The petitioners have filed this writ petition for a direction to the respondents Nos.1 and 2 to implement the order of the Prime Minister passed on a review petition filed by the petitioners which has been received by the respondent No,2 on 30-5-1991; and a declaration to the affect that the order dated 28-5-1991, whereby the petitioners have been reverted to the post of Sub-Engineer is ultra vires.
2. The facts necessary under which this writ petition arises are that the petitioners and respondents Nos.3 and 4 were promoted as Assistant Engineers from the posts of Sub-Engineers on 13-9-1989.
Respondents Nos.3 and 4 were promoted as Assistant Engineers against 20 per cent. quota reserved for Sub-Engineers under Service of Engineering Rules, 1979, while the petitioners were promoted against the quota reserved for graduate engineers till the induction of graduate engineers in the Department through Public Service Commission.
3. The Government of Azad Jammu and Kashmir on 28-5-1991 through a Notification ordered the reversion of the petitioners on their own posts on the ground that the graduate engineers have been selected by the Public Service Commission, who arc appointed on the posts reserved for graduate engineers against which the petitioners were conditionally appointed Petitioners filed a review petition against the above order before the Prime Minister, who is the competent departmental authority in case of petitioners, on 29-5-1991. The Prime Minister was pleased to make the following note on the application: and the file was marked to Secretary Works Department.
4. According to the petitioners, the Secretary, Public Works Department, received the copy of the review petition on which the Prime Minister had recorded his note, on 30-5-1991, but he showed his reluctance to issue the order in accordance with the directions of the Prime Minister. The petitioners have therefore, approached this Court under its extraordinary jurisdiction for directions to the Secretary Works to implement the order of the Prime Minister. The respondents Nos.5, 6 and 7 were impleaded as respondents in the case on their application on the ground that they are qualified graduate engineers, who have been regularly inducted in the service against the posts reserved for the graduate engineers, against which the petitioners were temporarily promoted. They further filed an application for early hearing of the case and a similar application was also filed by the Government as well. As the case was on the file of my learned brother, Mr. Justice Khawaja Muhammad Saeed, who is availing the vacations, it was, therefore, entrusted to me by the learned Acting Chief Justice on 11-8-1991 for an earlier hearing. The respondents Nos. 6, 7 and 8 were, therefore, impleaded as respondents on 18-8-1991 who have also filed rejoinders to the writ petition.
The respondents Nos ..1 and 2; 3 and 4; and 5, 6 and 7 have in their written statements, unanimously taken an objection to the jurisdiction of Court on the ground that the matter relates to the terms and conditions of the civil servants which falls exclusively within jurisdiction of the Service Tribunal.
On merits, the respondents have pleaded that the promotion of petitioners was conditional till the induction of graduate engineers through Public Service Commission and as the graduate engineers have been selected by the PSC and appointed by the Government, the petitioners ceased to have any right to retain the posts reserved for the graduate engineers. The order of the Prime Minister whereby he has recalled the order reverting the petitioners is pleaded by the respondents to be a nullity in the eyes of law, being against the rules of natural justice and rules relating to the service.
5. I have heard the learned Advocates for the parties at length and perused the record produced before the Court by the petitioners as well as by the respondents in support of their claims, besides the tile of the Public Works Secretariat. The learned counsel for the petitioners while arguing the case submitted that the petitioners have been illegally reverted to the lower posts and as the impugned order was not acted upon, the Prime Minister was competent to withdraw the order. The learned counsel for the petitioners referring to the para 7 of the written statement filed on behalf of the respondents Nos.3 and 4 argued that the order of the Prime Minister is admitted correct hence the writ is to be issued on the basis of this admission. The learned Advocates on the other side have objected to the jurisdiction of the Court in entertaining the writ petition, in view of section 47 of the Interim Constitution Act, 1974. On merits, it is argued by the learned counsel for the respondents that order is nullity in the eyes of law, as the persons affected by the order have not been heard; it is further argued by them that order dated 30-9-1989 whereby the petitioners were allegedly promoted was an order of promotion, but it was a stopgap arrangement, subject to the condition of induction of graduate engineers through. Public Service Commission hence order dated 28-5- 1991 whereby the petitioners have been ordered to report back to their original posts is not violation of any law or rules.
5-A. The adjudication of the case on merits, as argued by the learned Advocates, will involve the interpretation of laws and rules, which would affect the terms and conditions of the civil servants.
The jurisdiction of the Court, to that extent, is ousted under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. However, the Court is obliged under section 44(2) (a) of the Constitution, to make an order on the application of any aggrieved person directing a person "to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do". In the instant case, a Government order (dated 28-5-1991) is withdrawn by the Prime Minister through his order/direction sought to be enforced. The Prime Minister is competent to pass such an order, however, there are settled rules and regulations for the exercise of the such powers by the Prime Minister, which he has bypassed.
