' BASHARAT AHMAD SHAIKH, J.---Respondent Javed Iqbal Khawaja filed a writ petition in the High Court in which he challenged two notifications issued by the Azad Government of the State of Jammu and Kashmir on 8th of November, 1994. Through one of them, the Government notified its decision that while making selection for filling up posts the Public Service Commission shall give due consideration to experience and departmental training to the candidates. By the same notification upper age limit was relaxed for candidates who may have served on ad hoc or work charge basis. Through the other notifi cation, certain portions of an earlier notification issued on 4th of August, 1990 regarding syllabus etc. Of certain posts was amended. Vide order pronounced on 27th of March, 1995 a Division Bench of the High Court accepted the writ petition in the following terms:-
(a) In the impugned Notification Nos.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."
2. The Azad Government of the State of Jammu and Kashmir has challenged the judgment of the High Court by an appeal filed with leave of the Court. The Public Service Commission is shown as a proforma-respondent in the appeal. However, the Commission has not put in appearance.
3. We have briefly referred to the notifications which were impugned before the High Court.
However, it is useful to reproduce the exact phraseology. One of the notifications has been, for the sake of brevity, referred to in the judgment of the High Court as Notification No,1. The other one has been similarly referred to as Notification No,2. Both these references were adopted during the arguments. We would also for the sake of convenience refer to them in the like manner. Notification No,1 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 and departmental training of the candidates:
(ii) The upper age limit in case of candidates who have served as on ad hoc/work charge basis to the extent of their services rendered as such shall be relaxed."
' Notification No,2 runs as under:- '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."
' Since by Notification No,2 amendment has been made in Notification of 4th of August, 1990 it is necessary to see what the previous notification was. It is placed at page 27 of the High Court file and it has three schedules attached to it:-- "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.
2. Any Rules or instructions issued from time to time to regulate the initial appointment to the posts shall stand superseded to the extent indicated by this notification.
3. No person shall be appointed to the service by initial recruitment who is below 21 years or above 28 years of age.
4. These rules shall be applicable to the posts to be advertised after the enforcement of this notification. (omitted)
' SCHEDULE 'A' SYLLABUS (Written Tests). {{TABLE}} SCHEDULE 'B'
PROCEDURE Pass percentage in Aggregate Viva Voce Each Subject Marks 55% 45% .50% SCHEDULE 'C'
POSTS Management Group (Assistant Commissioner).
Assistant Superintendent of Police. Section Officer.
Misc. Non-Technical General Cadre Posts (BPS-17), i,e,, Local Government, Food, Cooperatives, Industries, Usher and Zakat Departments and other posts included in this schedule by the Government from time to time. {{TABLE}} ' Note.--The to Groups 1 to 4 shall be made respectively on the basis o order of merit secured in the test and interview. The principle of district quota shall be regulated by inter se merit in person at the top shall go to Group 1 and others accordingly, however, the option of a merit holder candidate shall prevail for selection of any cadre of service."
4. 'Notification No,2 as well as the Notification of 4th of August, 1990 which has been amended by Notification No,2, were issued, as claimed in exercise of powers vested in the Government under rule 16 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules 1997, it is useful to reproduce that rule also:-- "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."
5. While there is no serious dispute about the effects of Notification No,1, the parties are at variance as to the effects of Notification No,2. The plea of Javed Iqbal Khawaja respondent before tis, is that by Notification No,2 posts mentioned in serial Nos.3 and 4 of Schedule 'C' of Notification of 4th of August, 1990, namely the posts of Sections Officers and Miscellaneous Non-Technical General Cadre Posts (BPS-17) in the Department of Local Government; Food Department etc. Stand deleted from the purview of the Public Service Commission with the result that posts will be filled up without reference to the Commission. This interpretation has been accepted in the judgment under appeal.
