RAJA SAEED AKRAM KHAN, J.--- The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 15.03.2017, whereby the writ petition filed by the respondents, herein, has been accepted in the following terms:- "It is therefore, concluded that the petitioners are entitled to remuneration for the period between 30.05.2014 to 2012.2014, if they have served as Members of the Service Tribunal during this period."
2. The facts necessary for disposal this appeal are that the respondents, herein, were appointed on contract basis as Members of the Azad Jammu and Kashmir Council Service Tribunal (hereinafter to be referred as Service Tribunal), vide orders dated 21.12.2011, for period of three years. The Chairman, Azad Jammu and Kashmir Council (hereinafter to be referred as AJ&K Council) terminated their services vide orders dated 10.05.2014. The respondents challenged the termination orders before the High Court by filing writ petition. The learned High Court decided the writ petition in the terms indicated in the preceding paragraph.
3. The judgment of the High Court has been challenged by the appellants before this Court mainly on the point that the respondents were appointed on contract basis for a period of three years and as per terms and conditions of the contract the authority was empowered to terminate their services before the expiry of the period specified in the contract. No violation of contract was made, thus, the conclusion drawn by the High Court that the respondents, herein, are entitled to remuneration for the period between 30.05.2014 to 20.12.2014, is against law. However, during the course of arguments this Court felt that the point; whether the mode adopted for appointment and termination of the Members of the Service Tribunal is consistent with the concept of independence of judiciary and supremacy of the Constitution or not, needs consideration, whereupon, this Court take up the point and ordered the parties to assist the Court on the point.
4. Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for the appellants argued that the impugned judgment is against law and the facts of the case which is liable to be vacated. He contended that the learned High Court at one hand reached the conclusion that prayed relief cannot be granted to the respondents but on the other hand declared them entitled for salary and other emoluments. The impugned judgment is not only contradictory but also contrary to law. The respondents were appointed on the contract basis and according to the terms and conditions of the contract the authority was fully empowered to terminate their services at anytime, thus, the termination of the respondents was not violative of law and the respondents even had no locus standi to challenge the termination orders. On the point formulated by this Court, the learned counsel for the appellants submitted that this point has not been raised in the pleading and under law the Court cannot go beyond the pleadings. He also submitted that the principle of law enunciated in the case reported as Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 5011, is not applicable to the case in hand.
5. On the other hand, Kh. Ansar Ahmed, Advocate, while appearing on behalf of the respondents strongly supported the judgment of the High Court and also submitted that the mode of appointment and termination of the Members of Service Tribunal is totally in conflict with the concept of independence of judiciary.
6. Mr. Raza Ali Khan, Advocate-General, Raja Muhammad Hanif Khan and Ch. Shabbir Ahmed, Advocates, appeared as amicus curiae and submitted that the Azad Jammud and KashmirCouncil adapted the Federal Service Tribunals Act, 1973 and the rules made thereunder. In the law adapted by the Azad Jammu and Kashmir Council, the same procedure was provided as adapted in the present case for appointment and termination of the Members of the Service Tribunal, but in the case reported as Sh. Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others IPLD 2013 SC 5013, the apex Court of Pakistan declared the relevant provisions dealing with the matter as ultra vires and issued the direction for its amendment. The Federal Service Tribunals Act, 1973 have now .been amended in the light of the directions issued in Sh. Riaz-ul-Haq's case (supra), but the Azad Jammu and Kashmir Council has not adapted the amended Act. They contended that the Service Tribunals Act in the present form is against the concept of independence of judiciary and liable to be amended in view of the dictum laid down in Sh. Riaz-ul- Haq's case (supra).
7. After hearing the arguments at some length we have gone through the record along with the impugned judgment. In our view, the fate of the case solely rests on the point formulated by this Court during the course of proceedings, i,e,, whether the manner adopted in this case regarding appointment and termination of Members of a judicial Tribunal is consistent with the principle of law enunciated by the apex Court of Pakistan and this Court, concept of independence of judiciary and supremacy of the Constitution; therefore, we deem it proper to decide the same at first.
