' SYED MANZOOR HUSSAIN GILLANI, J.---This writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 is addressed in the background of the cases decided by the High Court and Supreme Court of Azad Jammu and Kashmir, whereby an Act of the Assembly known as "Azad Jammu and Kashmir Civil Servants (Regularization of Ad Hoc Appointments) Act, 1992 (Hereinafter to be called as Regularization Act) was declared as unconstitutional.
2. True perception of the controversy involved in this petition can be had from the facts forming the background of the cases reported as PLD 1994 Azad J&K 26; 1994 CLC 2339 and 1994 SCR-297 which are hereby briefly stated.
3. A bill introduced in the Azad Jammu and Kashmir Legislative Assembly on 29-7-1992, which was passed by the Assembly on 18-8-1992, as Act No,XXII of 1992, whereby all the Civil Servants holding ad hoc appointments till the date of commencement of the Act , were deemed to have been validly selected and appointed to the posts held by them on regular basis with effect from the date of commencement of the Act. The Act was assented by the President on 16-8-1992 and published in the Azad Jammu and Kashmir Official Gazette No,264 of 1992. The Act, on challenge before the High Court, was declared unconstitutional and ultra vires the law. The petition was accepted in the following terms as reported in PLD 1994 Azad J&K 26:-- "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 Service 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 be regulated by virtue of these provisions shall remain ad hoc appointment in nature and character. Consequently, all orders and notifications whereby ad hoc appointments of respondent-Civil Service have been regulated, are declared null and void and of no legal effect. These appointment 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."
4. On appeal against the judgment before the Supreme Court by the Azad Jammu and Kashmir Government and ad hoc employees, the learned Court felt pleased to order as follows, as reported in 1994 CLC 2339: "The Azad Jammu and Kashmir Civil Servants (Regularization of Ad Hoc Appointments) Act, 1992 is found to be void as it was violative of the--Fundamental Right No,15. All the appeals are-therefore, dismissed with costs."
5. After the above referred judgment, the Supreme Court has in another case reported as 1994 SCR-297, declared that ad hoc appointment confirmed under section 22 of the Civil Servants Act, 1976, without determination of merit and reference to the Public Service Commission, is violative of the Constitution and illegal.
6. After the declaration of law by the High Court and upheld by the Supreme Court in the cases referred in Para 2 above (hereinafter to be referred as 'Ad hoc Appointment Cases') for brevity, the Government of Azad Jammu and Kashmir felt pleased to issue the following two even number and dated notifications. The text of the notifications is as follows:-- "No,S&GAD/A-4(170)/VI-R/90. The Azad Government of the State of Jammu and Kashmir is pleased to decide that:--
(i) The Public Service Commission, while making selection for the posts, shall give due consideration to the experience training to the candidates;
(ii) The upper age limit in case of candidates who have served as on ad hac/work charge basis to the extent of their services rendered as such, shall be relaxed."
'No,S&GAD/A-4(170)/VI-R /90. In exercise of the powers vested in' this behalf under Rule 16 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, the Government is pleased to delete items 3, 4 and the Note thereunder of Schedule'C' attached to the Notification No,S&GAD/A-4(170)/VIR/90, dated August 4, 1990."
(The Notifications shall be referred hereinafter as Notification No,1 and Notification No,2).
7. The petitioner seeks the cancellation of above referred notifications and a direction to the Government to refrain from acting upon the impugned Notifications on the following grounds: A. That the respondent No,1 with mala fide intention issued the said notifications to make the judgment of the Supreme Court ineffective, whereas the respondent No,1 is constitutionally bound to act in aid of the Supreme Court as provided by section 42-A of the Interim Constitution Act, 1974.
Therefore, the whole practice of respondent No,1 is unconstitutional and also misuse of its powers; B. That the respondent No,1, while issuing notification marked as Annexure `A/1` has referred rule No,16 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, whereas under the said rule, respondent No,1 has at all no legal powers to issue such a notification. The said rule for reference is reproduced hereunder: `Initial appointment to the post in Grades-16 to 20, except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission shall be made on the basis of examination or test conducted by the Commission.'
' The above referred rule is very much clear and does not provide any power or authority to respondent No,1 to issue the notification on the subject as it has issued the impugned notification, there the respondent No,1 acted without lawful authority; C. That the respondent No,1 issued the notification marked as Annexure `A' in arbitrary, capricious and fanciful manner, which amounts to clear discrimination among the State Subjects, which is a clear Violation of fundamental rights guaranteed under section 4 subsection (15) of the Interim Constitution Act, 1974, and also violative of rule 20 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977; D. That the respondent No,1 through impugned notifications on the one hand directed the respondent No,2 to discharges its Constitutional functions in discriminatory manner and on the other hand tried to exclude all the posts of Civil Service except A.0 and A.S.P. From the purview of the Commission, this futile and illegal exercise of the respondent No,1 clearly indicates its mala fide intention to retain the illegal appointed persons into the services, in violation of law, on the subject.
