1. MOHAMMAD AZAM KHAN, CJ. --------- In all the above titled appeals, a common question of law relating to the interpretation of rules 7 and 10 of the Azad Jammu & Kashmir Service Tribunals (Procedure) Rules, 1976, is involved, therefore, these are proposed to be decided through a single order.
2. 2.The facts of Appeal No. 321 of 2014, are that the appellant, Tanveer Fatima filed an appeal in the Service Tribunal. The appeal was dismissed. She has-filed an appeal by leave of the Court in this Court. An objection has been raised that the appeal in the Service Tribunal was not competent because it was not accompanied by the certified copies of the impugned order which is a violation of Rule 7(e) of the Azad Jammu & Kashmir Service Tribunals (Procedure) Rules, 1976 (hereinafter to be referred as Rules, 1976), and the judgment of this Court delivered in the case reported as Iffat Bibi v. Azad Government and others [2015 SCR 83]. The appeal merited dismissal on the sole ground.
3. 3.In appeal No. 351 of 2014, Abid Hussain filed an appeal in the Service Tribunal. The appeal was accepted. Mehrban Hussain and others filed an appeal by leave of the Court in this Court and raised an objection on the competency of appeal filed by Abid Hussain on the ground that certified copy of the impugned order was not filed in the Service Tribunal, therefore, the appeal was not competent, it was filed in violation of Rule 7(e) of the Rules, 1976 and the judgment of this Court delivered in If fat Bibi's case (supra).
4. 4In appeal No. 113 of 2015, Kamran Hafeez filed an appeal in the Service Tribunal. The appeal was dismissed. He filed an appeal by leave of the Court in this Court. An objection has been raised on the competency of appeal on the ground that certified copy of the order impugned before the Service Tribunal was not filed with the memorandum of appeal in the Service Tribunal which is violation of Rule 7(e) of Rules, 1976 and the judgment of this Court delivered in Iffat Bibi's case (supra). The appeal merited dismissal on the sole ground.
5. 5.In appeal No. 269 of 2015, Mubarik Hussain Qureshi, filed an appeal in the Service Tribunal. The appeal was dismissed. An appeal by leave of the Court has been filed in this Court. An objection has been raised on the competency of appeal in the Service Tribunal on the ground that certified copy of the impugned order was not filed with the memorandum of appeal in the Service Tribunal, it is violation of Rule 7(e) of Rules, 1976 and the judgment of this Court delivered in Iffat Bibi's case (supra), the appeal was not competent it merited dismissal on the sole ground.
6. 6.In appeal No. 319 of 2015, the respondent lftikahr Ahmed filed an appeal in the Service Tribunal.
7. The appeal was accepted. The present appellant has filed an appeal by leave of the Court. An objection has been raised that the appeal in the service Tribunal was not competent on the ground that the copy of impugned order was not filed with the memorandum of appeal. The appeal was filed in violation of Rule 7(e) of Rules, 1976 and the judgment of this Court delivered in Iffat Bibi's case (supra).The appeal merited dismissal on the sole ground.
8. 7.In appeal No. 391 of 2015, the respondent Gulshan Parveen filed an appeal in the Service Tribunal which was accepted. The appellant, herein, filed an appeal by leave of the Court. An objection has been raised that the - appeal before the Service Tribunal was not competently filed because it was not accompanied by the certified copy of the impugned order which is a violation of Rule 7(e) of Rules, 1976 and the judgment of this Court delivered in Iffat Bibi's case (supra), the appeal merited dismissal on the sole ground.
9. 8.Civil Review Petition No. 4 of 2015, has been filed from the judgment of this Court dated 17th May, 2015, whereby appeal filed by the respondents, Azad Government and others has been accepted and appeal filed by the petitioners, herein, Gulab Khan and others in the Service Tribunal has been dismissed being incompetently filed in violation of the Rule 7(e) of Rules, 1976.
10. 9Banister Humayun Nawaz Khan, Advocate, counsel for the appellant, Kamran Hafeez in appeal No. 113 of 2015, argued that it is correct that under rule 7(e) of Rules, 1976, the order of the competent authority against which the appeal is. preferred and the copies of the rules, orders and other documents upon which the appellant proposes to rely shall be attached but there is a proviso attached to the rule that the Tribunal may upon satisfaction waive the provisions of clause 7(e).