Admittedly, the Service Tribunal is a judicial forum IA and the Members of the Service Tribunal decided all the matters relating to the terms and conditions of service of civil servants, including disciplinary matters, thus, it is very much significant that the Members of the Service Tribunal as a whole should be impartial and independent of all external pressures so that they may decide the cases fairly and in accordance with law. As it is the responsibility of the Members of the tribunal to protect the rights of the civil servants against unlawful acts of the authority, hence, it is necessary that they also must be independent in their authority. The importance of independence of judiciary has been elaborated in a number of pronouncements by this Court. The leading judgment on the point has been delivered in a case reported as Bashir Ahmed Mughal v. Azad Government and others PLD 2015 SC (AJ&K) 31 wherein, this Court in the light of Qur'an and Sunnah elucidated this point in the following terms:- "19. According to verse No,134 of Surah Al-Nisa, (translation of the verse is hereinabove incorporated), it has been clearly commanded by the Allah Almighty that the basic spirit of the administration of justice is application of independent mind. Same like, according to the Sunnah of the Holy Prophet (P.B.U.H) and the traditions set by the Khulfa-e-Rashideen, there is no argument except that in Islam without independence there is no concept of judiciary. Thus, in the light of the provision of section 3 and subsection (5) of section 31 of the Constitution Act, it can be safely concluded that the scheme of the Constitution Act speaks of the independent judiciary.
20. In this regard we may also refer to the first schedule of the Constitution Act which consists of the contents of the oath of the Chief Justice or the Judge which reads as follows:- 'OATH OF OFFICE Chief justice of Azad Jammu and Kashmir Judge of the Supreme Court of A.J.K.
I....... having been appointed Chief Justice of Azad Jammu and Kashmir or Judge of the Supreme Court of Azad Jammu and Kashmir do solemnly swear that I owe allegiance to Allah and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment and will administer justice according to the law in force in Azad Jammu and Kashmir, without fear or favour, affection or ill-will.'
"Oath of Chief Justice Judge High Court I ............having been appointed Chief Justice or Judge of the High Court of Judicature, Azad Janunu and Kashmir State, do solemnly swear that I we allegiance to Allah and that I will faithfully perform the duties of my office to the best of my ability, knowledge and judgment and will administer justice according to the law in force in Azad Jammu and Kashmir without fear or favour, affection or (underlining is ours) This Schedule is part of the Constitution. The phraseology used in the oath of a judge clearly indicates the scheme and spirit of the Constitution which speaks of independence of judiciary by using the express words "without fear or favour", "affection or ill-will". Whereas no such words are visible in the oath proforma of the other public office holders like the President, Prime Minister, Minister, Speaker, Member of Legislative Assembly and Advisor etc. because all these offices are not independent according to the spirit of the Constitution rather they are responsible to the Legislative Assembly. The survey of the above referred case law and the constitutional provisions makes it abundantly clear that Islam is the State religion of the Azad Jammu and Kashmir.
According to the constitutional provisions and command of Almighty Allah, independence of judiciary is most sacred and important requirement of the State. This aspect of the matter according to the spirit of the Constitution Act has not been considered by this Court while handing down the judgment in the Genuine Rights. Commission's case 1999 MLD 26. Thus, having due respect and regard of the Judges who delivered the supra judgment, keeping in view the concept of the constitutional and Islamic spirit, we are unable to agree with the opinion expressed in the judgment that in the Constitution Act, there is no concept of independence of judiciary. In our considered humble opinion, there is no concept of judiciary without independence."
It has further been held in the referred report that: "In our considered view absence of independent judiciary amounts to taking away and-abridging the fundamental rights.
27. According to the modern principles of the jurisprudence and universally accepted Constitutional provisions, the basic essence and spirit in all the constitutions of the civilized states is the establishment of an independent judiciary and access to justice."