The respondent No,1 has got no such Constitutional or legal powers for this reason the impugned Notifications without lawful authority and are void. The copy of Notification No,S&GAD/A4(170)/VIR/90 issued on 4-8-1990 is attached herewith and marked as Annexure `C; E. That when the initial appointments are illegal and without lawful authority, which does not confer any right, therefore, the whole super structure is illegal and ineffective; F. That the respondent No,1 has power to specify posts which may be filed with out reference to the Commission but this power is conditional, which can be only exercised in public interest and not against the public interest as provided by rule 7 of the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, 1978, whereas in the present case, the respondent No,1 has issued the impugned notification clearly against the public interest only for the benefit of its some favourite persons. Therefore, the impugned notifications are also against law on the subject and are discriminatory?
8. Respondents in their written statement accepting the striking down of the Act by the superior judiciary have denied the other averments made in the writ petition.
9. The learned counsel for the petitioner arguing his case, inter alia contended that:
(a) Both the notifications run counter to section 42(A) (3) and section 42(B) of the Interim Constitution Act, 1974;
(b) The Notification No,1 obliges the Public Service Commission to give due consideration to the experience and departmental training of the candidates and relaxation of upper age limit in case of candidates serving on ad hoc/work charge basis, amount a direction to favour the ad hoc employees and an interference in the affairs of Public Service Commission, which is obliged under law and the legal declarations of the Superior Courts to make selection on merit;
(c) The Notification No,1 amount to give an undue and discriminatory edge to the ad hoc employees over others not so employed for their experience and training gained on the Government expenses, thus having the effect of unequal treatment and discrimination against the petitioner and other candidates not serving on ad hoc/work charge basis;
(d) That ad hoc appointment under rule 23 of the Azad Jammu and Kashmir Civil. Servants (Appointment and Conditions of Service) Rules, 1977 confers no right for regular appointment, the impugned notification has the effect of creating a right in the adhocees against rules;
(e) Through Notification No,2 except the posts of A.C. And A.S.P., rest are excluded from the purview of the Public Service Commission, rendering all the posts in the service of the Government as discretionary;
(f) That under rule 7 of the Public Service Commission (Functions) Rules, 1978, exclusion of a post or posts from the purview of the Public Service Commission can be made in the public interest only, but in the instant case the impugned notification has the effect of favouring the ad hocees only without any public interest;
(g) That except A.C. And A.S.P., none of the other posts in the service of Government remains to be filled in by a test to be duly conducted by the Public Service Commission;
(h) That notification runs counter to Rules 16, 20 and 23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Azad Jammu and Kashmir Lateral Entry Rules, 1989, Azad Jammu and Kashmir Section Officers Rules 1978 and the Government order regulating the ad hoc appointments etc;
9. The learned counsel placed reliance on 1994 SCR 297 and 341, PLD 1994 Azad J&K 26, PLJ 1987 SC- 107, 1992 CLC 219 and PLD 1992 Federal Shariat Court-412.
10. The learned Advocate-General controverting the arguments contended that Notification regulating the relaxation of upper age limit in case of candidates serving on ad hoc or work charge basis is in accordance with the decision of the High Court as upheld by the Supreme Court in the earlier round of litigation by the petitioner. It is further contended by the learned Advocate-General, that it is the prerogative of the Government to prescribe the method and mode of test and syllabus for different posts and it is also the prerogative of the Government to exclude specific posts from the purview of the Public Service Commission which may be filled without reference to the Public Service Commission. The learned Advocate-General also contended that the Notifications do not suffer from any legal infirmity and are in accordance with the Azad Jammu and Kashmir Public Servants Act, 1986 and its Functions Rules, 1978.
11. After hearing the learned counsel for the parties, we have carefully gone through the reports of the earlier cases decided by the High Court and Supreme Court on the subject. The law regulating the ad hoc appointments in service of the Government initial recruitment on regular basis, the functions of the Public Service Commission, the power of the Government to make appointments etc, has almost all been settled by the High Court and Supreme Court of Azad Jammu and Kashmir in cases referred above. The ratio decindendi of the cases referred above is: -- that ad hoc appointments made without fulfilling the requirement of rules and notifications allowing the ad hoc appointment are without lawful authority; -- that no ad hoc appointee can be deemed as validly selected and regularly appointed without recruitment through the Public Service Commission and going through the selection procedure prescribed under existing law; -- that section 22 of the Civil Servant Act does not authorize the Government to exempting a person from appearance before the Public Service Commission.
