1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been preferred against the judgment of the Service Tribunal dated 2-3-1994, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the present appeal are that the appellant, Sh. Manzoor Ahmad, was appointed as Registrar, Service Tribunal in BPS-17 on 1-1-1976. Subsequently, he was approved as Registrar of the Service Tribunal/Sub-Judge on 17-3-1979 and he was appointed as Registrar, Service Tribunal with retrospective effect from 1-1-1976. Thereafter, his services were transferred to Judicial Department and he was appointed as Sub-Judge on 31-3-1981. Respondent No,2, Mrs. Nargis Shaheen, was firstly appointed temporarily as Sub-Judge/Magistrate in leave arrangement on 19-10-1978 but subsequently she was appointed as Sub-Judge/Magistrate against a permanent vacancy on 27-6-1979, subject to the approval by the Public Service Commission. However, the Public Service Commission did not confirm her for one reason or the other and the matter remained pending. Finally, the Government issued Notification NoAdmin./Rules/685-705/89, dated 18-41989, whereby her appointment as Sub-Judge/Magistrate made on 27-6-1979 by the High Court was confirmed retrospectively from the aforesaid date in exercise of powers under section 22 of the Civil Servants Act, 1976. The appellant challenged the aforesaid notification by way of review/appeal before the Government which was dismissed. Consequently, he went up in appeal before the Service Tribunal assailing the impugned notification on the ground that it adversely affected his seniority and as such was violative of relevant law on the subject, especially so on account Of its retrospective operation. He prayed that as he was approved as Sub- Judge/Magistrate by the Public Service Commission earlier than the impugned notification, he might be declared senior to respondent No, 2 who was not at all approved by the Public Service Commission and became senior to him as a result of retrospective operation of the impugned notification. It was also contended that the Government had no power under section 22 of the Civil Servants. Act to pass an order giving it retrospective effect so as to adversely affect the seniority of the appellant. The Service Tribunal, while discussing the scope of the powers of the Government under section 22 of the Civil Servants Act, repelled the said contentions of the appellant and dismissed his appeal. The present appeal has been preferred against the aforesaid order of the Service Tribunal.
3. ' We have heard the arguments and perused the file. It has been contended by Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellant, that the Service Tribunal has erred in holding that the Government had unfettered powers and, thus, the impugned notification which has been given retrospective effect from the year 1979, does not suffer from any legal infirmity. He has contended that an order under section 22 of the Civil Servants Act can only be made if it is 'just and equitable' which implies that it should not operate harshly against another civil servant affecting his seniority adversely. He has further contended that this is settled principle of services law that an ad hoc or temporary appointment does not bestow any right to claim any benefit, including that of seniority against other civil servant who was appointed on regular basis in pursuance of relevant law on the subject. The learned counsel for the appellant has cited various authorities in support of his contention that the impugned notification is not sustainable so far as it adversely affects the seniority .Of the appellant. The said authorities would be adverted to at a later stage of the discussion on the point.
4. ' In reply, the learned counsel for the respondents, Mr. Farooq Hussain Kashmiri, Advocate, has controverted the arguments advanced by the counsel for the appellant and maintained that in view of the circumstances of the present case, the Service Tribunal has rightly held the impugned notification as valid. He has submitted that it was for the Government to refer the case of respondent No,2 to the Public Service Commission for confirmation which, of course, was done but the needful was not done by the Public ,Service Commission on flimsy grounds as is evident from the impugned judgment of the Service Tribunal. He did not controvert the proposition that the appellant was duly confirmed by the appropriate authority much earlier than the impugned notification but all the same he maintained that the notification in question was rightly given retrospective effect in exercise of powers which vested in the Government under section 22 of the Civil Servants Act. The learned counsel also contended that after the issuance of the impugned notification, a seniority list, with the approval of the Government, was issued by the High Court on 6-6-1991 but it has not been challenged in the instant proceedings. Thus, according to him the dispute pertaining to the seniority of the appellant cannot be gone into. He has further maintained that the appellant has challenged the seniority list by way of review petition before the Government which is still awaiting disposal. Thus, according to the learned counsel for the respondents, the appellant may seek the redressal of his grievance, if any, after the disposal of the matter by the Government. The learned counsel for the respondents has further stressed that as the appointment order of the respondent No,2 which was retrospectively operative and the seniority list in pursuance of the impugned notification have not been specifically challenged, the appellant is not entitled to any relief.
