The petitions are addressed in exercise of power under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the vires of Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointment) Act, 1992, are assailed. Since the points in dispute are common in all the petitions, it is expedient to render disposition of the position by common order.
2. Arguments were concluded in Petitions Nos. 3 and 4 on December 22, 1993, at Mirpur. Petitions Nos. 1 and 2 were heard at Headquarters. The written arguments were submitted by January 19, 1994. Thus, Petitions Nos. 3 and 4 were also postponed so that all the petitions were dealt with jointly.
3. Javed Iqbal Khawaja is a Graduate. He is also President of Un--employed Post Graduates'
Association, Muzaffarabad. It was averred that the Public Service Commission advertised posts of Section Officer. He applied as one of the candidates. The Public Service Commission announced the schedule for written examination, with effect from July 20 to 28, 1992. Roll No. 120 was assigned to the petitioner. It was alleged that in addition to petitioner, 1191 other candidates had applied before the Public Service Commission. Likewise, 153 candidates applied for appearance before the Public Service Commission as Electric Inspectors and 200 candidates applied for appearance in examination for the posts of Sub-Judges, scheduled to be held at the requisite time. Respondent No. 1 manoeuvred the postponement of all the examinations, including the examination of Section Officers, to which the petitioner was a candidate. In the meantime, a Bill was introduced in the Assembly, on July 24, 1992, whereby all ad hoc appointments made by respondent No. 1, from time to time, were duly protected by regulating the same. The Bill was passed in the Assembly on August 18, 1992. By virtue of impugned legislation, notwithstanding anything contained in any law or rule, decree, order or judgment of the Court, all civil servants holding ad hoc appointments till the time of commencement of the Act, were declared as duly recruited civil servants. Since the petitioner was affected by the impugned legislation, he invoked the jurisdiction of this Court, to declare and annul the impugned legislation violative of provisions of Civil Servants Act, Civil Servants (Appointment and Conditions of Service) Rules, 1977, Public Service Commission Act, provisions of section 4(2) of Fundamental Rights Nos. 15 and 17 and provisions of section 31(5) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was also averred that the impugned legislation was in conflict with the Injunctions of Islam.
4. It was claimed that the impugned legislation was mala fide on the following grounds:--
(i) That it was affected at the time when the Public Service Commission had already announced the schedule of written test of the candidates for the examination of Section Officers and other posts;
(ii) that the written test was postponed without sufficient cause and without reasons;
(iii) that the ad hoc appointments were made under the cover of impugned legislation;
(iv) that the ad hoc appointments were made in large scale by unfair means;
(v) that the ad hoc appointments were made in derogation to the law holding the field at the relevant time; and
(vi) that the impugned legislation was against the interest of State and public policy. The Public Service Commission, constituted in compliance with the provisions of Interim Constitution Act, was rendered non-functus.
5. In support of the aforesaid allegations, original copy of Roll Number issued to the petitioner and the copy of impugned legislation was appended. The respondents repudiated the claim of the petitioners and sought rejection of the petition on the following grounds:--
(i) Non-joinder of the beneficiaries of the impugned legislation;
(ii) absence of jurisdiction;
(iii) the petitioners are not aggrieved persons;
(iv) the impugned legislation was justified to avoid time, expenditure and constitutional authority of the legislature;
(v) advice of the Public Service Commission was not binding on the Government; and
(vi) the impugned legislation was made' to advance the objective of section 49 of the Interim Constitution Act.
Identical points were raised in the petition of Shiraz Kiani and defence of respondents was also on the same footing.
6. Muhammad Younus Tahir, Advocate, in his petition averred that he was a practising Advocate.
He was appointed Sub Judge on ad hoc basis, on October 14, 1990. His appointment was regularised on March 30, 1991. On April 6, 1991, his services were extended for another period of six months, subject to approval of Public Service Commission. As no test was held by the Commission, his services were terminated on October 14, 1991. The Public Service Commission invited applications for the posts of Sub-Judges. Advertisement appeared in the Daily `Jang', Rawalpindi, of January 16, 1992. The petitioner applied for one of the two posts reserved in quota for Mirpur. Call letter was issued to him on July 18; 1992, for appearance in examination with effect from August 1 to 4, 1992. He was assigned Roll No. 71. The schedule was modified again through advertisement in Daily `Jang', Rawalpindi of July 26, 1992. The examination was to take place with effect from September 6 to 9, 1992. Call letter was issued to the petitioner. Meanwhile, Ch. Mumtaz Hussain and Miss Shamaila Mahmood, respondents Nos. 4 and 5 were appointed on ad hoc basis against the said vacancies. Respondent No. 1 moved a Bill in the Assembly to frame law to regulate the ad hoc appointments. The law was enforced on August 18, 1992, whereby ad hoc appointments of respondents Nos. 4 and 5 were also regulated. The petitioner challenged the vires of the impugned legislation and appointments of respondents Nos. 4 and 5 on the following grounds:--
(i) That the impugned legislation and notification in respect of respondents Nos. 4 and 5, were violative of provisions of Interim Constitution Act and Fundamental Rights guaranteed therein;
(ii) that the impugned legislation was discriminatory in nature as it protected the interest of specific class of ad hoc appointees by depriving rest of the citizens enjoying equal qualification, status and efficiency;
(iii) that the impugned legislation was mala tide;
(iv) that the impugned legislation was in conflict with the provisions of Civil Servants Act, Civil Servants (Appointments and Conditions of Service) Rules, 1977, Public Service Commission Act and Islamic Injunctions.
It was also averred that respondents Nos. 4 and 5 were not duly qualified for even ad hoc appointments. The orders of ad hoc appointments were also illegal as the same were violative of relevant provisions of law. The respondents, in their written statements, repudiated the claim of the petitioner on all scores and sought dismissal of the petition--
(i) for want of jurisdiction;.
(ii) non-joinder of parties;
(iii) misjoinder of causes of action;
(iv) petitioner being not an aggrieved person; and
(v) petitioner having not come in the Court with clean hands.
7. Mansha Ghaus Mughal, in his petition, challenged the impugned legislation and the appointment of respondent No. 4, as Sub-Judge against the reserved quota of District Kotli. It was averred that in compliance with the calling of applications Public Service Commission for written test for appointment of post of Sub-Judges, made in Daily `Jang', Rawalpindi, of January 19, 1992, petitioner also applied. The application was moved on February 4, 1992. It was rejected by respondent No. 3 on July 22, 1992, for want of reserved quota for District Kotli. However, respondents Nos. 1 and 2 relaxed the quota restriction and made ad hoc appointment of respondent No.4, on August 6, 1992.
Vide Notification of October 6, 1992, the condition of age was also relaxed. In the meantime, the impugned legislation was made and was enforced with effect from August 18, 1992, whereby among others, the ad hoc appointment of respondent No. 4 was also regulated. The ad hoc appointment of respondent No. 4 and impugned legislation were assailed on the grounds listed in the petition of Mr. Muhammad Yunus Tahir. The respondents, in their written statement, took up the same defence as in case of Muhammad Yunus Tahir.
8. The civil service in Azad Jammu and Kashmir is regulated in the light of provisions of section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It postulates that subject to the Act, the appointment of persons to, and terms and conditions of service. Of persons in, the service of Azad Jammu and Kashmir, may be regulated by law.
9. Section 48 of the Act provided that there shall be a Public Service Commission which shall consist of such number of members, including a Chairman, and perform such function as may be prescribed. The infra structure of civil service and Public Service Commission, both were conceived by scheme of the Interim Constitution Act. In compliance with the provisions of section 49, the Azad Jammu and Kashmir Civil Servants Act, 1976 was framed. The Act contemplates the scheme of civil service, mode of appointment, promotion, posting and transferring termination and retirement from service, employment after retirement, pension and gratuity and other privileges, including the right of appeal or representation. In exercise of powers conferred by section 23 of the Civil Servants Act, 1976, the Appointments and Conditions of Service Rules, 1977 were enforced. These rules further provided the scheme of recruitments, appointments by promotion or transfer, constitution of Departmental Selection Committees, Selection Boards, determination of seniority, ad hoc appointments etc. The Public Service Commission was constituted by an Ordinance. It became an Act of the Assembly in 1986. Under section 7-A of the Act, the Commission was empowered to make rules, with the approval of the Government, to regulate and conduct business of the Commission. It was entrusted with the functions to conduct tests, examination, interview and adjudging the suitability for recruitment to the civil services of Azad Jammu and Kashmir and such other posts in connection with the affairs of the Government, in Grade-16 and above, in the light of the rules.
10. On August 18, 1992, an Act called as Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointment) Act, 1992, was enforced with immediate effect. Under section 3 of the Act, it was postulated that notwithstanding anything contained in any law or rule, decree, order or judgment of Court, all civil servants holding ad hoc appointment till the date of commencement, of the 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 the Act. The relevant provisions are reproduced:-- "3. Regularisation 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 posts; 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.
4. Procedure for termination of services where such termination is necessary.--To accommodate the recommendees of the commission, the services of the junior most ad hoc civil servants will be terminated: Provided that in case of two or more ad hoc civil servants whose date of appointment is the same, the services of the civil servants younger in age shall be terminated.
5. Determination of seniority.--(1) The civil servants whose services are regularised under this Act, shall rank junior to all civil servants belonging to the same service or cadre, as the case may be, who are in service on regular basis on the commencement of this Act, and shall also rank junior to such other persons, if any, who, in pursuance of the recommendation of the Commission made before the commencement of this Act, are to be appointed to the respective service or cadre, irrespective of their actual date of appointment.
(2) The seniority inter se of the civil servants, whose services are regularised under this Act within the same service or cadre, shall be determined on the basis of their continuous officiation in such service or cadre: Provided that if the date of continuous officiation in the case of two or more civil servants is the same, the civil servant older in age shall rank senior to the younger civil servant.
6. Discretionary appointments.--All civil servants holding discretionary appointment to a post on or before the 30th day of June, 1992 who have held discretionary post continuously for more than five years shall be deemed to have been appointed on regular basis from the date of commencement of this Act."
11. Since the selection of candidates for the post of Grade-16 and above by Public Service Commission, was excluded by the impugned legislation, the petitioners feeling aggrieved, invoked the jurisdiction of this Court. It appears expedient to resolve the controversy raised in the petitions by first attending the preliminary objections. Since all the petitions are being disposed of by common order, the preliminary objections in the written statements, are attended in respective order.
12. In all the petitions, the petitioners have chosen to implead respective parties against whom they have sought relief. It was argued on behalf of the respondents that all the beneficiaries of the impugned legislation have not been impleaded, as such, the petitions are not maintainable for want of joinder of necessary parties. Order 1, Rule 10, C.P.C. Provided the scheme of necessary and proper parties. All such parties were described as such whose presence before the Court may be necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the matter. Where presence of party was not necessary, to effectually and completely adjudicate upon, and settle the questions involved in the proceedings, it was not necessary to add it as party in such proceedings. The pith and substance of principle enunciated under the Rule was that presence of a party must be essential to enable the Court to decide the controversy and not otherwise.