After going through the judgment (supra), no further deliberation is IB required on the point of independence of judiciary, however, we only conclude here that judicial independence is important because it-guarantees that the judges are free to decide the matters honestly and impartially, in accordance with law and the evidence, without any concern or fear of interference, control, or improper influence from anyone.
8. Keeping in mind the importance of independence of judiciary, we have to examine; whether the Service Tribunal in the present form is an independent judicial forum or not. The record shows that vide notifications dated 21.12.2011, the respondents were appointed as Members Service Tribunal for a period of 3 years, but before the expiry of the stipulated period the Chairman Azad Jammu and Kashmir Council terminated their services vide orders dated 30.05.2014. Thereafter, on the same day, he appointed Director General (Audit), Commissioner Inland Revenue and Deputy Secretary (Council) as Members of the Service Tribunal. The persons appointed as Members are admittedly directly subordinate to the authority of the Azad Jammu and Kashmir Council which is a stigma on their impartiality. In such circumstances, how an aggrieved civil servant can believe that these Members will decide his case, filed against the orders of the authority, impartially, Thus, it is clear that the present formation of the Service Tribunal is against the concept/spirit of independence of judiciary. In the instant matter for the appointments of the Members Service Tribunal the sole discretion lies with the Chairman Azad Jammu and Kashmir Council, whereas, same proposition was involved in Bashir Ahmed Mughal's case (supra), wherein the sole authority for the appointments of the judges of the Shariat Court was worthy President. This Court after detailed discussion declared the discretion of authority against the spirit of independence of judiciary. The relevant paragraph of the judgment reads as under: "38. The above reproduced provisions of Act, 1993 are appreciated on the touch stone of hereinabove principles regarding the appointment of the Judges in the Shariat Court. It is crystal clear that in this law, there is no provision for consultation with the Chief Justices for appointment on the post of the Judge Shariat Court which means that these appointments are purely depending upon the arbitrary discretion of the appointing authority i,e, the President. Such mode of appointment surely is violative of the independence of judiciary. Thus, the subservient judiciary cannot safeguard or protect the constitutionally guaranteed fundamental rights which amounts to abridge the fundamental right of access to justice and the consequences of which are taking away and abridging the constitutionally guaranteed fundamental rights. Thus, any law, the application of which results into taking away or abridging the constitutionally guaranteed fundamental rights, under the provisions of subsections (1) and (2) of section 4 of the constitution Act, is null and void. Therefore, we do not feel any hesitation to declare that the provision of section 3 of Act, 1993 in its present shape empowers the executive authority to appoint the Judge Shariat Court without consultation with the Chief justices which is in negation of the Constitutional spirit of the independence of judiciary. It also amounts to abridge and take away the fundamental rights.
Thus, this provision is null and void and inoperative. Any older of appointment made in exercise of these provisions in its present shape is of no legal effect."
The question; as to whether the independence of the Service Tribunal can be ensured, as is involved in the case in hand; has been resolved by the apex Court of Pakistan in a case reported as Sh.Riaz-ul-Haq and another v. Federation of Pakistan through Ministry of Law and others [PLD 2013 SC 501], in the following manners:-- "60. As far as a sitting Judge of the High Court acting as Chairman of the tribunal is concerned, there is no difficulty in determining the tenure during which he shall hold the charge in addition to his own functions, simultaneously performing as a Judge of the High Court and the Chairman of the Tribunal. Preferably, it would be appropriate and In the interest of institution if a sitting Judge is not asked to perform his duties as Chairman of a Federal or Provincial Service Tribunals. However, appointments for the position of Chairman can conveniently be made from amongst the Judges who had been a Judge of the High Court. If a retired Judge of the High Court is to be appointed as Chairman of the Tribunal, selection should be made in consultation with the Chief Justice of the High Court in the case of a Provincial Service Tribunal and in consultation with the Chief Justice of Pakistan in the case of Federal Service Tribunal, who may nominate retired Judge. The tenure of such incumbent should not be for a period of more than three years for one time only....
