MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--This appeal was initially brought on 8-3-1986 against Order No. A-27 (61)/85 dated 18-9-1985, whereby the appellant Raja Mohammad Niaz Khan was retired from the service. Subsequently, his Review Petition, then pending before the Government was rejected on 4-5-1986 and through the amended appeal, presented on 27-5-1986, the order dated 4-5-1986 was also challenged. We heard the counsel for the parties and perused the record.
2. The counsel for the appellant at an earlier stage submitted the points, for consideration but during the arguments, he confined himself to the following points:-
(i) The order of retirement had been issued, in the name of President and it was further indicated that it was so passed, in exercise of powers under section 12(ii) of Civil Servants Act, 1976, whereas the President had no such powers, under the aforesaid Act;
(ii) That the order having been passed by the Prime Minister without associating the Ministers, has been wrongly termed as an order of the Government and is as such without a lawful authority; (i.e) That the order purports to show the retirement of the appellant from the post of Chairman A.K.M.I.D.C. And Managing Director A. K. L. A. S. C., whereas the appellant was holding the substantive post of Secretary to the Government, therefore, the order cannot operate in respect of his retirement from his substantive post;
(iv) No show-cause notice was issued to the appellant prior to the passing of order dated 18-9- 1985;
(v) The Civil Servants Act, 1976 contains two provisions for retirement; one after completion of 25 years service, qualifying for pension and the other on attaining the age of 60 years, therefore, the provision favourable to the officer, regarding the retirement on superannuation of age should have been applied and not one unfavourable to him;
(vi) The appointment to the post of Chairman, A. K.M.I. D. C. Could be made by Government of Azad Jammu and Kashmir, with the concurrence of Government of Pakistan as envisaged in Section 28- A of A.K.M.I.D.C. Act, 1971, therefore, his retirement without the concurrence of Government of Pakistan was without jurisdiction;
(vii) The appellant was appointed as Chairman, A.&.M.I.D.C. And the tenure stood extended upto 17- 3-1986, therefore, the retirement could not be ordered before the expiry of the period of tenure;
(viii) The appellant had meritorious services and there was no allegation against him, therefore, it was not in the public interest to retire him from the service;
(ix) That the provisions of section 12 (ii) of the Civil Servants Act, 1976 are violative of the fundamental rights;
(x) The provisions of section 12 (ii) of Civil Servants Act, 1976 are repugnant to the requirements of Islam as set out in Holy Qur'an and Sunnah, therefore, this provision of law is void, being ultra vires of the constitution and consequently, the order passed in exercise of powers, under this provision of law is also void.
3. The Additional Advocate-General controverted the arguments of the learned counsel for the appellant and further added that the Tribunal had no jurisdiction to go into the question of Public Interest, nor according to him the Tribunal is competent to probe into the constitutional position of the provision of section 12 of the Civil Servants Act, 1976. He also submitted that no appeal was competent against the impugned order and that the appeal was time-barred. In replication, the learned counsel for the appellant also argued that a letter from Principal Secretary to the Prime Minister addressed to the Accountant-General, Azad Jammu and Kashmir refers to some incident concerning the appellant but the appellant was never issued any show-cause notice for enabling him to defend him, in respect of this incident. He argued that this letter is post-dated and if the retirement is the consequence of this incident, the appellant should have been heard before passing of the order.
4. So far as the first question that the order has been issued in the name of the President, who has no power under section 12 of Civil Servants Act, 1976, we may reproduce hereunder provisions of subsections (i) and (ii) of section 12 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, for the reference:- "12. The Government.- (i) Subject to this Act, the executive authority of Azad Jammu and Kashmir shall be exercised in the name of the President by the Government, consisting of the Prime Minister and the Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of Azad Jammu and Kashmir;
(ii) In the performance of his functions, under this Act, the Prime Minister may act either directly or through the Ministers."
The provisions of the Constitution, reproduced above signify that the executive authority of the State of Jammu and Kashmir shall vest in the Government and it shall be exercised in the name of the President, by the Prime Minister. As a requirement of the Constitution, even if' the powers are exercised by the Prime Minister or a Minister, the orders are to be issued, in the name of the President, therefore, the order made in the name of the President, does not mean that the power has been actually exercised by him, rather it will be construed that the powers have been exercised by the Government, in the name of President. A similar point also came up for consideration before the') Federal Supreme Court of India in cases AIR 1947 FC 38 and AIR 1952 SC 317, and before Lahore High Court in the case PLD 1956 Lah 641. It was held that form of the order is not material. It is to be seen whether the order was passed by the competent authority. We have examined the file and found that Prime Minister had ordered the retirement of the appellant, who was competent to do so. Hence, the objection fails.
5. The other aspect of the provision of sections 12 (i) and (ii) is that authority of the Government shall be exercised by the Primp Minister, who may act directly or through the Ministers. The word "which" used in subsection (i) of section 12, refers to the Government. Consisting of Prime Ministers and the Ministers. The words "shall act through the Prime Minister, who shall be Chief Executive of Azad Jammu and Kashmir" make it amply clear that authority of the Government shall be exercised by the Prime Minister and as Chief Executive, he is the fountain of the executive powers of the Government. No checks) have been placed on him, like one suggested by the counsel for the appellant.
6. The second contention of the learned counsel that Ministers were not associated with the decision regarding the retirement of the appellant is also answered therein. The Prime Minister alone is competent to exercise the authority of the Government and it is not necessary that he should associate with himself any of the Ministers. Apart from this, the provisions of subsection (5) of 'section 12 are also reproduced for reference:-
(5) The Government may regulate the allocation and transaction of its business any may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it."
The provisions of subsection (5) show that the Government has the authority to delegate its power and regulate its business anyway it likes. For convenient transaction of the Government, Rules of Business have been framed from time to time and last of all, the Rules of Business, 1985 were applicable at the time of passing of impugned order, which were enforced on 1-6-1985. Schedule III read with Rule 5 (2) shows the cases, which require the approval of the Prime Minister, before the issue of orders. The relevant provision is reproduced below:- "5. Functions of Prime Minister.-- (i)------------------
(2) No order shall be issued without the approval of the Prime Minister in cases enumerated in Schedule III.
SCHEDULE III.
(see Rule 5 (2)
List of the cases to be submitted to the Prime Minister for his approval before issue of orders.
S. No.Cases.
1------------
11. All cases relating to appointments, promotions and disciplinary action against officials in Grade- 17 and officers of equivalent rank and status and above."
The appellant was holding the post in N.P.S.-20 at the time of retirement. Thus, his case is covered by entry at Serial No.1l, in the Schedule III to the Rules of Business, which empowers the Prime Minister, to pass final order in these cases, even by virtue of distribution of business, made under the provisions of section 12 (5) of the Constitution. Thus, the order of retirement, under section 12 (ii) of the Civil Servants Act, 1976 does not suffer from any legal defect because in view of the explanation provided under section 12 of the Act "words" competent authority' had been defined as the 'Appointing Authority. The learned counsel had mentioned the cases Fazalul Qadir Chaudhry v.
Abdul Haq PLD 1963 SC 486 and Begum Shamsun Nihar v. Speaker East Pakistan Assembly PLD 1965 SC 120, and the pages 251 and 252 of the commentary on the Constitution by Munir. He also referred to the definition of the Government provided in the Constitution. The authorities were considered. It has been laid down that each and every part of the Constitution shall be given effect to. We have already kept in view this principle but it leads us to no other conclusion than that already arrived at, by us in this matter. The interpretation of the provision of section 12 of the Constitution, in whatever matter made, will not limit the authority of the Prime Minister, nor it binds him to associate the Ministers with him in discharge of his function. The extent of the delegation of powers to the Ministers is also within the discretion of the Prime Minister. Thus, the argument that the Prime Minister cannot function as Government is without a substance.
7. It was contended that the order dated 18-9-1985 shows the retirement of the appellant, from the post of Chairman A . K . M.I . D. C . And Managing Director A.K.L.A.S.C. Therefore, it should be declared that the appellant continues to hold the post of Secretary to the Government, which was his substantive post, in the service of Azad Jammu and Kashmir. For the reference order dated 18-9- 1985 is reproduced below: - This order shows that appellant was retired from service, in the public interest, under the provisions of section 12 (ii) of the Civil Servants Act, 1976. The provisions of Civil Servants Act, 1976 do not apply to the post of Chairman AKMIDC/ Managing Director AKLASC. Similarly, retirement in public interest is not envisaged in the AKMIDC Act, 1971. Apart from this, through the retirement order, benefit of 30 years service for the purpose of pension has been given to the appellant. The provisions of Civil Servants Act, 1976 apply to the substantive service of the appellant, therefore, the intention of the authority passing the order is very much clear that by application of the provisions of Civil Servants Act, 1976, the appellant was retired from his permanent service and not from the post held by him, on the basis of deputation. There is no provision of retirement, under the AKMIDC Act, regarding the retirement of a person on deputation with the Corporation, therefore, the provision of section 12(ii) will apply to the appellant, in the matter of his service, under the Government. It is also clear from the plain reading of section 12, that when the retirement of a Civil Servant is ordered, it operates in.
Respect of his service and he will cease to be a Civil Servant, under the Government and it has no reference to a particular post. In the framework of the Service Rules, there is no concept of retirement, from a particular post. When a person is on deputation with a Corporation or anybody, set up by Government, the order of retirement made in the public interest under the provisions of Civil Servants Act will put an end to his substantive service as well as the appointment being held by him as deputationist, unless of course, he is re-employed. The express provision for 30 years service benefit made, in the order also relates to the substantive service and not the service on deputation. In view of these facts, it cannot be said that the appellant was not retired from the post of Secretary to the Government. If for arguments sake, it is accepted that the retirement was ordered from the post of Chairman A.K.M.I.D.C., would it be possible to order such retirement, in public interest, under the provisions of Civil Servants Act, 1976 and whether it is possible to retain a person as Secretary to the Government and to pay him the pension benefits on the basis of 30 years service? The reply to the aforesaid question would be in negative. So far as the words "Chairman AKMIDC/Managing Director AKLASC" written in the order of retirement are concerned, those have been used in order to identify the officer by showing his last appointment held at the time of passing of the order because if such an address of the appointment held by a Civil Servant is not indicated in the order, that might confuse the matter. There are sometimes more than one person with the same name in the service of the Government and it would be difficult for the departments to implement the orders. For instance; Raja Mohammad Niaz Khan appellant was Chairman A.K.M.I.D.C., whereas another Raja Mohammad Niaz Khan was a Sub-Judge and in absence of the reference to the post, held by the appellant, it would have been impossible to ascertain as to which the two officers was retired, by the Government, through the impugned order.
