2)
43. [(2-A)
44. (a)...............
45. (b)...................
46. (3)
(a) ........
(b) ............
(5) The Chief Justice or a Judge of the 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: Provided that the President may appoint a Retired Judge of any High Court of Pakistan to be the Chief Justice or a Judge of the High Court for a period not exceeding three years and such person shall hold office till he attains the age of sixty-five years.
(6) .................
(7) .............
(a) ...........
(b) ............
(8) ...............
(9) ................
47. The petitioner was admittedly qualified to be appointed as Judge of the High Court, therefore, on the basis of Section 3(3) of Service Tribunals Act, 1975, was appointed as Chairman of Azad Jammu & Kashmir Service Tribunal vide notification dated 06.04.2011. The petitioner was later on also granted salary, allowances and privileges as Judge of the High Court, while performing his duties as Chairman Service Tribunal, except his retirement as a civil servant on attaining the age of superannuation vide notification dated 13.06.2011. We do not find any wisdom that why the aforesaid condition was ascribed to the, notification ibid although petitioner was grai4ed all other perks and privileges of Judge of the High Court. Theetitioner, however, has challenged the aforesaid condition of notification dated, 13.06.2011, on the ground of discrimination, who has placed on record notifications of five District and Sessions Judges namely (i). Sardar Muhammad Sajawal Khan, (ii). Raja Bashir Ahmed Khan, (iii). Sardar Muhammad Anwar Khan, (iv). Muhammad Rasheed Khan and (v). Malik Abdul Rasheed Khan, who in similar facts and circumstances were appointed as Chairmen Azad Jammu & Kashmir Service Tribunal and retired on attaining the age of 62 years as Judge of the High,Court. No such like condition of retirement as civil servant on attaining the age of superannuation was ascribed to their appointment notifications. As per Section 4, 15, of Interim Constitution Act, 1974, all State Subjects are equal before law which is reproduced as under:-- "15. Equality of State Subjects--All state subjects are equal before law and are entitled to equal protection of law."
48. ' Likewise under Section 4, 17, of Interim Constitution Act, 1974, no State Subject otherwise qualified for appointment in service of Azad Jammu & Kashmir shall be discriminated against, which speaks as under: -- "17. Safeguard against discrimination in services.--No State Subject otherwise qualified for appointment in the services of Azad Jammu '& Kashmir shall be discriminated against in respect of any such appointment on the ground only race, religion, caste or sex: Provided that, in the interest of the said service, specified posts of services may be reserved for members of either sex."
49. The constitutional provisions supra, have not only declared equality before law but also guaranteed equal protection of law to all State i Subjects. The constitution also prohibited that no State Subject otherwise qualified for appointment in the service of Azad Jammu & Kashmir shall be discriminated against in respect of any such appointment on the ground only race, religion, caste or sex. The aforesaid point came under consideration before the apex Court in a recent case of Raja Shahnawaz Khan, Chairman Azad Jammu & Kashmir Zakat Council vs. Azad Govt. of the State of Jammu and Kashmir and 03 others [PLJ 2013 SC (AJ&K) 1861. At page 192 of the report it was opined as under: "Thus, now it is almost settled that among equals, the Constitution does not allow any discrimination whether it is in shape of executive order or a Legislative Act. In the instant case, as in the light of hereinabove stated facts, it is ex-facie clear that in the matter of terms and conditions among equal State Subjects, the only appellant has been discriminate treated which cannot be authenticated or allowed, therefore, we have no hesitation to hold that the Government, although is empowered to determine the terms and conditions of the Chairman Azad Jammu & Kashmir Zakat Council under the provisions of Act, 1985, but all these powers are subject to constitutionally guaranteed fundamental rights, therefore, the conduct of the Government with regard to the appellant appears to be discriminatory, hence, is without lawful authority and unconstitutional."
50. The apex Court in famous precedent case of Azad Govt. & others vs. Muhammad Younas Tahir and others 11994 SCR 341], while dilating upon the point of discrimination, at page 368 of the report, observed as follows: "In my view the guarantee of equality before law is more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations become meaningless without Right No,
15. The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law. Can a "law" contemplated by this right be discriminatory? The answer to this question must be in the negative because it cannot be visualized that, for instance, persons belonging to a particular ideology or political creed may be deprived of liberty under a harsher law than the others. Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc. If Right No, 17 is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu & Kashmir will be reserved for sons of serving or retired Judges or that persons in Police service shall only be recruited from a particular Tehsil or that only those who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If we test these laws against the touchstones of Right No, 17 the said laws will have to be declared valid. However, if Right No, 15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law, and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zafar is without substance.
51. The Interim Constitution Act through Right No, 15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularisation in the phraseology these guarantees cover all laws dealing with State Subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalized were experienced in literally implementing these guarantees. These difficulties are real and substantial. Therefore, reasonable classification was recognized...."
52. A similar proposition came under consideration before the apex Court of Pakistan in case titled Pakistan Internatiohal Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another [2004 SCM R 158], wherein at page 163, it was held as follows: "The respondents were also discriminated as others who were similarly appointed like them, were not terminated and were allowed to continue in service, as such, the Tribunal has rightly interfered with the termination orders of the respondents in view of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973."
53. As cited earlier, we have another unreported Full Bench precedent of Ex-Chairman Service Tribunal, Raja Bashir Ahmed Khan vs. Azad Govt. & others, (Writ Petition No, 4/1997) decided on 17.04.1998.