62. .................................................
63. We are conscious of the fact that there are civil servants who are quite capable of performing their functions independently without being influenced by any of their seniors amongst the Executive, however, the selection of Members has to be made in consultation with the Chief Justice, on having gone through the credentials of nominees and by also giving preference to those, who have a legal background and had not reached the age of superannuation with their tenure, which is to be restricted to a one time tenure not more than a period of three years or till the date of a superannuation, whichever is earlier."
The same point came under consideration of this Court in a case reported as Azad Jammu and Kashmir Government and 2 others v. Syed Khalid Hussain Gillani [20/6-SCR 228], wherein, while relying Sh. Riaz-ulHaq's, case (supra), this Court made it clear that for maintaining the transparency and independence of judiciary the appointments in the Service Tribunal has to be made through consultative process. The relevant portion of the judgment reads as under:- "19. As in Bashir Ahmed Mughars case and Sh.Riaz-ul-Haq's cases (supra), it has been held that for maintaining the transparency and independence of judiciary the appointment in the office of Chairman Service Tribunal has to be made through consultation process. The legislature has to introduce suitable amendments providing the mode that the appointment of Chairman Service Tribunal has to be made after consultation. Therefore, in this state of affairs, the concerned are advised to provide in the statute the mode and manner for appointment to the office of Chairman Service Tribunal providing consultation with the Chief Justice of Azad Jammu and Kashmir and the Chief Justice of the High Court."
It is pertinent to mention here that the Azad Jammu and Kashmir Council adapted the Federal Service Tribunals Act, 1973, through Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979 (hereinafter to be referred as Adaptation of Laws Act). In the Adaptation of Laws Act, it has been provided in subsection (2) of section 3 that 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 made or issued thereunder the said laws, rules, notifications or orders as in force in Azad Jammu and Kashmir shall stand amended to the same extent and in the same manner. In Sh. Riaz-ul-Haq's case, the provisions of Federal Service Tribunals Act, 1973, as adapted by Azad Jammu and Kashmir Council, and the Service Tribunals Acts and Rules enforced in the provinces, came under consideration and the Hon'ble apex Court of Pakistan after detailed deliberation declared sections 3(1), 3(3), 3(3)(b), 3(4), 3(7) of the Federal Service Tribunal Act, 1973 along with Rule 2 of the Service Tribunals Rules, 1974 and Federal Service Tribunal Chairman and Members Service Rules, 1983, as ultra vires the Constitution and also directed the Government to make legislation within stipulated period and implement the judgment forthwith by making fresh appointments of Chairmen/Members of the Tribunals in the light of the observations made in the judgment. In the light of the judgment of the apex Court of Pakistan, the amendments have been made in the Federal Service Tribunals Act, 1973 as well as the relevant Acts and Rules of the Provincial Service Tribunals even in the Service Tribunals Act/Rules of D Gilgit Baltistan, but unfortunately the Azad Jammu and Kashmir Council failed to take the necessary steps in this regard in view of the provisions or section 3(2) of the Adaptation of Laws Act.