5. ' I have given due consideration to the arguments raised at Bar. The first question which arises is as to whether the appellant is debarred from getting any relief in the present appeal because he has not challenged the seniority list which was subsequently prepared in pursuance of the impugned notification dated 18-4-1989 in the present proceedings. It may be stated that the impugned notification dated 18-4-1989 was first challenged by the appellant by way of review/appeal before the Government on 17-6-1989. He prayed in his review petition that he might be declared senior to respondent No,2 but it was rejected by the Government on 21-12-1991. The seniority list in pursuance of the impugned notification dated 18-4-1989 was issued on 6-6-1991 with the approval of the Government; it was communicated to the appellant on 18-7-1991, meaning thereby that the seniority list after the approval of the Government was issued when the review/appeal of the appellant was already sub judice before the Government. Thus, the Government approved the seniority list before the disposal of the review petition of the appellant in which the dispute of the seniority of the parties was involved. Under these circumstances, the appellant was not obliged to challenge the seniority list specifically as the question of his seniority was directly related to the notification which was already subject of challenge. However, as has been admitted by the learned counsel for the respondents during the course of his arguments and was contended by the appellant in his replication, the seniority list dated 6-6-1991 was challenged before the ,Government by way of review/appeal which is still pending and has not been decided. Thus, my considered view is that had the appellant not challenged the seniority list even by way of review before the Government, that could not be fatal to the case of the appellant either before the Service Tribunal or before this Court; because the dispute of the seniority between the appellant and respondent No,2 was already subject of controversy between the parties by way of challenge to the notification. Thus, it cannot be said that the appellant was legally bound to challenge the seniority list or for that matter prefer an appeal to the Service Tribunal against the said list.
6. Therefore, the appellant is not debarred from seeking relief sought in the present proceedings which were already pending before the appropriate forums. As the dispute between the contesting parties was basically with regard to their seniority, it was in the fitness of things to postpone the issuance of seniority list till the question of seniority of the parties to the present proceedings was finally decided. It may be stated that in the seniority list dated 6-6-1991, the respondent No,2 has been shown senior to the appellant and her date of appointment has been given as 27-6-1979 which implies that the regular appointment of respondent No, 2 has been determined in view of the retrospectivity of the impugned notification which was already subject of challenge before the appropriate authorities. It may be noted that in the review petition before the Government against the impugned notification, in the appeal before the Service Tribunal, in the Petition for Leave to Appeal in this Court and in the Concise Statement filed by the appellant, it has been specifically prayed by the appellant that he may be declared senior to respondent No,2. For instance, it would not be out of place to refer the prayer clause of appeal filed in this Court. It is reproduced as under:--- "It is, therefore, earnestly prayed that this Honourable Court be pleased to grant leave to appeal against the impugned Notification Annexure 'B' and judgment of the Service Tribunal dated 2-3- 1994 Annexure and by setting aside the same the petitioner may kindly be declared senior to the respondent No,2 Mrs. Nargis Shaheen."
7. ' Similarly, the perusal of the judgment of the Service Tribunal is indicative of the fact that the point was also agitated before it in clear terms during the course of arguments but it was not adverted to in its true perspective. The relevant observations from the judgment of the Service Tribunal in para. 10 are as under:--- "10 It is again a settled principle of law provided under rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 that the period of ad hoc service cannot be counted towards seniority. Without going into the lengthy arguments both oral and written by the parties it can be held that the appointment of respondent No,2 without the approval of Public Service Commission is to be regarded as ad hoc appointment and ordinarily this ad hoc service cannot be counted towards seniority. But in the instant appeal we have to deal with a different aspect of the case."
8. It is evident from the abovementioned extract that the Service Tribunal does not controvert the proposition that ordinarily the seniority is to be reckoned from the date of regular appointment and not from the date of an ad hoc appointment. But all the same the Tribunal deemed it fit to deal "with a different aspect of the case". There are also written arguments on the file of Service Tribunal which were filed by the parties. The perusal of the said arguments also bears testimony to the fact that the grievance of the appellant was that the impugned notification affected his seniority vis-a- vis the respondent No,2 adversely and he prayed for the redressal of his grievance. However, except the observations reproduced above, the Service Tribunal did not embark on the point as to whether the Government could issue the impugned notification without protecting the seniority of the appellant. In other words, the moot question which was to be determined by the Service Tribunal was not whether the Government could exercise the power vested in it under section 22 of the Civil Servants Act or not, rather the question was as to whether the same powers could be exercised retrospectively, even if it was detrimental to the seniority of the appellant. The Service Tribunal neither dealt with this aspect of the case nor it adverted to the contention of respondent No,2 that as the seniority list issued in pursuance of the impugned notification has not been challenged by the appellant in the present proceedings, the question of seniority cannot be gone into. It is also pertinent that while dealing with the question of powers of the Government which vested in it under section 22 of the Civil Servants Act in Punjab, the Service Tribunal, at page 17 of its judgment, reproduced the observations of the Supreme Court of Pakistan made in case reported as Muhammad Iqbal Khokhar v. The Government of the Punjab (PLD 1991 SC 35), but the question of seniority dealt with in that case which is also in dispute between the parties in the present case was Considered and decided.