However, it is vehemently contended on behalf of the Azad Government that the foregoing conclusion is based on wrong construction of the aforesaid notification. It is submitted that the only effect of the Notification No,2 is that syllabus prescribed in Schedule 'A' of Notification of 4th of August, 1990 will cease to be applicable to posts deleted from the Notification of 4th of August. It is claimed that as a consequence, the posts of section officers and BPS-17 in the Local Government Food Department etc. Mentioned above will be filled up without a written examination by the Commission.
6. Apart from recording other reasons, the High Court has accepted the contention of respondent Javed Iqbal Khawaja that by issuing the impugned notifications the Governments violated and acted in derogation of two judgments of this Court which the Government was bound by the Constitution to implement and obey in letter and spirit. One judgment in respect of which the High Court has found that violation has been committed is judgment of this Court in Azad Government v. Muhammad Yunus Tahir [1994 S.C.R. 341 P.S.C. 1198). By that judgment five appeals were disposed of. In all of them Javed Iqbal Khawaja, the present respondent, was one of the respondents. The facts may be briefly stated. An Act known as The Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointments) Act, 1992" was enacted by the Legislative Assembly and persons holding posts on ad hoc basis as well as the persons holding discretionary posts immediately before the coming into force of the said Act were declared to be regularly appointed.
Vires of the aforesaid Act were challenged in different writ petitions. One of them was filed by Muhammad Yunus Tahir while another was filed by Javed Iqbal Khawaja, respondent herein. The writ petitions were accepted and this Court dismissed the appeals filed against the judgment of the High Court by the judgment mentioned above. This Court held that the impugned Act was violative of Fundamental Right No,15 (Equality of State Subjects). The other judgment on which reliance has been placed by the learned Judges of the High Court is reported as Sh. Manzoor Ahmad v. Azad Government (1995 P.S.C. 133 = 1994 S.C.R. 297) wherein it was held that a post cannot be taken out of the purview of the Public Service Commission except by amending the Azad Jammu and Kashmir Public Service Commission Act and that section 22 of the Civil Servants Act could not be pressed into service for exempting a person from the operation of the Public Service Commission Act.
7. It appears appropriate that I first advert with necessary detail to the grounds on which Notification No,1 has been modified as noted above and Notification No, 2 has been declared void.
8. After a detailed analysis of the relevant Constitutional provisions and citing various judgments from Pakistan and Indian jurisdiction the High Court has taken the view that although a point of law declared by the Supreme Court is a decision between the parties before that Court but it has the effect of being a declaration of law for executive and judicial authorities of the State who are bound to abide by the declared proposition in performance of their functions. For ascertaining the legality of the impugned notifications the High Court adverted to the object to be achieved by the impugned notification and reached the conclusion that the two notifications had been issued to benefit the same set of persons against whom this Court had held in cases of Yunus Tahir and Sh.
Manzoor Ahmad that they did not form such a class that they could be treated differently from other persons. The High Court held that preferential treatment in respect of the group of ad hoc appointees mentioned in Yunus Tahir's case violated Fundamental Right No,15 (Equality of State Subjects) but the two notifications challenged before the High Court again treated the same persons differently from others by providing that they would be given credit for their experience as ad hoc appointees and departmental training imparted to them during that period and also by relaxation of upper age limit. It was further held that the deletion of syllabus mentioned above had the effect of bypassing the process of evaluation on merit. In this respect reference was made to those parts of Yunus Tahir's case in which it was held that merit and suitability of the candidate must be judged by the Public Service Commission so that only those persons are recommended for appointment to Government jobs who, on account of their qualification, brilliance etc., prove to be best amongst the contestants.
9. The High Court reached the conclusion that while issuing notification No,1. (providing for weightage to past experiences service and upper age limit) the Public Service Commission was not consulted and thus section 7 of the Public Service Commission Act and Rule 3 of Public Service Commission (Functions) Rules, 1978 were violated. Section 7 of the Act inter alia, lays down that it is one of the functions of the Public Service Commission to advise the President on matters of qualifications for and method of recruitment to, the services and posts referred to in clause (a).