9. The learned counsel for the appellants during the course of arguments submitted that point formulated by this Court is against the pleadings and under law the Court cannot go beyond the pleadings. It may be observed here that this Court has got ample powers under the provisions of section 42-A of the Interim Constitution Act, 1974, read with Order XLIII of the Supreme Court Rules, 1978 to take up and E resolve the points which have not been raised by the parties in the public interest and for doing complete justice. Thus, keeping in view the importance of the matter this Court formulated/took up the point by exercising the inherent powers conferred by law and the objection raised by of the learned counsel for the appellants in this regard having no substance is hereby repelled. The argument of the learned counsel for the appellants that the principle of law enunciated in Sh. Riaz-ul-Hag's case (supra), is not applicable to the Azad Jammu and Kashmir Council, has also no force. Firstly, the Azad Jammu and Kashmir Council under the provisions of the Adaptation of Laws Act was under obligation to take necessary steps forthwith in the light of the amendments made in the Federal Service Tribunals Act; and secondly, the principle of law laid down in Sh. Riaz-ul-Hag's case (supra), was also reiterated by this Court while handing down the Judgment reported as Azad Jammu and Kashmir Government and 2 others v. Syed Khalid Hussain Gillani [2016 SCR 228] and the principle of law enunciated by this Court is binding upon the Azad Jammu and Kashmir Council, hence, in this way too the principle laid down in Sh.Riaz-ul-Haq's case is fully applicable to the Azad Jammu and Kashmir Council.
10. So far as, the controversy involved in the present matter is concerned, it may be observed here that after enactment of the amended provisions in the Federal Service Tribunals Act/Rules, the modes adopted for both; termination of the respondents' services and newly appointments, are contrary to the amended provisions of Federal Service Tribunals Act/Rules and also against the dictum laid down by the apex Court of Pakistan in Sh. Riaz-ul-Hag's case (supra) and this Court in Khalid Gillani's case (supra); thus, the same being violative of law and the concept of independence of judiciary cannot be given the legal cover. We do not agree with the view expressed by the learned High Court that authority was empowered to terminate the services of the respondents and no violation of law has been committed. Not only on the above stated reasons, but from another angle the power of authority to terminate the services of an employee without assigning any reason or providing an opportunity of hearing is also violative of principle of natural justice which always treated violative of law and Constitutional guaranteed fundamental rights. Such exercise of power in an arbitrary manner is also against the principle of public policy which requires the public functionaries to exercise their powers in good faith in the public interest and not on the basis of personal like or dislike or on the basis of whims and fancies and if any rule, policy or instruction authorizes the authority to act in an arbitrary manner, such rule, policy or instruction is ultra vires the Constitution, even abinitio void. Our this view findings support from the principle of law enunciated by the apex Court of Pakistan in a recent judgment reported as Pakistan Defence Officers Housing Authority v. Mrs. Itrar Squad Khan and others [2017 SCM R 20101, wherein, it has been held that: "15. No doubt the employees of statutory corporations in absence of violation of law or any statutory rules of service cannot press into service constitutional jurisdiction of the High Court and after we have come to the conclusion that the service rules framed by the appellant were not statutory but for their internal guidance and, therefore, their enforcement through writ jurisdiction does not appear to be in consonance with the law settled by this Court. The directions imparted through the impugned judgment by the High. Court to initiate proceedings against the respondent in terms of Removal from Service (Special Powers) Ordinance, 2000 after its repeal in the year 2010 vide Removal from Service (Special Powers) (Repeal) Act, 2010 also appear to be result of poor assistance. However, the question which escaped the attention of the High Court and needs our consideration is as to whether Rule 8(b)(1) of the Service Rules framed by the appellant in '2008 for their employees which authorizes the Administrator to dispense with the services of an employee by giving him one month's notice or a month's pay in lieu thereof without assigning any reason or providing an opportunity of hearing is violative of the principle of natural justice, which always has been treated as violation of law. The said rule further appears to be against the principles of public policy which requires the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies and, therefore, it needs to be examined as to whether such rule could be allowed to be retained in the service rules (though non-statutory) of the appellant a statutory body. Rule 8 of the Service Rules, 2008 of the appellant is reproduced below for the sake of convenience:- '8. Termination/Resignation/Dismissal from Service (a) Termination/Dismissal
(1) Termination. Termination of service of an employee under the clause of 'Misconduct' as per DHA Rules Chapter IV. An employee terminated due to absence from duty under this clause will be entitled for gratuity and other emoluments under normal rules.