12. The above stated legal position is the declaration of law by the Superior Courts and is the law of the land. The precedent of law made by the Constitution Courts is declaratory for the Nation while the decisions of other Courts are binding upon the parties only. The decision by the High Court unless reversed by the Supreme Court; and the final pronouncement of the A Supreme Court, on a question of law, is as good as Constitution or law itself in view of section 44(B) in case of High Court for all the Courts and State authorities except Supreme Court and under sections 42(A) (3) and 42(B) in case of Azad Jammu and Kashmir Supreme Court, for all the authorities in the State including High Court. Their binding force is not for the Courts only, but for all authorities performing functions within their respective jurisdictions in the State. Commenting upon the provisions similar to section 42(B) of the Constitution, V.N. Shukla in 8th Edition of the Constitution of India has commented as follows: "The law declared by the Supreme Court is binding on the State and its officers and they are bound to follow it whether respondents in a particular case were parties or not to the previous petition."
13. The Lahore High Court in a number of writ petitions grouped and decided together, reported as Messers Nishat Mills Limited v. Government of Pakistan and others (1989 CLC 1692) took a serious view of the executive agencies ignoring the declaration of law made by the High Courts and Supreme Court of Pakistan in cases reported as PLD 1965 P-4: PLD 1970 SC 439; PLD 1978 Lah. 468; 1986 SCMR 1917 regarding the retrospective imposition of different duties on the business establishments which were exempted from those duties on the date of their establishment under a valid Government Notifications. The learned Court striking down the notifications running against the law declared by the Supreme Court and High Courts' of Pakistan observed: "Before concluding, I would like to mention that the manner in which the Central Board of Revenue has fluted the law declared by the Supreme Court, leaves much to be desired. Under Article 5(2) of the Pakistan Constitution, 1973, obedience to the Constitution and the law is the invaluable obligation of every citizen and of every other person resident in Pakistan. I am not aware that the departments of the State are exempt from such obligation. Since under Article 189 of the Constitution, the law declared by the Supreme Court of Pakistan is binding on all Courts in Pakistan and under Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan are bound to act in aid of the Supreme Court, one would assume that all organs of the State are duty bound to act in aid of the law declared by the Supreme Court and not flout it. One would expect that the Central Board of Revenue; with its full-fledged legal cell, is aware of all laws declared by the Superior Courts of Pakistan relating to the subjects within their jurisdiction and does not ignore these declarations when framing or amending the law, rules and notifications on the subject. It appears that the Central Board of - Revenue was aware of the rulings of the Supreme Court, Peshawar High Court and the Lahore High Court. This is apparent from the Federal Government's Notification S.R.O.489(1)/87, dated 13th June, 1987 which exempted cotton yarn from export duties if letters of credit had been opened before 12th June, 1987. However, in contumacious disregard of the law declared, the said notification was withdrawn within less than three weeks, vide Notification S.R.O. 546(1) 87, dated 1st July, 1987, leaving the petitioners with the unpleasant duty ofhaving to knock at the doors of this Court. When on 27th January, 1988, the learned counsel for the respondents was directed to discuss all these cases with the Customs Authorities and to bring to their notice the law declared on the subject, so that they could process these cases by the next date of hearing in accordance with the law declared the learned counsel was not able to receiver any cooperation from the Customs Authorities and I had to fix these cases for arguments.
My oral warning that I would impose compensatory costs on the respondents, if I found later that they were deliberately not applying the law declared, fell on the deaf ears. Contumacious disrespect by the respondent of the law declared by the highest Court of the land deserves to be taken note of seriously. The Customs Authorities, therefore, deserve to be penalized with heavy costs to compensate for the demurrage suffered by the petitioners by the action of the respondent and the heavy financial losses suffered by them in locking up their capital in order to furnish bank guarantees to get their shipments released for export. Unlike the respondents, who are none too lenient with their transgressors, I would, without being hard, impose nominal compensatory costs on the respondent at the rate of rupees one thousand (Rs,1,000) for each shipment in respect of which the petitioners were compelled to furnish bank guarantees to secure release of their goods, pursuant to interim orders issued by this Court; such compensatory costs to be payable by the respondents to the petitioners in -all the six cases on all the consignments in respect of which bank grantees were filed by them."
14. Commenting upon the similarly worded Article 190 of the Constitution of Pakistan 1973, Shaukat Mehmood in his treatise on the Constitution writes as follows: "Under this Article all executive and judicial authorities are directed to act in aid of Supreme Court.