11. The learned counsel submitted the rule 7 cannot be read independently, it has to be read alongwith rule 10(l)(i) of rules, 1976. It is the duty of the Registrar to return the appeal if it is not drawn up in accordance with the provisions of rule 7 of the Rules, 1976. When the Registrar entertains the appeal, it means that the appeal is drawn up in accordance. with the provisions of rule
7. Once the appeal is entertained by the Registrar, it cannot be dismissed later on, on the ground that the violation of rule 7 has been committed.
10. While controverting the arguments, Raja Muhammad Hanif Khan, Advocate, counsel for the respondents submitted that the provisions of rule 7 are mandatory in nature. it is enjoined upon a party to append with the memorandum of appeal the copy of the order of the competent authority against which the appeal is preferred and the copy of rules, orders and other documents on which the party proposes to rely in support of its claim. He submitted that the law has been settled by this Court in the case reported as Iffat Bibi v. Azad Government and others [2015 SCR 83]. The learned counsel further argued that the judgment of the Supreme Court on the question of law which is subsequently followed in a chain of judgments, cannot lightly be changed. The continuity and certainty of law is essential for good judicial administration. He relied upon the cases reported, as Municipal Committee Dadyal v. Mistri Abdul Rehman and others [1992 SCR 136], Ashiq Hussain alisas Muhammad Ashraf v. The State [PLD 1994 SC 879], Sakibzada Muhammad lshaque Zaffar v.
12. Speaker, Legislative Assembly AJK & 3 others [PLJ 1997 AJK 43], Sardar Farooq Ahmed Khan and 2 others v. Azad Government and 3 others [2002 SCR 14], Muhammad Ashfaq Khan and 2 others v.
13. AJ&K Government and 4 others [2003 SCR 260], Sajida Maqsood v. Deputy Commissioner/Collector District Muzaffarabad & others [PU 2013 AJ&K 148], Saira Bashir Butt v. Azad Govt. & 7 others [2015 SCR 631], Fazal Hussain (deceased) & 9 others. v. Allah Rakhi & 4 others [2016 SCR 55], Saadia Shamshad & 2 others v. The Secretary Education & 3 others [2016 SCR 80], Ghulam Nabi & another v. Azad Govt. & 8 others [2016 SCR 286], Muhammad Tahir v. Syed Muhammad Nazar lqbal & 8 others [2016 SCR 586].
14. The case reported as lffat Bibi v. Azad Government & others [2015 SCR 83], is a direct authority on rule 7(e) of Rules, 1976, whereby while considering the noncompliance of rule 7(e) of Rules, 1976, the appeal was dismissed. It was observed in paras 10 to 13 of the judgment as under:-- "10. Under Section 10 of the Azad Jammu & Kashmir Service Tribunals Act, 1975, the Government may, by notification in the official gazette make rules for carrying out the purposes of the Service Tribunals Act and Government through notification issued in February, 1977 made the rules namely the Azad Jammu & Kashmir Service Tribunals (Procedure) Rules 1976. Rule 7(e) is the relevant rule.
15. The same is reproduced as under:-- "7.Every Memorandum of appeal shall; (a)-------------------------------- (b)-------------------------------- (C)-------------------------------- (d)--------------------------------
(e) be accompanied by :
(i) a copy of the order of the competent authority against which the appeal is preferred; and
(ii) copies of rules, orders and other documents on which the appellant proposes to rely in support of his claim,"
16. (f)------------------ (g)------------ (h)------------------ A bare reading of the same shows that memorandum of the appeal shall be accompanied by a copy of order. A photocopy of a document is not admissible in evidence.
17. 11.Article 87 of Qanoon-e-Shahadat Order, 1984 was amended in 1996. Sub-sections (2) and (3) were added in the said Article. For proper appreciation we deem it necessary to reproduce the said Article which is as under:--- "87. Certified copies of public documents.
18. 1.----------------------------------------------- Azad Jammu 8 Kashmir Amendment In Article 87, the existing provision shall be renumbered as subsection (1) and thereafter the following new sub-sections (2) and (3) shall be added:---
(2) Photo state copy of public documents, shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document.
19. (3)Official notes and correspondence or copies thereof, being not public documents, shall not be issued and shall not be admissible in any case."