Rule 3 which lays down that Commission shall conduct tests and examinations for recruitment to posts in Grade-16 and above. It was held that the Commission had the power to conduct tests and provide syllabus for the tests and regulate method for recruitment. However, this requirement had been violated. This factor was found to be a ground for invalidity of Notification No,1.
10. Arguing on behalf of the Government Raja Muhammad Hanif contended that the Government had not violated or circumvented the judgments of this Court. He maintained that by issuing the notifications the Government had exercised its power for which there was no prohibition in the previous judgments of this Court. He vehemently contended that it was not correct that the notifications had been issued to benefit the ad hoc appointees who are covered by judgment in Yunus Tahir's case. Explaining the point of view of the Government he submitted that while asking the Public Service Commission to give "due consideration" to experience and training of the candidates the reference was not to ad hoc appointees but was a provision which was general in nature under which every person could be given consideration by the Public Service Commission.
The council did not deny that ad hoc appointees also fell in the category of persons who could be benefited by the said Notification. Raja Muhammad Hanif Khan also submitted that what was due was not specified in Notification but was left for the consideration of the Public Service Commission. It was also contended that law had not given the authority to the Public Service Commission to decide when to hold tests and when, to hold an examination. He canvassed the proposition that section 23 of the Civil Servants Act, by conferring rule making power on the Government for carrying out purposes of the Civil Servants Act, gave sufficient authority to the Government to legislate on matters which fell within purview of the Public Service Commission Act.
It was contended by him that rules made under section 23 of the Civil Servants Act and the Provisions of Public Service Commission Act must be interpreted harmoniously so that none of them is rendered redundant.
11. Dealing with the finding in 'respect of the view taken by the High Court that clause (b) of section 7 of the Public Service Commission Act has been violated it was submitted by the learned counsel that the provision is directory and not mandatory. He also submitted that it was not mandatory for the Commission to hold written as well as oral examination for filling up every post. He submitted that words "and" and "or" are inter changeable. It is provided in the Public Service Commission Act and the Public Service Commission (Functions) Rules that Public Service Commission shall hold tests and examinations while it is provided in rule 16 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules that specified posts shall be filled up on the basis of examinations or tests conducted by the Commission. It was contention of the learned counsel that in rule 16 supra use of word "or" instead of word "and" between the words "examinations" and "tests" it is a valid legislation. It was contended that rule 16 did not violate the Public Service Commission Act and the Functions Rules. It is in this context that it was submitted that the two provisions may be harmonised.
12. I may-first take up Notification No,1 which has two parts. In clause (i) it is laid down that due consideration will be given by the Public Service Commission to the experience and departmental training of the candidates while clause (ii) deals with the relaxation of age limit. We may point out that Notification No,1 does not notify the promulgation of some new rule; it only notifies the decision of the Government. As already noted the High Court has held in respect of clause (i) of Notification No, 1 under discussion that the Government has violated the judgments of this Court in Yunus Tahir's case and Sh. Manzoor Ahmad's case rather than following them in letter and spirit. I have already noted the contention of the learned counsel for the Government that the decision under reference is not meant to apply only to the ad hoc appointees. "Experience" and "departmental training" are mentioned in the notification. The use of word "departmental" clearly shows training imparted to a person while he is a member of a department. The reference is to no other person than one who has been given training before he appears before the Public Service Commission for initial recruitment. This appears to be a reference to ad hoc appointees. The word "experience" however may also apply to persons who are not ad hoc appointees. But the question is what experience is required to be considered by the Commission? The impugned Notification is silent on the point. If it has to convey any logical meaning it should mean experience suitable for the post for which a candidate is appearing. Be that as it may, the word experience without doubt includes experience gained as an ad hoc appointee. Therefore, the irresistible conclusion is that the benefit sought to be given by. The first part of the notification is mainly for the same class of persons about whom- it was authoritatively decided in the judgment in Yunus Tahir's case that they did not form part of a reasonable classification.