Therefore, whenever the Supreme Court hands out a decision it is the duty of all such authorities to act upon it and to implement it in letter and spirit. It will be unconstitutional for the executive to nullify, the decisions of the Supreme Court by subsequent retroactive notifications."
15. In Works Cooperative Housing Society and another v. The Karachi Development Authority (PLD 1969 SC 430), speaking for the Court, Hamoodure Rehman, the Chief Justice (as his Lordship then was) decided the proposition as to whether executive can nullify a judgment of a Court by a subsequent notification, the proposition was framed and decided in the following manner: "In the present case, the main question, in my view is as to what was the intent of this Court when it said that the Development Authority could not depart from the direction contained in the notification of the 9th of June, 1964 'so long as it stands intact'. Did it contemplate that the withdrawal of the notification by the Provincial Government at a subsequent stage would defeat the right of the appellant-Society ? Was this Court thereby only declaring a right contingently ? I think not.
' It is now well-settled that a Notification cannot be made to operate retroactively and I think that there can be no manner of doubt that a judgment of Court declaring a right cannot be nullified by executive action. I cannot, therefore, persuade myself to impute this Court any intention of authorising an illegality. This Court does not also as a rule deal with hypothetical cases. Where no existing right is established no question of granting any relief by this Court can arise particularly, in proceedings initiated under Article 98 of the Constitution. It is difficult, therefore, to appreciate as to how this Court could be said to have declared in the appeal, from which the present application arises, only a contingent right defeatable at the will of the Provincial Government.
' In my view the words 'so long as it stands' occurring the last paragraph of the judgment in the appeal mean no more than this that since the relevant provisions of the notification dated 9-6- 1964 had not been altered till then the commitment subsisted and the appellant-society was entitled to the allotment. It could never have been the intention of this Court to give to the Provincial Government a right to amend the notification in such a way as to nullify its own judgment."
16. In the hereinbefore referred case itself a reference is also made to `Lemn v. Mitchell` (L.R. 1912 A.C.400), wherein the Privy Council has gone to the extent of declaring that: ' even a legislative measure like an Ordinance expressly given retroactive effect could not operate so as to 'annul a valid and subsisting judgment as between parties whose rights had been duly determined under and according to the law which existed before the new Ordinance was passed. It was said that it would require much more explicit language' to justify a Court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting."
17. Besides the binding nature of the pronouncement of the Supreme Court under section 42(B) and unreversed judgment of the High Court under section 44(B), the declaration of law by the Supreme Court is further exalted by obliging all the executive and judicial authorities in Azad Kashmir to act in aid of the Supreme Court, which means that the judgment of the Supreme Court to the extent it decides a question of law, is not only to the implemented in letter and spirit, but the authorities in Azad Kashmir shall do all that is needful for ensuring the complete compliance with the dictum and adhere to the principles enunciated therein wherever such an eventuality arises and set right and straight a wrong continuing against the pronouncement of the Supreme Court. It would include the corrective as well as the implementative measures, in absence whereof, it cannot be said that the executive or judicial authorities act in aid of the Supreme Court. Any action against the spirit of the decision of the Supreme Court or failure to act according to the declaration would, therefore, amount to violation of sections 42(A) (3) and 42(B).
18. There is not ,doubt in the legal proposition that a point of law declared by the Supreme Court is a decision between the parties before the Court, but it has the effect of being a declaration of law for the Nation, the executive and the judicial authorities; as the power to state as to what the law is and what it means, vests in the superior judiciary. A decision between the parties by the Superior Court creates a right in the successful party for implementation of the decision at the local level through the measures provided by law and rules for implementation of decisions, but in the broader spectrum, this declaration of, law obliges the functionaries of the state to abide by the declared legal position in performance of their functions. The decision of the Supreme Court on a point of law has an overriding effect upon the functionaries and institutions of the State including High Court, as being on the apex of the judiciary and the final arbiter of the controversies.
19. The declaration of law by the High Court has the similar force unless reversed by the Supreme Court for all the functionaries in the State, judicial, quasi-judicial or executive when seized with the similar proposition of law.
20. The jurisdiction with respect to different matters may be regulated and conferred upon different Courts, Tribunals or other judicial authorities howsoever designated under law, who may have the exclusive jurisdiction with respect to those matters, but the settled position under the Constitution remains that the principle of law enunciated by the High Court, subject to c section 42(B) shall be binding upon all the authorities when confronted with the similar principles and propositions of law.