20. A perusal of the same shows that photo state copy of public documents shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document. Tire statutory provision is unambiguous. The photo state copy of a document is not admissible unless the officer having the custody of original document certifies the same to be true copy. In the presence' of clear statutory provisions no other interpretation is permissible. Under Article 87 of the Qanoon-e-Shahadat Order, 1984, every public officer having the custody of a public document shall give a person on demand on payment of the legal fee, together with a certificate written at the foot of such copy that it is true copy of such document or part thereof and such certificate shall be dated and subscribed by such officer with his name and official title and shall be sealed.
21. 12.The seniority list issued by the Government appended with the appeal in the Service Tribunal and attested by the Advocate-General is note a certified true copy under Article 87(2) and does not fulfill the requirement of Rule 7(e) of the Azad Jammu & Kashmir Service Tribunals (Procedure)
22. Rules 1976. The copy appended with the memorandum of appeal is not a certified true copy of original seniority list. It is only a photocopy and photocopy is not admissible in evidence.
23. 13.Thus we have reached the conclusion that the appeal filed in the Service Tribunal without appending the certified copy of the order impugned was not competent, it merits dismissal on the sole ground."
24. In the case reported as Municipal Committee Dadyal v. Mistri Abdul Rehman and others [1992 SCR 136], it was observed by this Court that there are no powers vesting in the High Court or for that matter this Court, which can be exercised regardless of procedural requirements.
25. In the case reported as Sahibzada Muhammad Ishaque Zaffar v. Speaker, Legislative Assembly AJK & 3 others [PLJ 1997 AJK 43], the Azad Jammu & Kashmir High Court dismissed the writ petition on the ground that certified copy of the impugned order has not been annexed with the writ petition which is a violation of rule 32(2) of the High Court Procedure Rules.
26. In the case reported as Sardar Farooq Ahmed Khan and 2 others v, Azad Government and 3 others [2002 SCR 14], this 'Court observed that the High Court correctly came to the conclusion that violation of sub-rule (2) of rule 32 of the High Court Procedure Rules has been committed because the attested copies of the notification dated 8.10.1998 and the proclamation published were not placed on record.
27. In the case reported as Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others [2003 SCR 260], this Court observed that the Photostat copies prepared through mechanical process, cannot be relied upon without the original record.
28. In the case reported as Sajida Maqsood vs. Deputy Commissioner/Collector District Muzaffarabad & others [PLJ 2013 AJ&K 148], the Azad Jammu & Kashmir High Court observed that the Photostat copies are not admissible under law, therefore, no relief can be granted to the petitioner on the basis of so called orders bf the Prime Minister.
29. In the case reported as Saira Bashir Butt v. Azad Govt. & 7 others [2015 SCR 631], this Court observed that the copies of mandatory documents as required under Section 32(2) of the High Court Procedure Rules 1984, have not been annexed with the writ petition, the writ petition is not competent, it merited dismissal.
30. In the case reported as Fazai Hussain (deceased) & 9 others v. Allah Rakhi & 4 others [2016 SCR 55], it was observed by this Court that filing of certified copies as required under Rule 32(2) of the High Court Procedure Rules, 1984, is mandatory.
31. In the case reported as Saadia Shamshad & 2 others v. The Secretary Education & 3 others [2016 SCR 80], this Court observed that the provisions of rules 32 to 39 of the High Court Procedure Rules, 1984, are mandatory in nature.
32. In the case reported as Ghulam Nabi & another v. Azad Govt. & 8 others [2016 SCR 286], this Court observed that the provisions of rule 32(2) of the Azad Jammu & Kashmir High Court Procedure Rules and rule 3 of Order XIII of the Supreme Court Rules, are mandatory in nature.
33. In the case reported as Muhammad Tahir v. Sued Muhammad Nazar lqbal & 8 others [2016 SCR 586], it was observed by this Court that the writ petition filed in non-compliance of Rule 32 of the High Court Procedure Rules, 1984, merited dismissal on the sole ground.
34. In the case reported as Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others [PLD 1990 SC 926], the Supreme Court of Pakistan laid down the rule of law that the decision of the Supreme Court of Pakistan on the question of law which is subsequently followed in a chain Of judgments is not lightly changed. The continuity and certainty about law is essential for good judicial administration. In the case reported as Ashiq Hussain alisas Muhammad Ashraf v. The State [PLD 1994 SC1 879], the Supreme Court of Pakistan observed that under Article 189 of the Constitution of Islamic Republic of Pakistan, the decision of the Supreme Court enunciating principle of law is binding on all Courts. By this judgment, the Court strike a note of warning to the subordinate Courts in the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be? taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court.