9. ' Now, the next point which needs resolution is as to what is the scope of powers of the Government under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules framed thereunder. To be more specific, whether the Government could pass an order under the said provisions giving it a retrospective effect, even if the same adversely affects the seniority of other civil servants. It may be stated that this aspect of the matter has been subject of judicial consideration by the superior Courts of Pakistan in a number of cases. Identical provisions to those contained in section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 also exist in the corresponding service laws which are in force in the Province of the Punjab.
10. ' Thus, it would be expedient to consider some of the authorities which have been relied upon by the learned counsel for the appellant during the course of arguments. A reference may be made to a case reported as Muhammad Iqbal Khokhar v. The Government of the Punjab (PLD 1991 SC 35), while dealing with the scope of identical provisions contained in Punjab Civil Servants Act, 1974 and the rules framed thereunder, it was observed that although the Government had wide powers to make an order regarding the terms and conditions of civil servants, irrespective of the provisions of the Act and rules, but these powers are subject to one important condition, namely, that the order must be 'just and equitable' and not arbitrary. The question as to whether an order which adversely affects the seniority of another civil servant, would be 'equitable and just' within the relevant provisions of law. While dealing with the question, Mr. Justice Shafiur Rahman made the following observations in Iqbal Khokhar's case, referred to above:--- "13. The only question that remains to be examined is whether the power possessed by the Governor under section 22 of the Punjab Civil Servants Act, to which the provisions in the Rules on the same subject are subordinate, justify the conferment of seniority retrospectively in a manner to violate the provision of Rule 8(1)(a) of the Appointment Rules and 15(1)(a) of the Service Rules of 1967 in a manner to prejudicially and adversely affect the vested right of the appellants and many others. The dispensation under section 22 of the Punjab Civil Servants Act is individual and is limited and controlled by a proviso which establishes the supremacy of the Act and the Rules. The relaxation can be beneficial to the civil servant without being prejudicial to anyone else even to the civil servant who is granted relaxation or exemption. On that principle the impugned Order of the Governor is ultra vires section 22 of the Punjab Civil Servants Act in so far as it grants the respondent No, 2, seniority for the periods 21-10-1969 to 26-2-1975 and refixes the seniority accordingly. The allowance to an Officer the benefit of his Army service towards pay and pension and relaxation of five years service in the Department as Assistant Engineer for promotion to the post of Executive Engineer do not by themselves prejudicially affect anyone, and are therefore, not in, violation of the law but in relaxation of it. Therefore, they are declared to that extent to be valid and proper."
11. ' Another learned member of the Bench, Mr. Justice Rustom S. Sidhwa, while dealing with the proposition, made the following observations at page 52:--- " The grant of seniority or promotion under section 22, unless it meets the strict test of being just and fair, can only be a colourable violation of the law under the guise of its exercise, which cannot be permitted. Discretion, even where outwardly appearing as absolute, will always be treated as qualified by the terms and spirit of the provision in which it occurs and by the object of the law. See Federation of Pakistan v. Muhammad Saifullah Khan PLD 1959 SC 166, where the President of Pakistan's exercise of discretionary powers under Article 58 (2)(b) of the Constitution were struck down for violating the terms and spirit of that Article. The order of the learned Governor in the instant case not only violates the law declared by this Court, which strikes down retrospective regulation, but directly contravenes Rule 8 of the 1967 and 1974 Rules and adversely affects the seniority and right of promotion of the 1974 batch of direct inductees and I would, therefore, with profound respect to the learned Governor, declare that the same deserves to be set aside."
12. ' In case reported as Mian Shafiuddin, Deputy Director v. Surat Khan Marri, Director, Regional Information Office, Islamabad (1991 SCMR 2216), it was observed that regularisation of seniority cannot be ordered if it affects the seniority of other civil servants.
13. ' In case reported as Ghulam Sarwar v. Province of Punjab (1982 SCMR 46), it was observed that an ad hoc appointee does not get the status of a regular appointment merely by efflux of time.
