Raja Saeed Akram Khan, C.J. The petitioner through this petition has sought leave to appeal against the judgment of the High Court, dated 08.02.2023, which culminated to dismissal of his writ petition in limine.
2. The petitioner, who is serving as a Head Constable in the Police Department, by filing a writ petition before the High Court sought directions for the implementation of orders issued by the Prime Minister of Azad Jammu and Kashmir on two different occasions i.e., 24.12.2012 and 01.02.2016 for his out-of-turn promotion due to his exceptional performance and awards received in recognition of his dedication and service. The petitioner claimed that the respondents consistently failed to implement the Prime Minister's orders, subjecting the petitioner to discrimination and unwarranted delay in receiving the rightful recognition for his outstanding service. The High Court's decision to dismiss the writ petition prompted the petitioner to file this petition for leave to appeal, seeking a just resolution of his longstanding grievance.
3. The key arguments put forth by the learned counsel for the petitioner are that the judgment of the High Court, dated 08.02.2023, is against law, the facts, and the record. The counsel asserted that, the High Court's decision appears to be hasty and lacks a comprehensive consideration of the petitioner's points. The counsel highlighted that the High Court overlooked an important point that the Police Department has the authority, as per standing orders, to award out-of-turn promotions to the employees based on their extraordinary performance. The petitioner met with the discriminatory treatment, but this aspect was not adequately addressed in the High Court's decision. The counsel argued that the High Court's assertion that the matter pertains to the terms and conditions of the petitioner's service and should be addressed by the Service Tribunal is incorrect. The Service Tribunal cannot issue directions to implement the Prime Minister's orders, and this renders the High Court's decision legally flawed. The petitioner has got right to equal protection under the Constitution. The counsel contended that the petitioner's fundamental right was violated through discrimination, as the respondents have been granting out-of-turn promotions to other employees in the past. The learned counsel pointed out that the instant petition involves important questions of vital legal and public importance and requested for grant of leave for an appeal.
4. We have heard the learned counsel for the petitioner and gone through the record. In this case, the petitioner claims to be a dedicated and decorated employee of the Police Department. He claims that he has been recognized for his exceptional contributions to maintain law and order, including his pivotal role in thwarting a terrorist attack in Muzaffarabad and his involvement in apprehending criminals responsible for a bank robbery. He further claims that he was awarded the prestigious Presidential Police Medal and the Prime Minister of Azad Jammu and Kashmir on two separate occasions ordered for awarding him out of turn promotion but the petitioner's promotion was repeatedly delayed by the respondents. Moreover, the petitioner contends that this delay constitutes an act of discrimination, as other employees in the Police Department have been granted out-of-turn promotions for similar acts of valor. With these claims, he filed a writ petition before the High Court which has been dismissed on the sole ground that the matter pertains to the terms and conditions of the petitioner's service, which falls under the jurisdiction of the Service Tribunal, rather than the purview of the High Court.
5. We have no cavil with the contention of the learned counsel for the petitioner that the Service Tribunal has got no power to issue direction for implementation of the orders of the Prime Minister, however, on merits the petitioner has got no case. It may be stated here that Section 8-A was introduced in the Civil Servants Act, 1976 vide the Civil Servants (Amendment) Ordinance, 1989. The said section provided that the civil servant who exhibits exemplary intellectual, moral and financial integrity and high standard of honesty and gives extraordinary performance in the discharge of his duties, may be granted out-of-turn promotion or award or reward in such manner as may be Prescribed. This section remained on the statute book till 20.02.1993, when it was deleted. As Section 8-A is no more holding the field, hence, it can safely be concluded that the orders passed by the Prime Minister on 24.12.2012 and 01.02.2016 were patently illegal. The principle of law laid down by this Court is that the writ jurisdiction cannot be exercised to direct a person to implement or give effect to an unlawful order issued by any authority, even if that authority is competent to pass such an order in a lawful manner. The i A orders, directions, or decisions issued by the Prime Minister, or any other authority must have statutory backing to be implemented. Any directive that lacks legal validity, is contrary to law, or does not have a statutory basis cannot be enforced. The authority of the Prime Minister, or any executive authority, is limited to actions and decisions that are consistent with law and the orders or directions that are in violation of relevant rules, statutes, or legal provisions cannot be issued. The powers of the High Court to exercise its writ jurisdiction is discretionary in nature. It will only enforce orders, directions, or decisions that are lawful, justified, and have a legal basis. It is appropriate to refer in this regard the case reported as Shahzad Sharif vs. Azad Govt. and others [2016 SCR 24], wherein, it was held that: "6. The appellant claims that the Prime Minister ordered and directed the respondents for making his appointment on 3rd April, 2011, 6th July, 2011, 5th August, 2011 and 24th December, 2011. The Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service Rules, 1991 provide the appointment of Naib Tehsildar through Public Service Commission and in the amending notification dated 4th March, 2010 and 2nd April 2011, it is also laid down that the appointments against the post of Naib Tehsildar in the quota of 6.50%, reserved for the children of the officers and employees serving in the Revenue Department, or who have died or retired during service, shall be made through the Public Service Commission. The Prime Minister under the rules has no power to take any post out of the ambit of the Public Service Commission.