35. 11.Sardar Karam Dad Khan,Advocate another counsel for the respondents in appeal No. 113/2015, Miss. Kokab Al-Saba Roohi, Advocate counsel for the appellant in appeal No. 351 of 2014 and Mr. Tahir Aziz Khan, Advocate, counsel for the appellant in appeal No. 319 of 2015, adopted the arguments of Raja Muhammad Hanif Khan, Advocate, counsel for the; respondents in appeal No. 113 of 2015.
36. 12.Kh. Muhammad Nasim, Advocate, counsel for the appellant in appeal No. 391 of 2015, submitted that the provisions of rule 7(e) of Rules, 1976 are mandatory in nature. The non- compliance merits dismissal but the consideration of rule 10 of Rules, 1976, is necessary. The Registrar has to pass the order under rule 10 of Rules'1976. The learned 'counsel further submitted that a proviso attached to rule 7(g) confers powers upon the Tribunal to dispense with the rule and when the appeal is entertained by the Tribunal then impliedly the rule is deemed to be condoned.
37. The filing of attested copy of the impugned order is mandatory. He relied upon the case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad lshaque & 3 others [1997 SCR 239].
38. In the case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad lshaque & 3 others [1997 SCR 239], this Court observed that a party is required under law to attach an attested copy of the impugned order. However, the facts admitted need not be proved.
39. 13.Kh. lmtiaz Ahmed, Advocate, counsel for the respondent in appeal No. 321, submitted that the respondent-appellant in the Service Tribunal applied for the copies to the authority. The copy was not issued. He has mentioned this fact in the memorandum of appeal. In presence of said submission the Service Tribunal entertained the appeal, therefore, impliedly, the non-filing of certified copy was condoned.
40. 14.Syed Shahid Bahar, Advocate, counsel for the appellant in appeal No. 321 of 2014, submitted that no objection was raised by the Registrar in the Service Tribunal under Rule 10 of Rules, 1976, therefore, the objection cannot be raised at a later stage after entertaining the appeal.
41. 15.Ch. Muhammad Manzoor and Mr. Lakhi Zaman, Advocates, counsel for the respondents in appeal No. 319 of 2015 and Mr. Muzaffar Hussain Mughal, Advocate, counsel for the official respondents in appeal No. 269 of 2015, adopted the arguments of Kh. Muhammad Nasim, Advocate.
42. 16.We have heard the learned counsel for the parties and perused the record.
43. 17.Rules 7 and 10 of Rules, 1976 are relevant for filing and entertaining the appeals in the Service Tribunal. For proper appreciation, it is necessary to reproduce both the rules, the same are reproduced as under:--- Every Memorandum of appeal shall; (a)be legibly, correctly and concisely hand-written, typewritten or printed, (b)be divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be, a separate allegation;
(c) contain full name, official designation and place of posting of each party; (d)clearly set out the relief claimed; (e)be accompanied by:--- (i)a copy of the order of the competent authority against which the appeal is preferred; and (ii)copies of rules, orders and other documents on which the appellant proposes to rely in support of his claim; (f)be signed or thumb impressed by the appellant and verified at the foot by the appellant or his Advocate; (g)be accompanied by three spare copies of the memorandum of appeal as many other copies thereof, duly signed or thumb impressed by the appellant and accompanied by the document referring to clause in (c), as there are respondents: Provided that where a Tribunal is satisfied that it is not possible for an appellant to produce any document referred to in clause (e), if any, may waive the provisions of the clause.
44. (h)every memorandum of appeal shall be presented, to the Tribunal in the covers and be accompanied by an index or papers failing which the appeal may not be entertained; "10. (1) the Registrar shall scrutinize every memorandum of appeal received by post or presented to him and shall; (i)if it be in order and drawn up in accordance with the provisions of rule 7. Cause it to be registered in the register of appeals to be maintained in Form 'A' appended to schedule 11 of the Act, and with the approval of the Chairman, shall fix a date for its preliminary hearing before a Bench or the Tribunal, as the cause may be; or (ii)if is not drawn up in accordance with the provisions of rule 7, return it to the appellant for amendment, within a time to be specified in an order to be recorded by him on the memorandum of appeal, pointing out the deficiency.