13. It was also deemed expedient to array such person as defendant against whom relief was sought in the matter. When no relief was sought against a person and otherwise his presence was not necessary to enable the Court to settle the controversy, such person may not be added as defendant. The multiplicity of proceedings was also considered as a reason to add parties in particular proceedings. In the present case, since the main controversy is confined to impugned legislation and the petitioners have also sought relief against particular persons who are benefited by impugned legislation, in such case, the authority which has exercised its powers and the persons against whom specific relief has been sought, are necessary and proper parties in the case. In Abdul Aziz's case (PLD 1968 Azad J & K 7), the vires of Azad Jammu and Kashmir Conciliation of Courts Act, 1962, were assailed. The mode of publication of enactment was subjected to criticism as ultra vires of the legislative authority. The defendants raised an objection that since the mode of publication of the impugned legislation was challenged, the Government, promulgating authority, was a necessary party. The objection was repelled by the Full Bench. The learned Acting Chief Justice, Muhammad Sharif, who delivered the verdict of the Court, observed:-- "We are unable to agree with the learned counsel in his contention that where the mode of publication of a certain enactment is challenged, the promulgating authority becomes a necessary party. If this argument was correct then by analogy, the enacting authority would also become a necessary party where it is sought to be declared that the enactment is ultra vires of the legislating authority. If the Courts can go into the question of ultra vires without impleading the Legislature or the enacting authority, we fail to understand why can't the Courts go into the question of promulgation of the enactment without impleading the promulgating authority. We hold that the Courts can go into the question of the proper promulgation of a certain enactment without impleading the promulgating authority as .a party. The Government, therefore, is not a necessary party in this suit:"
14. In Mst. Atiqa Begum's case (AIR 1941 Federal Court 16), the vires of Regularization of Remissions Act, 1938, was assailed. The proposition of necessary party was raised in the Federal Court.
It was observed:-- "A person would be a necessary party if he ought to have been joined, that is to say, in whose absence no effective decree can be passed at all. He would be a proper party to be impleaded if his presence is necessary for an effectual or complete adjudication. In a suit between landholder and his tenant, the Provincial Government cannot be considered a necessary party at all, as a proper decree can certainly be passed in their absence. But when in such a suit the validity of an Act of the Provincial Legislature is in question, the adjudication would affect a large section of the public, and the Provincial Government would be indirectly interested in such an adjudication. In the present case, the Government were interested to this further extent that the effect of the High Court's ruling would be to nullify certain orders, previously issued by the Government, the enforceability of which was indirectly attempted by the impugned Act."
The U.P. Government was impleaded as its presence was deemed necessary to defend a large section of the public of the Provincial Government. In this view of the matter, it is safe to hold that when the vires of a statute are assailed', the Government being representative of its citizens, adequately represents a large section of the people, the beneficiaries of the impugned legislation.
15. In Ahmed Saeed Kirmani's case (1982 CLC 590), the validity of law was assailed in, the petition.
Members of the Bar, Mayor Municipal Corporation, Bar Associations etc., moved various applications for impleading them as party. The applications were opposed by the petitioner as their implemented was not necessary to effectually and completely adjudicate upon and settle the questions involved in the main petition. Mr. Justice S.M. H. Qureshi, the learned Judge disposed of the applications. The relevant observation is:-- "6. The writ petition before us questions the validity of a particular law and as such the makers of that law are the necessary party. The question whether every person who may be generally benefited by that law has also to be impleaded, is now one requiring a decision. The answer is to be found in the latter paragraph of the Supreme Court's observation, in Abdul Wali Khan's case already reproduced above. It is not possible to implead every one who has been conferred certain advantage by a particular law in a general way which benefit may be lost if the law be struck down for lack of validity. For, otherwise there will be no end of parties. In any case, it cannot be said that the decision on the writ petition cannot be effectually and completely given in the absence of the applicants. The applications are, therefore, dismissed."
16. In Mian Jalal-ud-Din's case (AIR 1977 NOC 210), it was held that a party merely interested in the fruits of litigation, .Cannot be impleaded as a party.
In Mahuva Municipality's case (AIR 1973 Gujrat 7), the validity of acquisition proceedings under the Land Acquisition Act, was assailed. It was held that the acquiring body for whose benefit the land was proposed to be acquired, could not be said to have any interest in the subject-matter of the suit, merely because it had to pay costs to the Government. It was not deemed a necessary party to the suit.
17. In Babu Rameshwar Prasad's case (AIR 1950 Patna 527), the validity of Provincial Act was challenged. The learned Judge who spoke for the Court, observed:-- "When the Province is impleaded in a suit it comes in as representative of the executive Government. Even if the Provincial Government sponsors the bill which becomes an Act and pilots it through the different stages of legislation, it is the Legislature which is ultimately responsible for the Act and the Province does not become a necessary party to a suit merely because the validity of an Act of the Legislature is challenged in the suit:
18. The objection was also raised in petition for leave to appeal addressed against the order of admission of petition of Javed Iqbal Khawaja, in Supreme Court. It was disposed of on February 13, 1993:-- "The objection that the person 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 Bench 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 every one who has been benefited by law to be impleaded as a party. Reliance was placed on Islamic Republic of Pakistan v. Abdul Wali 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 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."
19. The petitioners have impleaded the Government Assembly and civil servants against whom specific relief was sought in the petitions. The Assembly has passed the impugned legislation. The Government and the Assembly, both demonstrated direct interest in the matter, not only in the written statement but by their behaviour by preferring an appeal in the Supreme Court, against the order of this Court, passed on November 3, 1992, whereby the petition addressed by Javed Iqbal Khawaja was admitted for regular hearing. That reflects that both the respondents being representatives of citizens of the State, have undertaken upon themselves to defend the impugned action irrespective of the consideration of beneficiaries of the impugned order, to defend their appointments as civil servants. Besides, in presence of Government, Assembly and the civil servants against whom specific relief was sought in the petitions, it is deemed convenient to settle the controversy at rest effectually and completely. Thus, a large section of beneficiaries whose number is disclosed more than 400, are not deemed necessary or proper parties in the case.
It is relevant to state here that the Government and the Assembly despite being in a position to disclose the details of particulars of the beneficiaries (civil servants) of the impugned legislation, have failed to enlist the same in the written statement, to enable the petitioners, if need be, to implead them as respondents. The objection is accordingly repelled. A large number of authorities cited at the bar in support of the objection, are not found apt and squarely helpful in view of different and distinguishable facts.
20. Mr. Noorul Amin, the learned counsel for respondents in Muhammad Yunus Tahir's case, also raised an objection pertaining to mis-joinder of causes of action. It was argued that the petition was liable to dismissal, on account of misjoinder of causes of action. It was emphasised that in view of the averments made in para 13 of the petition, the notifications relating to appointment of respondents Nos.4 and 5 were impugned. Both the notifications were passed on different dates, as such separate relief was asked for. It was argued that the petition was not maintainable on account of misjoinder of causes of action. The objection is not sustainable. The rules of procedure postulate that the petitioner may unite in the same action, several causes of action against same defendant or defendants jointly. Joinder of several reliefs is not joinder of several causes of action.
Likewise, joinder of defendants is not deemed misjoinder when the cause of action is common against them. In present case, the main allegation addressed in the petitions confines to impugned legislation, as such, the cause of action is common. The orders of appointments of respondents Nos.4 and 5 were, of course, made on different dates but these orders pertained to their ad hoc appointments The ad hoc appointments were regulated by the impugned legislation on one day, i.e. The day of enforcement of the impugned legislation. Thus, cause of action accrued to the petitioners on the date of regulating ad hoc appointments of respondents Nos.4 and 5.
21. It was averred in the written statements that since the matter pertained to appointment of civil servants, it was exclusively triable by the Service Tribunal and not by this Court. Reference was made to various authorities.
Section 47 of the Interim Constitution Act postulates that the Government may provide tribunals to exercise exclusive jurisdiction in respect of 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.
22. In exercise of powers under section 47 of the Interim Constitution Act, the Service Tribunal Act, 1975, was enforced with immediate effect. Section 4 (I) of the Act pertains to jurisdiction of the Service Tribunal. It is reproduced:-- "4. Appeal to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter, prefer an appeal to the Tribunal: Provided that --
(a) where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969 Provided further that question relating to eligibility, mala fide and coram non judice may be decided by the Tribunal."
It is evident that the Service Tribunal enjoys jurisdiction in matters of civil servants listed therein. The jurisdiction of the Tribunal is expressly excluded in matters contained under the proviso, clauses (a), (b) and (c). Clause (b) postulates that no appeal shall lie to the Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade.
23. The word "appointed" denominates to an appointment. An appointment in service, obviously, indicates a designation of a person to discharge duties of an office by exercising an authority. In Black's Law Dictionary, it is defined:-- "The selection or designation of a person, by the person or persons having authority, therefore, to fill an office or public function and discharge the duties of the same."
The word "hold" has been defined:-- "(1) To possess in virtue of a lawful title; as in the expression, common in grants, `to have and to hold', or in that applied to notes, `the owner and holder'.
(2) To be the grantee or tenant of another; to take or have an estate from another. Properly, to have an estate on condition of paying rent, or performing service.
(3) To adjudge or decide, spoken of a Court, particularly to declare the conclusion of law reached by the Court as to the legal effect of the facts disclosed.
(4) To maintain or sustain; to be under the necessity or duty of sustaining or proving; as when it is said that a party `holds the affirmative' or negative of an issue in a cause.
(5) To bind or oblige; to restrain or constrain; to keep in custody or under an obligation; as in the phrase `hold to bail,--- ---hold for Court,--- ---held and firmly bound,' etc.
(6) To administer to conduct or preside at; to convoke, open, and direct the operations of; as to hold a Court, hold pleas, etc.
(7) To prosecute; to direct and bring about officially, to conduct according to law; as to hold an election.
(8) To possess; to occupy; to be in possession and administration of; as to hold office.
(9) To keep; to retain; to maintain possession of or authority over."
Ordinarily to hold civil service signifies to continue in possession of an office and continue to exercise its functions.
The word "promotion" contains the meaning: "To contribute to growth, enlargement, or prosperity of; to forward; to advance."
The use of the word in service matters indicates to advance to a higher cadre. The jurisdiction of Service Tribunal is, therefore, expressly excluded where an authority has determined or passed orders in matters of (i) fitness, suitability; (ii) appointment; (iii) to hold a particular post; and (iv) promotion to higher grade. Since the proposition under consideration pertains to appointment of civil servants, it is beyond the jurisdiction of the Service Tribunal.
24. The Service Tribunal has been conferred jurisdiction to entertain an appeal of civil servant aggrieved by final order of departmental authority, in respect of terms and conditions of service.
The terms and conditions of service are determined subsequent to appointment to civil service.
Thus, the scope of jurisdiction confines to matters relating to terms and conditions of service including the disciplinary actions, determinable between departmental authority and aggrieved civil servant and not between a citizen not in service and civil servant. The jurisdiction of Service Tribunal emerged where appointment to civil service is made and injurious action is taken in relation to terms and conditions of service, by departmental authority. The proposition under consideration is totally excluded from the scope of jurisdiction of the Service Tribunal.