The Lahore High Court in `Iftikhar Ahmed v. The Muslim Commercial Bank Ltd. And another` (PLD 1984 Lah. 69) discussing the scope of Articles 175, 189, 190, 199 and 201 of the Constitution of Pakistan, which with very minor variation of words are similar in nature and spirit to sections 42, 42(A), 42(B), 43, 44 and 44(B) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, has held as follows: "Again, the concept there will be a High Court for each Province has to have its plain meaning, in the absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution embodies the judicial power and also gives the hierarchy of the Courts i,e, a Supreme Court for Pakistan, a High Court for a Province and some other Courts as may be created by the Legislature, 'the such other Courts' must necessarily be inferior to the High Courts.
' It will be seen that there is no mention in the Constitution that the Supreme Court will have any Court subordinate to it, though, according to Article 190, all executive and judicial authorities have to act in its aid and all Courts in the country shall be bound to follow is decision in view of Article
189. As for the High Courts, the Article 202 states that subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it. Article 203 provides that each High Court shall supervise and control all Courts subordinate to it. Article 201 lays down that any decision of a High Court shall to the extent it decides a question of law, or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. The Constitution, however, does not specifically say as to which Courts are subordinate to it. The scheme of the Constitution, however, appears to be that while all the Courts in Pakistan have to follow and also act in aid of the Supreme Court, merely because of its position, the Courts in a Province have to follow the High Court and be bound by its decision as they are subordinate to it. So, the mere fact that there is no express indication in Article 175 of the Constitution that all 'other Courts' to be created by or under law will be the Courts subordinate to the High Court is not at all important.
' The jurisdiction conferred on a High Court by the Constitution under Article 199 also gives a clear cut scope of its authority. It lays down that a High Court may, on an application made by an aggrieved person, direct any person performing within its territorial jurisdiction, functions in connection with the affairs of the Federation or a Province, or a local authority, to do or refrain from doing any act which he is not permitted by law to do. The High Court can likewise declare their actions as without lawful authority. Further, within its territorial jurisdiction, which would include such other area as may be brought within its jurisdiction under Article 192, it can satisfy itself if a person is not being held without lawful authority. Thus, the authority of a High Court extends throughout the Province, in respect of all matters and persons except those expressly taken out of its ambit by the Constitution itself. Reference be made to Article 199(5) which provides for the exclusion of the Courts for the Armed Forces. As a result, the specific mention of 'subordinate Courts and not the other Courts and tribunals, in Articles 202 and 203 only amounts to making sure that the superintendence and control of the High Court shall be confined to the Courts in the Province and not the other authorities there."
21. After discussing the Constitutional and legal position of the declaration of law made by the Superior Courts and responsibility of the State authorities in that behalf, we revert back to test the legality of the impugned Notifications in the spirt of declaration made by the Supreme Court and the High Court in the earlier round of litigation on the subject.
22. For ascertaining the Constitutionality and legality of the impugned notifications the purpose and object intended to be achieved by the notifications has to be taken into consideration and this object has to be ascertained and gathered from the background and conduct of the parties in this behalf.
23. The judgment of the Supreme Court and High Court are clear enough to state that the Government has appointed some persons on ad hoc basis without going through the process of law prescribed for making the ad hoc appointments, while some were appointed not on ad hoc basis, but exempted from appearance before the Public Service Commission under section 22 of the Civil Servants Act. Those appointed in ad hoc basis were bestowed permanency in their service by resorting to the legislation through the Assembly by giving over riding effect to the Regularization Act over all the laws and rules regulating the induction in service, and infect over the Constitution itself. On the Act being struck down, the impugned notifications are issued.
24. Under the Notification No,1, the Public Service Commission is obliged to give due consideration to the experience and departmental training of the candidates while making the selection on the posts and those serving on ad hoc/work charge basis also entitled to relaxation in upper age, which obviously means that those who secured service on ad hoc basis gaining experience and training on the cost of state exchequer, without undergoing the process of law and rules of the State, shall have an edge and upper hand on account of their having gained the training and experience, and notwithstanding their upper age limit, over those who possess the required academic qualification, but have not gained experience and training for not having found favour for appointment on ad hoc basis, and at the same time being debarred from competing for the posts because of having crossed the upper age limit for the service on account of non- advertisement of posts by the Public Service Commission.