(2) if the memorandum, of appeal is not resubmitted within the period specified under clause (ii) of rule (10), the appeal shall stand dismissed. Rule 7(e) of Rules, 1976, came under consideration of this Court in the case reported as Iffat Bibi v. Azad Government and others [2015 SCR 83]. After going through the detailed analysis. the Court reached the conclusion that filing of certified copy of the order of the competent authority, against which the appeal is preferred, is mandatory and non-filing of the certified copy results in dismissal of the appeal. The view expressed in the referred case has continuously been followed subsequently. Later on, it came to the notice of the Court that while delivering the judgment in Iffat Bibi' case, rule 10 of Rules 1976 was not brought into the notice of the Court and it was not considered by the Court.
45. 18.Before proceeding further, we may observe that the rule of law laid down in the authorities referred to by Raja Muhammad Hanif Khan, Advocate, is correct that the mandatory provisions of the rules have to be followed and it is enjoined upon the party to act according to the mode provided in the rules and non-compliance of rules merits dismissal of the case. The scheme of rules shows that while entertaining an appeal Rule 7 has to be read with rule 10 of Rules, 1976. Rule 7 consists of clauses (a) to (h). The compliance of not only clause (e) but other clauses is also mandatory. Clause (a) provides that the appeal be legibly, correctly and concisely hand-written, type-written or printed, clause (b) provides that the appeal be divided into paragraphs, numbered consecutively, each paragraph, containing as nearly as may be, a separate allegation, clause (c) provides that the memorandum of appeal shall contain full name, official designation and place of posting of each party, clause (d) provides that the memorandum of appeal shall clearly set out the relief claimed, clause (e) contains two parts; (i) memorandum of appeal shall be accompanied by a copy of order of the competent authority against which the appeal is preferred and; (ii) copies of rules, orders and other documents on which the appellant proposes to rely in support of his claim. Clause (f) of the rules says that the memorandum of appeal shall be singed or thumb impressed by the appellant and verified by the appellant or his Advocate. It is further laid down in clause (g) that three spare copies of the memorandum of appeal shall be accompanied and other copies duly signed as many as for each of the respondents alongwith the documents referred to in clause (e) be accompanied. There is a proviso attached that where the Tribunal is satisfied that it is not possible for the appellant to produce any document referred to in clause (e), the Tribunal may waive the provisions of clause (e). Clause (h) of the rules provides that every memorandum of appeal shall be presented in file covers and be accompanied by an index of papers failing which the appeal may not be entertained. The combined reading of the whole clauses of rule 7 of Rules, 1976, shows that the provisions of rule are mandatory in nature and the appellant has to comply with the provisions of rule while filing the appeal.
46. 19.The process of filing of appeal in rule 7 of Rules. 1976 is not complete. Rules 8 and 9 of Rules, 1976 are relevant. Rule 8 provides that the competent authority shall be shown as the first respondent and thereafter all other parties to the dispute shall be shown as respondents and rule 9 provides that if the appeal is filed after the period of limitation prescribed in the Act, it shall be accompanied by a petition supported by an affidavit setting forth the cause of delay. Thereafter, the powers of the Registrar for entertaining the appeal start from rule 10 of Rules, 1976.
47. 20.Rule 10 of Rules, 1976 reproduced hereinabove, reveals that the appeal can be filed either directly before the Registrar or can be sent to the Registrar - by post. Clause (i) of sub-rule (1) of rule 10 of Rules, 1976 empowers the Registrar that if after scrutinizing the memorandum of appeal the Registrar comes to the conclusion that the appeal has been drawn up in accordance with the provisions of rule 7 then he shall register it in the register of appeals and with the approval of Chairman shall fix a date for preliminary arguments before the bench of a Tribunal. Clause (ii) of sub-rule (1) of Rule 10 provides that if appeal is not drawn up in accordance with the provisions of rule 7 then the Registrar shall return it to the appellant for amendment within a time specified in an order to be recorded by him on the memorandum of appeal pointing out the deficiency. What transpires from para (ii) of sub-rule (1) of rule 10 is that the Registrar is duty bound to scrutinize the memorandum of appeal and if from scrutiny, he reaches the conclusion that the appeal has not been drawn up in accordance with the provisions of rule 7, then he shall record the order on the memorandum of appeal, specifying therein the objection that due to such reason appeal is not drawn up according to rule 7 and return the memorandum of appeal to the appellant for amendment of the same by specifying a period for doing the needful. Sub-rule (2) provides a penalty that if the memorandum of appeal is not resubmitted within a period specified under clause (ii) of sub-rule (1) of rule 10 of Rules, 1976, then the appeal shall stand dismissed.