6. In his capacity as the Prime Minister, he is the Chief Executive of the Government, and in that capacity, he can make any order, provided it does not contravene any provision of law, rule or principle of natural justice. In a democratic society, where the State has a written constitution, and the law and rules regulate the powers of the Government, words of the Chief Executive are not law as the words of a King used to be in a dictatorial state. However, such words may be taken as orders or directions, if authorised under law and rules relating to the matters in which such order is passed, and, if not prohibited or regulated otherwise by any other law. As observed hereinbefore, the Prime Minister alone in the instant case is the competent authority to pass the order, but such like order has to satisfy the test of propriety and regularity as well, besides its legality. It was incumbent upon the Prime Minister to have routed back this case through Chief Secretary under Rule 7 of Rules of Business as "all cases submitted to the Prime Minister are required .to be regulated in the manner". The words "all cases submitted, to the Prime Minister" incorporated in Rule 7(b) of Rules of Business, 1985 arc of significance. It is not that a case submitted to the Prime Minister through subordinate authorities, that only is to be routed back through Chief Secretary, but the rule requires "all cases". It may at times be misleading as to whether the orders of the casual, routine or ordinary nature passed or recorded on miscellaneous applications should also be routed back through. Chief Secretary or that the requirement relates to the order of any special significance. The answer definitely would be, that directions or orders of the Prime Minister which finally culminate in the shape of Government orders and affect the interests of affairs of the State or any person acting in connection with the affairs of the State or have any semblances of departure from any law, rule or policy or, as a result, prejudicially affect any other person, those orders or directions have to be routed back through Chief Secretary. The sense behind the rule is, that if the Prime Minister, or any other authority, under rules 8 and 9 of the Rules of Business, passes any order which is against any law, rule or policy of the Government, the same will be brought to the notice of the Prime Minister or other higher authority, so as to enable him to form his judgment or opinion in the light of that law, rule or policy. The rules and policies of the Government are deemed to be in the knowledge of the civil servants, popularly known as bureaucrats, politically eleeted rulers or persons are not expected to know every such rule and policy, as the political governments do change under the normal democratic process, and the person earlier made conversant with such laws, rules and policies may not return again. Above all, it is the Chief Secretary, who is accountable before the Courts of laws as representative of the Government, not the Chief Executie or Prime Minister, he has, therefore, to remain informed of all the affairs affecting the State, the Government or the subjects, so as to coordinate the business of the Government. But once the Chief Executive or any other higher authority orders his subordinates to carry out an order or direction, in spite of the direction-or order being contrary to any law, rule or policy, after the departure having been brought to his notice, the bureaucrat is to carry out the order or direction in the manner directed by the Chief Executive. The authority of the Chief Executive after all is supreme, not that of bureaucrat. Morever, a sagacious, prudent and judicious political ruler seldom resorts to absurdity. In case one does, the Courts of law are there to lead them to the path of legality and propriety.
7. In this instant case, the order/direction of the Prime Minister cancelling an earlier order of the Government, as a result, affects selectees of Public Service Commission, it, therefore, ought to satisfy the test of due deliberation at the level prescribed by rules and law and also to satisfy the test of being proper and regular, as the propriety of an order is as important as its legality. The requirement in the matter was that it should have been sent to the Chief Secretary under rule 7 of Rules of Business as a particular action if regulated by a rule must be done in that way alone or not at all PLD 1978 SC(AJ&K)
37. Exceptional cases of course may be there, when a file may be sent to any other subordinate officer, but the reasons for such departure must be recorded in the order/note or direction. No reason is given in marking the file to the Secretary, instead of Chief Secretary. Morever, without waiting for the process at the level of Secretary, who had received the file on 30-5-1991, the instant writ petition was filed on 1-6-1991. It was not possible for Secretary to express himself in the light of rules relating to appeal in the service matters, moreso, when he is stated at Bar, to have been on tour, a copy of tour programme is also placed on the file during the course of arguments. The argument of the leanred counsel for the petitioners that as the order of the Government dated 28-5-1991 was not acted upon, hence Prime Minster could withdraw it without any notice to anybody likely to be affected, is without any substance, as the order is followed by the appointment of respondents 5, 6 and B 7 and it also did not satisfy the test of rule 7 of Rules of Business. As for the argument, that the order of the Prime Minister is admitted correct by respondents 3 and 4 in the written statement, is concerned, it is also devoid of any force, as it is not recorded as having been 'admitted correct', though the language is not happily worded by the learned Advocate for the respondents, however, it would only mean correct to the extent of recording the order/direction by the Prime Minister, not correct in its legality. Morevcr, admission or otherwise, by respondents 3 and 4 matters least, as both of them are neither necessary nor the proper parties. They have been promoted unconditionally against the quota reserved for Diploma Engineers and their case is not disputed from any side. Notwithstanding that, a Judge is to administer the justice not on the admission of parties, but to the best of his ability, knowledge and judgment and according to the law as the circumstances of the case require.
8. As the order/direction of Prime Minister sought to be enforced through the order of the Court by the petitioner is not admitted legal in his written statement by. respondent No,1, the Government, the order cannot be said to be in existence. Therefore, nothing remains to be enforced. As against it, respondents 5, 6, and 7, qualified Graduate Engineers have replaced the petitioners through a valid Government order issued in a regular manner. Their appointment is neither withdrawn, nor can it be.
9. Under the circumstances of the case, the only relief to which the petitioners are deemed entitled, is, that their application for review of the order dated 28-5-1991 be decided in accordance with law and rules applicable to the case.
10. It is, therefore, directed that the review application of the petitioners against the order of Government dated 28-5-1991 be decided by Chief Executive on merits in accordance with law and rules, without being influenced in any manner of any observation or remark, if any, noticed in the order of the Court with respect to merits of the case. Petitioners deserve compassionate consideration in view of the fact that they have served the 'Government at a time, when Graduate Engineers were not available and rules relating to quota were not enforced.