14. ' In Mimi Muhammad Afzal v. Government of the Punjab (1982 SCMR 408), dealing with the question of seniority in case of an ad hoc appointee, it was observed as under:--- "We propose taking up the question of the nature and effect of ad hoc appointment first because it is common to the first three appellants and to some of the respondents. Their appointments as Assistant Engineers were expressed to be ad hoc, temporary, not conferring any right to seniority etc. The word 'ad hoc' has the dictionary meaning of `for a particular object'. The object as appearing from the appointment of the appellants as well as that of some of the respondents was that their appointments were made and were to last only as long as regular appointments in accordance with the prescribed Rules were not made. The moment the regular appointments in accordance with the procedure prescribed were made, such appointments were to terminate. Ad hoc appointments truly so called being not in accordance with the Rules applicable to the service cannot receive either recognition or protection by reference to any of the Rules because they do not imply appointments to the service as such. Such appointments being outside the purview of the rules cannot for any purpose be treated as conferring a benefit under the Rules. It follows that if the appellants and some of the respondents were truly ad hoc appointees for a certain period they cannot on the basis of Rules claim their seniority from that date whether it was continuous or not."
15. ' In Saif-ud-Din v. Secretary to Government of the Punjab 1982 SCMR 877, it was observed that an ad hoc appointment does not confer any right to the seniority from the date of such appointment.
16. ' In case reported as Saifuddin v. Secretary to Government of the Punjab (1982 SCMR 877), it was again held that an employee shall not be entitled to claim seniority from the date of his ad hoc appointment; his seniority is to be reckoned from the date of his regular appointment.
17. ' Identical view was expressed in two unreported cases of this Court entitled Muhammad Fazal Khan v. Muhammad Muskeen (Civil Appeal No,6 of 1994 decided on 8-5-1994 (1994 PLC (C.S.) 1207) and Ghulam Mustafa Qureshi v. Azad Government (Civil Appeal No, 35 of 1993 decided on 5-11- 1993) (1994 PLC (C.S.) 1078).
18. ' As stated earlier, even the Service Tribunal has expressed the view that seniority of a civil servant will be normally reckoned from the date of regular service, as is evident from the extract from the judgment of the Service Tribunal reproduced in the earlier part of the judgment. However, it appears that the Service Tribunal entertained the belief that powers available to the Government under section 22 of the Civil Servants Act are exercisable even when the seniority of other civil servant is adversely affected. But the law laid down by the superior Courts of Pakistan, as indicated above, is that the residuary powers under section 22 of the Civil Servants Act cannot be said to have been exercised 'justly and equitably' if the same have been exercised in a way which is detrimental to the interests of another civil servant, as has been clearly held in Iqbal Khokhar's case, referred to above. The residuary powers available under section 22 of the Civil Servants Act are to be sparingly exercised to advance the cause of justice and equity and not give an undue advantage to a civil servant in contravention of relevant law on the subject.
19. ' In the light of what has been stated above, I accept the appeal in terms that notification No, Admin./Rules/685-705/89, dated 18-4-1989 is ineffective and inoperative so far as it adversely affects the seniority of the appellant in relation to respondent No,
2. The seniority list dated 6-6-1991 shall be amended and the appellant shall be shown senior to respondent No, 2.
20. ' BASHARAT AHMAD SHAIKH, J.---My reading of the record shows that the main question which was to be determined by the Service Tribunal was whether the Government could appoint respondent No, 2, Mrs. Nargis Shaheen, as a Sub-Judge on regular basis without being selected in an open competition conducted by the Public Service Commission. This point was raised before the Service Tribunal and has been raised before us with equal vehemence. It is true that the point that impugned order had adversely affected the seniority of the appellant, Shaikh Manzoor Ahmad, was also raised and a related prayer was also made but this was in addition to the main point mentioned earlier: It way urged to show that the appellant was aggrieved by the impugned Government Order and as an alternative prayer. I would refer to the record of the case in this connection.
21. ' The impugned Government Order was issued on 18th of April, 1989. By this order the respondent was appointed as Sub-Judge/Magistrate on permanent basis with effect from 27th June, 1979 in exercise of powers under section 22 of the Civil Servants Act. The appellant filed a review petition against this order on 17th of June, 1989 and when it was rejected on 21st of December, 1991 he filed an appeal before the Service Tribunal on 20th January, 1992. In the heading of the appeal it is clearly stated that the appeal was being filed against Notification dated 18th of April, 1989 and Notification of 21st December, 1991. The prayer clause of the appeal was as follows:- "It is, therefore, prayed that the impugned Notification NoAdmin/Reg/685-705/89, dated 18-4-1989 (Annexure 'A') and No, Admin./A-1(41)/Appeals/S.O. 11-9, dated 21-12-1991 (Annexure 'C') may kindly be declared void, illegal, against law, facts and principles of natural justice against the rights of the appellant and the appellant declared senior to respondent No, 2, Mrs. Nargis Shaheen in the cadre of Sub-Judge. The appellant may also be granted any other relief which this Hon'ble Tribunal may deem fit."