21. From perusal of rule 10 reproduced herein above, it is crystal clear that a special procedure has been prescribed for entertaining the appeal and a duty has been cast upon the Registrar when the appeal is presented before the Registrar. If the appeal is drawn up in accordance with the provisions of rule 7 of Rules, 1976 then the Registrar shall act according to rule 10(0(i) and if there is some deficiency and the appeal has not been drawn up' in accordance with rule 7 then the Registrar shall act according to rule 10(I)(ii), while returning the same to the appellant to resubmit the same within a specified period and if the appellant fails to re-submit the same within the specified period then the appeal shall stand dismissed. While deciding Iffat Bibi cast [2015 SCR 83], rule 10 of Rules 1976 was not cited before us, nor it was considered by the Court. The provisions of rule 7 of Rules, 1976 like the provisions of rule 32(2) of the High Court Procedure Rules, 1984 and rule 3 of Order XIII of the Azad Jammu & Kashmir Supreme Court Rules, 1978 are mandatory in nature.
48. There is no express clause like rule 10 of Rules, 1976 in the High Court Procedure Rules, 1984 and the Supreme Court Rules, 1978, empowering the Registrar to return the memorandum of appeal if after scrutiny he is of the opinion that the petition/appeal has not been drawn up in accordance with the provisions of rule 32(2) of the High Court Procedure Rules, 1984 or Order XIII, rule 3 of the Supreme Court Rules, 1978. Although, as has been discussed above that no express provision like rule 10 of Rules, 1976, is provided. in the Supreme Court Rules, 1978, however, despite that this Court in the case titled WAPDA v. Taj Begum and others [2014 SCR 588], has held that due to misconception, incompetent petitions for leave to appeal were entertained by the office and the petitioners were provided time for conversion of their petitions into appeal. It was observed in the referred case as under:-- "13. All the above-referred petitions for leave to appeal arise out of the proceedings under the Land Acquisition Act, 1894. There are two judgments of this Court reported as Muhammad Shaft Khan & 4 others [1999 SCR 291] and Azad Government & 2 others v. Mukhtar Saeed Qadri & 2 others [2000 YLR 2016], whereby on misconception of law it was declared that direct appeal under Section 54 of the Land Acquisition Act lies to the Supreme Court and it remained common practice that instead of appeals, petitions for leave to appeal are being filed, therefore, irrespective of delay, the petitions for leave to appeal were converted into appeals. Due to these two judgments, the petitions for leave to appeal are being filed in this Court irrespective of the fact that value of the subject matter in the lower Court and in appeal before the High Court is not less than fifty thousand rupees and the High Court has altered the judgment of the Reference Judge. Due to misconception and in spite of the judgment of this Court delivered in the case reported as Muhammad Sharif & 7 others v. Azad Government & others [1997 SCR 351], wherein it was held that if the value of the subject matter in the Court below and in appeal is not less than fifty thousand rupees and the High Court has altered the judgment of the lower Court, direct appeal under Section 42(11) lies in this Court, the office never objected to the filing of petitions for leave to appeal and entertained the same. This is negligence on the part of the petitioners, hence it is an act of the Court because the office of the Supreme Court remained entertaining petitions for leave to appeal in the matters arising out of the proceedings under the Land Acquisition Act, where value; of the subject matter in the Court of first instance and in the High Court was not less than fifty thousand rupees and the High Court had altered or varied the decree of the Court immediately below. The proposition in hand came under consideration' of the Supreme Court of Pakistan in a recent case reported as Mst. Gui Jan, etc. v.