25. The word "jurisdiction" signifies the scope of power and authority. The term "Court jurisdiction" relates to power and authority of the Court to decide issues between the State and the citizens or among the citizens, in exercise of its judicial functions. The limitation of Court jurisdiction confines to (i) subject-matter; (ii) territorial extent; (iii) pecuniary value of the claim involved; (iv) nature of dispute and (v) amenability of parties to the process of the Court. The writ jurisdiction has been conferred on this Court by the Azad Jammu and Kashmir. Interim Constitution Act, 1974. Section 44 of the Interim Constitution Act postulates: "44. Jurisdiction of High Court.--(1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law.
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority 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; or
(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or
(b) on the application of any person, make an order, --
(i) directing that a person in custody in Azad Jammu and Kashmir be brought before the High Court so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority-of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to the person or authority, including the Council and the Government, exercising any power or performing any function in, or in relation to, Azad Jammu and Kashmir as may be appropriate for the enforcement of any of the fundamental rights conferred by this Act ........---
26. It is evident from clause (c) of subsection (2) that this Court has been empowered to make an order giving such directions to the person or authority, exercising power of performing functions in, or in relation to, Azad Jammu and Kashmir, for the enforcement of fundamental rights conferred by the Interim Constitution Act. This also empowers to ensure and declare that any act done or proceedings taken by a person, was illegal and without lawful authority for its being in conflict with the provisions of Interim Constitution Act or' fundamental rights enshrined therein. The scope of jurisdiction was exhaustively considered by this Court in Malik Muhammad Miskeen's case PLD 1993 Azad J&K 1. The proposition was also examined in Abdul Majid's case PLD 1985 Azad J&K 83 and Tehreek-e-Amal's case PLD 1985 Azad J&K 95.
The Legislative Assembly, like this Court, is the creature of Interim Constitution Act. Section 22 of the Act postulates that there shall be a Legislature of Azad Jammu and `Kashmir. It shall consist of 48 members. Section 31 provided that subject to the provisions of this section, the Assembly shall have the powers to make laws for the territories of Azad Jammu and Kashmir, for all State Subjects wherever they may be and for all officers of the Council and the Government. Subsection (5) maintained that no law shall be repugnant to the teachings 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 Sunnah. Section 4 of the Act provided that any law in so far it was inconsistent with the fundamental rights, shall, to that extent, be void. Subsection (2) further added that no law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this subsection, shall be void. That leads to the inference that the Assembly and for that matter, the Council, as the case may be, are empowered to make laws which do not abridge or restrict or are inconsistent with the fundamental rights enshrined in the Act. The law-making authority of the Assembly and the Council is, therefore, restricted, rather excluded to the extent of inconsistency or contravention of fundamental rights.
27. The authority to ascertain the allegation of inconsistency and contravention of legislation, made by the Assembly or the Council, has been conferred upon the High Court by the Interim Constitution Act. Therefore, whenever a dispute arose as to whether a particular legislation made by Assembly or Council, is consistent or inconsistent or in contravention of the scheme of the provisions of the Constitution, the High Court has been empowered to satisfy itself to that extent and to pronounce its decision. In Sardar Muhammad Abdul Qayum Khan's case (PLD 1983 SC (AJ&K) 95), at page 115, it was observed:-- " ....It becomes all the more necessary for the Courts to be at guard to see that the authority does not transgress its limits and legislation made by such an authority encroaches not upon the rights of the citizens specially fundamental rights which have been enshrined in the Constitution Act, 1974.
The opinion of such an authority to prevail against fundamental rights of the citizens over whom the authority is to exercise executive responsibility is not recognised by the Constitution."
In Kashmir Timber Corporation's case (PLD 1979 SC (AJ&K) 139), it was observed:- "We are, therefore, clearly of the view that our Legislature has powers expressly limited by the Interim Constitution Act, 1974, which created it, and it can, of course, do nothing beyond the limits which circumscribe those powers. The Court, when a question arises whether the prescribed limits have been exceeded, must, of necessity, determine that question, and the only way in which it can properly do so is by looking to the terms of the Constitution by which affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If the impugned Act is within the Legislative competence of the Assembly and it violates no express condition or restriction by which that power is limited, it will not be for the Court to inquire any further. But, if the Act violates any Constitutional restriction or limitation, it is invalid, and the Court being the protector and the Custodian of Constitution is under an obligation to strike it down. This is specially true as regards the `fundamental rights' as to which the superior Courts have been assigned the role of a sentinel on the qui vive. While the Courts should naturally attach great weight to the legislative judgment, they should not desert their own duty to determine finally the constitutionality of an impugned statute.
The Legislature is thus competent to make laws about contracts, just as it is competent to make laws about property and trade, but the law will be valid only if it is in conformity with the Constitution Act, and is not in any way repugnant to fundamental rights, guaranteed under section
4. As regards the laws which are repugnant to the Injunctions of Islam, as contained in the Holy Qur'an and Sunnah, we would advert later on.---
28. Since the proposition raised in the petition pertains to legislative jurisdiction of the Assembly, for its being inconsistent and in contravention of fundamental rights, this Court is empowered to examine the impugned legislation, in exercise of its authority conferred by section 44 of the Interim Constitution Act. The Service Tribunal is patently excluded to review the impugned legislation.
29. It was argued that the petitioners are not aggrieved, as such they cannot invoke the jurisdiction of this Court. Javed Iqbal Khawaja, in his petition, expressly averred that he applied as candidate for appearance in examination of Public Service Commission, for his appointment to the post of Section Officer. Call-letter containing roll number was issued to him and schedule for holding written test was also announced. Likewise, Mr. Muhammad Yunus Tahir disclosed in his petition that the written test for the post of Sub-Judge against the quota of District was to take place in August, 1992. Call-letter was issued to him. It contained his roll number. In both cases, examinations were postponed and finally cancelled by virtue of the impugned legislation. Mr. Mansha Ghaus averred in his petition that he applied as candidate for appearance in the examination. He was informed that the posts of Sub-Judges duly advertised were not meant for District Kotli for want of quota.
Subsequently, quota restriction was removed and Ch. Muhammad Fiaz Sabir, respondent was appointed as Sub-Judge, on ad hoc basis. This post was also to be filled up by the Public Service Commission, by holding written test of the candidates. In all the three cases, it is noticed that the petitioners being duly qualified, applied for their appointments against the posts of Section Officer and Sub-Judges.
30. The term "aggrieved person" has not been defined specifically. In ordinary meanings, it signifies a person as an aggrieved when his interest or right is injured by an order or legislation and he suffers an illegal grievance. The term "aggrieved person" was construed in "Tehrik-e-Ammal Party's case (PLD 1985 Azad J&K 95). The scope of meaning of the term "aggrieved person" was construed exhaustively. The case of the petitioners squarely fall within the purview of definition of term "aggrieved person".
In Muhammad Boota's case (PLD 1973 Lahore 580), the term "aggrieved person" was construed and it was observed: "The sole function of the Court is to pronounce for or against the litigated right or liability by determination of the law applicable to the facts. Any one who challenges the vires of a law or the validity of an order must raise a case to show that an action taken in pursuance of the said law or order had adversely affected his rights or interest, or that it would result in the loss of some personal benefit to the curtailment of a privilege to him."
In Mian Fazal Din's case (PLD 1969 SC 223), it was held: "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
31. It was emphasised that the impugned-legislation was justified in order to avoid time, expenditure and inconvenience likely to be suffered by the Public Service Commission and incumbent civil servants. Moreover, it was argued that since the advice of the Public Service Commission was not binding on the Government, the impugned legislation was a justifiable action.
It was also argued that the impugned legislation was made to advance the objective of provisions of section 47 of the Interim Constitution Act. Since these objections are inter-related, these are resolved conjunctively.
32. It is an accepted rule of law that an authority is enjoined to perform particular functions within the framework of law and not to its derogation. The defence taken by the respondents in support of impugned legislation, primarily, negates the very scheme of law and recruitment of civil servants in the service of Azad Jammu and Kashmir. To uphold the objection, it has to be accepted that the provisions of the Constitution of Public Service Commission, under the Interim Constitution Act and scheme of Civil Servants Act, Public Service Commission Act and Civil Servants (Appointments and Conditions of Service) Rules, 1977 are rendered redundant. The concept of civil service is to advance the administration of Government in discharge of its duties of public utility, in addition to disciplined functioning of the Government. The organisation of civil service is of vital importance to the fair administration of justice. The function of permanent civil service is to carry on the administration. Thus, in view of the duty of civil service to put its knowledge and experience at the disposal of. Government, it has been deemed expedient by framers of Constitution to regulate the civil service in Azad Jammu and Kashmir. The provisions were incorporated in the Constitution, to secure permanent civil servants recruited by open competitive examination by the Public Service Commission. It was ensured that all the citizens having equal qualifications may avail equal opportunity in matter of public employment, including, after recruitment, their t promotions, transfers and pensions. In case the proposition put forth by the learned counsel for the respondents is accepted, it has to precipitate and bring complete state of catastrophe in civil service. Thus, in order, to avoid anarchy and confusion, a definite scheme of civil service was postulated by the framers of the Constitution.' It was, therefore, wrong to suggest that holding of competitive examination would cause waste of time, energy and thus it was a futile exercise. The scheme of civil service provided a safeguard against perverting the course of justice. The objection is, therefore, unsustained.
33. By virtue of impugned legislation, appointments of ad hoc civil servants have been regulated with immediate effect, from the date of enforcement of the Amendment Act. Since the vires of the impugned Act have been assailed for its being discriminatory. It is desirable that the validity of the Act may be tested in the light of the provisions of Interim Constitution Act. It was emphasised that the impugned Act was ultra vires to the rule of equality of State-subjects, namely, "all State- subjects are equal before law and are entitled to equal protection of law". The principle of equality has been postulated under section 4(15) of the Interim Constitution Act. An identical provision has been provided under the Constitution of Islamic Republic of Pakistan, in Article 25. In order to analyse the similarity and dissimilarity with the provisions contained in the Interim Constitution Act, Article 25 of the Constitution of Pakistan is reproduced:-- "25.--(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex alone,
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
Article 14 of Constitution of India is identical to Article 15 of the Interim Constitution Act. Article 25 of the Pakistan Constitution, additionally contains subsections (2) and (3) which are not provided in the Interim Constitution Act.
These provisions are reproduced as hereinafter analysis to be made in the light of different decisions of the superior Courts of Pakistan and India, may not cause confusion in appreciation of the proposition in its true perspective.
34. The term "equality before law" conceived the rule of equality. It conveys that no one is above law. It was construed that implying the concept of absence of any privilege in favour of-any individual and equal subjection of all citizens to the ordinary law, the expression is deemed as negative concept. The term "equal protection of law" is considered as positive concept implying equal treatment of all citizens in equal circumstances. It assumes that among equals, law should be equal and should be equally administered; that like should be treated alike. The expression contains the principle of restricting the competence of the legislature. Legislature was enjoined to maintain equality of citizens before law and must not discriminate except in so far as such discrimination was justified on rational classification contenting with the progressive advancement of human dignity of society. Thus essential value of insisting on equality before law lies in the necessity which it places on legislature to justify its discriminatory measures by reference to moral values. The expression is quite opposite to arbitrariness and capriciousness. It lay emphasis on the rule of law. Generally, the expression was canvassed in support of right of equal treatment in the similar circumstances, both in the privileges conferred and in liabilities imposed by law.
