1. ' BASHARAT AHMAD SHAIKH, J.--The respondent, Javed Iqbal Khawaja, filed a writ petition in the Azad Jammu and Kashmir High Court seeking a declaration that Azad Jammu and Kashmir Civil Servants (Regularization of Ad Hoc Appointments) Act, 1992 (hereinafter referred to as the "impugned Act") is void as it violates the provisions of the Constitution Act and the Holy Quran and also that it is against public policy as well as welfare of general public and is thus void. He also sought a declaration that Azad Government of the State of Jammu and Kashmir was bound to fill up the posts occupied by ad hoc appointees through the Public Service Commission. The writ petition was admitted for regular hearing on 3rd of November 1992. The Azad Government of the State of Jammu and Kashmir and the Azad Jammu and Kashmir Legislative Assembly, who were impleaded as respondents in the writ petition, seek leave to appeal from the aforementioned order of admission.
2. ' Javed Iqbal Khawaja averred in his writ petition that he was appearing in a competitive examination which was to be conducted by the Public Service Commission in July 1992 and had received a call letter, a copy of which is attached with the petition, sent to him on 3rd of July 1992. It was stated in the petition that in that examination 1191 candidates had applied for the posts of Section Officers and EngineeRs,, 153 candidates had applied for the posts of Electrical Inspectors and 200 people had applied for the posts of Sub-Judges, but this examination was got cancelled by the Azad Government of the State of Jammu and Kashmir with mala fide intention and subsequently the impugned Act was enacted with the result that all the posts which were to be filled up on the recommendations of the Public Service Commission on the basis of the examination mentioned above stood filled up on regular basis by absorption of persons who are appointed on ad hoc basis against those posts.
3. ' We have heard Raja Muhammad Hanif Khan, the learned counsel for the petitioners, in support of the petition and Ch. Muhammad Ibrahim Zia, the learned counsel for caveator Javed Iqbal Khawaja, who has put in a caveat.
4. ' Since the present petition has been filed to challenge an admission order it is necessary to keep in mind that the principles of law which are applicable in such a situation are substantially different from the principles which are applicable to the petition for grant of leave from final orders of the High Court. Generally speaking this Court is reluctant to interfere in the order of admission because such an order is broadly speaking a discretionary order. The power of issuing writs is vested primarily in the High Court and normally it is only when the High Court has exercised its jursidction one way or the other that a case is taken up by this tourt. Although it cannot be denied that this Court has the power to interfere, if a case is made out, even when a final order has not been passed, but at the preliminary stage such an order would be in the nature of what is commonly known on the criminal side as quashment and can be passed for strong reasons justifiying the order. Such a relief would be granted if High Court assumes jurisdiction which is not vested in it for instance in a service matter. It would be a case of usurption of power justifying interference of this Court. The other situations in which this Court may interfere can be when it is shown to the satisfaction of this Court that a writ petition has been admitted which does not disclose a prima facie case and continuation of the proceedings of the High Court would be an exercise in futility.
5. However, no hard and fast or inflexible rule can be laid down and each case has to be decided in the peculiar circumstances of that case.
6. ' In the order sought to be vacated the learned Judge who was sized of the case enumerated the following grounds for admitting the Constituational petition for regular hearing:-- "3. The vires of the impugned Act have been assailed on the grounds:--
(i) That the provisions of the impugned Act are in conflict with the basic law relating to Civil Service, as postulated under the Civil Servants Act and rules;
(ii) that the functions of the Public Service Commission as enshrined in the Constitution, have been abridged and the Government, by virtue of provisions of the impugned Act, bypassed the Public Service Commission in regularizing the service of ad hoc appointees;
(iii) that the impugned legislation is arbitrary in nature as it does not conceive a definite system, universal in character, so as to provide equal protection to all citizens in the service of Azad Jammu and Kashmir;
(iv) that the Assembly was incompetent to pass the, impugned legislation in derogation to the provisions of the Interim Constitution Act, 1974, contemplated under section 31(5). This is so as the impugned legislation has to be promulgated in the spirit and light of Islamic injunctions; and
(v) that the impugned legislation is mala fide.
4. The learned eounsel emphasized that the impugned legislation is also discriminatory in nature, as such it is violative of fundamental rights listed under section 4 of the Interim Constitution. The learned counsel was unable to elaborate this point by reference to definite data. Therefore, unless it is brought to the notice of the Court that as to how discrimination has been made, this Court cannot be in a position to give its verdict in hypothetical manner. A proposition of law has to be settled on the basis of definite facts and not in vacuum, as has been observed by the Supreme Court of Azad Jammu and Kashmir in Ghiasul Haque's case. However, the point is noted for consideration."
7. ' Raja Muhammad Hanif Khan, the learned counsel for the petitioners, vehemently contended that the points raised before the Court were insubstantial. He also submitted that the order passed by the High Court is shorn of necessary details and even the laws which are alleged to have been violated have not been mentioned. It was argued that the learned Judge in the High Court himself observed that in paragraph 4 of the order reproduced above that no data had been brought on the record to show discrimination but instead of dismissing the writ petition proceeded to admit it.