49. Naik Muhammad, etc, [PLJ 2012 SC 563]. After detailed survey of case-law and discussing divergent judgments on the subject, it was resolved that all the petitions for leave to appeal where direct appeal under Section 54, Land Acquisition Act, lies to the Supreme Court, are incompetent. It was also observed that due to unsettled legal position regarding maintainability of such petitions, and inconsistent judgments of the Supreme Court, it shall be oppressive and unfair to dismiss the petitions for leave to appeal and appeals arising out of the same as incompetent and not maintainable at such a late stage. The petitioners were provided an opportunity for filing application for conversion of the petitions for leave to appeal into appeals and vice-versa. It was observed in para 9 of the judgment as under:--- "9.We may conclude by observing that the practice of filing a petition for leave to appeal before this Court under Article 185(3) of the Constitution where an appeal is competent before this Court under Article 185(2) of the Constitution or under any statute but has become barred by time amounts to hoodwinking or deceiving the spirit as well as the express provisions of Article 185(3) of the Constitution and such practice must be brought to an end. It must be made clear to all that if an appeal competent before this Court has not been filed within the period of limitation prescribed for filing of the same then the only remedy available in that regard is to file a time-barred appeal and seek extension of time or condonation of delay in filing of the same in terms of Rule 2 of Order XII or rule 1 of Order XXII of the Supreme Court Rules, 1980. It must also be made clear to all through this judgment that no petition for leave to appeal filed under Article 185(3) of the Constitution can be entertained by the office of this Court in any case where an appeal is competent before this Court under Article 185(2) of the Constitution or under any statute and that no such incompetent petition for leave to appeal, even if erroneously entertained by the office of this Court, can be converted into or treated as an appeal except in the case of an incompetent petition for leave to appeal filed within the period of limitation for filing a competent appeal. As regards the present appeals and petitions there is no denying the fact that in all these cases appeals were competent before this Court under Article 185(2) of the Constitution or under some statute but the matters had been brought to this Court in the shape of petitions for leave to appeal filed under Article 185(3) of the Constitution at a time when the remedy of appeal had become barred by time. All these petitions thus filed were, therefore, incompetent and not maintainable at the time of their institution. We are, however, cognizant of the fact that legal position regarding maintainability of such petitions, had remained unsettled in the past on account of some inconsistent judgments of this Court referred to above and, thus, it would be oppressive if not _unfair, to dismiss their petitions and appeals arising out of the same as incompetent and not maintainable at such a late stage. It is. therefore, observed that the petitioners/appellants in ali the present petitions/appeals may apply before this Court for treating their petitions filed under Article 185(3) of the Constitution as appeals filed under Article 185(2) of the Constitution or the relevant statute and may also apply for extension of time or condonation of delay in filing of such appeals and it shall then be for this Court to decide such application keeping in view the peculiar circumstances of each case.
50. (Underlining is ours)
51. 14.Thus, it can safely be held that in the cases where value of the subject matter in the Court of first instance and in appeal before the High Court is not less than fifty thousand rupees and the High Court has altered or varied the judgment or decree of the Court below, direct appeal under Section 42(11) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, lies in this Court and in the cases not covered by Section 42(11) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, petition for leave to appeal under Section 42(12) is maintainable. The petitions for leave to appear in the cases arising out of land acquisition proceedings under the Land Acquisition Act are being filed in the light of judgments of this Court recorded in the cases reported as Muhammad Shaft Khan & 4 others [1999 SCR 291] and Azad Government & 2 others v. Mukhtar Saeed Qadri & 2 others [2000 YLR 2016] due to misconception, which are incompetent but in the light of reasons listed in para 12 of the judgment, it is held that the petitioners in all the present petitions for leave to appeal filed under Section 42(12) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, may apply to the Court for conversion of petition for leave to appeal into appeal or appeal into petition for leave to appeal, as the case may be, within a period of one week from the announcement of the judgment."
52. 22.The scheme of rules is that the appellant shall file appeal in the Service Tribunal while adhering to the conditions laid down in rule 7. Under rule 10, it is the duty of the Registrar to scrutinize the appeal when it is presented before him and after scrutiny if the Registrar comes to the conclusion that it is drawn up in accordance with rule 7 then he shall entertain it and register it in the register of appeals and if there is some deficiency and it is found that the appeal is not drawn up in accordance with the provisions of rule 7 then he shall record such deficiency through an order on the memorandum of appeal and return it to the appellant while directing him to resubmit the same within a specified time after doing the needful and in case of failure the appeal shall be deemed to be dismissed. The Registrar is acting on behalf of the. Tribunal and any act of Registrar is deemed the act of the Tribunal and it is a settled principle of law that no one shall suffer due to the act of the Court of act of a public functionary, on the action of whom a citizen has no control. It was observed by this Court in the case reported as Mirpur Development Authority v. Muhammad Hanif and 23 others [2005 SCR 441, as under-- "... It is an established principle of law that no person should suffer for the errors committed by the Court.
53. In the case reported as Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others [2006 SCR 312], it was observed by this Court as under:--- "... Even otherwise for the sake of argument, if it is accepted that the advertisement dated 25.7.2006 was issued without lawful authority, even then that was the fault of the department, not the appellants. No person can be penalized for the fault of the department. ..."