The orders passed by the Prime Minister are without statutory backing. These are of no legal validity. Only legal orders of the Prime Minister can be implemented and a writ can be issued for enforcement of the said orders. This Court in the case reported as Major Muhammad Aftab Ahmed (Retired) v/s Azad Jammu and Kashmir Government [1992 SCR 307], observed as under: "iii) Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said post as it is settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even though it is competent authority to pass such an order in a lawful manner. Since, as said earlier, the appointment of the appellant could not be made to the post of Superintendent of Police under the rules the orders of the Prime Minister claimed by the appellant to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and fact of the case do not justify and call for to do so."
Again, in the case reported as Muhammad Rehman and another v/s Azad Govt. and 8 others [2014 SCR 298], it has been observed as under: "11. So far as the argument of the learned counsel for the appellants that the direction of the Prime Minister should be carried out is concerned, the Prime Minister (Chief Executive) is not made a party in the writ petition and counsel for the official respondents before the Court has also taken the same stand as has been discussed hereinabove. Even otherwise, according to law, the directions of the Prime Minister can only be carried out which are consistent with law and any direction contrary to law having no statutory backing cannot be carried out."
In this case, the alleged orders passed by the Prime Minister are without any legal backing, hence, the writ jurisdiction cannot be exercised for implementation of such orders. In this state of affairs, if the impugned judgment of the High Court is set aside on the ground that the writ petition was competently filed even then on merits no relief can be granted to the petitioner.
6. In his arguments, the petitioner's counsel has laid great stress on the point that the petitioner has been subjected to discriminatory treatment. The basis of this contention relies on several orders (Annexure "PPI") issued on 12.05.1991, 01.04.1996, and 11.06.2013, granting out-of-turn promotions to other employees. Notably, on 12.05.1991, the Prime Minister of Azad Jammu and Kashmir (the then) approved an out-of-turn promotion for Hassan Wazeer Afridi, which was subsequently implemented on 01.04.1996. It is our considered opinion that the petitioner cannot validly claim discrimination on the basis of these orders, as the approval was granted during the period when Section 8-A of the Civil Servants Act, 1976, was in effect. With regards to the notification dated 11.06.2013, it does not serve as a favorable precedent for the petitioner because, as mentioned hereinabove, Section 8-A was removed from the statute book on 20.02.1993. Furthermore, fundamental right to equality, as enshrined in the Constitution, does not imply equality in illegal actions or the violation of law. Instead, it signifies equality in a lawful sense, with a focus on upholding the supremacy of the law and safeguarding constitutionally guaranteed fundamental rights. The principle underlying the concept of equality before law underscores that individuals should be treated equitably and justly under the legal system. However, this principle does not extend to justify or legitimize an unlawful or illegal action. In other words, it does not promote equality in wrongdoing. Rather, it emphasizes the importance of equality in the lawful sense, wherein all individuals are subject to the same legal standards and enjoy the same legal protections to ensure the supremacy of law and the preservation of constitutionally guaranteed fundamental rights. It is crucial to recognize that one wrongful act cannot serve as a justification for committing another wrongful act or perpetuating the same. Allowing such practices would undermine the very purpose of legislation and the foundational principle of the supremacy of the law. Therefore, even if the respondents have irregularly regularized or permanently inducted certain individuals in violation of law, this cannot serve as a valid reason for accepting the petitioner's claim. Similar view has been expressed by this Court in the case reported as Farkhanda Jabeen and others vs. Azad Govt. and others [2015 SCR 1382] in the following manner: "9. So far as the argument of the learned counsel for the appellants regarding equality before law is concerned, no doubt, according to the constitutionally guaranteed fundamental rights, equality does not mean equality in the illegalities and violation of law, it means equality in good sense for supremacy of law and upholding the constitutionally guaranteed fundamental rights. Any wrong act cannot be justified for doing another wrong act or perpetuate the same. If such practices are recognized, it will amount to defeat the vary purpose of legislation and supremacy of law.
Therefore, if the respondents have regularized or permanently inducted some persons against law, that cannot be a reason for accepting the appeals or protecting their illegal acts by directing them to perpetuate the illegalities rather such situation requires eradication of corrupt practices and the concerned authorities should bring law into action to do the needful."
The result of the above discussion is that this petition has no force, hence, leave is refused. A copy of this judgment shall be sent to the Secretary Services and General Administration for circulation in all the departments.