13. Even if assumed that the persons sought to be benefited by the notification under reference are not wholly those who were not subject-matter of judgment in Yunus Tahir's case, I am of the view that the principle laid down in that judgment on reasonable classification is fully applicable to the first part of the notification. While persons are to be selected on the basis of merit to be determined through open competition a new class has been created for preferential treatment on account of the fact that members of that class have some experience and training. It is clear that if two persons are appearing for the post of Section Officer a person who has held office as section officer on ad hoc appointment and has also been given departmental training would be given a weightage as compared to a candidate who has no such experience and training. If in spite of his experience and departmental training a candidate cannot give better result than the other candidates it is not reasonable to give him edge over other candidates. It has been clearly held on the basis of large number of cases in Yunus Tahir's case that while testing a legislation on the touch stone ,,of equality clause the rule is that reasonable classification of persons or objects may be upheld while j unreasonable or arbitrary differentiation which is known as discrimination is forbidden. It was also held in that judgment that the purpose for which a classification is being made must itself be valid. In the present case no valid purpose has been brought to our notice. The purpose discernible from the language of the notification cannot be termed as valid in view of the fact that it runs counter to the provisions of law which unmistakably show that the best persons found so in light of the test and examination conducted by the Public Service Commission have to be recommended for appointment to Government service. This has been clearly laid doing in Yunus Tahir's case.
14. It was also held in that judgment that ad had appointment does not confer any right whatsoever. While reaching that conclusion we were guided by number of previous judgments including those from Supreme Court of Pakistan. In fact it can be said that a different view has not so far been expressed by any Court. This view is based on interpretation of different laws which are applicable one way or the other such as section 49 of the Azad Jammu and Kashmir Interim Constitution Act, Azad Jammu and Kashmir Civil Servants Act, Public Service Commission Act etc. I may also refer to a proviso of rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which is to the Following effect:-- "`Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."
15. I may refer to a case from the Supreme Court of Pakistan titled Dr. Nasim Ahmad v. Secretary.
Ministry of Health, Islamabad (1993 PLC (C.S.) 1516) in which a civil servant had held the office as ad hoc appointee for sixteen years. I may reproduce the following portion from Yunus Tahir's case:- "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 Ahamd's case. The appellant served in 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 in Zaheer-ud-Din v. Government of the Punjab (1990 SCM R 1506) held that no right was created by the long period of ad hoc appointment."
16. All those laws and rules which led us to the conclusion as aforesaid are still in force and have not been amended. It, therefore, cannot be said that there is a change of law which necessitates review of our view. In these circumstances the decision of the Government that Public Service Commission should give consideration to past experience and departmental training runs counter to the judgment of this Court. Thus, looked at from that angle clause (i) of the Government decision turns out to be one without lawful authority and of no legal effect.
17. For further elucidation, it also appears to be of fundamental importance to find out whether the Government is empowered to take that decision and whether the Commission is bound by law to follow that decision to give weightage under dispute. Raja Muhammad Hanif Khan the learned counsel for the Azad Government in his detailed arguments put up a stout defence but failed to point out any legal provisions under which the Government is empowered to take decision under reference and to bind Public Service Commission to implement it. The Public Service Commission enjoys a pivotal role in recruitment to civil services of the State. It is not an ordinary executive body constituted by the Government but owes its existence to the Constitution. It is laid down in section 48 of the Azad Jammu and Kashmir Interim Constitution Act that:--
(1) There shall be a Public Service Commission for Azad Jammu and Kashmir which shall consist of such number of members including a Chairman and perform such functions as may be prescribed.
(2) .........
' It is requirement of section 48 that there shall be a Public Service Commission; only the functions to be performed by it have been left to be prescribed by law or rules made thereunder. In pursuance of this provision Azad Jammu and Kashmir Public Service Commission Act, 1986 has been enacted. Under section 7 of the said Act the functions of the Commission have been laid down as follows:-- "The functions of the Commission shall be:-
(a) to conduct tests and examinations for recruitment to the Civil Services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section 11;
(b) to advise the President on matters relating to qualifications for and method of recruitment to the services and posts referred to in clause (a); and
(c) any other matter which the President may refer to the Commission."