54. In the case reported as Vice-Chancellor Azad Jammu & Kahmir University and 2 others v.
55. Muhammad isntiaq and 83 others [2007 SCR, 208], it was observed by this Court as under:--- "... it appears from the record that the examinations which were to be conducted during the financial year 2005-2006 were not conducted during that period due to reasons best known to the University Authorities but the legal position remains there that the students who could not appear in the examination for the financial year 2005-2006 cannot be penalized for the act/wrong of the authorites, ....."
56. In the case reported as Muhammad Younus Khan and others v. Badar-ul-Islam and 9 others [2010 SCR 441] it was observed by this Court as under:-- "8.It appears from the record that Court ordered on 14.010.2003 that legal representatives of Kh.
57. Muhammad Ishaque may be entered as decree-holders but the office in compliance of this order did, not enter the legal representatives as decree-holders in execution application and till decision the names of legal representatives were not entered as such. Similarly, in the copy of order issued to the appellants the name of Kh.Muhammad lshaque was entered as decree-holder/applicant. It may be observed that it is normal practice that Advocates while drafting an appeal usually rely upon the copy of order or judgment furnished to them. A perusal of copy of order annexed as Annexure "A" with High Court file, shows that the name of Court, file number the names of parties including that of Kh. Muhammad Ishaque is hand written while copy of order is photostat one, which led the Advocate to enter the names of persons written in the copy of order as parties in the memorandum of appeal before the High Court. It clearly appears the mistake of office of the Court of District Judge, Muzaffarabad, due to which counsel for the appellant was misled. It is celebrated principle of law that a party should not suffer due to the act of the Court......"
58. Similarly, in case reported as Shahida Iftikhar and others v. Shabana Mumtaz and 3 others [2011 SCR 273], it was observed as under:--- "... It is an accepted principle of law that no one should suffer for any error or act of the Court. The Courts are vested with powers to correct such error or omission at any time. "
59. Thus, we draw the conclusion that under rule 10 of Rules, 1976, it is the duty of the Registrar Service Tribunal to scrutinize the appeal when it is presented to it. If it is drawn up in accordance with rule 7, he shall entertain it register it in the relevant registrar and place the same before the Tribunal for orders and if there is some deficiency then the Registrar shall record an order under Rule 10(1)(ii) on the memorandum of appeal, pointing out the deficiency and return the same by specifying the time for resubmitting the same and in. case of failure, the appeal shall be deemed to be dismissed.
60. In all the above-referred appeals the Registrar of the Service Tribunal failed to scrutinize the appeals under rule 10 of Rules, 1976 and without scrutinizing entertained the same and entered the appeal in the registrar. The appeals were not accompanied by the certified copies of the order impugned. The Registrar failed to point out the deficiency. It was fault of the Tribunal/Court for which a litigant may not be penalized and the appeals cannot be dismissed.
61. 23.Here, we want to clarify the effect of proviso attached to rule 7 of Rules, 1976. The proviso is reproduced as under:--- "Provided that where a Tribunal is satisfied that it is not possible for an appellant to produce any document referred to in clause (e), if any, may waive the provisions of the clause."
62. The effect of proviso has been interpreted in a number of cases that the proviso cases out a special situation form the main provision Clause (e) of rule 7 provides that every memorandum of appeal shall be accompanied by a copy of order of the competent authority against which the appeal is preferred and copies of rules, orders and other documents on which the appellant proposes to reply in support of his claim. The provisions of clause (e) are mandatory in nature. The filing of copies of the documents mentioned in clause (e) is mandatory. The powers conferred upon the Tribunal for waiving the requirement cannot be exercised in an arbitrary manner. These have been conferred upon the Tribunal, if from particular situation the Tribunal is satisfied that it is not possible for an appellant to produce any document then it may waive the filing of such document but these powers cannot be exercised in routine. Recently, it has come in our notice that in every appeal filed in the Service Tribunal against the transfer order an application is filed alongwith the appeal in routine that the certified copy of the transfer order is not available and the Tribunal waives the filing of certified copies. This is a misuse of the powers conferred by the proviso to rule 7(g). The powers conferred under the rules proviso has to be exercised while keeping in view the overall circumstances that it is not possible for the appellant to procure the copy of a document. The satisfaction shall be objective and not subjective.
63. The legal proposition is resolved. All the appeals shall be heard on merit. Notice shall issue to the counsel for the parties.