The contention of the learned counsel for the appellant is therefore, repelled. The other aspect of the matter is that a Civil Servant can only approach the Tribunal, if he is aggrieved by an order of an authority. In case the appellant feels that he has not been retired from the office of the Secretary notwithstanding the passing of the order dated 18-9-1985 and that he still holds the appointment, then he is not an aggrieved person and cannot approach this Tribunal for any relief.
The appeal can only be brought before the Tribunal, when the terms and conditions of a Civil Servant are violated. The Service Tribunal does not exercise the powers to issue the declaratory decrees like civil Courts. Only the violation of terms and conditions can be complained of before the Tribunal. However, our observation with regard to the interpretation of order has been already made. It is fundamental principle of interpretation that intention of the maker of the document is gathered from the language used. The reference to section 12 (ii) of Civil Servants Act, 1976 and benefit of 30 years service for the purpose of pension are sufficient and express indications of the intention of the Government that the appellant was retired from the substantive service. This contention is, therefore, without any substance.
9. The fourth contention of the learned counsel for the appellant was that the appellant was not given an opportunity of being heard before passing the impugned order. The perusal of the order shows that the retirement of the appellant was not ordered in consequences of any disciplinary proceedings, nor there was any stigma about his career, rather it is a retirement simpliciter quite different from the compulsory retirement. The provisions of section 12 of Civil Servants Act, 1976 empower the appointing authority to order the retirement of Civil Servant in public interest, after such civil servant has completed 25 years service qualifying for pension. The section 12 is reproduced below: -
12. Retirement from service:-A civil servant shall retire from service: -
(i) in case of person holding a post equivalent to the post of Additional Secretary to Government of Pakistan or a higher post, on such date as the competent authority may in the public interest direct;
(ii) in any other case, on such date after he has completed twenty five years of service qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct; or (i.e) where no direction is given under clause (i) or clause (ii), on the completion of sixtieth year of his age.
Explanation.- In this section "competent authority" means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being a person lower in rank to the civil servant concerned."
Subsection (ii) of section 12 of the aforesaid Act shows that such retirement is a part of the terms and conditions of the service of a Civil servant. A Civil servant can be retained in service upto the age of 60 years, under subsection (i.e) of section 12. Only if no order is passed under any of the preceding subsections of the section 12, as is clear from the language used, in aforesaid section..
The provisions do not make it obligatory for the appointing authority to issue any show-cause notice before passing any order, under any of its provisions. The superior Courts of Pakistan, as well as the Supreme Court o Azad Jammu and Kashmir have considered this point and are unanimous on the view that no show-cause notice is necessary in such a case. It was positively opined by the Azad Jammu and Kashmir Supreme Court in the case Mir Mohammad Sharif v. Azad Government PLD 1986 (AJ&K) SC 87 at pages 96 and 97, that in the matter of the retirement, simpliciter coming within the ambit of. Section 12 of the Civil Servants Act, no show-cause notice is necessary. The view is supported by the following authorities: -
(1) PLD 1976 Lah. 1310.
(2) 1983 PLC (CS) 142.
(3) 1976 PLC (C.S.T.) 140 The view taken in the above cases was re-affirmed by the Supreme Court of Azad Jammu and Kashmir in the unreported judgments of the Court in Civil Appeal No.8; Islam Mohammad v. Azad Jammu and Kashmir Government, at page 4, delivered on 18-5-1986 and Civil Appeal No.10, Raja Mohammad Akram Khan v. Azad Government, at page 8. The appellant's counsel referred to PLD 1962 SC 142. This case was brought by Mir Ghulam Sarwar against Federation of Pakistan. In view of the provisions of section 240 of the Government of India Act, 1935, it was held that before removing a civil servant, it was necessary to issue show-cause notice. The section 240 is reproduced below for reference:- "240. (1) Except as expressly provided by this Act, every person who is a member of a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.
(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.
(3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this subsection shall not apply-
(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.
(4) Notwithstanding that a person holding a civil post under the Crown in India holds office during His Majesty's pleasure, any contract under which a person not being a member of a civil service of the Crown in India, is appointed under this Act to hold such a post may, if the Governor-General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the. Payment to him of compensation if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post."
There is no provisions for issuing a show-cause notice, in our Constitution analogous to one, made in the Government of India Act, 1935. The provisions in our constitution regarding the services are embodied in section 49, reproduced below:- "49. The Services.- (1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law.
(2) Until an Act of the Council in respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect or such persons employed in connection with the affairs of the Government makes provision for the matters referred to in subsection (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be amended from time to time by the Council, or as the case may be, the Government."
The case before us does not relate to dismissal or reduction in rank. The Civil Servants Act, 1976 was enacted in pursuance of section 49 of the Constitution. It does not provide for the condition of issuance of any show-cause notice before exercising the powers under section 12. In view of this state of law, the contention of the learned counsel for the appellant no longer sustains.
9. The fifth argument of the learned counsel for the appellant was that when two provisions of law can be applied to a civil servant, one favourable to him should be applied and the other harsh one should be avoided, in its application. A reference can be made to the provisions of section 12, already reproduced, by us hereinbefore, in this respect. Provisions of subsection (i.e) are subsurvient to the provisions of subsections (i) and (ii) in the sense that subsection (i.e) will operate only if an order is not passed, under subsection (ii). Both the provisions are intended to meet different eventualities. If public interest demands that a Civil Servant should not remain in service, he can be retired after completion of 25 years service and if the public interest does not so require, he will continue and has to retire on attaining the age of 60 years. It is thus, clear that when public interest demands the retirement of Civil Servant, he cannot be allowed to continue till the age of superannuation. The question of application of the favourable provisions of law will arise when the public interest is not involved.
There is another occasion when a Civil Servant can be retired. For example, in the case of inefficiency and misconduct, a Civil Servant can be removed, irrespective of any period of service.
This provision has also been made through the rules made under the Civil Servants Act. No one can in the case of inefficiency or discipline can claim that he will continue in the service till he attains the age of 60 years. Similarly, there can be no claim for continuance in service, when the public interest requires the retirement, under subsection (ii) of section 12. This point was also considered in the case of Malak Abdul Rashid v. Azad Government and the contention of the learned counsel could not find favour with the Tribunal. The learned counsel for the appellant, Sardar Rafique Mahmood had cited PLD 1978 SC 61, PLD 1966 Lah. 881 and PLD 1983 SC 633 to support the plea that powers, under section 12 (ii) could have not been exercised as the appellant could ordinarily serve uptil attaining the 60 years age, under the provisions of subsection (i.e) of section 12. The case P.M.G. Eastern Circle Dacca v. Mohammad Hashim PLD 1978 SC 61, relates to the fixation of pay of an officer assuming higher responsibility on the temporary basis. The Court held that in case the two provisions viz. F.R. 30 and F.R. 35 could be applied to such a case, the favourable one should be made applicable. In the case Karamat Ullah Khan, v. Government of Pakistan PLD 1966 Lah. 881 at 889 and 895, it was opined that the retirement could be ordered in the public interest, after 25 years service or on attaining 55 years age, but the powers to retire could be exercised, within period of 6 months of the framing of the rules and the cases could be reviewed for the purpose, 6 months before the date of completion of 25 years service or in case of ages, 6 months before attaining the age of 55 years. If the course, provided by the rules was not adopted, the civil servant could not be retired before attaining the age of 60 years as provided in the Constitution. The stages for scrutiny of cases for the exercise of the powers had been provided in the rules, therefore, the order passed was found derogatory to the rules. It may be pointed out that the provisions of section 12 (ii) of Civil Servants Act have no such restriction. Both the aforesaid authorities have no application to the cases in hand. In the case Sh. Rahmatullah v. Deputy Settlement Commissioner PLD 1963 'SC 633, it was held that out of the compensation pool, the Government could transfer the property in the public interest. The orders were upheld by the Court as observed by it at pages 644, 645, in the aforesaid judgment. The above case has no bearing with the facts of the appellant's case. The contention of the learned counsel is therefore, repelled.
10. The plea that the appellant was holding the post of Chairman A.K.M.I.D.C. And appointment to that post could be made by the Government of Azad Jammu and Kashmir, with the concurrence of Government of Pakistan, therefore, it was not lawful for the Government of Azad Jammu and Kashmir to retire the appellant from service, without the concurrence of Government of Pakistan, has been also considered by us. Provision of section 28-A. Of AKMIDC Act referred by the counsel for the appellant is reproduced below:- "28-A. In appointing the Chairman under section 5, in making rules under section 27 and in issuing policy directive to the Corporation, Government shall act with the concurrence of the Government of Pakistan."
These provisions relate to the appointment of Chairman Corporation and certain other matters.
There is another provision in AKMIDC Act embodied in section 5, which is also reproduced below:- "5. Board of Directors.--(1) The Government shall appoint a Board of Directors consisting of the following:-
(a) A Chairman, who shall be a whole time officer of the Corporation;
(b) Such other persons, technically qualified whose number shall not be less than three and not more than five, as the Government may deem fit: Provided that when a member so appointed also holds an office under the Government his status will not be lower than that of a Secretary to the Government.
(2) The Chairman and the other Directors shall hold office during the pleasure of the Government and unless sooner removed, the Chairman and the Directors referred in clause (e) of subsection (1) shall hold office for period of three years and may be appointed thereafter for a further term or terms of such duration as Government may determine.
(3).....................................................---..
(3-A) (a)..................................................
(b)---------------------------------------------"
The AKMIDC Act was enforced in 1971 and thereafter Azad Jammu & Kashmir Interim Constitution Act, 1974 came into force on 24th August, 1974. The Interim Constitution has defined the extent of powers of Azad Jammu and Kashmir Government,, the Azad Jammu and Kashmir Council and the Government of Pakistan as envisaged in section. 31, which is reproduced below:- "31. Legislative Powers:-(1) Subject to the succeeding provisions of this section, both the Council and the Assembly shall have the power to make laws--
(a) for the territories of Azad Jammu and Kashmir,
(b) for all State subjects wherever they may be; and
(c) for all officers of the Council or, as the case may be, the Government, wherever they may be.