Nevertheless, it does not mean that all laws must apply to all citizens or that all citizens must have same rights and liabilities. Besides, rights of citizens are not to be discriminated by reasons of decent, religious, social or official status, place of birth or economic condition. All citizens are equally subject to general law of the land, but subject to classification enunciated in the Constitution or having nexus to reasonable differentia.
35. It is an accepted rule that prohibition of denial against protection does not preclude legislature from confining the legislation to a class or section of citizens, prescribed in different sets of rules, discriminating in favour of or against certain class. But this is not an absolute and inflexible rule. It is subject to conditions: (i) that the classification is not arbitrary and unreasonable. It must rest on real and substantial difference, having just and reasonable relation to the subject or object; and (ii) the legislation must operate equally, uniformly and impartially on all persons living in the same class.
36. The subject-matter under consideration pertains to civil service. The concept of civil service in the State has been conceived by the Interim Constitution Act. Section 49 of the Act postulates that subject to the Act, appointment of persons to, and terms and conditions of service of persons in, the service of Azad Jammu and Kashmir, may be regulated by law. Section 48 of the Act supplements section 49 as it provides that, there shall be a Public Service Commission for Azad Jammu and Kashmir, and it shall perform such functions as may be prescribed. To carry out the objective and purposes of sections 48 and 49, the Public Service Commission Act and Civil Servants Act have been promulgated to articulate comprehensive infrastructure of civil service.
The scheme of raising civil service has been devised in a definite measure and that scheme has been postulated in the manner of aforesaid laws. The purposes of Public Service Commission Act and the Civil Servants Act are further articulated by framing appropriate and adequate rules thereunder.
37. As noticed elsewhere, the Civil Servants Act, 1976 contains a scheme of appointments, confirmation, promotion, postings and transfers, termination of service, pay, leave, pension and gratuity etc. An appointment to civil service is conceived :(i) by initial recruitment; (ii) by promotion; and (iii) by transfer. Section 2(2) of the Act provided that an appointment whether by promotion or otherwise, shall be deemed to have been made on regular basis if it is made in the prescribed manner. Rule 3 of Civil Servants (Appointments and Conditions of Service) Rules, 1977 was framed in aid to the aforesaid principle. Under sub-rule (1) of rule 3, it was provided that appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government. Sub-rule (3) laid down that appointment shall be made from among such persons possessing such qualifications and fulfilling other such conditions as may be prescribed. Different posts in civil service are to be filled by different mode. For that, there are (i) departmental selection Committees; (ii) Selection Boards; and (iii) Public Service Commission. The Departmental Selection Committee has to make initial recruitment by transfer or promotion in Grade-15 and below. The Selection Board has to make selection for appointments by promotion and transfer, to all posts in Grade-16 and above and initial recruitment to all posts in Grade-16 and above has to be made on the advice or recommendation of the Public Service Commission.
38. Rule 16, further emphasized that the initial appointment to posts in Grade-16 and above shall be made on the basis of examination or test conducted by the Commission. However, the rule was not applicable to such posts which were exempted under the Function Rules of the Commission. Rule 18(1) provided that the candidates for initial appointment must possess the prescribed educational qualification and experience and must be within the age limit laid down for the post unless the age limit was relaxed under law. It is evident from the rule that the age alone was relaxable under prescribed conditions. The educational qualification and experience was not relaxable in any circumstance.
39. Section 7 of the Public Service Commission Act, 1986 pertains to functions of the Commission. It is reproduced:-- "7. Functions of the Commission.--The functions of the Commission shall be --
(a) to conduct tests and examinations for recruitment to the civil services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section 11;
(b) to advise the President on matters relating to qualifications for, and method of recruitment to, the services and posts referred to in clause (a); and
(c) any other matter which the President may refer to the Commission.
Explanation.--In this section, `recruitment' means initial appointment otherwise than by promotion or transfer."
It is evident from the aforesaid scheme of law as to how and in what manner initial recruitment in civil service of the State in Grade-16 and above, is made. The law in force, contemplates no other measure for the recruitment or appointment to civil service, in Grade-16 and above. The scheme of law has been consistently adhered to, with effect from enforcement of law and scheme of the recruitment. This scheme is not enforceable in the case of ad hoc appointments as an ad hoc appointment is purely temporary, transitional and unconfirmed.
40. The term `ad hoc appointment' has been defined under section 2 of the Civil Servants Act, 1976, as an appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment pending the recruitment in accordance with such method. The term "civil servant" is also defined as to mean a person who is appointed to any service of Azad Jammu and Kashmir. Thus, there is a marked difference between "ad hoc appointment" and `initial recruitment' or appointment to service 'in a prescribed manner. Undoubtedly, an `ad hoc' appointment is also made when a person is duly qualified. The qualifications and experience required in the case of initial recruitment, are equally essential for an ad hoc appointment. The only difference is that an ad hoc appointment is made for 6 months in suitable cases to be extended for another 6 months, whereas the regular appointment is made in the prescribed manner by going through the channel of examination, tests and interview, as prescribed by law.
41. The manner of ad hoc appointment has also been prescribed under rule 23. It is laid down that when a post is required to be filled, the appointing authority shall forward requisition to the Selection Authority immediately after decision is taken to fill the post. Thereafter, if the appointing authority considers it necessary in public interest, it may fill the post on ad hoc basis for a period not exceeding 6 months, pending nomination of candidates by the Selection Authority. In case of an ad hoc appointment, again, it is a condition precedent that: (i) the vacancy is advertised properly in the newspaper; (ii) appointment is made of a person duly qualified for the, post; (iii) the selection is made on the basis of merit determined by the objective criteria; (iv) the appointment order certifies that the requisition has been sent to the Selection Authority; and (v) the appointment is made subject to revocation at any time by competent authority. An ad hoc appointment, it was further provided, does not create in the person so appointed, any right for his appointment to the same post, or towards the seniority in the grade. An explanation under rule 6 of Public Service Commission Functions Rules, 1978, provides that reference to term "regular basis" means other than ad hoc, contract or temporary basis for a specified period. The aforesaid scheme of law leads to the inference that the law has also prescribed a measure for even an ad hoc appointment to a post. An ad hoc appointment, short of the aforesaid measure, cannot be construed even an ad hoc appointment in the eye of law applicable to civil service in Azad Jammu and Kashmir.
42. The impugned Act was enforced on August 18, 1992, with immediate effect. By virtue of Section 3, the impugned legislation listed elsewhere, regulated the ad hoc appointments of civil servants, made till the date of commencement of the Act, as deemed to have been validly selected and appointed to the posts held by them on regular basis. These provisions were obviously, enforced in supersession to the aforesaid complete scheme or initial recruitment to civil service, prescribed by law. In order to supersede and by--pass the prescribed scheme, it was enjoined to have objective reasons to undertake the legislation. The preamble of the Act is silent on that score.
43. The scope of legislation by the Legislative Assembly and the Council has been reduced under section 31 of the Interim Constitution Act. The power is subject to restrictions contained in the Act.
Among others, these restrictions are laid down under section 4. Thus, the Assembly and the Council have to legislate within the frame of the restrictions and not to travel beyond that horizon or to act in derogation.
44. The scheme of recruitment to civil service, as noticed earlier, provides a comprehensive measure. An initial recruitment to the civil service, in derogation to that scheme, is obviously, invalid and it cannot be sustained. The Government or the appointing authority to make appointments as initial recruitments to civil service, is under legal obligation to follow the modalities prescribed by law. Whenever an exception to such modalities is made, it cannot be protected by law. The structure of civil service since has been raised by compliance to the scheme of recruitment to service, all civil servants recruited previously, had to cross through the prescribed process of recruitment. The recruitment to service, in future, has to go through the same process, to maintain the rule of equality before law.
45. The impugned legislation, though carries a presumption of constitutionality in its favour, yet it is to be satisfied that it is ex facie Constitutional legislation. On construing the scheme, modalities and objective of the impugned legislation, if it is arrived at the conclusion that it is ex facie ambiguous, as such invalid legislation, it needs no further exercise to go in depth, to declare it void legislation. The test -to examine the challenged legislation as being inconsistent with any provision of the Constitution or rights guaranteed therein, it is enjoined only to distinguish between the impugned law against the provisions of the Constitution. If the law ex facie is found violative of fundamental rights, the rights must prevail and the law must be declared as unconstitutional. Care has to be taken to ensure that the actual complaint relates to law and not the manner in which it is administered. For, when the manner of administration of law is found bad, arbitrary and discriminatory, the Court has to declare the action of administering authority as being one which has waived the fundamental rights. Such declaration of Court will not have the effect of nullifying the law but only of annulling the Government action taken under the guise of that law.
46. In present case, the legislature has failed to disclose the state of circumstances, compelling reasons public purpose and objective of the impugned legislation. However, in preliminary objections, in the written statement of respondent-Government and the Assembly, it was averred that since section 49 of the Interim Constitution Act empowered the Government to lay down the terms and conditions of the service and taking account of authority of the Government, it has enacted the Civil Servants Act, 1976. Section 4 of the Civil Servants Act, empowers the Government to appoint civil servants in the prescribed manner. Section 22 of the Act further empowers the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable. The Government, instead of dealing with the case of each person individually, got enacted the impugned legislation so as to benefit all the ad hoc appointees. It was further explained that the Public Service Commission Act and Rules framed thereunder authorised the Government to specify any post which may be filled without reference to the Commission or to refer any post to the Commission. The provisions, it was argued, were not mandatory. The inherent power lies with the Government as to how and in what manner a civil servant is appointed.
Moreover, the status of the Commission is of advisory in nature. The advice of the Commission has no binding force on the Government, nor the Government is bound by the judgment of any superior Court, under the provisions of the Interim Constitution Act.
The explanation furnished in the written statement is not only self---contradictory but nugatory to the whole scheme of civil service in the State. The explanation furnished in the written statement is perfunctory and devoid of force. In order to enforce drastic legislation in the shape of impugned Act, it was enjoined upon the legislature and the Government to reflect positive objectives, containing the interest of the State, citizens or the civil service. In absence of justifiable conditions, reasons or objections, the enforcement of impugned legislation cannot be upheld.
47. It is noticed that the learned counsel for the respondents confused the functions of Legislature with the functions of the Government and vice versa. The fact of the matter is that the Legislature has been empowered to promulgate laws and take legislative measures, within the framework of the Constitution. It has no concern or interest in the administration of law or its compliance. That is an exclusive function of the Executive. May be that since the Executive is formed out of the members of the Legislature, their specific functions in different fields were construed in conjunction and that approach has confused the defence. Thus, the learned counsel for the respondents was unable to satisfy as to why the Legislature deemed it expedient to undertake an extraordinary and supra scheme of regularising ad hoc appointments, made by the Government and appointing authority respectively.