22. ' The prayer was not that the order may be modified or amended so as to protect the seniority of the appellant, but the prayer was that the impugned Notification may be declared void, illegal, against law and against the rights of the appellant. The prayer that the appellant may be declared senior to respondent No, 2 was distinct and separate from the prayer mentioned above.
23. ' In paragraph 8 grounds of appeal were enumerated from clauses (a) to (k). The paragraph opens with these wqrds:-- "8. That the impugned Notification No, Admin/Reg/685-705, dated 18-4-1989 (Annexure 'A') and No, Admin./A-1(41)/Appeals/S.O. II-89, dated 21-12-1991 (Annexure 'C') are void, illegal, against the facts, law and natural justice inter alia on the following grounds:--
(a) that the appointment of respondent No, 2 is against the Appointment and Conditions of Service Rules, 1977.
(b) that the AJK High Court had no powers to appoint SubJudge/Magistrate.
(c) if for the sake of arguments it is presumed that the AJK High Court had the powers to appoint Sub-Judge yet the appointment order issued by High Court under No, 6229-30 of 27-6-1979 was subject to approval of P.S.C. Copy of the said order is enclosed for ready reference.
(d) that respondent No, 2 did not appear before the P.S.C. Despite the fact that P.S.C. Held 4/5 examinations, interviews during the period 27-6-1979 to 18-4-1989.
(e) that the case of respondent No, 2, Mrs. Nargis Shaheen is not covered under section 22 of Civil Servants Act, 1976.
(f) that the Civil Servants Act, 1976 does not confer any right, whatsoever, to the ad hoc appointee.
(g) that it is admitted law that the earlier selectee ranks senior to the later selectee.
(h) that if at all respondent No, 1 was bent upon to give benefit of section 22 of Civil Servants Act to respondent No, 2, the impugned order Annexure 'A' should have been given effect from the date of issue and not with retrospective effect.
(i) that impugned order Annexure 'A' having been given retrospective effect the vested service rights of the appellant have been marred by the respondent and the appellant will suffer a lot.
(j) that despite of written request in the review petition (Annexure respondent No, 1 did not provide an opportunity of being heard. So the appellant has been condemned unheard.
(k) that other grounds will be submitted at the stage of arguments."
24. ' In rounds (a), (b), (c), (d), (e) and (f) the challenge was to the very appointment of respondent. In ground (e) it was specifically stated that the case was not covered by section 22 (supra). Ground
(h) shows that the prayer about seniority was purely alternative in nature. Ground (i) shows that appellant was aggrieved by the fact that the respondent would become senior to him.
25. ' Written arguments were submitted in the case which form part of the Service Tribunal file. The prayer at the end of the written arguments is as follows:-- {{URDU TEXT}} ' In the written arguments at page 5 it was urged that the respondent was an ad hoc appointee and therefore no order under section 22 of the Civil Servants Act could be passed in her favour because under that section only a person who is a permanent civil servant can be given any benefit. It was also stated that under the Civil Servants Act "ad hoc appointee" and "civil servant" had been separately defined and it was therefore urged that ad hoc appointment was no appointment in the eye of law. This was stated in support of the submission that order under section 22 could not be passed in favour of an ad hoc appointee. It was again stated in paragraph 6 of the arguments that section 22 (supra) only applied to civil servant who had been appointed on regular basis.
26. ' In its judgment the Service Tribunal has in para. 16 noted that it was urged before it that an order under section 22 could not be passed in favour of the respondent. The reason recorded in support of this contention was that the respondent was not a civil servant while section 22 only refers to a civil servant. This argument was repelled by the Tribunal holding that it was not possible "to declare that Mrs. Nargis Shaheen was not a civil servant when her ad hoc appointment was converted into permanent appointment", but it is beyond doubt that the appellant was clearly asking that the Government Notification may be set aside as a whole.
27. ' In the petition for leave to appeal filed in this Court the prayer was to the following effect:-- "It is, therefore, earnestly prayed that this Honourable Court be pleased to grant leave to appeal against the impugned Notification Annexure 'B' and judgment of the Service Tribunal dated 2-3- 1994 Annexure 'F and by setting aside the same the petitioner may kindly be declared senior to the respondent No,2 Mrs. Nargis Shaheen."