18. The Rules made on this subject are known as The Azad Jammu and Kashmir Public Service Commission (Functions) Rules wherein it is laid down that posts in Grade-16 and above shall fall within the purview of the Commission. Thus the functions of the Public Service Commission are referable to section 48 of thee Interim Constitution Act. In Sh. Manzoor Ahmad v. Azad Government and others (1995 P.S.C. 133 = 1994 S.C.R. 297) this Court by majority decision laid down the following rule:- "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 Commission 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, prescribed 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 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 proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends " (Underlining is mine).
' 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 provides before the Service Tribunal. The amendment in law would or the jurisdiction of the High Court without amending section 44. Similar is the case of Public Service Commission Act made in pursuance of section 48."
19. Under the Azad Jammu and Kashmir Civil Servants Act the power to appoint a civil servant is vested in the Government. The advice of the Public Service Commission is not binding. The power of laying down the qualification and other conditions for initial recruitment are vested in the Government. However, the power to hold tests and examination is vested in Public Service Commission under the authority of the Constitution. The Constitution Act does not lay down that Government has any control, supervision or superintendence over the Public Service Commission or the functions to be performed by it. The Public Service Commission Act and. The Rules made thereunder also do not contain any such provision.
20. I may observe that Public Service Commission of Azad Jammu and Kashmir is an institution which follows an international pattern. Such institutions exist in many countries of the world. In England recruitment of all permanent civil servants is in the hands of Civil Service Commission which conducts competitive examination for that purpose. The qualifications for appointment to any appointment under the Crown, whether permanent or temporary, are also subject to the approval of the Commission. The functions of Canadian Civil Service Commission is to conduct recruitment to civil service. It also supervises promotion and organisation of services. In Australia the Public Service Board recruits and qualifies personnel and also makes suggestions for promoting departmental efficiency and economy. It is the power of the Board to report to the House of Parliament if its suggestions are not accepted. There is a similar Commission in United States and is known as "Federal Service Commission" and covers practically the entire Federal services. However, it is, like the Public Service Commission of Azad Jammu and Kashmir, an advisory body. Public Service Commission is in existence there from the very birth of Pakistan. Such a Commission was in existence in undivided India under Government Act of 1935.
21 Service Commissions are constitutional bodies and enjoy independence in their functioning so that best results are achieved. These Commissions are manned by persons nominated by the executive but it is universally recognized that they have to be free from executive control. This is not a pious wish but is explicitly found in the laws of Azad Jammu and Kashmir. Section 48 of the Interim Constitution Act gives Constitutional status to Public Service Commission and its functions.
Then it is laid down in section 10 of the Public Service Commission Act that the' Commission shall present to the President annually a report on the work done by the Commission, and the President shall cause a copy of the report to be laid before the Legislative Assembly of Azad Jammu and Kashmir. It is further laid down that the report to be submitted by the Commission shall set out to cases in which the advice of the Commission was not accepted and matters on which the Commission was, where required, not consulted. The reasons for not accepting the advice or for not consulting it have also to be stated. It is provided in the Public Service Commission Act that Chairman and Members of the Commission shall be appointed by the President and on ceasing to hold office they shall not be eligible for further appointment in the service of Azad Jammu and Kashmir. All these provisions show the independence of the Public Service Commission. On the contrary there is no law which may, directly or indirectly, lay down that the Government may control the functioning of Public Service Commission or may otherwise give directions to that Constitutional body. Our Constitution lays down separate functions for all organs set up by it. These functions cannot be controlled or circumvented except in accordance with the. Constitution. Thus, in my view para. (1) of Notification No,1 is without lawful authority.
22. It has been noted above that functions of the Commission are to conduct tests and examinations for Recruitment to civil services and specified posts. These words are similar to the words used in respect of the functions of the Universities, Education Boards and other examining bodies. For instance, in the University of Azad Jammu and Kashmir Act 1985 relevant phraseology used by the law-maker while enumerating powers of the University is as follows:-
(1) ...