(2) Subject to subsection (3).-
(a) the Council shall have exclusive power to make laws with respect to any matter in the Council Legislative List set out in the Third Schedule, hereinafter referred to as the Council Legislative list; and
(b) the Assembly shall, and the Council shall not, have power to make laws with respect to any matter not enumerated in the Council Legislative list;
(3) Neither the Council nor the Assembly shall have the power to make any law concerning--
(a) the responsibilities of the Government of Pakistan under the UNCIP Resolutions;
(b) the defence and security of Azad Jammu and Kashmir;
(c) the current coin or the issue of any bills, notes or other paper currency; or
(d) the external affairs of Azad Jammu and Kashmir including foreign trade and foreign aid,
(4) No tax shall be levied for the purposes of the territories of Azad Jammu and Kashmir except by or under the authority of an Act of the Council or the Assembly.
(5) No law shall be repugnant to the teaching and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunrah."
After the enforcement of the Interim Constitution, the Government of Pakistan is concerned only with the matters enumerated in subsection (3) of section 31 and the Council Legislation List as set out in third Schedule to the Constitution and all other matters not so specified, fall within the executive authority of the Government of Azad Jammu and Kashmir. Section. 51 of the Constitution provides that all other Acts and laws in force at the time of commencement of the Interim Constitution will continue in their application until altered, revealed or amended by the appropriate authority, subject to the provisions of the Act. The words "subject to the provisions of the Act" used in section 51 signifies that the authority of Government of Pakistan ceases to exist in the matters falling within the executive authority of the Government of Azad Jammu and Kashmir.
Consequently, section 28-A, which puts a 1 clog on the authority of Government of Azad Jammu and Kashmir, being derogatory to the provisions of the Constitution is no longer an effective provisions of .Law. The matter is also viewed from another angle that the appointment of the appellant as Chairman AKMIDC was made by the Government of Azad Jammu and Kashmir without the concurrence of Government of Pakistan and the tenure of the office of the appellant was also extended by the Government itself, from time to time which means that the provisions of section 28-A of AKMIDC Act were not adhered to, mainly for the reason of its having become ineffective on the enforcement of the Interim Constitution. In the instant case, the question of appointment of appellant is not involved. It is the removal, which is covered by section 5 of the Act, instead of section 28-A. There is no requirement for concurrence of any authority except the Government. The language used in section 5(2) admits of no such interpretation that the Government has to associate any other authority in the matter of removal of the Chairman or the Directors of this concern, rather it is clear that the aforesaid officers shall hold the office, during the pleasure of the Government. We may cite an instance that appointments to certain posts, in the service of Azad Jammu and Kashmir are made by the Government on the recommendations of Selection Board or the Public Service Commission but at the time of their removal, no such recommendation is required, therefore, at the time of removal of Chairman, no concurrence of Government on Pakistan was required, even if the provisions of section 28-A would have been effective, on the analogy of the principle applicable to other appointments in the service of Azad Jammu and Kashmir as illustrated above. It may also be noted that notwithstanding with the provisions of section 28-A, the appointing authority vests in the Government of Azad Jammu and Kashmir and not the Government of Pakistan, even under the provisions of the Act. For instance, some proposals of expenditure can be routed to the Government for approval with the concurrence of Finance Department, under the Rules of Business of Azad Jammu and Kashmir, the concurrence required under the rules does not bind the Government not to incur an expenditure.
No such requirement in any way limits the powers of the Government and the ultimate authority for the purpose vests in the Government and not with the Finance Department. The appellant was holding a substantive post in the service of Government of Azad Jammu and Kashmir, to which the appointment could be made by the Government of Azad Jammu and Kashmir and it was the only competent authority to order his retirement. We may further remark that a person on deputation outside Azad Jammu and Kashmir remains a servant of the Government and it has the authority to retire him even if he is serving anywhere in connection with the affairs of Government of Pakistan, any Provincial Government of a Corporation, because the Government, nevertheless retains the character of appointing authority, in the matter of such civil servants. The learned counsel for the appellant had cited PLD 1978 SC (A J&K) 37 to support the plea that retirement could be ordered in the same manner, in which the appointment is to be made. That case is not applicable to the instant case, in the circumstances, discussed hereinbefore, with particular reference to provisions of section 5 (2). We repel the arguments of the learned counsel for the appellant that the retirement of the appellant was without a lawful authority.
11. There is another point that the appointment of the appellant as Chairman AKMIDC was to last uptil 17-3-1986 and the retirement should have not been ordered before that date. Reference in this respect was made to PLD 1979 Lah. 324 and an unreported decision of Azad Jammu and Kashmir High Court, in the case entitled Dr. Nazir Shah v. Azad Jammu and Kashmir Government. The Deputation Policy of the Government, circulated vide No. FD. 16408-68 dated 12-11-1979 was also relied upon. So far as the deputation policy is concerned, it does not limit the powers of the Government or the competent authority, to be exercised by it under the provisions of section 12 of Civil Servants Act, 1976. The letter dated 12-11-1979 is just a policy to be followed generally, whereas the powers to be exercised under section 12 are the statutory powers. The provisions of the statute always override the provisions of any subordinate legislation like rules, instructions, orders etc. Even otherwise, we do not find any conflict between the provisions of the Act and the policy letter dated 12-11-1979. The case of Dr. Nazir Hussain Shah relates to the retirement of Chairman Board of Intermediate and Secondary Education. Under the provisions of section 12 (2) of the Board of Intermediate and Secondary Education Ordinance, 1974, the tenure of the office of Chairman has been fixed as four years. The relevant portion of section 14 is reproduced below:- "14.(1)-.......................................................
(2) The Chairman shall hold office for a term of four years from the date of notification of his appointment and on the expiry of the term of office shall be eligible for re-appointment."
The removal of a person from the post of Chairman before the expiry of the tenure will be naturally violative of the provisions of the aforesaid law, unless such removal is in accordance with law. The retirement of Dr. Nazir Hussain Shah was found violative of section 14 (2) of the aforesaid substantive law, therefore, the learned Judges of the High Court had rightly taken the view that the retirement order could have not taken effect before the expiry of the term of his office as provided under the Ordinance. It was thus held by the High Court that the retirement order passed in that case by the Government would be effective from 3rd May, 1979. Provisions of section 5 of AKMIDC Act, 1971 reproduced hereinbefore clearly show that the Chairman and the Directors shall hold the office during the pleasure of the Government and unless sooner removed, they may continue to hold the office, for a period of 3 years. The words "during the pleasure of the Government" and the words "unless sooner removed" used in the subsection (2) or the Section 5, give ample power to the Government to remove the Chairman from his office at any time, it deems necessary or expedient, The other case namely; PLD 1979 Lah. 324 also lays down a principle similar to one involved in the case of Dr. Nazir Hussain Shah. Thus, both the cases relied upon by the learned counsel for the appellant. Have no application to the case in hand because the Chairman AKMIDC does not enjoy any fixed tenure of his office, under the relevant statute, For the foregoing reason, it is held that the order of retirement does not suffer from any legal infirmity as pleaded, by the learned counsel for the appellant.
12. In the matter of public interest, it was argued by the learned counsel for the appellant that the service career of the appellant has been brilliant, therefore, it was riot in the public interest to retire him from the service. He has referred to PLD 1981 Kar. 290, 750 and PLD 1981 Pesh.
20. In the case Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290, it was held at page 297 as under:- "Thus it is clear that section 13 speaks of the retirement from "service" of a civil servant, whereas clause (b) of section 4 (1) of the Service Tribunal Act speaks of the fitness of a person to hold a particular "post". A decision as to "fitness of a person to hold a particular post" cannot be equated with a decision to "retire a person from service in public interest". The two expressions placed by us into quotes are obviously expressions of different connotation and do not seem to cover the same field. It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13 (ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunal Act, 1973 which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and conditions of his service. We are clearly, therefore, of the view that clause (b) of the proviso to subsection (1) of section 4 of the said Act does not contemplate an order of retirement under section 13 (11) of the Civil Servants Act, 1973.
Such an interpretation is in accord with the well-established principle of interpretation of statutes which lay down that a proviso has to be strictly construed and a remedial provision of an enactment has to be construed so as to advance the remedy and suppress the mischief that was intended to be suppressed by the provision. There is no reason for holding that whereas all other orders in respect of any of the terms and conditions of service were made appealable, an order retiring a civil servant before he completes 60 years of his age should be excluded from the purview of appeal when such order may deprive him of the valuable right to continue in service with all its incidental privileges and prospects. We may refer to the view expressed by Z.A. Channa, J. (as he then was) in Muttaqi Hussain Rizvi v. Province of Sind PLD 1978 Kar. 703 on the interpretation of section 4 (1) (b), Service Tribunals Act."
PLD 1981 Kar. 750 it was held at pages 757 and 758 as under:- "6. This, therefore, brings me to the first contention advanced by the learned counsel, for on the aforesaid discussion. We are clearly of the view that in the context of the submissions made by Mr. Khalid Ishaque, once it is shown that an appeal is competent before the Service Tribunal, the matter will lie outside the plea of the jurisdiction of this Court. Our attention was invited to the view taken by the Service Tribunal itself in Appeal No.37-(K) of 1980 whereby the Tribunal held that it had no jurisdiction to adjudicate in the matter of retirement of civil servants under section 13(11) of the Civil Servants Act. Unfortunately, however no reasons have been assigned for reaching such a conclusion. A closer examination of section 4 (1) (b), Service Tribunals Act, however, shows that no appeal has been provided before the Tribunal against an order or a decision of a departmental authority in the following cases:-
(i) Where the question of fitness or otherwise of a person to be appointed to a particular post has been determined;
(ii) Where " the question of fitness or otherwise of a person to hold a particular post has been determined; (i.e) Where the fitness or otherwise of a person to be promoted to a higher post or grade has been determined.
The argument advanced before us was that when a person is retired under section 13 (ii), in substance the competent authority determines the fitness of the incumbent to hold any post in Government service and, therefore, such an order falls within the ambit of the restrictive provisions of clause (b) of section 4(1).