25. The judgment of the Supreme Court reported as 1994 CLC 2339 at page 2352 is clear enough that the process of ad hoc appointments had commenced in 1985 and remained in vogue till 16-8- 1992. We would be justified in taking judicial notice of the fact that most of candidates qualified for the post or posts which was/were filled in on ad hoc basis from 1985 till the Regularization Act, without a reference to the Public Service Commissions, would have crossed the upper most limit of the age for induction in service, as the process has been continuing for the ten long years. The minimum age for induction in the gazetted cadre of the Government service for various posts starts from 21 to 24 years and goes up to 28 'to 32 and not more than 35 years in any case, according to the nature of job and qualification of candidates. The Graduates start coming from colleges at the age of 22 to 24 years. The generation which was within the age limit for the posts filled in on ad hoc basis between the years 1985 to 1992 only, which are not advertised by the Public Service Commission till now, is clearly deprived of the right to compete for a post in service of the Government now. Similarly those who gained experience and training on account of their being placed in a favourable position of serving on ad hoc basis, stand the higher chance of selection by the Public Service Commission as against those not so placed. Qualified and brilliant youth other than those serving on ad hoc basis, are discriminated against their own fellow State Subjects with similar qualification. It is a vivid' discrimination and violation of proviso attached to sub-rule (23) of Rules. The focus in every respect in the impugned notification remains revolving around the ad hoc employees, and those equally or better qualified, are excluded from the purview of the notification.
The Notification, thus, does not satisfy the test of reasonableness and requirements of fundamental right of equality before law visualized by Fundamental Right No,
15. The only difference between the impugned Notifications and Regularization Act is in letters and not in spirit. A particular and specific class only is picked and pointed out to be benefited by the Notification. The principle of law declared by the Supreme Court with respect to the Regularization Act, equally applies to the impugned Notification.
26. The relevant passages from the judgment of the Supreme Court in "Azad Jammu and Kashmir Government v. Yunus Tahir" (1994 CLC 2339) may be reproduced here: "In absence of any purpose or policy of the impugned legislation, the question is whether the legislation can pass the dual test, namely, is the classification rational and based on intelligible differentiation making distinct persons who are grouped together from those who are left out? The only known difference between those who have been benefited by the impugned legislation is that they were serving as ad hoc appointees when the impugned law came into force. There is no other discernible difference. It is well-settled that ad hoc appointment does not create any right. This is a proposition which has not been disputed before us. In Dr. Nasim Ahmed v. Secretary, Ministry of Health, Islamabad (1993 PLC (SC) 1516) the appellant served in an ad hoc capacity for about sixteen years after which his services were terminated. The Federal Service Tribunal relying on a judgment of the Supreme Court of Pakistan Zaheer-ud-Din v. Government of the Punjab (1990 SCMR 1506) held that no right was created by the long period of ad hoc appointment. There is no other distinguishing feature and the basis of being an ad hoc appointment is not rational or reasonable. The Regularization Act gives the impression that appointment to Government Service has been treated as a bounty which is violative of rule of law. Rather than achieving any good purpose the statute has destroyed, temporarily, the merit system recognized by laws of the State."
"It may be noticed that the ad hoc appointment under reference do not fulfil another requirement inasmuch as between themselves they are not placed in similar circumstances. As pointed out by Ch. Ijaz Ahmed, Advocate, 88 of them were appointed in the period between 17th of June, 1985 to 29th of June, 1990. It means that some of them have occupied the posts for more than 8 years. On the other hand the record shows that 59 persons were appointed on ad hoc basis from 8th of August to 16th of August, 1992. On 8th August the Legislative Assembly passed the law and on 16th the President accorded his assent. Out of them 29 persons were appointed on 16th August. This shows that the classification is not based on any 'intelligible differentiation which distinguishes persons that are grouped together from others who are left out of the group'. About those who have served for many years it has not been explained as to why they have served on ad hoc basis for such a long time. Were their cases not sent to the Commission or they themselves were able to circumvent this requirement in the hope of more favourable times? There is nothing on record to show that. As for as legal position is concerned it is clear that ad hoc appointment does not confer any right whatsoever irrespective of duration of such an incumbency. Those appointed after the impugned law had been passed by the Assembly are a group of 59 'people. Their appointment creates an impression that they were hurriedly appointed to give them the benefit of the Regularization Act. Even from cold logic of a Court of law this seems to be the purpose of the Regularization Act. In spite of the deference to which the elected members of the Legislative are entitled, this exercise was purposeless and devoid of reasonableness."
27. The argument of the learned Advocate-General that the relaxation of upper age limit for the candidates serving on ad hoc/work charge basis has been accorded in view of judgment of High Court which is upheld by the Supreme Court, is borne out from the judgment of the High Court and the same has been upheld by the Supreme Court. This aspect of the matter shall be kept in view, while giving the direction in the relief part of the order.
28. As for Notification No,2 is concerned, it visualizes two aspects; One, as argued by the learned counsel for the petitioner Chaudhry Muhammad Ibrahim Zia at Bar is that except the post of A.C.
And A.S.P., all of the rest posts have been excluded from being referred to the Public Service Commission or from the purview of the Public Service Commission and thus made discretionary posts. The other aspect of the Notification is that syllabus provided for the test of the posts has been deleted.