28. ' Thus the main prayer was that Government Notification may be set aside and thereafter the appellant may be declared senior. A specific point was included in the grounds of appeal that an ad hoc appointee was not a civil servant and that, therefore, the power under section 22 could not be exercised in favour of the respondent. The question of adverse effect on the seniority of the appellant was also urged.
29. ' In the arguments before this Court, on behalf of the appellant, it was primarily argued that the impugned Government Notification dated 18th April, 1989 and 21st of December, 1991 may be set aside as a whole. Mr. M. Tabassum Aftab Alvi, Advocate, who appeared on behalf of the appellant, urged that section 22 of the Civil Servants Act did not authorise the Government to pass the impugned Notification dated 18th April, 1989. He urged that the respondent was not a civil servant within the meaning of section 22. The argument that an ad hoc appointee is not a civil servant has been repelled by the Service Tribunal but it has become clear that the appellant has all along been endeavouring to have the impugned Government Notifications vacated as a whole, apart from making other prayers.
30. ' In five appeals recently decided by this Court filed by Azad Government and others v. Yunus Tahir and others" this Court examined section 22 of the Civil Servants Act with some detail. The opinion which I formed in that case did not find favour with the other Honourable member of the Bench, the learned Chief Justice. My conclusions were that:---
(i) power to exempt a person from the requirements of the Public Service Commission Act do not low from section 22; and
(ii) if any person, as distinct from a post, has to be exempted from the requirements of appointment through Public Service Commission it can be done by amending the Public Service Commission Act and not otherwise. I may now quote from the abovementioned judgment so as to show the reasons which led me to these conclusions:- "As pointed out by Ch. Muhammad Ibrahim Zia section 49 of the Interim Constitution Act opens with the words "Subject to this Act" which means that a law framed in respect of the appointment and conditions of service will have effect subject to other provisions of the Constitution Act. Section 48 which provides for the setting up of the Public Service Commission is free from any such embargo which implies that in case of conflict a law made under section 48 has to override the law made under section 49. The judgment of this Court in Ghiasul Haq's case is instructive on this point. In that case a similar question arose about the conflict between section 47, by virtue of which Service Tribunal has been set up, and section 44, which confers writ jurisdiction on the High Court.
31. Section 44(2) opens with the words "Subject to this Act" just as section 49 does. After analysing the constitutional provisions and pronouncement of the Supreme Court of Pakistan in Muhammad Khan v. Border Allotment Committee QPLD 1965 SC 623) it was held that a law made under section 47 setting up a Service Tribunal could oust the writ jurisdiction of the High Court granted to it under section 44. I may reproduce a small portion of the judgment:--- "...Again subsection (2) on the one hand confers jurisdiction on the High Court and on the other places restraints and embargoes on the exercise thereof. The opening words of subsection (2) viz. 'subject to this Act' in their ordinary sense, in the English language are not susceptible of more than one meaning, nor the Legislature can be attributed to have expressed its intention in its slovenly manner. The words are plain and intention is clear. They mean nothing more nothing less than that whatever jurisdiction has been conferred on the High Court under subsection (2) which is exercisable subject to the other provision of the Act, meaning thereby that if there is an express provision elsewhere in the Constitution Act which ousts the jurisdiction of the High Court with regard to any particular subject-matter, the general jurisdiction of the High Court conferred by subsection (2) stands ousted to that extent. In Muhammad Khan v. The Border Allotment Committee (PLD 1965 SC 623) Kaikaus, J. Observed that 'the words 'subject to this Constitution' in Article 98 (2), means that the jurisdiction provided for in Article 98 (2), can be exercised except where the Constitution itself creates a bar'."
32. ' 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.
33. There is another reason which is equally weighty in my estimation. Section 48 of the Interim Constitution Act requires that there shall be a Public Service Commission which shall perform such functions as may be prescribed. "Prescribed" has been defined to mean "prescribed by law or rules made thereunder". In pursuance of this provision Azad Jammu and Kashmir Public Service Commissions Act was enacted. It is provided in section 7 of the aforesaid Act that:--- "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 to be made under section 11;
(b) xxxx xxxx xxxx
(c) xxx xxxx xxxx ' Rules framed under section 11 are known as the Azad Jammu and Kashmir Public Service Commission (Functions) Rules. Relevant to the issue is the following portion of Rule 3:- "3. The Commission shall conduct "tests and examinations for recruitment to:---
(i) the civil services and civil posts connected with the affairs of the Government falling in Grade 16 and above, except those specified in Schedule I;
(ii) xxx xxx xxxx
(iii) xxx xxx xxxx ' In schedule are mentioned the posts generally known as the discretionary posts, e.g. Private Secretaries, Personal Assistants, Public Relation Officers, attached with the President, Prime Minister, Ministers and other high functionaries.