An unjustified or mala fide or colourable order of retirement under section 13 (ii) would obviously involve the infringement of the right of a civil servant to continue to serve until sixtieth year of his age. It cannot, therefore, be a mere matter of his fitness to hold a particular post. A comparison of the wording of section 13 (11) of the Civil Servants Act with clause (b) of the proviso to section 4 (1) of the Service Tribunals Act, 1973, also shows that an order of retirement in public interest is not envisaged or covered by the latter provision. Thus it is clear that section 13 speaks of the retirement from "service" of a civil servant, whereas clause (b) of section 4 (1) of the Service Tribunals Act speaks of the fitness of a person to hold a particular "post". A decision as to "fitness of a person to hold a particular post" cannot be equated with a decision to "retire a person from service in public interest". The two expressions placed by us into quotes are obviously expressions of different connotation and do not seem to cover the same field. It seems to us, therefore that the legislature could not have excluded an order of retirement under section 13 (ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunal Act, 1973, which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority, in respect of any of the terms and conditions of his service. "
PLD 1981 Pesh. 1, it was held at page 21 as under:- "Then when the Tribunal examines the question of malice or mala fide on the part of a departmental authority, it' can, in our view, allow the aggrieved civil servant, to allege mala fide in accordance with the provisions of the Code of Civil Procedure and to prove it by affidavits or otherwise. There shall, in our view, be no restriction on the power of the Tribunal to examine the files of the Government for the Tribunal has to decide the matter as Court of Appeal and it shall have to decide the appeal after finding out the facts' on which the conclusion of the departmental authority rest's. The latest pronouncement of the Supreme Court in the case of M. Yamin Qureshi v.
Islamic Republic of Pakistan also in substance supports the view that the jurisdiction of the Tribunal is were to determine the question of law as well as fact and there are no such limitations on its power as are on High Court exercising its extraordinary jurisdiction, under Article 199 of the Constitution."
For ascertaining the meaning of the word "public interest" the learned counsel made reference to the Black's Law Dictionary, which per page 1106 are as under:- .
"Public interest". Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local stage or national government- Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43, 46.
If by public permission one is making use of public property, and the chances to be the only one with whom the public can deal with respect to the use of that property, his business is affected with a public interest which requires him to deal with the public on reasonable terms. The circumstances which clothe a particular kind of business with a "public interest" as to be subject to regulation, must be such as to create a peculiarly close relation between the public and those engaged in it and raise implications of an affirmative obligation on their part to be reasonable in dealing with the public. One does not devote his property or business to a public use, or clothe it with a public interest, merely because he makes commodities for and sells to the public in common callings such as those of the butcher, baker, tailor, etc. Chas. Wolff Packing Co. V. Court of Industrial Relations of State of Kansas 262 U.S., 43 SC 630, 633, 67 L. Ed . 1103. A business is not affected with a public interest merely because it is large, or because the public has concern in respect of its maintenance, or derives benefits, accommodation, case, or enjoyment from it. Tyson & Bro-united Theatre Ticket Offices v. Banton, 273 U.S. 418, 47 SC 426, 71 L.Ed. 718."
As against the arguments of the learned counsel for the appellant, the Additional Advocate-- General argued that this Tribunal has no authority to go into the matter of public interest and the Government is the sole judge in the matter. He referred to PLD 1986 SC (AJ&K) 87 and PLD 1970 SC
98. The counsel for the appellant contended that section 47 of the Interim Constitution Act, 1974 gives vide power to the Service Tribunal to probe into the legality as well as the propriety of an order purporting to have been passed in the public interest. The learned counsel for the appellant further stated that powers of the Tribunal as embodied in section 5 of the Service Tribunal Act, 1975 are also were enough to enable it to examine all questions of the like nature. The Tribunal is competent to set aside, or modify any order. There being no fetters on the power of the Tribunal in the matter of terms and conditions of a Civil Servant under section 47 of the Interim Constitution and section 5 of the Service Tribunal Act 1975, read with section 107, C.P.C. The question of public interest is not in any way outside the jurisdiction of the Service Tribunal. The learned counsel cited 1986 PLC 1044 and some other unreported decisions of the Tribunal to illustrate that, this Tribunal as a Court of Appeal is competent to go into the propriety of any order, passed by the respondent.
13. We have looked into the case law, cited by the learned counsel for the appellant. These cases are distinguishable from the case in hand for the reason that in all those cases, this Tribunal assumed the jurisdiction to examine the propriety of the order as there was no reference to the public interest, nor to the provisions of section 12 (ii) of the Civil Servants Act, 1976. In absence of both the aforesaid factors, it was necessary for this Tribunal to go through the record of the Civil Servants for ascertaining whether there was an occasion to retire those Civil Servants in the public interest. In the case before us, the order was passed on 18-9-1985, which has been already reproduced in the earlier part of the judgment. It has been clearly indicated in the order that retirement of the appellant was made in the public interest, in exercise of the powers under section 12 (ii) of the Civil Servants Act. In view of the language used in the order, the cases cited by the counsel for the appellant are no longer applicable in the instant case. The judgment of the Supreme Court in the case of Mir Mohammad Sharif v. Azad Jammu and Kashmir Government PLD 1986 SC (AJ&K) ? The learned Court observed at page 97 as under:- "We are of the view that under section 12 of the Civil Servants Act Government or the competent authority, as the case may be, is the sole Judge as to whether the retirement of a civil servant is in the public interest or not. It is not possible for the Court to sit on judgment over the view taken by the Government, in the matter. The Court would interfere only if a case of mala fide or colourable exercise of power is established."
The portion of the judgment of the Supreme Court, reproduced above shows that the Courts have no jurisdiction to question the propriety of an order purporting to have been passed in the public interest. The same view was expressed by the Azad Jammu and Kashmir Supreme Court in its judgment dated 18-5-1986, delivered in the Civil Appeal No.10, entitled Raja Mohammad Akram Khan v. Azad Jammu and Kashmir Government. In the case Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, it was held at page 130 as under:- "Compulsory retirement which carries with it no stigma and no vindictiveness against the person concerned is different from removal from service or dismissal.
There may be a variety of reasons which may impel a Government to compulsorily retire an officer on his having completed the period of service qualifying him for pension and Government alone is the best judge of these reasons. It is not possible for the Courts to sit on judgment over the action of Government, if from materials disclosed it does not appeal that the action taken was merely in colourable exercise of or in abuse of power. It must of necessity be left toy the Government itself to decide as to whether retirement of the officer concerned was in public interest or not. The Government it is said, has an absolute discretion to retire any of its officers at this stage.
It appears to me, therefore, that in the absence of any words in the statute limiting the discretion of the Government this must be so, for, it is difficult to lay down any yardstick by which "public interest" can be measured in this connection. There may well be circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for being continued in public service. An over punctilious or over fastidious person may well in certain circumstances by just as unsuitable as a lax or careless officer having regard to the nature of his employment."
The learned counsel for the appellant maintained that the word "Court" used in the case of Mir Mohammad Sharif refers to other Courts and not the Tribunal because according to him the powers of Tribunal are different from those of the ordinary Courts and even, from the Courts exercising the extraordinary constitutional jurisdiction. According to him the position is distinguishable in view of the provisions of section 47 of the Constitution and section 5 of the Service Tribunal Act. It was further maintained that the aforesaid judgment of the Supreme Court is based on the principles enunciated in two judgments of High Courts of Pakistan, which were delivered in the writ jurisdiction by the High Courts. According to him, the power exercisable under writ jurisdiction is limited than the power of appellate Tribunal. He again referred to 1986 PLC 1044, which is a case, decided by this Tribunal, wherein the distinction between the powers of Service Tribunal and the powers of High Court was made. The counsel for the appellant may be very right in his argument but we are bound by the judgment of Supreme Court in view of provisions of section 42-B of the Interim Constitution Act, 1974. A departure from a principle of law enunciated by the Supreme Court cannot be made by the service Tribunal, nor by any other Court, exercising its jurisdiction in Azad Jammu and Kashmir.
14. In view of the pronouncements of our Supreme Court, only the cases of mala fide or of the colourful exercise of jurisdiction can be examined by us. Adjudging the matter from this angle, we have to go through the record. The memorandum of appeal nowhere shows that appellant intended to impeach the order of retirement on the basis of mala fide nor he imputed any colourful exercise of powers. The counsel for the appellant argued that the Tribunal can set aside the order, if it comes to the conclusion that it is mala fide. He cited PLD 1974 SC 151 and particularly referred to page 170. As against this argument, the Additional Advocate-General maintained that question of mala fide cannot be examined unless it is specifically pleaded as well as proved. He referred to PLD 1.974 SC 151, PLD 1967 Lah. 227, PLD 1961 SC 178 and PLD 1968 Kar. 422, 1970 SCMR 508, PLD 1982 AJK
128. The authorities quoted by the counsel for the parties have been considered. The case Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 was referred by both the parties and particular reference was made to page 170. It was held by the learned Court ,at this page as under:- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fide to establish it, because, there is, to start with a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v . Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations. Nor should the person alleging mala fides be allowed to roving enquiry into the files of the Government for the purpose of fishing out some kind of a case. ---Mala fides" literally means "in bad faith". Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of person motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any of the considerations mentioned above."
PLD 1967 Lah. 227, at page 270, it was held that:- "In the petition of Mr. Leghari and others no particulars of mala fide are given against the competent authority entitled to take action under Article 178. In the petition of Mr. Leghari all that is mentioned is that some senior officers of the Government were against the petitioner. This fact by itself cannot support even it accepted, the allegation of the petitioner against the Government.
There is no allegation that these officials in some way influenced the Government to take action against the petitioners under Article 178 of the Constitution. The presumption is that every action of Government is bona fide." held that:- "It may be observed that if a question of fact has not been specifically raised in the pleading, evidence on such point cannot be looked into and a party cannot be permitted to build up a case which such party has not set up in its pleadings."