(2) To prescribe courses of studies to be conducted by it;
(3) To hold examinations and...........................
' When one turns to the Azad Jammu and Kashmir Board of Intermediate and Secondary Education Act, 1986 similar words are found in it. Section 10 deals with powers of the Intermediate Board. It lays down that: "(1) ...
(2) In particular and without prejudice to the generality of the power conferred by the preceding subsection, the Board shall have the power-
(i) to hold and conduct all examinations, .......
' In a test or examination result is compiled on the basis of marks obtained by a candidate.
Considerations like departmental training and experience are extraneous to an examination. It is my view, therefore, that giving weightage on the basis of experience and departmental training is beyond the scope of the functtons assigned by law to the Public Service Commission.
23. It was argued on behalf of the Government that by using the word "due" in Notification No,1 it has been left to the Commission to determine whether any wieghtage was due or not in a given.
Case. This argument stands repelled by the conclusion reached above that such considerations are extraneous to the statutory functions of the Commission. Apart from that if the impugned notification is binding then the Commission cannot refuse to give weightage to a person who has already held the post for some years and has also obtained departmental training. The notification does leave the quantum of weightage in the discretion of the Commission but question is immaterial when weightage cannot itself be justified. In Yunus Tahir's case, which has been relied upon by the High Court, it was held by this Court that scheme of law is that those who prove themselves to be the best amongst the contestants in an examination or test are to be recommended for appointment by the Commission. I may reproduce the following passage from the judgment:- "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 specialized nature. It means that a person 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 Regularisation 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."
24. It ,was specifically held in paragraph reproduced below of the judgment under reference that it is only the Public Service Commission which can judge the suitability of the candidate:-- "It is legal requirement, as evidenced by section 48 of the Azad Jammu and Kashmir Interim Constitution Act read with Public Service Commission Act and with the 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 the job has been performed by the legislature through the Regularisation Act, which declared them 'validly selected' without going through. The selection procedure."
25. In our system, those who render political service are appointed as Prime Minister, Ministers and Advisors, but, under their control, the administration is carried on by permanent civil servants who are supposed to know rules and regulations which have been framed by the Government to run the administration. It is laid down in rule 9 (4) of the Rules of Business of the Azad Government that :- "If an order contravenes any law, rules or policy decision, it shell be the duty of the Officer next below the Officer making such order to point it out to the Officer making the order and the latter shall refer the case to the next higher authority."
26. Similarly it is laid down in rule 8 that a Secretary to the Government shall assist the Minister in formulation of policy and also re-submit the case to the Minister where an order issued by the Minister appears to involve a departure from rules, regulations or Government policy inviting his attention to the relevant rules, regulation or Government policy for reconsideration and if there is disagreement between the Minister and Secretary the case shall go to the Prime Minister for orders.
It is a well-established system that members of the civil services are appointed solely on the basis of merit determined in open competition so that they could carry on administration independently because selection on merit is instrumental in creating the necessary confidence and independence to perform the functions as a civil servant particularly those quoted above from the Rules of Business. It is thus obvious that clause (i) of the Notification No,1 violates both these legal requirements. It interferes in working of the Commission and also makes way for selection of those who are not the best amongst the contestants.
27. The High Court has not set aside clause (i) of the Notification but has modified it in following terms:- "In the impugned Notification No,1; the experience and training shall mean that earned before ad hoc appointment and not thereafter; ' It was vehemently contended by Raja Muhammad Hanif Khan that modification ordered by the High Court is not legally sustainable. His contention was that under writ jurisdiction conferred on the High Court the High Court cannot frame a rule or itself pass an order to substitute an executive order. It was contended that the High Court can declare an act to have been done without lawful authority but cannot legislate. In this connection reliance was placed on Government of N.-W.F.P. v.
Muhammad Said Khan (PLD 1973 SC 514). It was observed by the Supreme Court of Pakistan as follows:-- "The High Court cannot itself make any executive order. Its functions being confined to issuance of directions on matters of law, where an administrative or executive officer acts under a law the High Court will control the action by an appropriate order only if he goes out of law, i,e,, exercises a jurisdiction not vested in him by law."