34. ' 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. A similar example can be found in section 47 of the Interim Constitution Act under which the Service Tribunal has been set up. Section 47, inter alia, prescribes that Administrative Tribunals may be set up in respect of matters relating to the terms and conditions of the persons who are or have been in service including the disciplinary matters. The Constitution itself does not lay down that if and when a Tribunal is set up, what terms and conditions of service should be given in the jurisdiction of that Tribunal. This has been left for the Legislative Assembly to decide but once it is done subsection (2) of section 47 takes effect. It lays down that "notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1) no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (underlining is mine)".
35. ' What matter has to be brought within the purview of the Administrative Court or Tribunal is not specified in the Constitution and is left to the legislature. But once that has been done all other Courts have been forbidden to entertain any proceeding in respect thereof. This bar extends to even the High Court which has been set up by Constitution itself and has been given additional and wide powers under section 44. From a long chain of judgments it has now become settled that once a matter has been given in the jurisdiction of such a Tribunal the jurisdiction even of the High Court is barred. To take an example, the law made by the Assembly may provide that appeal would lie to the Service Tribunal only against major penalties. When this law is made the High Court will be competent to entertain a writ petition in respect of minor penalties. After some time the law is amended and appeal against minor penalties is also provided before the Service Tribunal. The amendment in law would oust the jurisdiction of the High Court without amending section 44.
36. Similar is the case of. Public Service Commission Act made in pursuance of section 48. The law relating to the Services under section 49 is not such a law because it lays down that the appointment of persons to and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law. It permits making of a law and enacts nothing itself unlike section 48 which carries a command that a law shall be made and the Commission must be assigned some functions.
37. ' Let us take the case of Civil Servants Act. Civil Servants Act does not in any way lay down that appointment to the service of Azad Jammu and Kashmir shall be made through Public Service Commission Act on the basis of merit. It only says that appointment may be made in the prescribed manner. However, there are rules made in pursuance of Civil Servants Act, known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules 1977. In rule 16 it is laid down that initial appointment to the posts in Grade-16 and above 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. This rule reflects the law laid down in the Public Service Commission Act and the Rules made thereunder. It, 'therefore, shows that this rule implements a provision of the Public Service Commission Act, but if tomorrow a law is made that in pursuance of the Public Service Commission Act initial appointments to posts in Grade-11 and above shall be made on the basis of the tests and examination held by the Commission there will be a conflict between rule 16 and the Public Service Commission (Functions) Rules. The question then would be which will prevail? The only answer to this question is that rule 16 will become unenforceable and will have to be treated as non-existent to the extent of inconsistency and the rules made under the Public Service Commission Act shall prevail and there shall be no initial recruitment in Grade 11 and above in Azad Jammu and Kashmir except on the basis of the examination or tests conducted by the Public Service Commission.
38. Therefore, I have formed the view that the High Court was right in holding that the Regularisation Act is bad on account of the fact that it violates the Public Servie Commission Act.
39. ' Mr. S.M. Zafar pointed out to us that it is provided in the Public Service Commission (Functions)
40. Rules that posts in Grade 16 and above shall be filled up through Public Service Commission but rule 3 of the Public Service Commission (Functions) Rules itself exempts the posts mentioned in Schedule I from the purview of the Public Service Commission. This is true. I do no want to express any opinion about vires of this exemption because it is not disputed before us. But as it is ' I may point out firstly that what is specified in schedule is a category of posts and not persons while the Regularisation Act relates to the persons and not posts. Apart from that if a change has to be brought about in the purview of the functions of the Public Service Commission it can only be done by amendment of that Act and that also within the permissible limits of equality clause. Any other law would be as good or bad as the Civil Servants Act itself which has to make room and surrender when it comes in conflict with the Public Service Commission Act. Second observation which I want to make is that the posts mentioned in the schedule are posts attached with the President, Prime Minister, etc. And the provision about them made in the Azad Jammu and Kashmir Discretionary Posts (Recruitment, Rules, 1983 is that incumbents cease to hold office when the President, Prime Minister and Ministers vacate office. These are pleasures posts with no right to earn pension etc. ' 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 Regularisation Act is invalid on this ground also."