PLD 1961 SC 178, the matter involved, related to Arms Licences and the contention as to the mala fide was not accepted. Similarly in the case Muzaffar All Shah v. Registrar Cooperative Societies PLD 1968 Kar. 422, the plea of mala fide was not accepted and it was held that a presumption of regularity attaches to any order passed by a public authority and no question of mala fide arises unless such presumption is properly rebutted. The case 1972 SCMR 568 is not relevant. The view taken in the case, Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 clearly negates the contention of the appellant and supports the plea of the respondent that mala fide is to be specifically alleged and then it is to be proved as is clear from the portion of judgment, reproduced earlier. It has been further held that official acts are to be presumed bona fide unless they are proved otherwise. A mere allegation of mala fide is not sufficient to establish the case of mala fides. It was also held that if one kind of mala fide is alleged, no other kind of mala fide can be proved which means that in order to sustain a plea of mala fide, the specific type of malice is to be alleged and the same is to be proved. Mere surmises and conjuctures are not sufficient. The view that the allegation of the mala fide is not only to be specifically pleaded but is also to be proved like any other fact was upheld by the Supreme Court of Azad Jammu and Kashmir in the case; Islam Mohammad v. Azad Jammu and Kashmir Government in its judgment dated 18-5-1986. In the case before us, as earlier stated, there is neither such a plea nor any proof is forthcoming from the record. The learned counsel for the appellant stated that A.C.Rs. For the years 1980 to 1985 which were got summoned by him may be referred. Since no adverse remarks were conveyed to the appellant, it should be presumed that his service was meritorious, and on the basis of these confidential reports. It should be held that the order was mala fide. The A.C.Rs. Were summoned by the Tribunal and the reports in respect of year 1966, 1968 to 1970, 1977 to 1984 were received from the Secretariat. The reports for the years 1982 to 1984, which purports to be recorded on one day i.e., 22-5-1985 have not been recorded in accordance with the instructions. There should be the signatures or initials of the reporting officer, in each column but the reporting officer had signed at the end of the report and did not put in his initials under his hand in the relevant columns. The typed letters in the relevant columns do not conform to the requirement of the instructions on the subject, therefore, the reports for the years 1982 to 1984 cannot be considered. Thus, 9 reports were left for the consideration. The appellant was treated an average officer, in the 4 reports, for the year 1967, 1977 and 1-1-1978 to 7-4-1978 and the report from 7-4-1978 to 31-12-1978. The officer was shown under suspension in the report, for the years 1969. In the reports, for the year 1966, 1979, 1980 and 1981 entry in the column of general assessment is 'good'. Although we were not required to examine this record, yet we satisfied ourselves and found that the service of the appellant is not so meritorious, in view of the assessm ents, made in the Annual Confidential Reports, as claimed by the appellant. The plea of mala fide taken, by the appellant's counsel during the arguments, does not sustain in view of the legal position, as well as the facts, hereinbefore discussed.
15. The learned counsel for the appellant had argued that finding of the Supreme Court can be ignored, if it is against the spirit of the Constitutional provision. He referred to the following authorities:- AIR 1973 SC 1425 AIR 1967 SC 1480 AIR 1980 SC 1730.
According to him, the right to appeal, given by the Constitution cannot be curtailed by the ruling of the Supreme Court. This argument is not tenable, because the Supreme Court has not curtailed the right, rather it has determined the scope of the right of appeal. Apart from this, the case-law referred by him is based on the decisions of the Supreme Court of India. The highest Court of the country has a right to change its views and form an opinion, different from one earlier expressed by it. The Service Tribunal is not a Court, exercising the jurisdictions equivalent to the Supreme Court, therefore, it is not free to form an opinion, contrary to the dictum of the Supreme Court. The views of Court at the highest apex of the Judiciary is binding, unless a different view of the same Court is available. The grounds for forming a view, by a higher Court are not the relevant factors, for this Tribunal to reject such a view. This Tribunal, even if reaches a different conclusion on the point, can at the most suggest, that the Supreme Court may reconsider the matter, in any case coming before it, in future. Although, at present, this Tribunal does not feel a necessity for making such a suggestion. The law is not to be applied as anyone feels, but it is to be applied, as laid down by the Supreme Court. For the aforesaid reasons, one cannot interpret section 47 of the Interim Constitution Act, and the provisions of section 5 of the Service Tribunal Act for holding a much more scope for probing into the matters, coming within section 12 (ii) of the Civil Servants Act 1976.
Thus, it is accordingly held that question of 'public interest' and the plea of 'mala fide' can be gone into only within the sphere and the mode determined by the Y Supreme Court.
16. The next point, which was vehemently argued by the learned counsel for the appellant, was that the provisions of section 12 (ii) of the Azad Jammu and Kashmir Civil Servants Act, 1976 are violative of the teachings of Islam as set out in the Holy Qur'an and Sunnah, therefore, these are void in the eye of law, hence, the order dated 18-9-1985, passed in exercise of a void provision of law be declared void. To support this plea, the learned counsel for the appellant maintained that Shariat Court of Pakistan had declared similar provisions in the Federal and Provincial laws relating to Civil Servants, as repugnant to the teachings of Islam. He cited PLD 1984 F SC 34 and PLD 1986 F SC 200.
In respect of the jurisdiction of this Tribunal, for examining the issue, he cited PLD 1980 SCMR 5 and the case Muhammad Khurshid v. State and maintained that the Tribunal was competent to go into the vires of a statute. The learned counsel for the appellant cited no verse from the Holy Qur'an nor any Hadith. He also did not point out any instance from the life of the Holy Prophet (p. b. u. h .) or the four Caliphs, which would show that the provisions of section 12, were repugnant to the teachings of Islam. He persuaded the Tribunal to go through the decisions of Shariat Court, cited by him. The Additional Advocate-General stated that the Tribunal has no jurisdiction to go into the vires of his statute. He maintained that this Tribunal is bound by the codified law and has to act within the framework provided by the Service Tribunal Act, 1975. He cited 1983 CLC 653. He further maintained that Shariat Court Azad Kashmir is a Court of special jurisdiction for the determination of the matter, whether any law is repugnant to the tenants of Islam or not and according to him the Tribunal in the presence of a special forum is not competent to traverse in the domain of the Shariat Court. We have considered the arguments of the learned counsel for the parties. In case Ghiasul Haq v.- Azad Jammu & Kashmir Government PLD 1980 SC (AJ&K) 5, it was held at pages 28, 30, 31, 32, 33 and 34 as under:- At page 28, "It is well-established that in order to decide a dispute or a matter, it is competent for a Court or Tribunal to determine all questions arising therefrom, connected or ancillary thereto determination of which is necessary for the decision of the main dispute or matter, unless its jurisdiction to determine the same is expressly or impliedly barred. In this view of the matter also the Service Tribunal is competent to determine, whether or not sub-rules (2) to (4) oft rule 6 of the Azad Jammu and Kashmir Civil Servants (E&D) Rules, 1977 is hit by equality clause and as to which of the two procedures prescribed by rule 6 should have been observed by the authorised officers in the case of respondents."
At page 30: "Muhammad Hashim Khan and others v. Province of Baluchistan and others PLD 1976 Quetta 59 is on all fours. It was held therein as follows: "We are unable to see any limitation in the powers of the Tribunal while hearing the appeals. On the other hand, the Tribunal under section 5 of the said Act is deemed to be Civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other Civil Court the Tribunal to our mind will have the jurisdiction to examine whether the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide."
At page 31: "The decision reported as Muhammad Hashim Khan and others v. Province of Baluchistan and others and Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others PLD 1977 Lah.
549 has recently been followed by the Sind High Court also in Iqbal Ahmad Khurrum and others v.
Government of Pakistan and 7 others PLD 1979 Kar. 610. The contention that Service Tribunal has no power to go into vires in the statutory rules was repelled and it was further observed: "Reverting to the third contention that as the instant petitions involve determination of the vires of the rules, the same are not competent as the Service Tribunal has no power to go into the vires of the statutory rules, it may be observed that in our view the Service Tribunal is competent to examine the vires of the rules or orders while adjudicating upon the question as to whether an impugned order affecting the terms and conditions of an aggrieved civil servant is legal or not."
At page 32: "Thus, the three High Courts of Pakistan i.e., of the Lahore, Quetta and Sind have unanimously expressed the view that it is competent for the Service Tribunal to go into vires of the statutory rules and that the High Court cannot entertain the petition in exercise of its constitutional writ jurisdiction on the ground that the case involves determination of the vires of any of the rules. "
Then at pages 33 and 34 as under:- "21. A Civil Court has vested authority to determine the validity of laws. In the Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid-ud-Daula and others PLD 1961 Lah. 993 a contention was raised that since there was no specific conferment of powers on the Court to enquire into the validity of laws, it was not competent for the Court to do so. The contention was repelled by the Division Bench of the Lahore High Court. At page 999, it was observed as follows:- "The assertion of the learned Advocate-General that the Ordinances had given the Courts the power to decide the question that arise the exercise of powers given by those Ordinances is unassailable but his contention that the Ordinances had not given Courts jurisdiction to determine whether or not the Ordinances were valid law is entirely misconceived. No part of the Ordinances said even a single word to the effect that jurisdiction was being conferred on Courts to determine whether or not the Ordinances were valid, and indeed if such a provision had existed it would have been a departure from the long-standing practice of law-makers who have never expressed a doubt that they are acting within their powers."
PLD 1955 Lah.
88. Mr. Justice M.R. Kayani, J. In a civil suit, tried by him on the civil original side of the High Court, struck down Acts XIV and XVII of 1952, and Bill No. 6 of 1952, as "bad in law" and 'ultra vires' the Provincial Legislature being 'hit' by section 299 of the Government of India Act. In Swarkadas Shrinivas v. The Sholapur Spinning and Weaving Co. Ltd. And others AIR 1954 SC 119, the validity of the provisions of Sholapur Spinning and Weaving Company (Emergency provisions) Act (XXVIII of 1950), was challenged through a civil suit, on the ground that the same abridged the plaintiffs fundamental rights conferred by Articles 14, 19 and 31 of the Indian Constitution. The suit was dismissed and the appeal also met the same fate at the hands of the High Court of Bombay.
The Supreme Court of India accepted the appeal and decreed the suit. In Taher Saifuddin Saheb v.
State of Bombay AIR 1958 SC 253, Sri Venkataraman Devaru and others v. State of Mysore and others AIR 1958 SC 255 and Raja Ganage Pratap Sing v. Allahabad Bank Ltd. , Lucknow AIR 1958 SC 293 the suits were filed to challenge the vires of the statute on the ground that there was violation of the constitutional provision. In the last mentioned case, the suit was based on the ground that section 2 (f) of the Uttar Pradesh Samindar's Debt Reduction Act (U.P. XV of 1953), offended against the equality clause provided in Article 14 of the Indian Constitution which is identical with 'sub- clause (15) of section 4 of the Interim Constitution Act here." The suit was held to be maintainable.
In fact, there is a long line of cause where the jurisdiction of Civil Court was competently invoked under the declaration that the provisions of the statute were ultra vires of the Constitution or authority which had enacted the same. Now under section 5 of the Azad Jammu & Kashmir Service Tribunal Act, 1975, the Service Tribunal, for the purpose of deciding any appeal, is deemed to be a Civil Court and has the same powers as are vested in such Courts under the Code of Civil Procedure, 1908. Therefore, while deciding the appeal the Tribunal, since it has all the powers of Civil Court, will be competent to pronounce upon the validity of any of the Azad Jammu and Kashmir Civil Servants (E&D) Rules, 1977, let alone rule 6 thereof. The only fetter on its way is that it cannot question the validity of the law under which it is constituted."