48. The impugned legislation is found unsustainable for its being discriminatory and violative of rule of equality of citizens and equal protection of law, for:--
(i) The language used in section 3 of the questioned enactment, suggests that all civil servants holding ad hoc appointments till the date of commencement of the Act, shall be deemed to have been validly selected and appointed to the posts held by them, on regular basis, is self- contradictory. The term "validly selected" refers to a particular measure of selection. The term cannot be used in an abstract and arbitrary manner. Thus, to hold a selection valid, it has to be satisfied that the selection was made in the prescribed manner. Likewise, the use of term "appointed on regular basis" preconceives a regular system or measure for an appointment to the post. Such scheme or measure has to be concrete, rational and feasible, in prescribed manner.
Therefore, in order to bring an ad hoc appointment within the purview of the term "validly, selected" and "appointed on regular basis", it is enjoined upon the Legislature to prescribe a definite scheme or measure;
(ii) The use of term "nothwithstanding" by itself does not validate or make a provision of law sacrosanct. In order to take benefit of the term, it is enjoined that the provisions of statute used next to the term "notwithstanding", must contain a self-sufficient device or system to do or not to do an act. In absence of a self-speaking system or self---sufficient scheme, mere use of the term "notwithstanding", does not exclude the questioned provision of statute from the purview of judicial examination, to uphold the validity of an Act of the Legislature. Therefore, in present case, mere use of the term "notwithstanding", in absence of self-sufficient scheme, or an adequate device, does not help to exclude the ad hoc appointments from its adjudication in the light of the general scheme of law, applicable to initial recruitment of the civil servants in the State;
(iii) The defence that the Government is empowered, under the provisions of Civil Servants Act, to deal with the case of any civil servant as it may like, is not available in the present case. The Government has not chosen to exercise its jurisdiction by adverting to the provisions of Civil Servants Act and Rules framed thereunder. Had it been a case of the Government, in that situation, there was no need of enforcing the questioned legislation. The Government was alive to its authority under the scheme of the Civil Servants Act and rules and being conscious of that situation, it knew that it was incompetent to declare a civil servant holding an ad hoc appointment as validly selected and duly made appointment on regular basis. That leads to the conclusion that the Government was not empowered under the Civil Servants Act and Rules to declare any 'ad hoc appointment as a regular appointment. Likewise, it is not permissible to argue that the powers of the Government were not restricted under the Public Service Commission Act and Rules framed thereunder. Under that Act, the Government was empowered to specify certain posts not to be referred to the Commission for filling the same. The Government was not empowered to refuse to refer to the Commission all posts in Grade-16 and above, in order to fill the same. In that case, the Commission would become perfunctory and redundant. Of course, that cannot be the scheme of the Constitution or law of civil service;
(iv) It was wrong to suggest that the Government was free from following the advice of the Commission to fill a post in Grade-16 and above. The law does not empower the Government to bypass the recommendations of the Commission. This position is even well---secured under the questioned enactment. Clause (ii) to section 3 provided that the civil servants holding ad hoc appointments shall be deemed to have been validly selected and appointed provided that the Commission has, in respect of the posts held by such civil servants, not recommended any other persons on or before the commencement of the Act. Clause (ii) to section 3, therefore, restricted the right of civil servants holding the ad hoc appointments in the manner that the recommendations of the Commission having been made on or before the commencement of the questioned Act, would invalidate or exclude the case of ad hoc appointees from being accepted' as validly selected. Section 4 of the questioned Act re-enforced the authority of the Commission as a binding recommendation on the Government, to uphold it. Therefore, it was wrong to suggest that the recommendation of the Commission for appointment to a post, was optional to the Government and not binding;
(v) Proviso (i) to section 3, upholds a civil servant holding an ad hoc appointment as having been validly 'selected and regularized provided that the civil servant holding an ad hoc appointment possessed educational qualifications and experience prescribed for the post. It is evident that in order to take benefit of the questioned enactment, the civil servants holding ad hoc appointments have to satisfy that they possessed the requisite educational qualifications and experience prescribed for such posts. This provision of law has, obviously, a reference to ordinary law which prescribes such qualifications and experience. The questioned law is absolutely silent as to who has to determine that the civil servants holding ad hoc appointments, in fact, possessed educational qualifications and experience prescribed for the post. No forum or authority has been provided to satisfy the conditions listed under proviso (i) to section 3. In absence of a definite forum or authority empowered to ascertain the requisite educational qualifications and experience, it has to be accepted that the scheme of the questioned law is totally blind, unfolded and void. In other words, it leaves the matter widely open. The authorities which made the ad hoc appointments, were deemed as the best Judge to satisfy that a candidate to an ad hoc appointment possessed educational qualifications and experience. Whether the appointing authority acted in a lawful manner or not, was unquestionable for want of forum and measure. It was patently an "arbitrary and capricious scheme which is completely inconsistent and derogatory to rule of law.
49. In Waris Meah's case (PLD 1957 SC (Pak.) 157), Mr. Justice Muhammad Munir, the learned Chief Justice who spoke for the Court, declared the Foreign Exchange Regulation Act of 1947, invalid and nullity for its being discriminatory and among others, containing scope of unguided discretion of Federal Government and State Bank, to determine whether an offender was to be tried under originary law or by Tribunal constituted under the impugned Act. It was held: "------------..The amending Act makes the Act ex facie discriminatory and infringes the subjects' fundamental right to equal protection of law guaranteed by Article 5 of the Constitution, inasmuch as that Act has the effect of constituting three punishing authorities, each with a different power and procedure, without attempting or giving any indication of, any classification of the cases that may be tried by each of these authorities and leaving it entirely to the Central Government or the State Bank to determine which authority should try each case it arises."
It was further provided: The scope of unguided discretion so allowed is too great to permit of application of the principle that equality is not infringed by the mere conferment of unguided power, but only by its arbitrary exercise. For, in the presence of any discernible principle guiding the choice of forum, among the three provided by the law, the choice must always be, in the judicial view point, arbitrary to a greater or less degree. The Act as it is framed, qua its terms, makes provision for discrimination between persons falling, qua its terms, in the same class, and it does so in such manner as to render it impossible for the Court to determine, in a particular case, whether it is being applied with strict regard to the requirements of Article 5(1) of the Constitution."
50. The other aspect of the situation arising from the impugned legislation is that the Legislature has conferred indefinite, uncontrolled and vast authority to regularize ad hoc appointments. Such an authority of the Government is least conceived by the Interim Constitution Act and Rules framed thereunder. The fact of the matter is that the scheme of the Constitution purely rests on rule of law.
The Government has to act in the light of the prescribed manner and not free from prescribed restrictions or limitation. In case unbridled authority of the Government is allowed to prevail, it shall create chaotic conditions resulting in complete disarray and destruction of scheme of civil service.
51. Section 48 of the Interim Constitution Act conceived the Scheme of Constitution of the Public Service Commission, in order to raise civil service in a prescribed method of law. The Civil Servants Act, Public Service Commission Act and other relevant laws, nowhere suggest that the recommendation of the Public Service Commission, for appointment of civil servants to posts, shall not be obligatory on the Government or the appointing authority. It was wrong to suggest that the recommendation of Public Service Commission was optional. It may be accepted that in special cases, the recommendation of the Commission may not be carried through restrictively, in the larger interest of the State or civil service itself. Such special and exemplary eventualities are always kept in view by the Legislature. To meet such eventualities, saving clause is always added to each statute. Exceptions to ordinary course of law always carry special qualifications, high-merit and appropriate requirements to meet an extraordinary situation. In the present case, it is least suggestible that such an eventuality was there. And in order to meet the necessity, thus, the Government and the Legislature were compelled to introduce the impugned legislation. Neither the impugned legislation nor the explanation furnished by the respondents in their written statements indicates to such exceptional or extraordinary situation.
52. It is an accepted rule of interpretation of statutes that presumption is attached to the constitutionality of an enactment. The presumption is, of course, rebuttable. The onus of rebuttal of presumption lies upon him who attacks the legislation for its being unconstitutional. The presumption may be rebutted by nature and frame of enactment itself as it may be found ex facie, void or bad law. Besides, inconsistency and conflict of impugned enactment with the Constitution, may be proved by prevailing conditions and surrounding circumstances. In the present case, it is noticed that the impugned Act does not disclose the state of exigency in support of its exceptional measure. The language used in section 3 suggests that the impugned Act has been enforced in supersession of all other laws, relating to civil service. The impugned enactment is just a switch- over to ordinary law. The extraordinary legislation, by itself contains no justification in favour of such switch-over. It is, therefore, noticed that the impugned enactment is ex facie repugnant to the rule of equality and equal protection of law.
53. It was argued that the Legislature was best Judge of its acts, as such, it may be presumed that the Legislature has acted in a lawful manner by promulgating the impugned Legislation. Ordinarily, the proposition may be acceptable, but this was not an absolute rule. The action of the legislature whenever challenged for want of jurisdiction or trangression of jurisdiction or the legislation being inconsistent and in conflict with the scheme of the Constitution, in such situation, it is enjoined upon the Courts of law to examine the validity of questioned legislation. If the impugned legislation is found in conformity with the scheme of Constitution, it is willingly protected. The Courts have always ensured safeguard and protection of legislation. It has been a difficult task of the Courts to annul, the legislation when it was found in conflict with the Constitution.
54. In order to promulgate the question of legislation, it has to be presumed that the Legislature has done so in good faith and with the knowledge of existing conditions. Thus, the spirit and the proposed objective of the Legislation are construed from the language used and scheme of the enactment. May be that the Legislature was fully apprised of the likely effect of the impugned Legislation and in that situation, it is believed that the scheme of the questioned law, should have been in accordance with the requirements of Constitution and general law applicable to civil service. Since the Legislature has completely departed from general law and prescribed manner of recruitment in civil service, it reflects that it has acted in visible ignorance and haste. Therefore, the presumption of good faith and complete knowledge of existing conditions pertaining to regularization of ad hoc appointments, is not available.
55. There is no cavil with the contention that the Legislature is free to make classification in legislation. Classified legislation is permissible under the Constitution. But the classification in legislation has to be just, fair, rational having nexus to the objective and reflecting intelligible differentia.
56. It was argued that ad hoc appointees formed a class by itself. Since all the ad hoc appointments were regularised, as such no class distinction was made in the impugned enactment. The approach is not correct. The fact of the matter is that the civil service in the State is an institution by itself. As an institution, it is largely a separate class. It is divided into different departments, in the light of different functions to be discharged by civil servants. Therefore, the civil service has been classified by implying various conditions, qualifications and experience. It is but natural that each Department or post has to carry qualifications in the light of its nature and definite utility. Such classification need not be highlighted in detail as suffice it to say that each post has to be filled by appointment of a person who is qualified to perform duties in accordance with the nature of the post.
57. The manner of recruitment, of course, has been made universal and only such posts are excluded which were deemed of different category and nature. This is why the Government was empowered to specify that certain posts may not be referred to the Public Service Commission for its recommendation, in order to make appointments. This is a rational and objective classification.
The law holding the field supports this view.
58. It is noticed elsewhere that an ad hoc appointment is, equally to be made in the prescribed manner. We have, in detail, examined the scheme of ad hoc appointment, to. a civil post. It also carries certain qualifications, experience and conditions. The system is again prescribed under law.