29. Be that as it may, the purpose seems not to fill the posts by undergoing the process of testing the merit of candidates for the posts prescribed and provided by law. The true perception of the matter can be had by having resort to the Notification of the Government dated 4-8-1990, the Schedule 'C' whereof, is deleted by the impugned Notification. The Notification dated 4-8-1990, which to the extent relevant here is reproduced as follows alongwith its Schedule: ' No,S&GAD/A-4 (170)/VI-R/90. In exercise of the powers vested in this behalf under Rule 16, of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, the Government is pleased to prescribe the syllabus, procedure, and posts for initial appointment, as per schedules A, B and C respectively."
SCHEDULE "C"
POSTS
(1) Management Group (Assistant Commissioner).
(2) Assistant Superintendent of Police.
(3) Section Officer.
(4) Misc. Non-Technical General Cadre Posts (BPS-17) i,e, Local Government, Food, Cooperative, Industries, Usher and Zakat Departments and other posts included in this schedule by the Government from time to time.
' Note: The appointment to groups 1 to 4 shall be made respectively on the basis of order of merit secured in the test and interview. The principle of district quota shall be regulated by interest merit in person at the top shall got to group 1 and others accordingly. However, the option of a merit holder candidate shall prevail for selection of any cadre of service."
30. A prima facie, study of the above referred Notification of the Government alongwith its Schedule, reveals that all the posts except the post of A.C. And A.S.P. Have been deleted and taken out of the purview of the Public Service Commission alongwith Note appended with Schedule `C`, obliging the appointment to the posts mentioned in Schedule `C` of the above referred Notification, on the basis of merit and District-wise quota or the candidates for those posts are excluded from the criteria of test and evaluation of merit provided for the posts. The Notification referred above is issued under Rule 16 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as Rules). The relevant Rule is reproduced here: "16. Initial appointment to the posts in Grades-16 to 20, except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission, shall be made on the basis of examination or test conducted by the Commission."
31. Rule 16 referred above derives its force from Civil Servants Act, 1977, and the Notification of the Government which carries Schedule `C` derives its force from Rule 16 of the Rules both the above referred rules relate back to sections 48 and 49 of the Interim Constitution Act, 1974, the parent law on the subject establishing the Public Service Commission and providing for the service structure in Azad Kashmir. Thus, the above referred rules are the branches of the Constitutional plant. The scheme of induction in Service, the scope of Public Service Commission, the effect of Public Service Commission Act and Functions Rules on other laws as visualized by sections 48 and 49 of the Interim Constitution Act, from which the above referred Notifications derive force and failure to adhere to the laws referred above has been very lucidly and ably delt with by the Supreme Court in 1994 CLC 2339 referred above in the following manner: "In accordance with the scheme laid down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the rules made under them, if a citizen wants to enter the Civil Services of Azad Jammu and Kashmir in Grade-16 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission holds written and oral tests and on the basis of merit recommendations are formulated. For every post there are hundreds of applicants although they are less in posts of specialised nature, it means that a person's stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliance and hard work prove themselves to be the best among the contestants. This is the plain requirement of the laws which apply to all State subjects but the Regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by operation of law by depriving people like Javed Iqbal Khawaja who is unemployed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existing laws but has been taken away.
' It is legal requirement, as evidenced by section 48 of the Azad Jammu and Kashmir Interim Constitution Act read with Public Service, CommissionAct and with Public Service Commission (Functions) Rules that the merit and suitability of the candidates must be judged by the Public Service Commission. Therefore, this function cannot be performed by any other authority. In the present case this job has been performed by the legislature through the Regularization Act, which declared them 'validly selected' without going through the selection procedure."
It is further held: "Therefore, section 49 under which Civil Servants Act has been enacted is to be read subject to section 48 under which Public Service Commission Act has been enacted. Thus, in case of conflict, Public Service Commission Act including the rules made thereunder, would override the provisions of any statute referable to section 49."
' Again at Page 2370 of the above referred judgment, it is held as follows: "As has been seen the functions prescribed are referable to section 48 of the Interim Constitution Act. In my view when such a provision is made by the Constitution the functions prescribed by the Act of the Assembly have the same force as functions prescribed by the Constitution itself. It follows that it is in pursuance of the command of the Constitution that Public Service Commission performs the functions assigned to it. It is true that by an Act of the Assembly the functions of the Public Service Commission may be changed or enlarged. But once they have been entrusted they are to function under the Constitution."
' While concluding, it is held at Page 2372, as follows:-- "The conclusion which I reach is that any law inconsistent with Public Service Commission Act and Rules made thereunder is not a valid law. Any change in functions of the Public Service Commission can be brought about by amending the Public Service Commission Act and Rules or by amending the interim Constitution Act. Thus, the Regularization Act is invalid on this ground also."