The view expressed by the Supreme Court of Azad Jammu and Kashmir clearly shows that this Tribunal has the power to examine the legality of a statute. The provisions of section 203-D(i) of the Constitution of Pakistan relating to the jurisdiction of the Federal Shariat Court are reproduced below:- "203-D.--(1) The Court may, (either of its own motion or) on the petition of a citizen of Pakistan or Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam."
The Federal Shariat Court is enjoined upon to examine whether a law is repugnant to the injunctions of Islam or not. It performs a duty akin to Ijtihad and acts on the principle of Istehsan.
The Service Tribunal derives powers from section 47 of the Interim Constitution Act, 1974 and section 5 of the Service Tribunal Act and it has to examine the law only in the context of subsection
(5) of section 31 of the Constitution. The relevant provisions of section 47 of the Constitution are also reproduced below:- "47. Administrative Courts and Tribunals.-(1) Notwithstanding anything hereinbefore contained, the Council in respect of matters to which its executive authority extends, and 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----- matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters; (b)------------------------..
(c)------------------------..--- The use of words "subject to this Act" in section 44 of the Interim Constitution clearly indicates that if there is any provision otherwise in the Constitution, the High Court will not assume jurisdiction, in the matters, otherwise provided for. The perusal of section 47 of the Constitution shows that the words "notwithstanding anything hereinbefore" have been incorporated in this section. These words are sufficient to exclude the jurisdiction of any Court or authority, mentioned before section
47. The authority of High Court to assume jurisdiction in the matters, falling within the domain of the Service Tribunal stands excluded. The perusal of clause (a) of subsections (i) of section 47 read with the language used immediately before this clause shows that the Tribunal shall exercise exclusive jurisdiction in respect of the matters relating to terms and conditions of persons, who are or have been in the service of Azad Jammu and Kashmir including the disciplinary matters. The word "matters" used in clause (a) of section 47 in our view is of a wider connotation. It includes orders, rules or other statutes, which relate to the terms and conditions of services. In view of the construction put to the provision of section 47, by the Supreme Court of Azad Kashmir, in its judgment in the case of Ghiasul Haq V . Azad Government, it is lawful for the Tribunal to go into the vire of a statute, which relates to the terms and conditions of the persons, in the service of Azad Kashmir, or who have been in such service.
17. Even in spite of the determination of the aforesaid point, the question still remains whether this Tribunal has the jurisdiction to declare a law as repugnant to the teachings of Islam as set out in Holy Quran and Sunnah, because the powers of the Service Tribunal are not at par with the Federal Shariat Court.
18. The main argument of the learned counsel for the appellant in respect of provisions of section 12
(ii) of the Civil Servants Act, 1976 being repugnant to the teachings of Islam was that Federal Shariat Court had declared it as such, therefore, it was salicated that this Tribunal should follow it.
The case cited by him namely; Mohammad Ramzan Qureshi v. Federal Government PLD 1986 FSC 200 has been considered. The Federal Shariat Court referred to the following cases, in order to trace the history of the case law, in the service matter; "Mohammad Shafi v. Municipal Committee Murree PLD 1953 Lah. 163; Messrs Malik & Haq and another v. Muhammad Shamsul Islam Chaudhry PLD 1961 SC 531.A.-- George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Gulf Steamship Company Ltd. v. Dilwash Balooch PLD 1962 (W.P.) Kar. 899; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Abdul Salam Mehta v. Chairman, WAPDA and another, 1970 SCMR 40, PLD 1981 SC 224, Abdul Hameed Khan v. WAPDA and another 1981 SCMR 325 and Agricultural Development Corporation of Pakistan v. Anwar Hussain. PLD 1982 Kar. 313; Shahid Khalil v. PIAC 1971 SCMR 569; Lt.-Col. Shajauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566 and Central Cooperative Bank Ltd. v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210."
Before we analyse the above judgment, in its application to the problem before us, it is necessary to go through the provisions of ' Interim Constitution Act, 1974 on the basis of which this tribunal has to consider the matter. It is embodied in subsection (1) and (5) of section '31, already reproduced in this judgment. The jurisdiction of the Service Tribunal in the matter of examining the vires of a. Law in the light of coon 31 (5) is limited one. It has to be determined that it is against he teachings of Islam as set out in the Holy Qur'an and Sunnah. The reference can only be made to Holy Qur'an, the Hadith, the life of the Holy Prophet (p.b.u.h.) and of the Four Caliphs.
19. In the aforesaid judgment of the Federal Shariat Court, no verse of Holy Qur'an nor any Hadith has been quoted to show that there were any conditions laid down for the services of the persons employed in connection with the affairs of State nor any express provision in the form of Amr or Nahi on the subject was not brought to light from which it would be gathered that any particular mode of keeping the persons in employment or for their removal/ retirement was provided by the Holy Qur'an and Sunnah as is borne out from para. 48 of the Judgment. Some other observations are contained in paragraphs 49 to 53. These are reproduced below:- "48. The Qur'an and the Su,nnah as such do not directly provide for such protection for the employees nor the judgment of this Court on section 13 (i) and (ii) of the Civil Servants Act, 1973 was based upon such directed protection. The reasoning in support of the directions issued under that Act was entirely different. It shall be considered in details in another context in this judgment. It was for this reason that in the case of M. Daryab Yousuf Qureshi v. Chairman, WAPDA PLD 1983 FSC 17, it was held while considering the vires of section 17 of West Pakistan Water and Power Development Authority Act XXXI of 1958 that Sharia has given much flexibility to the relationship of employer and employee which is a contractual relationship and in that relationship the main guarantees given by Sharia to an employee are:
(i) The immediate payment of his wages;
(ii) Strict adherence to the terms of contract; (i.e) Abstinence from making his work hard and unbearable.
49'. Section 17 was not therefore, held to be repugnant to the Holy Qur'an and the Sunnah of the Holy Prophet (p.u.b.)
50. One of the grounds of safeguard of Civil Servants rights is that the Government is under a duty to provide employment to people. Consequently it cannot throw out its servants except for cause.
As will be seen later there is ample jurisdiction in Sharia for this.
51. This principle cannot apply to private servants or servants other then civil servants unless any law is made for safeguard of their interest or services tenure.
52. Applying this principle it would be clear that the service of Cantonment Board as constituted under the authority of Cantonments Act II of 1924 which is a local authority or of the 'WAPDA and Universities which are Statutory Corporations cannot be held to be entitled in Sharia to any other safeguard except safeguards pointed out in the above judgment of Daryab Yousuf Qureshi v.
Chairman, WAPDA.
53. We are in agreement with the argument of the learned counsel of the Provincial Governments, Deputy Attorney-General and Moulvi Sirajul Haq, learned counsel for the WAPDA, that in some cases particularly in respect of statutory corporations dealing with commercial business it may not be in public interest to provide such safeguards. Shariat Petition No. 1-1 of 1984, Shariat Petition No.2-I of 1983 and Shariat Petition No.3-I of 1983 are, therefore liable to be dismissed. WAPDA Act and laws relating to Universities will be examined in other respects. The Cantonments Act III of 1924 has been examined by the Council of Islamic Ideology and it is unnecessary for this Court to re- examine it S.S.M.No 204/P/83:The Punjab Civil Servants Act of 1974.
S.S.M.No. 84/S/84:The Sind Civil Servants Act of 1973.
S.S.M. No. 71/B/84:The Baluchistan Civil Servants Act of 1974.
S.S.M. No.71/::The N.W.F.P. Civil Servants Act of 1973."
N.W.F.P./84::
20. So far as the discussion by the Federal Shariat Court of the case-law, referred to before is concerned, this has a little utility for this Tribunal for purpose of determining the repugnance of the provisions of section 12 of Civil Servants Act, 1976 to the teachings of Islam as set out in Holy Qur'an and Sunnah. It has been observed by the Federal Shariat Court, that the employees of Railway and the corporate bodies etc. Are governed by the relation of master and servant, therefore, it was not thought necessary to provide them any safeguard by the Court. The Court is of the opinion that the Government is under a duty to provide employment to the public at large, therefore, the safeguard should be provided to the Civil Servants for which according to the Court, the justification exists in Sharia. An objection has been taken, to the jurisdiction of this Tribunal that only such laws can be declared as repugnant to the teachings of Islam, which are in conflict with the specific injunction found in the Qur'an and Sunnah and if no such injunction is found, the law will be treated to be good. A similar argument did not find favour with the Federal Shariat Court. It was held in paragraph 105 of the judgment that such laws as aforesaid are not many but the principles laid down embrace everything inter alia in the field of legislation. The relevant observation of the Court is reproduced below:-- "105. The argument that 'the Court has jurisdiction only to find out the repugnancy from specific injunctions in the Qur'an and the Sunnah and that if no such injunction is found the law will be treated to be good is to say the least a very narrow view of the Constitutional jurisdiction of this Court. Specific laws in the Qur'an and the Sunnah are not many but the principles laid down therein embrace everything inter alia in the field of legislation. In view of the absence of specific provision pertaining to a particular matter it becomes our duty to discover and find out whether a particular legislation is not repugnant to the principles laid down in or emanating from the Qur'an and the Sunnah. The repugnancy is to be discovered inter alia not only against a specific provision (Ibarat- ul-Nas) but also what is described by the Jurists and commentators of the Holy Qur'an as (Dalalat- ul-Nas Isharat-un-Nas, Iqtada-un-Nas). Is something which emanates from the verse by necessary intendment Uscclul Fiqh by ---Abu Zuhra--- page 246-248). Zaheer Ahmad v.
Federation of Pakistan PLD 1982 FSC 244."
It was further held by the Court in paras. 117 to 119 that integrity, fearlessness, independence of thought or action or the urge to act without fear or favour is an essential for an enlightened Government. In an Islamic State, everyone holding an office, high or low, 'is equally enjoined to be just to others and to act upon the principles of Qur'anic, Adal and Ahsan. In the views of the Court, legislation should create the conditions that every servant should refuse to obey that is not according to the tents of Islam and virtually the Civil servant should act as servant of the State and not as a servant to the Head of the Government or Head of the State. It has been held by the Court as per para. 85 of the judgment that reasonable classification is allowed in Islam. The test for the classification has been also discussed in paragraphs 86 and 87, which generally speaking indicated that the classification should advance the objective of the legislation. A reference was also made to the judgment of Supreme Court delivered in the case of Jobinders Kishore Achharya v. The Province of East Pakistan PLD 1957 SC 9. The sub-servience of all the laws to the injunctions of Quran and Sunnah is included in the words "ATIULLAH AND ATIUR RASOOL".