8. The learned counsel relied on Raja Muhammad Niaz Khan v. Azad Government (PLD 1988 SC (AJ&K)
9. 53) tb contend that the High Court is not competent to declare a law to be void on the ground that it violates Islamic Injunctions. The learned counsel also submitted that the subject-matter of the writ petition related to terms and conditions of civil servants and the High Court had no jurisdiction to entertain the wirt petition. Another point argued is that a large number of people have been benefited by the impugned Act and in case the writ petition is accepted they would be adversely affected. He contended that in this view of the matter they were necessary parties and a writ petition filed without impleading them as respondents is not properly constituted.
10. ' The submissions made by the learned counsel for the petitioners were vehemently opposed by the learned counsel for respondent, Ch. Muhammad Ibrahim Zia. It was contnded by him that necessary details of the points urged before the High Court are duly incorporated in the impugned order. He also submitted that it was not necessary to implead the civil servants who had been benefited by the impugned Act because the executive orders by which the civil servants were regularly appointed in light of the provisions of the impugned Act have not been challenged. Ch. Muhammad Ibrahim Zia submitted that under section 44 of the Interim Constitution Act only those public functionaries are necessary parties who have passed the order or taken a particular action which is challenged in a writ petition. This requirement has been fulfilled by impleading the Legislative Assembly as a respondent along with the Government. It was then submitted that Javed Iqbal Khawaja is not a civil servant and cannot file an appeal before the Service Tribunal.
11. Relying on Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 461) Ch. Muhammad Ibrahim Zia submitted that vires of a law can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not. Necessary to be shown.
12. ' We have reproduced the relevant part of the order of the High Court by which the writ petition was admitted. It is mentioned in recital (i) that the impugned legislation was alleged to be in conflict with the Civil Servants Act. Then it is mentioned in (ii) that the functions of the Public Service Commission as enshrined in the Constitution have been bypassed. It is an obvious reference to section 48 of the Azad Jammu and Kashmir. Interim Constitution Act which lays down that there shall be a Public Service Commission for Azad Jammu and Kashmir and it may perform such functions as may be prescribed. In pursuance of this provision the Azad Jammu and Kashmir Public Service Commission Act was enacted to prescribe the posts which must be filled through the Public Service Commission. The mere fact that the order of the High Court does not specifically mention section 48 of the Azad Jammu and Kashmir Interim Constitution Act and only refers to the functions of the Public Service Commission as enshrined in the Constitution does not give rise to the argument that details of relevant laws have not been mentioned.
13. ' It is laid down in section 7 of the Public Service Commission Act that functions of the Commission shall be to conduct tests and examinations for recruitment of civil servants to such posts as may be specified. It is laid down in section 8 that if the President does not accept the advice of the Commission he shall inform the Commission accordingly. On the other hand section 3 of the impugned Act dispenses with the requirement of going through this process by laying down that:- "3. Regularization of services of certain civil servants.:-- Notwithstanding anything contained in any law or rule, or in any decree, order or judgment of a Court, all civil servants holding ad hoc appointment till the date of commencement of this Act, shall be deemed to have been validly selected and appointed to the post held by them on regular basis, with effect from the date of commencement of this Act: ' Provided that--
(i) such civil servants possess the educational qualification and experience prescribed for the psots; and
(ii) the Commission has in respect of the post held by such civil servant not recommended any other person on or before the commencement of. This Act."
14. ' The contention raised in the High Court is that it is not legal to supersede through an Act of the Assembly a function entrusted to the Public Service Commission in accordance with section 48 of the Interim Constitution Act.
15. ' Similarly the other contention is that the impugned Act does not provide equal protection to all citizens in the service of Azad Jammu and Kashmir. This is a reference to Fundamental Right No,15 as incorporated in subsection (4) of section 4 of the Interim Constitution Act. This Fundamental Right lays down that:-- "15. Equality of State Subjects. ---All State Subjects are equal before law and are entitled to equal protection of law."
16. ' The impugned Act lays down that the civil servancts holding ad hoc appointments shall not need to go to the Public Service Commission, while it is a normal requirement in all other cases.
17. ' The points raised by Javed Iqbal Khawaja in his writ petition are legal in nature and it appeared to the High Court that in view of "the importance of Constitutional nature of the points" the Constitutional petition deserved to be admitted to regular hearing. The question whether the objections raised in the Constitutional petition would succeed or not cannot be answered at this stage because it needs detailed examination. This question relates to the merits of the case which cannot in our opinion be gone into at this stage in the light of the principles mentioned in earlier part of this judgment. However, the point raised by Raja Muhammad Hanif Khan that the subject- matter of the writ petition was within the jurisdiction of the Service Tribunal is an objection which, if accepted, would necessitate the reversal of the admission order passed by the High Court as discussed earlier.