32. Irrespective of the fact whether the impugned Notification takes away the posts from the purview of the Public Service Commission or excludes them from the test and examination on the basis of the syllabus provided by it, the notification has the effect of selection against the posts without undergoing the process of evaluating the merit according to the accepted ethics of selection on merit. When the Notification is tested on the touchstone of above referred declaration of law, it undoubtedly speaks, of its running counter to the law declared by the Supreme Court, thus, expressly violating the provisions of section 42(A) (3) and section 42(B) of the Constitution.
33. Viewed from another angle, the Notification No,1 effects the functions and powers of the Public Service Commission which is vested with the powers to conduct test and examination and advise the President on method of recruitment to the service and posts required to be filled in through the Commission. Section 7 of the Public Service Commission Act, 1986 and Rule 3 of the Public Service Commission (Functions) Rules, 1978 relevant for the purpose are reproduced respectively, as follows: "7. Functions of the Commission: The functions of the Commission shall be:
(a) to conduct tests and examinations for recruitment to the Civil Service 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.'
3. The Commission shall conduct tests and examinations for recruitment to:--
(i) the Civil Service and Civil posts connected with the affairs of the Government falling in Grades- 16 and above, except those specified in Schedule 1;
(ii) such posts in or under a Corporation or other body or organization set up by Government under any law carrying a scale or pay the maximum of which is Rs,2,200 per mensem or above as may be referred to the Commission; and
(iii) any other post which may be referred to the Commission for recruitment by the Government."
34. Under the above referred section and rule, it is the functions of the Public Service Commission to advise the President, as stated above, for regulating the method of recruitment etc. We had for, our satisfaction, called an Affidavit from the Chairman, Public Service Commission as to whether the impugned Notification which has the effect of excluding the posts or effecting the method of recruitment to the posts already required by the rules and law to be filled in after proper test and examination by the Public Service Commission, was advised by the Commission to be issued. The Chairman filed duly attested Affidavit on March 14, 1995 stating: "(1) That the Public Service Commission did not propose, suggest or advise the authority concerned to change, delete or abolish the prescribed syllabus/test for the post of section officer and others.
(2) That the Public Service Commission was not consulted before the issuance of Notification No, S&GAD/A-4(170)/VI-R /90, dated 8th November 1992."
35. The Commission being the Constitutional forum has the power to conduct the test, provide the syllabus for the test and regulate the method of recruitment; the rules and notifications issued by the Government for the by the President. It is an institutional function not the individual or simple purpose have to satisfy the test of advise by the Commission and the approval executive function.
The functionaries of the State which are required to be consulted or on whose advice the action is to be performed by an authority vested with the power under law .Or rule, have to perform the functions in accordance with the requirement of that rule. If the function is performed by transgressing the rule or without complying with the law, it shall lack legality. Same was held in PLD 1978 SC (AJ&K) 37 in the following words: "This is an elementary principle that if an Act or Rule prescribes a particular method of performance of an act the act should be performed according to that method alone or not at all."
36. The argument of the Advocate-General that the notification, Schedule `C' of which is deleted alongwith it proviso, was issued by the Government, hence, the issuance of impugned Notification is equally valid as the same is also issued by the Government, suffer from inherent legal fallacy for the reason that impugned notification makes rule 16 of the Rules, functions of the Commission, all the rules regulating the appointments to the posts deleted from Schedule 'C' and above all, the judgment of the Superior Courts as redundant.
37. In view of what has been discussed above, it is directed and declared that:
(a) In the impugned Notification No,1: the experience and training' shall mean that, earned before ad hoc appointment and, not thereafter; and the upper age limit of all, who are otherwise academically qualified and apply for regular appointment against the post filled in on ad hoc basis, shall be relaxed by the Government to enable them to compete;
(b) The impugned Notification No,2 is found to be void, hence without lawful authority. Status quo antebellum shall prevail.
' The petitioner shall be entitled to Rs,500 as costs of the litigation for each date of hearing of the petition before the High Court.
38. Before concluding, we would like to mention that the purpose sought to be achieved by the law concurrently struck down by the Superior Courts is endured to be perpetuated by the impugned Notifications. After the declaration of the Supreme Court with respect to ad hoc appointments made contrary to law, as illegal, and Regularization Act declaring the ad hoc employees "as validly selected and appointed" as void, no further action of any authority, whatsoever, could bless it validity. All actions in contravention thereof, shall remain without lawful authority and confer no right in anybody whosoever. The concerned authorities are directed to do as declared by the Supreme Court and ordained by sections 42(A) (3) and 42(B) of the Constitution without further ad hocisim. It is proper to be ultimately right, then to be consistently wrong.