However, the period of ad hoc appointment has been prescribed as 6 months or to be extended by another 6 months. Under law, a regular appointment and an ad hoc appointment are made in different manner except that qualifications, experience and appointing authority in both cases, is common. Rest of the conditions and manner of appointment is altogether different. Therefore, the manner of an ad hoc appointment cannot be construed as in para materia to regular appointment in civil service. It is, therefore, least permissible under law to acknowledge an ad hoc appointment as regular appointment in the civil service. Any scheme or step in that direction, would amount to an illegality. This position is not denied to the learned counsel for the respondents.
59. It may be argued, in the alternative, that since, under law, an ad hoc appointment could not be acknowledged as regular appointment unless the candidate passed through the prescribed channel successfully and in order to overcome the difficulty of fulfilment of conditions, the impugned legislation was enforced. The contention may sound plausible but it was devoid of substance and force. The reasons are that the Legislature is not empowered to frame distinct measures for appointment to variety of posts. Such a measure would result in discrimination. It may be explained for convenience of argument that the manner of appointment to the posts of civil engineers or doctors or Sub-Judges, may or may not be common, identical and uniform. But different methods are not permissible in one set of service. For instance, where an appointment of an engineer to a post is made by reference to Public Service Commission and in the light of its recommendation, and in an identical case, the Government appoints an engineer without reference to the Commission, these two methods not being uniform, are patently discriminatory.
Rule of equality and equal protection of law does not permit such an action. In both cases, though the appointing authority is common, posts are common, but the fact remains that two candidates would enter the service by different and discriminatory modes. On this view of the situation, when civil servants holding various posts in the Civil Secretariat in Grade-16 and above, were recruited by reference to Public Service Commission and in the light of its recommendation, on merit basis, the law requires that all such posts are filed in the like manner by reference to Public Service Commission and on its recommendations. Any measure short of that, would amount to discrimination.
60. Section 4(17) of the Act provides a specific safeguard against discrimination in services. It postulates that no State-Subject, otherwise qualified for appointment in services of Azad Jammu and Kashmir, shall be discriminated against, in respect of any such appointments, on the ground only of race, religion, caste or sex; provided that in the interest of said service, specified posts or services may be reserved for members of either sex. The Interim Constitution Act expressly made a prohibition against discrimination in services, on the aforesaid consideration. However, it was allowed to reserve some posts or services for members of either sex. The only exception to appointment to posts in civil servants, relates to reservation of some posts for members of either sex and in no other case. It is permissible to construe these provisions in the manner that the framer of the Constitution additionally ensured non-discrimination and inequality for appointments in the services of Azad Jammu and Kashmir. The rule of equality strikes at the arbitrariness and discrimination. The rule of law, therefore, cannot be treated lightly by enacting distinct and discriminatory law for recruitment to civil services. Thus, like an employer, the Government or appointing authority is entitled to pick and choose from amongst large number of candidates offering themselves for employment, but it has to make a choice from such candidates, by virtue of equitable and uniform method. Moreover, in order to ensure that all citizens are provided equal chance or opportunity to avail appointment in the civil service, an equal opportunity has to be provided to all qualified and suitable candidates, without discrimination or liking or disliking. So long as an applicant, along with others, has been given his chance, it cannot be said that he did not have an equal opportunity along with others, who may have been' selected in preference to him. Therefore, the test of selection of candidates is to be based upon some reasonable principle which has nexus, with requisite qualifications, experience, efficient performance of duties and obligations of particular office. (If the) selective test is not based on these principles, the rule of equal opportunity for employment under the State would be violated.
Besides, reference to the term "appointment in the services" includes all matters in relation to employment, both prior and subsequent to the appointment, which are incidental to employment and form part of the terms and conditions of service. Thus, guarantee under section 17 will cover (i) initial appointment; (ii) promotions; (iii) termination of service; (iv) matters relating to salary, periodical increments, leave, gratuity; and (v) pension inclusive or superannuation. The principle of equality of opportunity shall apply in all these matters among persons who are either seeking some employment or have obtained the appointments. This rule is flexible only to the extent or reservation of some posts, for either of the sexes and in no other case.
It is, therefore, enjoined upon the Legislature to promulgate law in strict compliance with the aforesaid principles and avoid legislation in derogation to the rule of equality. Whenever, an act of Legislature inconsistent or derogatory to the aforesaid rule, is brought to the notice of the Court, the superior Courts of Sub-Continent have never hesitated to strike down the questioned law, on the ground of discrimination, arbitrariness, for its being violative of provisions of the Constitution or fundamental rights. The Courts are, therefore, empowered to determine whether legislative or executive action in question is arbitrary and, therefore, constitutes denial of equality. In case the classification is unreasonable and does not satisfy the conditions: (i) intelligible differentia; (ii) rational relations between the differentia and the objective sought, the impugned legislation or executive action would plainly be arbitrary. The guarantee of equality under section 15, would be breached. Therefore, whenever legislature or executive authority exercise its authority, in derogation to the principle of law of equality, the rule of equality immediately comes into force to strike down such legislative or executive action. These principles are supported by various authorities. In Sardar Muhammad Abdul Qayum Khan's case PLD 1983 SC (AJ&K) 95, it was held:-- "---------.It is now settled law and there seems to be no doubt at all about its correctness that the reasonableness or otherwise or restrictions placed should also be reasonable and it is exclusively within the province of the judiciary to examine and adjudge as to whether the norms of law have been followed."
In Abul A'la Maudoodi's case (PLD 1964 SC 673) at page 707, it was observed: Reasons in such affairs being peculiarly the province of the judiciary, it is surely within judicial review to examine both as to the reasonableness of the law itself, as well as the reasonableness of the mode of application of the restriction, whether such mode be prescribed by the statute or not."
61. In Tehrik-e-Ammal Party's case PLD 1985 Azad J&K 95, it was held that the Constitution lays a definite line of domain of legislature, executive and judiciary. It describes the limits of each organ.
Any transgression beyond the horizon of prescribed line of control, would render an action of such organ as nullity. The High Court, it was observed, was conferred jurisdiction to examine the laws made by the Legislature, to test their conformity with the Constitution. Therefore, only the superior judiciary was enjoined to judicially review the scope of ultra vires or intra vires of subordinate legislation, particularly to ensure whether it infringes fundamental rights or not. In that case, the impugned legislation being inconsistent and in conflict to fundamental rights, to form an association, was struck down.
62. In Ch. Abdul Majid's case PLD 1985 Azad J&K 83, the order of Chief Election Commissioner, refusing to accept the nomination papers of the petitioner-candidate to Legislative Assembly, was struck down by this Court. On satisfaction that the impugned action resulted in restriction to abridge and control the franchise, the celebrated right of citizens, it was struck down on that score.
The impugned action was taken under the provisions of Azad Jammu and Kashmir Legislative Assembly Elections (Amendment) Ordinance, 1985.
In Justice (Retd.) Ch. Rahim Dad Khan's case (1991 M LD 930), the vires of Notification Pension Rules, 1987 were assailed. The impugned rules laid restriction that benefit of Cost of Living Allowance was admissible to Judge who retired on or before July 1, 1987. Justice (Retd.) Ch. Rahim Dad Khan challenged the propriety of impugned Notification in the light of right of equality of State-subjects, contained in Interim Constitution proposition was resolved:-- '------The next qualification relating to reasonable classification, that is of significance, is that the differentia must have rational to the objective, sought to be achieved by a statute. In present case, as noticed earlier, intended objective of the questioned statute is to provide financial aid in the manner of Cost of Living Allowance to retired Judges and Chief Justice of the Supreme Court, to meet necessary needs of life and, to maintain themselves in the society, with desired dignity and honour. The questioned Rule is a set-up, as financial benefit to the retired Judges. The financial aid is advanced to retired Judges, as a class. To draw a line by a definite date of retirement, cannot help to realise the desired objective. This is so as the objective of the grant can only be accomplished by enlarging its benefit to all the Judges irrespective of the date of their retirement. As a class, all retired Judges deserve financial aid to live up to the desired style and standard. In this view of the matter, the impugned notification is considered as violative of the right of equality guaranteed by the Constitution."
The petition was accepted and the impugned Notification was struck down as ineffective and invalid for its being violative of right of equality as envisaged under section 15 of the Azad Jammu and Kashmir Interim Constitution Act.
64. In Suman Gupta's case (AIR 1983 SC 1235), the Council of National Integration recommended that in each Medical College, 10 per cent. Seats may be reserved on reciprocal basis for students from other States. The State Governments of Andhra Pradesh and Jammu and Kashmir made nominations against the reserved seats, in exercise of discretion The action of the Governments was challenged in exercise of writ jurisdiction. It was alleged that the nominations actually made by the State Governments were made in their absolute and arbitrary discretion, without reference to objective criterion or any controlling norm or guidelines. It was also alleged that the nominations were made influenced by personal relationship of the candidates to persons in the ruling political party or to Government officers in positions of high authority. The Andhra Pradesh Government took the plea that vide order of July 27, 1979, selection of candidates for nomination was excluded from the purview of Selection Committees constituted for admission to M.B.B.S. Course in the State.
Both the State Governments took the defence that the nomination was made by them to serve the objective of national integration and not on the basis of marks obtained by candidates in qualifying examination. Mr. Justice Pathak, the learned Judge who spoke for the Court, annulled, the action of the State Governments. It was observed: "It must be remembered that our entire Constitutional system is founded in the Rule of Law, and in any system so designed, it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason. To contend that the choice of a candidate selected on the basis of his ability to project the culture and ethos of his home State must necessarily be left to the unfettered discretion of executive authority is to deny a fundamental principle of our Constitutional life. It is true that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced by the Constitution, the other falls outside the Constitution altogether. Proceedings from there, it is evident that if the State Government desires to advance the objective of national integration, it must adopt procedures which are reasonable and are related to the objective. In this Age of Reason, all law must measure up to that standard, and necessarily so also must all executive acts."
65. In AIR 1969 SC 1017 (Vajravelu's case), the vires of Land Acquisition (Madras Amendment) Act, were assailed. In that case, by virtue of amendment, the criterion for assessment of compensation for public purpose like hospital, was reduced as compared to amount of compensation under the Land Acquisition Act, for other public purposes. The vires were assailed for the classification in question provided no intelligible differentia and the differentia had no rational relationship to the objective sought to be achieved. The learned Judge who spoke for the Court, made analytical survey of the proposition under consideration and observed: " .... The last contention of Mr. Viswa natha Sastri is that the Amending Act is hit by Article 14 of the Constitution. The law on the subject is well-settled. Under Article 14, the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. It has been held in a series of decisions of this Court that the said classification shall pass two tests, namely, (i) the classification must be found on an intelligible differentia which distinguishes persons and things left out of the group; and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question: To ascertain whether the impugned Act satisfies the said two tests, three questions have to be posed, namely (1) what is the object of the Act? (2) What are the differences between persons whose lands are acquired for the housing schemes and those whose lands are acquired for purposes other than housing schemes or between the land so acquired? And (3) whether those differences have any reasonable relation to the said object. On a comparative study of the Principal Act and the Amending Act, we have shown earlier that if a land is acquired for a housing scheme under Amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for a public purpose like hospital under the Principal Act. The question is whether this classification between persons whose lands are acquired for housing schemes and persons whose lands are acquired for other public purposes has reasonable relation to the object sought to be achieved-------It is one thing to say that the existing difference between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on the basis of the object. The object is to acquire lands for housing schemes at a low price. For achieving that object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the Principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly, infringes Article 14 of the Constitution and is void."