21. It has been mentioned in paragraph 132 of the judgment of the Federal Shariat Court that historical prospective to Fiqh established that there was a time when according to the jurists, the appointment of a Civil Servant was on the pleasure. The paragraph 132, is reproduced for reference: - "132. The historical perspective to Fiqh establishes that there was a time when according to the jurists the appointment. Of civil servant was on pleasure and even if a person was appointed for a fixed period, he could be removed by the employer before the expiry of the period according to the exigencies of the situation. If a person was appointed till ,completion of a job, his services stood automatically terminated on the completion of that business. (See Al-Ahkamus Sultaniyya by A1- Mawardi died in 450 Hijra, pages 329 to 331)."
Paragraphs 143, 145, 146, 147 and 149 are also relevant to the subject, which are reproduced below:- "143. It is in Alroza and is also related by Manwardi that if the Waliul Amar (person in authority) removes any office holder from the office for cause, it is permissible; but if it is not for cause, it is not permitted (page 277).
145. All Balqini says in (Hashiat ul Rauza) that if a Mutawali removes a teacher without cause, his order or is not executable and such order is not legal (Page 278).
146. While discussing the appointment and removal of a person appointed to administer Waqf Allama Abidin (died 195.2 Hijra) writes, "An Administrator of a Waqf cannot be removed by a Judge without any cause e.g. Misappropriation. It is immaterial whether he was appointed by the Waqif or by the judge himself."
147. He further writes, "From this dictum another principle has been derived that no employee of a Waqf can be removed unless he incurs disability on account of misconduct and disability to discharge his duty". (Reddul Mukhtar, Vol. III, P.423).
149. The principle according to Ibn-e-Nujaim is derived from what Qazi Abu Yusuf saidThe imam'' has no authority to take anything from a person except in exercise of a right which is proved and well-known" (ibid)."
It has been stated in paragraph 152 that the law changes with the change in the age is a principle recognized in the Sharia. The paragraph is reproduced below:- "152. It is a well-known principle in Sharia that (It cannot be denied that laws changes with the change in age). It is not necessary to deal with this principle in any detail on account of the established flexibility of legislation in Islam which is suitable for each age up to the Day of Judgment. The best illustration of this is furnished by the gradual change of view about service. The concept of civil service being on pleasure underwent a change and the tenure of a Mutawalli, teacher; etc. Became terminable for cause only as is evident from. The above opinions of Al- Mawardi, Izzuddin Abdus Salam and Suyuti. According to Suyuti even the Military Personnel whose efficiency depends upon harsh discipline cannot be removed or dismissed except for cause. The removal of civil servant stands on a much stronger footing."
22. By making reference to the context of Holy Qur'an, it was stated that ABLEES was removed from his lofty position only after enquiry from him about the cause for not postraiting himself before ADAM. Reference was made to Q 38:-75 and 77. Again, it was shown by reference to Q 27:- 20 and 21 that no Azab was sent on the people, unless they were warned by the Prophet. The verses 20 and 21 are reproduced below:- ---Q.27:20: And he sought among the birds and said: How is it that I see not the hoopoe, or is he among the absent?
Q.27:21: I verily will punish him with hard punishment or I verily will slay him, or he verily shall bring me a plain excuse."
"73. Mr. Gillani referred to the case of removal of Khalid from the Command of the Army and submitted that this order of removal was passed without giving him a show-cause notice. Maulana Shibli Noamani has, however, to say something different in Al-Farooqi, pages 215 to 217. He asserted that Hazrat Umar was opposed to Khalid on account of his unbalanced conduct but after his election as Caliph he did not want to take action against him. It was customary with Khalid not to send accounts to the office of the Caliph.
Hazrat Umar directed him to be particular in rendering accounts. Khalid wrote in reply that he never acted in this manner in the Caliphate of Abu Bakr and he could not now do contrary to it. Hazrat Umar obviously could not tolerate this independence on the part of Khalid nor could he allow him to spend the money belonging to the state according to his sweet will. He wrote to Khalid that he could be retained as a Commander of the Army if he regularly sent the accounts of expenses of the Army. Khalid refused to abide by this condition and he was removed for this reason. According to A1-Asaba by Hafiz bin Hajar he was not dismissed but was reduced in rank and was directed to serve under Abu Obaida."
Para. 76 is also relevant to the subject and is reproduced below:- "76. Mr. Gillani referred to the observation made by Abu Bakr Ibn-al-Arabi in his book entitled "Alawasim Minal Qawasim". P.87 Cairo 1375 H wherein the author says: (his appointment was discretionary). He also referred to Qurrat-ul-Minain fi-Tafizil-il-Sheikheinby Shah Waliullah, P.272. He said (I say that appointment and dismissal is the rig t of the Caliph). For this he concluded that any categorization made by the Caliph while laying down rule of preference in matters within his discretion will not be hit by the principle of equality. This question will be considered later."
23. The Federal Shariat Court declared such Federal and Provincial statutes as repugnant to the teachings of Islam, which empower the respective Government/ Competent Authority to retire any officer of the status of Additional Secretary and above, at any time, it deems proper and to retire any other civil servant in 'public interest' after completion of 25 years service, qualifying for pension, The reasons mainly for declaring these laws as repugnant to the teachings of Islam as found in the judgment of the Federal Shariat Court are as under:- "(a) The relevant portions of the statutes do not provide for the issuance of show-cause notice before taking the action;
(b) The provisions are discriminatory and are violative of the principle of equality before law and equal protection of law;
(c) The arbitrary exercise of power is possible on the basis of the impugned provisions of law."
From the judgment of the Federal Shariat Court, as one could understand on the basis of the instance quoted there, it appears that;
(a) The removal from a public office is not recognized in Islam unless holder of such office is given an opportunity of being heard and that the intended removal cannot be without a cause.
(b) There should be no discrimination and all persons of the same category or class should enjoy equal protection of law.
(c) The safeguards should be provided so that civil servants may act independently without a bias.
24. As already stated by us, no instance from the Holy Qur'an has been quoted except that of 'Satan' and it has been shown that he was removed from his high position, after enquiring the cause of the disobedience to the command of Allah. The instance quoted shows that the action taken, in his matter of Satan is not similar to that, which the Government takes in the matter of Civil Servant, under the provisions of statutes challenged before this Tribunal. The terms and conditions of Civil Servants are well defined in the present day world. A civil servant has to retire at least on attaining the age of 60 years. The powers conferred on the competent authority particularly under section 12 (ii) of the Civil Servants Act, 1976 and challenged before the Tribunal, enable the authority to retire a Civil Servant after completion of 25 years service, qualifying for pension. The retirement is provided as a part of the terms and conditions of a Civil Servant and the early retirement as envisaged in section 12 (ii) if ordered in the case of a ' Civil Servant takes effect sometimes a year and in some cases a few years earlier than the normal retirement. There was no concept of the retirement in Islam on the basis of age or period of service, while there is no escape from the retirement nowadays, may it be on attaining the age of 60 years or sometimes earlier. The Civil Servants retired under the provisions of subsection (ii) of section 12, are given the benefits of service in the form of pension etc. And there is no stigma. Such a retirement is neither a removal nor it is a dismissal. The action taken in the matter of 'Satan' is not in any way alike the action to be taken under section 12 (ii). There were no terms and conditions laid down in the case of 'Satan' of which he was aware that he had to retain the position upto a certain period of time but was removed from that position a few years earlier. The action taken in his case is of an absolute condemnation in the form of a punishment, by Almighty Allah on account of the disobedience. The impact of the action taken is that : 'Satan' is denounced uptil today and will be denounced in future and even upto or after the day of judgment. No such imputation is made to a civil servant in the matter of his conduct, if and when he is retired sunder the provision of section 12 (ii) of Civil Servants Act, 1976. The other instance in respect of Khalid Bin Waleed is also not clear as quoted in the judgment. From the version of some historians, we know that impression was created in the mind of the people of time that victory in favour of Muslims was actuated by the gallantry effort of Khalid Bin Waleed. Hazrat Umar was opposed to this impression as according to him the victory in favour of Muslims was due to Islam and Sue to the grace of God and not only for the bravery of Khalid Bin Waleed. It was (Shirk). To remove this impression, coupled with other reasons, Khalid Bin Waleed was removed from the command of Army. One of the other causes was that he was not rendering the accounts as stated in paragraph 73, of the judgment. The portion of the judgment, reproduced hereinbefore shows in one place that he was removed from his office and in the other portion of the same paragraph, it is shown that he was reduced in rank and placed under Abu Obaida, according to Al-Asaba by Hafiz Bin Hajar. The exact position is thus obscure as to what action was taken. It is not shown anywhere, whether Khalid-Bin Waleed was deprived all the benefits of service or he was allowed any honoraria or pension, after his removal from the office.
Therefore, that case is distinguishable from the action of retirement in public interest. The 'public interest' is a supreme cause, which must prevail, where the further retention of a person in service is not desirable on this score. The cause in the case of a civil servant always exists, which persuades the authority for an action under the provisions of section 12 (ii). Although it is not practicable to associate the person sought to be retired, with the determination of public interest. It cannot be said that the retirement takes place without cause. It has been stated at number of places in the judgment of the Federal Shariat Court that removal without a cause is not permissible in Islam but it is nowhere indicated in the authorities, quoted from Azizuddin, Mawardi, I Abdul Salam and Suyuti etc., that the cause is first to be brought to the notice of the person and then, the action is to be taken after due notice. The removal as gathered from the authorities is equivalent to the removal or the dismissal, under the Efficiency and Discipline Rules. The action of removal amounts to punishment and even under the present law, no punishment is awarded unless the opportunity of showing cause is provided. The retirement with service benefits is not to be equated with the removal or dismissal from office quoted in the instances reproduced in the judgment of the Federal Shariat Court. There is a marked difference between the removal from office in consequences of punishment, which may disentitle to the service benefits and also carries with it a stigma and a retirement simpliciter with service benefits. The matter has been elaborated in the case of Farzand Ali v. Province of West Pakistan PLD 1970 SC 981. The relevant part has been already reproduced in this judgment at page 22. The issuance of show-cause notice in such case is not proved from the Quran, Hadith and instances from the life of Holy Prophet (p.b.u.h.) or of the four Caliphs, on the basis of material brought under discussion, hereinbefore.