18. ' The contention of Raja Muhammad Hanif Khan is that the points raised in the Constitutional petition relate to terms and conditions of service. Relying on section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976 the learned, counsel submitted that "appointment" is also one of the terms and conditions of service of civil servants. He explained that Chapter II of the said Act is titled "Terms and Conditions of Civil Servants" and all the matters included in that Chapter, which consists of sections from 3 to 21, are terms and conditions of service. Section 4 reads as follows:-- "4. Appointment.-- Appointments to a civil service of Azad Jammu and Kashmir or a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorised by it in that behalf."
19. ' There is no doubt that the contention of the learned counsel is correct that "appointment" is one of terms and conditions of civil servants but a more weighty reason which has been advanced by the learned counsel for the respondent, Ch. Muhammad Ibrahim Zia, is that an appeal before the Service Tribunal can only be filed by an "aggrieved civil servant" and not by a citizen. Term 'civil servant' is duly defined in the Service Tribunal Act and the definition may be usefully reproduced:-- "'Civil servant means a person who is or who has been a member of a Civil Service of the Azad Jammu and Kashmir in connection with the affairs of the Government or who holds or has held a civil post in connection with the affairs of the Government but does not include--
(i) a person who is or who has been on deputation to the Azad Jammu and Kashmir from the Federation or any other Province of Pakistan or authority;
(ii) a person who is or has been employed on contract or on work-charged basis, or who is or has been paid from contingencies; or
(iii) a person who is or has been a 'worker' or 'workman' as defined in the ' Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923) as in force in Azad Jammu and Kashmir."
20. ' Thedefmition includes within its purview the persons who are or have been in the service of Azad Jammu and Kashmir. It clearly leaves out a person who is desirous to join service. Admittedly Javed Iqbal Khawaja was not in the service of Azad Jammu and Kashmir at the time when he filed the writ petition, or at an earlier occasion. He could not, therefore, file an appeal before the Service Tribunal and the remedy available to him was the institution of a writ petition because no other remedy was available to hini. The right to file a writ petition is guaranteed to citizens by the Constitution Act itself and cannot be taken away by sub-constitutional provisions such as the impugned Act.
21. ' The objection that the persons who have gained benefit from the impugned Act have not been impleaded as respondents is met by Ch. Muhammad Ibrahim Zia by relying on Ahmad Saeed Kirmani v. Punjab Province (1982 CLC 590) in which a Full Benech of the Lahore High Court formed the view that in a writ petition questioning the validity of a particular law the makers of law are not necessary party. It was also held that it was not possible to implead everyone who has been benefited by law to be impleaded as a party. Reliance was placed on Islamic Republic of Pakistan v. Abdul Wall Khan (PLD 1975 SC 463). No law has been cited showing the other view. May be that it is not a settled law that a person who has benefited from a legislation is not a necessary party if validity of the law is challenged, but even if the High Court does not ultimately adopt the same view as adopted by the Lahore High Court, it cannot be said at the present stage that the writ petition in present shape on the face of it is not properly constituted. It thus cannot be dismissed on that ground.
22. ' Another point which has been mentioned in the order of the High Court is that the impugned legislation is alleged to be against the Injunctions of Islam and, therefore, could not have been enacted by the Legislative Assembly in view of subsection (5) of section 31 of the Interim Constitution Act. It has been vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the petitioners, that the High Court does not have the jurisdiction to declare a law as invalid on the ground that it is against the Holy Qur'an or Sunnah. In this connection he relied on Raja Muhammad Niaz Khan's case as noted above. This question came under consideration of this Court in another case reported as Azad Government v. Kashmir Timber Corporation (PLD 1979 SC 139). It was held in that case that:-- "....It is inconceivable that the Legislature should have so intended when it is unmistakably provided in section 3 of the Constitution Act that Islam shall be the State religion of Azad Jammu and Kashmir. We, therefore, feel no hesitation in holding that it is within the power of the Court to declare a law unconstitutional and void if it is repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah."
23. ' A perusal of the report shows that it was held that a law enacted after the coming into force of the Interim Constitution Act, 1974 can be declared as invalid by Courts in Azad Jammu and Kashmir if it violates Jnjunctions of Islam. It is clear that law on this point also cannot be considered as settled.
24. However, even if this objection prevails'the writ petition cannot be dismissed in limine in presence of the other legal points raised therein which have been discussed above.
25. ' In view of the aforementioned analysis the conclusion is that no case has been made out for interference of this Court at the present stage and we, therefore, order the dismissal of the petition for leave to appeal.
26. ' So far as the petition for leave to appeal in Case No,2 of 1993 is concerned the facts are somewhat different but so far as the questions of law are concerned they are substantially the same. Both the writ petitions filed by Raja Sheraz Kiani and Javed Iqbal Khawaja were admitted for regular hearing on the same date and the reasons recorded in both the petitions are the same. The petitions for leave to appeal before us are exactly the same. Since common questions of law and fact are involved in the two petitions the conclusions arrived at in Javed Iqbal Khawaja's petition are also applicable to Raja Sheraz Kiani's case. Thus, the Petition for Leave to Appeal No,2 of 1993 also stands dismissed for the reasons recorded in Petition for Leave to Appeal No,1 of 1993.