41. ' And then at another place I wrote:-- "I have already taken the view in this judgment that the provision of Public Service Commission Act and its rules override the provisions of Civil Servants Act. I have also formed the view that if any person, as distinct from a post, has to be exempted from the requirements of appointment through Public Service Commission it can only be done by amending the Public Service Commission Act and not otherwise. In this view of the matter it is clear that section 22 of the Civil Servants Act is not available for exempting a person from appearance before the Public Service Commission. Apart from that the phraseology of section 22 itself is so worded that the power to appoint a person on regular basis does not flow from it. Section 22 reads as follows:--- "22. Saving.---Nothing in this Act or in any 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.......... (omitted)...... "
42. ' 1 By providing that 'Nothing in this Act or in any rules' the legislature has restricted the use of section 22 within the four corners of the Civil Servants Act while recruitment through Public Service Commission is the requirement of section 48 of the Interim Constitution Act read with Public Service Commission Act and the rules made thereunder. Section 22 does not extend to any law other than the Civil Servants Act. Therefore the order of the Government passed in favour of Miss Shamaila Mahmood was invalid whether she was a civil servant or not. It is, therefore, not necessary in this case to decide whether the High Court was correct in holding that ad hoc appointee is not a civil servant. This question is left open."
43. I reiterate my view as reproduced above. To sum up, law of the land is that posts in Grade 16 and above (except discretionary posts) can be filled up on regular basis only in light of the merit determined by the Public Service Commission through an open competition. In my view this requirement cannot be waived, exempted or departed from in any circumstances. So far as section 22 of the Civil Servants Act is concerned it cannot override the Public Service Commission Act. Even its phraseology does not say that it overrides any other law. Section 22 only overrides the earlier provisions of the Civil Servants Act. It authorises the Government to grant pension, leave, posting, retirement etc. To which a civil servant is not otherwise entitled, provided equity and justice so require.
44. ' The Service Tribunal has relied on two judgments of this Court and that of the Supreme Court of Pakistan. From the judgment of Muhammad Iqbal Khokhar v. Government of Punjab (PLD 1991 SC 35) the Service Tribunal has reproduced para 7 which deals with the nature of powers vested in the Government. The underlined part of the reproduced portion would show that the Service Tribunal did not draw correct conclusion from that judgment:-- "The words 'nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any Civil Servant' in section 22 of the Act only show that when dealing with the case of any person the learned Governor can operate in an uninterrupted field, so that any limitation or abridgement provided by any section of the Act or by any rule would not stand in his way to do complete justice.
45. (Underlining is mine)
46. ' It may also be pointed out that in Muhammad Iqbal Khokhar's case the civil servant whose dispute was taken to that Court had duly qualified the Public Service Commission but was given ante-dated seniority which was set aside by the Supreme Court of Pakistan as being ultra vires of section 22 of the Punjab Civil Servants Act.
47. ' The judgment from Azad Jammu and Kashmir jurisdiction, which has been mentioned by the Service Tribunal as judgment in Civil Appeals Nos. 37, 38, 39 and 40 of 1988, it was observed as an obiter dicta that "section 22 of the Civil Servants Act, 1976 envisages that provisions contained in the Civil Servants Act or any other law for the time being in force do not abridge the powers of the Government to pass an equitable and just order". The portion of the judgment, which has been underlined by me, in my humble opinion is not borne out by the phraseology of section 22 and in light of the foregoing analysis of the relevant provision of law I respectfully differ with these observations.
48. It follows that the appointment of respondent No,2, Mrs. Nargis Shaheen, on regular basis without determination of merit by the Public Service Commission was illegal. Thus the Service Tribunal erred in dismissing the appeal filed by Shaikh Manzoor Ahmad. Consequently, Government Notification NoAdmin/Reg/685-705, dated 18th of April, 1989, Notification No, Admin/A- 1(41)/Appeals /S.O.II-9, dated 21st December, 1991 as well as the order of the Service Tribunal passed on 2nd March, 1994 areset aside.
49. ' It may be clarified that this order will not debar Mrs. Nargis Shaheen to act as an ad hoc appointee if she is otherwise entitled to do so.
50. ' I agree with my learned brother Mr. Justice Basharat Ahmad Shaikh.
51. Ad hoc JUDGE.
52. COURT ORDER ' In accordance with the opinion of the majority, by accepting the appeal, the order of the Service Tribunal dated 2nd March, 1994 is vacated and the Government Notifications dated 18th of April, 1989 and 21st of December, 1991 are set aside. However, it may be clarified that this order will not debar Mrs. Nargis Shaheen to act as an ad hoc appointee if she is otherwise entitled to do so.