25. The second aspect is of the discrimination. There can be no quarrel with the proposition that all persons are equal before law and entitled to the equal protection of law, but would equality mean that all persons in a society should be provided equal posts in service or be allowed equal emoluments,, without regard to their qualification or suitability for a job. The equality before law does not mean that all persons, viz. The gentlemen, the pious people, the thieves the robbers and vagabonds should be treated alike. The equality in its legal sense is a relative term. Thus, how a person losing his utility for the service, or whose reputation in not good or whose output is not very good, can be equated with another person of very good reputation or that whose performance is proficient. If the Government under the exigencies of the service as a requirement of the administration or that of a developing age wants to substitute more efficient and honest persons for mediocres or the lax civil servants or if it wants to reduce the size of administration, how it will be possible to resort to Efficiency and Discipline Rules? Similarly, if a bold person or a cool-minded official is to be substituted for a coward official or an official lacking confidence or the power of decision, the proceeding under Efficiency and Discipline rules cannot solve the problem. If it is suspected that a commander of Army has turned hostile to his own country during a war or an emergency, would it be possible to defer the action of his removal as depicted in the judgment of the Federal Shariat Court with reference to SUYUTI, in paragraph 132 of the judgment. It appears that the words 'removal' is surely not used in the sense of retirement as challenged before the Tribunal.
26. The classification is allowed in Islam as observed by the Shariat Court in paragraph 85 of the judgment, referred hereinbefore. It is also supported by the views of Supreme Court of Azad Jammu and Kashmir in the case of Ghiasul Haq PLD 1980 SC (AJ&K) 5 expressed at pages 44 to 45 of the judgment. The view is also supported by the cases viz. Kedar Nath v. State of W.B. (1953) SC A 835 (845), Kangshari v. State of W.B. AIR 1960 SC 457 (464); Kedar Nath v. State of West Pakistan 1953 S.C.R. 835, and a host of authorities quoted in the aforesaid judgment. The provisions of section 12 (11) of) the Civil Servants Act are not violative of the fundamental right of equality before the law as observed by the Supreme Court in the case of Raja Mohammad Akram Khan v. Azad Jammu and Kashmir Government (P.L.A. No.79/85) the relevant part is reproduced below:- "I have given my consideration to the aforesaid two points raised by the learned counsel for the petitioner and am of the view that section 12 of the Civil Servants Act is not violative of the fundamental right of equality before law because that right does not prohibit the reasonable classification while enacting a law and section 12 stipulates the retirement of a civil servant, if it is in the public interest."
The question of equality before law as guaranteed by the Constitution also stands resolved by the Supreme Court of Azad Jammu and Kashmir, in the judgment, in the case of Ghiasul Haq by its observation, made in the context of classification by reference to so many authorities. --The right of equality before law is not effected if a Civil Servant is retired in the public interest, under section 12 (ii) of the Civil Servants. Act, 1976.
27. The third ground of attack in this respect was that the provision of law creates the opportunities for the arbitrary exercise of powers. There is no doubt that chances exist, where a person may misuse the powers but this is not the only law, under which the powers can be misused. In almost all the laws the chances of misuse of discretion exist. It is only the fear of God and the sense of duty, which can prevent a person from acting mala fide or in a colourful manner. The hard and fast legislation is not possible to avoid malicious functioning. On the other hand, the mischief will be much more, if no discretion is conferred on the authorities, charged with the onerous responsibilities of the affairs of the State. The presumption is generally in favour of the bona fide performance of duty than for the mala fides. The solution does not lie in striking down the law by treating it as repugnant to Islam, rather the remedy lies in appeals against such cases of mala fides or the colourful exercise of powers. This Tribunal has restored to service a number of officials /officers retired under section 12 (ii) of the Civil Servant Act, where a legal case was made gut. The fact that instances of retirement have been more in recent years than that in the previous decades is also to be viewed in the circumstances that lack of sense of responsibility, the inefficiency and corruption has also increased and there is also increase in the size of administration.
28. (i) The judgment of the Federal Shariat Court has been suspended by the Supreme Court of Pakistan.
(ii) The study of the case law and the oral enquiry made in this behalf has also disclosed that the decisions of Federal Shariat Court have not been so far followed by any Service Tribunal in Pakistan.
(i.e) The point involved needs much more study for which proper legal assistance has not been afforded to this Tribunal. A written opinion of one Alim was produced by the learned counsel for the appellant, on the point, which is not convincing.
(iv) Apart from the above, Supreme Court of Azad Jammu and Kashmir has observed in the case entitled Mir Mohammad Sharif v. Azad Jammu and Kashmir Government (P.L.A. No.91 of 1985), in its order dated 13-1-1986 at page 3 as under:- So far as the question as to whether the provisions contained in section 12 of the Civil Servants Act are violative of section 31 (5) of the Interim Constitution Act or for that matter against the injunction of Sharia is concerned, I am of the view that it is not necessary to resolve this point in this petition.
Section 31 (5) does not declare a law against Holy Qur'an and Sunnah to be void. It stipulates that if any law is against Holy Qur'an or Sunnah that shall be brought in conformity with the Holy Quran and Sunnah. Until and unless a law repugnant to the injunction of Islam is amended, the Courts of law are to follow the codified law on the statute book. Thus, the argument that the action taken against t1he petitioner is bad in the eye of law on the ground that it was taken in pursuance of the provisions, which in the estimation of the learned counsel for the petitioner is against the injunction of Islam is not tenable."
The Supreme Court of Azad Jammu and Kashmir again held in the second unreported case viz. Raja Mohammad Akram Khan v. Azad Jammu and Kashmir Government (P.L.A. No.79/85), decided on 18-1-1986, atpages2 and 3 as under:-- So far as the argument that section 12 of Civil Servants Act is violative of the provisions contained in subsection (5) of section 31 of the Interim Constitution Act or for that matter it is against the tenets of Islam, i.e., Holy Qur'an and Sunnah, I am of the view that this point is not necessary to be resolved in the instant case. Until and unless a law is amended and brought in conformity with the injunctions of Islam, the Courts of law are to decide the matters as law stands on the statute book of the Azad Kashmir. Section 31(5) of the Interim Constitution Act does not say that any law, which is repugnant to Holy Qur'an and Sunnah is void. Therefore, the contention of the learned counsel for the petitioner that the impugned order is nullity in the eye of law because in his estimation section 12 of the Civil Servants Act is against the Shariah is not tenable and is nearby repelled."
The idea that State is under a duty to provide employment in an Islamic State is no ground to hold provision of section 12 (ii) as repugnant to Islam because after the retirement of one person, another person will get the employment and the retired Civil Servants will also get the benefit of pension. It is better to replace the dead woods or the unscrupulous persons, by efficient and enlightened youth.
29. In a recent case entitled Mohammad Siddique v. Azad Jammu and Kashmir Government, Appeal No. 235 of 1984 decided by the Bench of this Tribunal, chaired by Mr. Justice Sardar Mohammad Ashraf Khan, it has been held that in the light of dictum of the Supreme Court, enunciated in the cases of Mir Mohammad Sharif and Raja Mohammad Khan v. Azad Jammu and Kashmir Government, it is not proper for the Tribunal to go into the vires of a statute on the score, whether a law is repugnant to the injunctions of Islam or not.
30. The subservience of all laws to Holy Qur'an and Sunnah is an admitted principle of Islamic Jurisprudence and next authority to be followed is Ulal Amar, who is to act within the four corners of the injunctions of Islam, as set out in Holy Qur'an and Sunnah. He is to be followed in all other matters not provided for, in the Holy Qur'an, Hadith and the instances from the life of Holy Prophet and four Caliphs.No restriction can be placed on the powers of the Legislative Assembly in the aforesaid circumstances. In a democratic State, the Legislature as well as the Government, comprises of the elected persons. Therefore, law should not be made to circumvent authority's discretion because it will render him helpless in looking after the public interest, while the bureaucracy will get strengthened. The competent authority, in the present case is the Prime Minister, who being an elected person has the mandate of the people, thus, he is the best judge of the public interest. The interference in his function can only be made in the case of misconduct or mala fide and not otherwise.
31. For the foregoing reasons, it is not possible for this Tribunal to follow the decision of the Shariat Court. This Tribunal has no powers to lay down a law, on the principles of Istehsan, rather it has to act within the purview of the law applicable in respect of its jurisdiction as already stated.
32. The learned counsel for the appellant had argued that the appellant was not heard in respect of an incident stated top-have taken place on 15-9-1985, therefore, the case be remanded back for hearing by some other authority. The Additional Advocate-General argued that necessity for hearing does not arise in this case, as the incident is described to have taken place in the immediate presence of the authority. We have examined the record. The document purports to have come into existence on 10-10-1985, whereas the retirement was ordered on 18-9-1985. The alleged incident is not shown to have been made the basis for the retirement, neither the document is signed by the Prime Minister, nor it purports to have been approved by him. So far as hearing by some other authority is concerned, the Prime Minister has no cause against the appellant. He is the highest authority hence, it is not possible to have a substitute for him. The appellant took no steps to incorporate the plea of mala fide or colourful exercise of powers in the appeal at any stage. For this view of the matter, the contention does not merit consideration.
33. The Additional Advocate-General had raised an objection that no appeal was competent and that the appeal was time-barred. In view of the provision of section 4 of the Service Tribunal Act 1975, the provision of the Appeal Rules, 1982 and the facts, mentioned in paragraph 1 of this judgment, the objection stands repelled.
34. As an upshot of the above discussion, the appeal stands dismissed, with no order as to the costs.
The Supreme Court of Azad Jammu and Kashmir, while granting the leave to appeal, in the case of Mir Mohammad Sharif v. Azad Jammu and Kashmir Government has held on 13-1-1986 that "until and unless a law repugnant to the injunctions of Islam is amended, the Courts of law are to follow the codified law on the statute book". I abide by the dictum of the Supreme Court and refrain from observing and appreciating the niceties of the SHARIA and the case-law referred to. Agreeing with the other parts of the judgment, written by Mr. Chairman, I hold that there is no merit in this appeal.
M. Y. H. /53-S/ Lb/S