54. The facts of the aforesaid case were that Raja Bashir Ahmed Khan, being District and Sessions Judge was appointed as Chairman Service Tribunal of Azad Jammu & Kashmir vide notification dated 02.08.1993. He was granted salary, privileges, terms and conditions of Judge of the High Court, however, on completing superannuation age of 60 years was retired as civil servant vide notification dated 15.04.1998. The aforesaid notification was challenged through writ petition and Full Bench of this Court struck down notification of his retirement and it was held that petitioner would retire on attaining the age of 62 years as enshrined in Section 43(5) of Interim Constitution Act, 1974, for a Judge of the High Court.
15. We, therefore, after dilating upon survey of case law and deep deliberation, reached to the conclusion that condition ascribed with notification dated 13.06.2011, pertaining to retirement of petitioner as civil servant on attaining the age of superannuation is discriminatory, therefore, to that extent the aforesaid notification is bad in law. As the condition of retirement as civil servant on attaining the age of superannuation has been declared unlawful, therefore, the impugned notification dated 19.05.2015, pertaining to retirement of petitioner is equally illegal.
16. The petitioner in Writ Petition No, 257/2014 has solicited writ of prohibition against respondents jointly and severely, while repeating facts of his earlier Writ Petition No,. 1390/2011, however, added that while performing his duties as Chairman of Azad Jammu & Kashmir Service Tribunal, he pronounced various judgments and suspended numberless orders issued by the Government, therefore, respondents have determined to oust/transfer him from the position of Chairman of the Azad Jammu & Kashmir Service Tribunal. The respondents in grounds ("B" & "C") of preliminary objections of their comments/written statement, categorically stated that petitioner can be removed/transfer from his present assignment. The petitioner was appointed as Chairman Azad Jammu & Kashmir Service Tribunal under Section 3(3) of the Azad Jammu & Kashmir Service Tribunals Act, 1975. As per sub-section (4) of Section 3 of the Azad Jammu & Kashmir Service Tribunals Act, 1975, the Chairman and Member of the Tribunal shall be appointed by the President on such terms and conditions as may be determined by the rules. However, according to proviso of the aforesaid sub-section (4) until the Rules are framed under the Act, the terms and conditions for the appointment of the Chairman and Member determined by the President before the commencement of the Act, shall be deemed to have been determined under this Act. Admittedly no Rules for the appointment of Chairman and Member of Service Tribunal have been framed. As held earlier petitioner is no more a civil servant, hence, Section 9 of Civil Servants Act, 1976, is not applicable upon him. There is no any provision postulated in the Service Tribunals Act. 1975, pertaining to transfer of Chairman. The position of the Azad Jammu & Kashmir Service Tribunal is part of judicial system. As per Section 3(3) of Section 47 of the Interim Constitution Act, 1974, an appeal shall lie to the Supreme Court of Azad Jammu & Kashmir, from a judgment or order passed by the Service Tribunal, if the case involves a substantial question of law of public importance, grants leave to appeal. Therefore, terms and conditions of Chairman may be independently determined so as to make him outside the executive influence. The point supra came under consideration before the Hon'ble Supreme Court of Pakistan in case titled Sh. Riaz-ul-Haq, ASC and another v. Federation of Pakistan through Ministry of Law and others [PLJ 2013 SC 707]. At page 742 of the precedent case, it was held as under: "46. In the light of the finding given hereinabove to the extent that the Service Tribunals are included in the term 'Court' mentioned in Article 175(3) of the Constitution and are to be managed, controlled and regulated in accordance with the law relating to the Courts in Pakistan, the question arises as to whether Service Tribunal enjoys independence even in ' the appointment of its Chairman and the Members. Although the Act and the rules do not provide consultation with the respective Chief Justice, yet having been declared that the Tribunal established under Article 212 fall within contemplation of Article 175(3) of the Constitution, the requirements of said provision has to be adhered to while making appointment to the Chairman/Members of the Tribunal. We are in agreement with the leaned counsel for the petitioner that the Service Tribunals exercise judicial powers with remedy of appeal before this Court under Article 212(3), if the case involves a substantial question of law of public importance, as such, the matters regarding appointment of the Chairman and Members of the Service Tribunals are as important as those of judges of the High Courts. Thus, we are in agreement with the learned counsel for the petitioner that the Tribunal should not be under the administrative or financial control of the Executive. On the analogy of the judges of the High Courts and Federal Shariat Court, the terms and conditions of the Chairman and Members of the Tribunal may be independently determined so as to make them outside the Executive influence and to ensure uniformity."
55. We, therefore, safely hold that neither petitioner can be transferred from the post of Chairman Azad Jammu & Kashmir Service Tribunal under law nor can be removed from the post, except incapable of properly performing duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct.
17. The crux of above discussion is that by accepting Writ Petition No, 1390/2011, the condition of retirement of petitioner as civil servant on attaining the age of superannuation ascribed through notification dated 13.06.2011, is declared as without lawful authority, hence, having no legal effect.
56. Consequently the impugned notification dated 19.05.2015, pertaining to retirement of petitioner w,e,f, 12.11.2015, is also quashed. The Writ Petition No, 257/2014 is accepted in the manner that petitioner shall not be transferred from the post of Chairman of Azad Jammu & Kashmir Service Tribunal till attaining the age of 62 years. The writ petitions are accepted in the manners as indicated hereinabove with no order as to the costs.