66. In K.T. Moopil Nair's case (AIR 1961 SC 552), the vires of taxing statute were challenged for its being violative of provisions of Article 14 of the Indian Constitution. Mr. Justice B.P. Sinha, the learned Chief Justice of the time, delivered the verdict of the Court. In view of the Court, though taxing statute was not wholly immuned from attack on the ground that it infringed the equality clause in Article 14, yet the Courts were not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way. It was explained that if the Legislature classified persons or properties in different categories under different subjects, to different rates of taxation with reference to income of property, such classification would not be open to attack. Similarly, different kinds of properties may be subjected to different rates of taxation but so long as there is a rational basis for the classification, Article 14 will not be in the way of such classification. But if the same class of property, similarly situated, is subjected to an incidence of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. On construing the questioned provisions of law, in deep appreciation, the impugned Tax Act was struck down as unconstitutional. It was held that apart from being discriminatory and imposing unreasonable restrictions on holding the property, the Act was clearly confiscatory in character and effect. The relevant finding is:--- "The inequality is writ large on the Act and is inherent m the very provisions of the taxing section.
There is no attempt at classification in the provisions of the Act. It is one of those cases where the lack of classification creates inequality. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Article 14 of the Constitution. Furthermore, section 7 of the Act, particularly the latter part, which vests the Government with the power wholly or partially to exempt any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Article 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection contemplated by section 7."
The aforesaid authorities support the proposition that the legislature or executive authority cannot legislate or act in derogation to the prescribed measure. An enactment which contains no norms or guideline, to carry out its objective, is not sustainable. Likewise, the executive authority cannot assume an uncontrolled power in the matter of recruitment of civil servants or exercise discretion in other administrative matters. It has to act in a prescribed manner' and such manner has to be universal in its application and effect, particularly, in the case of persons who enjoy alike status or qualifications. Therefore, there can be no argument in support of proposition to give uncontrolled authority to Government or an appointing authority, to make ad hoc appointments and to get the same regularized by enactment of the Assembly.
67. Next, adverting to the proposition raised by the petitioners, the questioned legislation has been challenged in view of the position that certain posts were referred to the Commission by the Government. The Commission invited applications to hold written tests. The schedule was announced through press. Kh. Javed Iqbal, Muhammad Yunus Tahir and Mansha Ghaus Mughal, applied for appearance in the examination as they possessed requisite qualifications and experience for the respective posts. Call-letters were issued to them, containing roll number and date-sheet for the examination. On enforcement of the impugned legislation, the Commission cancelled the examination and respondents who held posts as ad hoc appointees, were approved as civil servants, by virtue of regularization of their ad hoc appointments. It was claimed that since the petitioners possessed relevant educational qualifications, experience and fulfilled other conditions relevant to the posts referred to the Commission, as such they formed part of class of persons of which the incumbent-respondents were members. Thus, being members, of the same class, and placed in similar position, by virtue of possession of requisite qualifications, they could not be excluded from consideration or denied their right of appointment to said posts, by enforcement of impugned legislation.
68. Taking the case of the petitioners separately, it is proposed first to deal with the case of Kh.
Javed lqbal. He was a candidate for appointment to the post of Section. Officer. The Azad Jammu and Kashmir Secretariat (Section Officers) Service Rules, .1978, contain scheme of appointment (i) by initial recruitment; (ii) by departmental promotion; and (iii) by transfer. The relevant mode of appointment under consideration pertains to appointment by initial recruitment. Rule 5(2) provides that vacancies shall be filled by initial recruitment in accordance with quota. Rule 6 lays down the age between 18 to 35 years. Rule 7 relates to qualifications. It provides that no person shall be appointed to the service by initial recruitment unless he is Graduate of a recognized University. The initial recruitment was to be made on qualifying the examination to be held by the Commission.
Thus, any-State citizen who possessed the aforesaid qualifications was eligible to seek appointment against the post of Section Officer. The guideline and norms to ascertain the merit of the candidate was articulated in the shape of examination by the Commission. Whosoever secured the highest position, was to avail first priority for appointment to the post of Section Officer.
The scheme of recruitment was quite valid and in accordance with rule of equality and equal protection of law. It conceived no discrimination except the provision relating to quota fixed by the Government. Any other method of appointment of civil servant, being in conflict and inconsistent to the recognized norms of recruitment, was not conceived by rule of law (equality before law).
69. In order to deny a person his appointment to a post, it was necessary to allow an opportunity to such person to pass through the rigour of examination by the Commission and in case of his failure to attain the optimum position, he was automatically excluded from the competition. By no other method, exclusion of otherwise qualified person for the post, was permissible. We are not in possession of relevant record so as to believe that ad hoc appointment of respondents in the petition, to the post of the Section Officers was made in the prescribed manner by law or not. In absence of relevant record, no definite opinion can be expressed. The fact remains that in absence of any forum or machinery in the impugned legislation, to ascertain the same, no definite conclusion can be reached. Thus, the impugned enactment provided no guiding measure. The law was arbitrary. It could not sustain.
70. In the petitions of Muhammad Younus Tahir and Mansha Ghaus Mughal, the requisite scheme for appointment to the post of Sub-Judge is that the person seeking appointment by initial recruitment must be Law-Graduate from a recognised University with 3 years experience of legal practice. The age limit was between 18 to 35 years. It is noticed from the record produced by the respondents that the Government relaxed the educational qualification and experience of 3 years legal practice in the case of Miss Shamaila Mahmood, respondent No.5 in the petition of Muhammad Yunus Tahir. The Government was not empowered to relax educational qualification and experience required for appointment as Sub-Judge. No law was cited in support of the authority of the Government to relax these qualifications. There may not be any law on that score empowering Government to relax even educational qualifications and experience required for appointment to a particular post as the same would amount to absurdity. The educational qualifications and experience are deemed as condition precedent in all cases of appointment to civil service. When educational qualifications and condition of experience were relaxed, then, of course, no criterion was left to recruitment to civil service.
71. Ch. Mumtaz Hussain, respondent was an Advocate. He was Law-- Graduate and had the experience of requisite practice. His age was relaxed to bring him within the purview of qualifications required for appointment to the post of Sub-Judge. That leads to the inference that Muhammad Yunus Tahir and Ch. Mumtaz Hussain enjoyed alike position and were placed in the similar position .To avail the appointment to the post of Sub-Judge. Miss Shamaila Mahmood was not qualified to claim identical status and position to avail the appointment to the post of Sub- Judge.
72. Ch. Muhammad Fayyaz Sabir, respondent in the petition of Mansha Ghaus Mughal, was also a Law Graduate, but there was nothing on record to hold that he enjoyed the qualification of experience of three years' practice at the Bar. He was previously serving in the Education Department as School Teacher and was inducted in judicial service in the meanwhile. Thus, he enjoyed no experience of legal practice of 3 years, as required under the rules. There is nothing on record to believe that the requisite condition of experience was relaxed by the appointing authority.
Be that as it may, the fact remains that the petitioner who is a practising Advocate, as such duly qualified to avail an appointment to the post of Sub-Judge, was placed in a better position.
73. The respondents have not placed any evidence substance in respect of their respective defence except claim that ad hoc appointments were made in due course of law. It may be presumed that their ad hoc appointments were made in accordance with the provisions of the rules, yet by virtue of ad hoc appointments, respondents enjoyed no better or superior position to hold the posts by virtue of impugned enactment. No exceptional circumstances or urgent necessity or extraordinary conditions leading to enforce the impugned enactment, have been disclosed. Thus, ad hoc appointments sought to be regulated by the impugned enactment, cannot be brought within the purview of valid and lawful exceptions, or reasonable classification.
74. The learned counsel for the respondents endeavoured to support the impugned appointments of respondents by virtue of provisions of section 22 of the Civil Servants Act. Section 22 has been framed in the shape of saving provision. It postulates that nothing in the Act or rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that where the Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by the Act or the rules. It is evident that the provisions of section 22 are enforceable by the Government in exercise of its authority (i) to the case of civil servants; and (ii) this power is to be exercised in just and equitable manner. A person becomes a civil servant when he is appointed to any service of the State in due course of law. Thus, the discretion of the Government postulated under section 22 of the Act, shall be available post facto to the induction of person in civil service. The discretion of the Government does not come in play at the stage of an initial recruitment. Since the authority of the Government operates post facto to the appointment of a person to civil service, it cannot be construed that the Government is empowered to appoint a, person to civil post, in derogation to the scheme of law enunciated in the Act.
75. The learned counsel for the petitioners referred to provisions of section 31(5) of the Interim Constitution Act and contended that the Assembly and the Council were not empowered to make laws repugnant to Holy Qur'an and Sunnah. Since the impugned legislation, in view of the learned counsel, was repugnant to the Injunctions of Islam, being in conflict with the provisions of section 31(5), it was void.
76. Section 31(5) of the Interim Constitution Act, provided that no law shall be repugnant to the teachings 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 Sunnah. It deals with two aspects of legislation. It forbids the legislation for future which is repugnant to Islamic Injunctions; and secondly, it enjoins upon that the existing laws shall be brought in conformity with the Holy Qur'an and Sunnah. The interpretation of proposition received attention of the Court in Kashmir Timber Corporation's case (PLD 1979 SC (AJ&K) 139). Mr. Justice Ch. Rahim Dad Khan, the learned Chief Justice delivered the verdict of the Court. At page 239, it was observed:-- "We do not find any force in the contention of Mr. S.M. Zaffar that the responsibility to see that the laws are not repugnant to the teachings and requirements of Islam, is of the Legislature. The Legislature is to make law and if they make a law which is repugnant to the Holy Qur'an and Sunnah, then whose responsibility will it be to declare the law as void and unconstitutional. The judicial power vests in the Courts and they alone are competent to declare what the law is."
In that case, vires of Timber Trade Act, 1976 were examined. On coming to the conclusion that the provisions were repugnant to Islamic Injunctions and in conflict with the provisions of section 31(5) of the Interim Constitution Act, were struck down. The finding is recorded at page 245 in para. 66:-- "The net result of the above discussion is that the impugned Act, namely, Timber Trade (Nationalisation) Act (Act XVI of 1976) being violative of paragraphs 8, 13 and 14 of section 4 as well as subsection (5) of section 31 of the Interim Constitution Act, 1974, is held ultra vires--------"
This proposition was raised before the Supreme Court of Azad Jammu and Kashmir, in this very case. Among others, 'an objection was raised that the High Court was not empowered, in exercise of its writ jurisdiction, to review the impugned legislation for its being repugnant to the Islamic Injunctions. The objection was listed at No. IV, in para. 3 of the order of the Court and answer to the objection was provided at pages 11 and 12:-- ---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 the 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 of the State of Jammu and Kashmir v.
Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139). It was held in that case that:--- "It is inconceivable that the Legislature should have so intended when it is unmistakenly 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.
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 Injunctions of Islam. It is clear that law on this point also cannot be considered as settled.
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."
77. The learned counsel for the petitioners argued that the impugned legislation was ultra vires to Islamic Injunctions. It was emphasised that it projected a rule of inequality among the citizens of equal status possessing equal qualifications required for appointment to the post of Section Officers and Sub-Judges. Reference was made to some of authorities of Federal Shariat Court. The authorities do not lay down specific rule, in matter of civil service. However, reference is made to the Declaration by the Holy Prophet (peace be upon him) proclaimed in His Last Serom. It is reproduced:-- "O ye people, Allah says: O people We created from one male and one female and made you into tribes and nations so that you could be identified. Verily in the sight of Allah, the most honoured amongst you is the one who is most God-fearing. There is no superiority for an Arab over a non- Arab and for a non-Arab over an Arab, nor for the white over the black nor for the black over the white except in piety. All mankind is the progeny of Adam and Adam was fashioned out of clay.
Behold, every claim of privilege whether that of blood or property, is under my heels----------- -..Behold, all practices of the days of ignorance are now under my feet------------..O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town of yours."
The farewell Sermon of the Holy Prophet (peace be upon him), is a comprehensive, distinguished and unique Charter of Human Rights. This was the first pronouncement reflecting dignity, honour, equality and grace of humanity. It was the first charter of basic inalienable and residual rights of humanity, guaranteed in the written form, under the Holy Qur'an. Rule of equality was pronounced in unequivocal terms as no Arab was superior to non-- Arab and non-Arab to an Arab, nor for the white over the black nor for the black over the white, except in piety. By virtue of this rule, all Muslim State --Subjects were equally eligible to avail an appointment to post .In civil service provided they possessed the requisite qualifications, experience arid other conditions. The discrimination by virtue of political attachment, political grouping, parties and ideologies was the least consideration in an Islamic State. The Azad Jammu and Kashmir State is a proclaimed Islamic State. Thus, all Muslims possessing required qualifications, as such eligible to an appointment to a post, could not be denied their appointment by method of pick and choose, likes or dislikes, favouritism and nepotism. The discrimination oil that criteria, was strictly prohibited. The authorities cited by the learned counsel for the respondents are not found relevant to the proposition under consideration.
They need not be discussed in detail for the purpose of brevity.
78. Section 6 of the impugned enactment relates' to discretionary appointments. Mr. Javed Iqbal Khawaja, in his petition, challenged the propriety of these provisions. It was averred that the provisions were inconsistent' and derogatory to the Interim Constitution Act and mala fide. The appraisal of these provisions reflects that the Legislature, by virtue of impugned provisions, declared civil servants holding discretionary posts for more than 5 years, on or before June 30, 1992, as having been appointed on regular basis, from the date of commencement of the Act. It is clear from the aforesaid scheme that Legislature has totally ignored: (i) the validity of such appointments, in relation to appointing authority; (ii) the fulfilment of requisite qualifications, if any; and (iii) an appropriate forum. Or, authority, to ascertain the fulfilment of conditions required for regular appointment to such posts. Here, again, the Legislature has failed to lay down the guideline, the forum and the method of ascertainment. The rule of law does not allow enforcement of such blind scheme vesting unguided and uncontrolled authority in an appointing authority. These provisions are equally bad and derogatory to the fundamental rights contained under sections 15 and 17 of the Interim Constitution Act.
79. The aforesaid position leads to the conclusion that the impugned enactment is derogatory and.
Inconsistent to section 4(15) and (17) of the Interim Constitution Act, for its being violative of equality and equal protection of law, and equal opportunity to the State Subjects to avail appointments in civil services of the State. No part of the Act can be protected by its severance from the defective part. The Act, as a whole, is to be struck down.
80. It was argued that the Government, by transgression of its authority, transferred various officers from Semi-Government Departments, to regular civil services and thereby confirmed them in exercise of its authority under section 22 of the Civil, Servants Act, supplemented by section 3 of the impugned enactment. It is an accepted rule of law that an officer holding a post in a local body or semi-Government body, does not enjoy the status of a civil servant, as contained under the Civil Servants Act. Thus, transfer of such officers from local body to civil services cannot confer status of civil servants on I such officers. In order to attain the status of a civil servant, that officer has to fulfil the conditions laid down under law. Failing that, the officer shall not be accepted nor he shall be allowed to enjoy the status of civil servant under law.
81. The petitioners, expressly alleged that the Government made, at large scale, recruitments in civil services, from amongst its political workers. Thus appointments were made by favour and nepotism. The respondents failed to provide the, particulars of such appointments; However, in the light of the request of the petitioners, the Department of Services and General Administration was asked by the Court to provide the particulars of appointments made in Grade-16 and above, with effect from August 1991, till the time pf commencement of impugned law. The Department submitted the list of such officers. It carries the particulars of 23 officers, including 2 Additional and 3 Deputy Secretaries. The number of officers appointed in Health Department is 46, Law Department 24; Lecturers 149; Senior Commerce Instructors 6; Director Information 1; Deputy Director Social Welfare 1; Deputy Director Cooperative Department 1. It was explained that the Government relaxed educational and experience qualifications in case of Miss Shamaila Mahmood, Sub-Judge. The Deputy Director (Examinations) of Public Service Commission, vide letter of April 15, 1993, has informed that the Commission announced its schedule to hold its tests and examinations for certain posts, but the same was cancelled on account of enforcement of impugned Act. The test was to be held to fill the following vacancies:--
(1) Assistant Director fisheries;
(2) Research Officers, Islamic Ideology Council;
(3) Section Officers, Civil Secretariat;
(4) Assistant Engineers;
(5) Assistant Electrical Inspectors;
(6) Section Officers, Law Department;
(7) Lecturers;
(8) District Food Controllers;
(9) Assistant Directors food:
(10) Surgical Specialists etc.;
(11) Deputy Directors (Agriculture);
(12) Agricultural Engineers;
(13) Agriculture Officers;
(14) Veterinary Officers;
(15) Assistant Engineers (Civil);
(16) Assistant Engineers (Mechanical);
(17) Assistant Horticulture Officers;
(18) Assistant Engineers, Department of Central Design;
(19) Information Officers;
(20) Research Officers;
(21) Lady Superintendent, Industries Department;
(22) Research Officers (Industries).
(23) Forest Rangers;
(24) Project Managers, Local Government;
(25) Tehsil Qazis.
The total number of these posts is 187. The number of posts in which requisitions were yet to be made by the appointing authority to the Commission, are unknown. Be that as it may, the fact remains that the record provided by the Commission and Services Department is pointer of the fact that the ad hoc appointments were made at large scale within the span of short period. These appointments were sought to be regularized by the impugned enactment. The objective and motivation of the impugned legislation is evident from the aforesaid position. The respondents failed to explain as to why and under what compulsion, large number of ad hoc appointments were made in a short time and what was the compelling force to regularise the same in lump sum by the impugned enactment. In other words, there is no satisfactory explanation to the effect that the ad hoc appointments were made by the Government during the period of its current tenure strictly in accordance with law and that necessary conditions of educational qualifications, experience and age, inclusive of competence of appointing authority were squarely fulfilled. This position provides ample support to the allegations ascribed in the petitions.
82. It is relevant to state here that at the time of conclusion of arguments, an application was moved by Mr. Muhammad Hanif Khan, the learned counsel for the respondents. The application was accompanied by a copy of enactment called "The Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointments) Repeal Act, 1993". By virtue of the Repeal Act, the impugned enactment was repealed with immediate effect. However, in section 2(2), it was provided that notwithstanding the provisions of subsection (1), actions completed before the commencement of this Act, shall not be affected by the repeal of the Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointments) Act, 1992. A brief survey of the Repeal Act points out that the Legislature being conscious of impropriety of the impugned legislation, endeavoured to protect its action by promulgating the Repeal Act. In fact, the impugned enactment lost its field on the day it was enforced, on giving the effect to ad hoc appointments made prior to its enforcement. The impugned enactment extinguished by abatement. Its effect was completed on the day it was enforced and forthwith it obliterated on the statute book. There was no need to promulgate the Repeal Act in such situation. The Repeal Act promulgated to redound the effect of questioned enactment, was aptly unwarranted and redundant.
83. Moving of the application is a futile attempt as irrespective of the Repeal Act, it was imperative to examine the legal propriety of the impugned enactment and its effect vis-a-vis ad hoc appointments in the civil services of the State. Therefore, promulgation of the Repeal Act does not affect the petitions, nor it closed down the controversy raised therein.
84. Mr. Noorul Amin, the learned counsel for Miss Shamaila Mahmood, argued that the appointment of his client was protected by Notification of November 25, 1992, whereby the ad hoc appointment of respondent No. 5 was regularised, in exercise of powers under section 22 of the Civil Servants Act. The contention is devoid of force. The fact of the matter is that section 22 of the Civil Servants Act does not empower the Government to regulate an ad hoc appointment. The scope of section 22 has already been examined elsewhere. It empowers the Government to deal with the case of a civil servant in an appropriate manner, notwithstanding to the provisions of Civil Servant; Act. In order to deal with a case of civil servant in extraordinary manner, the authority of the Government may be exercised in extraordinary or exceptional circumstances, in consideration of special reasons. These powers cannot be exercised in the case of ad hoc appointment. The term "civil servant" defined in the Civil Servants Act, refers and includes civil servant appointed by initial recruitment, transfer or promotion. The case of the respondent does not fall within the purview of the term "civil servant". Besides, the case of respondent No. 5 was included among other ad hoc appointees. Since by virtue of provisions of section 3 of the impugned enactment, all ad hoc appointments were regulated, there was no need or warranting conditions, to exclude a particular case from the scope of provisions of section 3, to settle it in exercise of powers under section 22 of the Act. Therefore, this case is to be treated along with other cases of ad hoc appointments, made before the commencement of the impugned enactment.
85. The impugned enactment has been found quite inconsistent and in contravention to the provisions of section 4(15) and (17) of the Interim Constitution Act, in addition to the provisions of Civil Servants Act, Public Service Commission Act and Rules framed thereunder. It is also derogatory to the scheme of civil services provided under sections 48 and 49 of the Interim Constitution Act. It cannot be allowed to perpetuate its effect. It is~ therefore, struck down. The ad hoc appointments desired to he regulated by virtue of these provisions shall remain ad hoc appointment in nature anti character. Consequently, all orders and notifications whereby ad hoc appointments of respondent-civil servants have been regulated, arc declared null and void and of no legal effect. These appointments are to be regulated in accordance with law. Here, it may be observed that since various persons holding ad hoc appointments may have passed the upper limit of age of initial recruitment, they may not be punished due to enforcement of the impugned enactment and its consequences. Therefore, the Government may, in exercise of its powers, relax the upper limit of age of such persons, to enable them to avail an opportunity of appearance in tests/examinations held by the Commission. The petitions are, therefore, accepted with costs. It is directed that let a writ to that effect be issued in favour of the petitioners and against the respondents.
M.BA./43/H.CA.