(2) Dismissal. In case an employee commits an offence of a serious nature as determined by the competent authority, he/she will be dismissed under relevant DHA Rules. Such an employee will not be eligible for gratuity and other benefits except provident fund (his/her share only). a. Rules for Governing Termination/ Dismissal/Resignation
(1) The Administrator may dispense with the services of an employee by giving him one month's notice or one month's pay in lieu thereof Similarly, an employee may resign from serving by giving one month's notice or by paying one month's pay in lieu thereof" (underlines is ours)
16
17. The power to terminate the services of an employee without cause was also questioned and considered by this Court in the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCM R 1159) and this Court after taking into consideration all the pros and cons declared the provision in the non-statutory service rules of the SECP providing termination without cause as ultra vires the Consitution while observing as follows: 'It must be stated that in a civilized dispensation which is rule based and is aimed at good governance, such whimsicality cannot be countenanced. Such autocratic practices may be in consonance with the legacy of our colonial past wherein the prevalent monarchical disposition subjected senior state functionaries, even judges, to holding office at the monarch's pleasure. But, as we noted in Muhammad Yasin's case, our law has come a long way from those days. It does not allow for dismissal of public servants in such an imperious and arbitrary manner. There is another important reason why this cannot be done. We have repeatedly held that all functionaries of the state, be they civil servants or senior echelons of corporate/statutory bodies such as SECP are above all fiduciaries of the people. As such they can only exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies. Thus, the power to terminate implies within it that it is not the power of a despot, tyrant, seth or wadera, but the power of a trustee and fiduciary in the service of the people. A seth, in the unbridled laissez faire world of private business could perhaps terminate the services of an employee on the ground that the employee is too honest, upright and law-abiding for the success of the business or that he does not defer to seth's opinion. Such attitude and thinking have no place in a statutory public body such as SECP, which only exercises delegated authority under section 8 ibid when it from time to time employ(s) persons to be employees of the [SECP]. It is essential that officials taking decisions in the SECP or enforcing rules, regulations and policies are not left at the whims of a caprcious and unreasoned SECP. It is also important to bear in mind that the powers vested in the Commissioners/Chairman SECP are institutional and not personal. These powers whether express or implied can only be exercised in furtherance of the objects for which SECP has been established. To sum up the discussion in this part, when we read the Act in the light of principles elaborated repeatedly in our precedents, it becomes clear that the SECP cannot simply be terminating employees at whims and pleasures without having recourse to valid reasons. It can only terminate an employment when it has reasons do so which are fair and just and advance the purposes of the Act. Both law and public policy require this. This is why, in our short order, we declared clause 3(1) of Chapter 11 of the SECP Service Rules (HR Handbook), which allows for termination simpliciter (without cause) of employees of SECP, as ultra vires the Constitution and inter alia, the Act.
18. In view of what has been discussed above and the fact that we have declared the provision of Rule 8(b)(1) as ultra vires the Constitution, therefore, declare the letter dated 11th September, 2012 whereby the services of the respondent were dispensed with, as illegal and without lawful authority.
The respondent would be deemed to be in service and entitled to all consequential benefits.'
11. In view of the conclusion drawn hereinabove, we modified the impugned judgment in the term that the termination orders passed by the authority are contrary to law; except this modification, the impugned judgment stands upheld. Although, we declared the fresh appointments contrary to law, however, keeping in view the peculiar facts of the case, all the acts done by the Members Service Tribunal are declared valid under the principle of defecto doctrine and 30 days period, from the date of announcement of this judgment, is allowed to the concerned authorities to make fresh appointments in the light of the observations made in the preceding paragraphs. We may clarify here that in view of provisions of section 3(2) of the Adaptation of Laws Act, the amendments made in the Federal Service Tribunals Act/Rules have automatically been adapted by Azad Jammu and Kashmir Council and in this regard no further legislation is required. As the appointments of the newly appointed Members have been declared contrary to law, therefore, they shall cease to hold their positions forthwith.
This appeal stands disposed of in the terms indicated above. No order as to costs.