28. After giving anxious thought and taking into consideration different aspects of the matter I have reached the conclusion that there is force in the contention and that in the circumstances of the case the correct and legal course to be adopted by the High Court was to make a declaration that clause (i) of Notification No,1 had been issued without lawful authority and was of no legal effect and should not have substituted it by making a modification. Even otherwise the order passed by the High Court, in my estimation, is not sustainable because it does not conform to the view which I have taken in earlier part of the judgment that giving any weightage to a candidate for his past experience and departmental training violates the fundamental right of equality before law. This would create a distinct class as compared to the general public who have had no such experience or training. Apart from that, as held in the earlier part of this judgment, the recommendation of the Public Service Commission has to be based on test and examination conducted by the Commission, and training and past experience have not to be considered. It also runs counter to the view taken earlier that the Government is not empowered to issue directions to the Public Service Commission. Therefore, the relief given by the High Court has to be modified so that it is substituted by a declaration that clause (i) of Notification No,1 regarding experience and departmental training is declared to have been issued without lawful authority and of no legal effect.
29. Now I turn to clause (ii) of Notification No,1 wherein it has been laid down that upper age limit in case of candidates who have served as ad hoc/work-charge basis shall be relaxed to the extent of the service rendered by them. The High Court has accepted the contention of respondent Javed Iqbal Khawaja that the relaxation given to the persons working on ad hoc or work charge basis is a clear discrimination against those State subjects holding similar qualifications who could not apply for jobs under the Government because of the fact that vacant posts were being occupied by ad hoc or work-charge appointees and the posts were not advertised for such a long time that they became over age. In the judgment under appeal the learned Judges in the High Court referred to the following proviso attached to rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977:-- "Provided further that ad hoc appointment shall not confer any right on the person so appointed in the matter of regular appointment to the same post nor the service shall count towards seniority in the grade."
' It was observed by the learned Judges that:- "While giving relaxation a particular and specific class is picked and pointed out to be benefited by the Notification."
30. It was vehemently contended before us by the learned counsel for the Government that relaxation of the upper age limit had been accorded in view of the judgment of the High Court which was upheld by this Court in Yunus Tahir's case and therefore no exception could validly be taken to it. This argument was raised before the High' Court and this aspect of the matter was kept in view while giving direction in the relief part of the order 'which was in the following terms:- " the upper age limit of all, who are otherwise academically qualified and apply for regular appointment against the posts filled in on ad hoc basis, shall be relaxed by the Government to enable them to compete;"
31. On the question of age the High Court made some observations to which we will be adverting after a little while, but for the present I want to point out that so far as this Court is concerned this aspect was not adverted to in Yunus Tahir's case. Appeals in this Court were filed by the Government, Legislative Assembly and a large number of ad hoc appointees. Those who appealed, the number being more than two hundred, were mostly those who were not arrayed as respondents in the High Court but obtained leave of this Court on the ground that the judgment declaring Azad Jammu and Kashmir Civil Servants (Regularisation for ad hoc appiontment) Act as invalid adversely affected their rights. The point about the relaxation of age was not raised before this Court, therefore, our judgment is silent on this point. Through the, order of this court the Regularization Act was found to be void being-violative for Fundamental Right No,15 and all appeals were dismissed. In the last paragraph of the judgment of the High Court the learned Judge in the High Court dealt with the question of relaxation of age limit. The relevant part along with preceding two lines was to the following effect:- 'Consequently all orders and notifications whereby ad hoc appointments of respondents civil servants have been regularised are declared null and void and of no legal effect. These appointments are to be regulated in accordance with law. Here it m. Ay be observed that since various persons holding ad hoc appointments any have passed upper age limit of initial appointment they may not be punished due to the enactment and of its consequence. Therefore, the Government may, in exercise of its power, relax the upper limit age of such persons to enable them to avail an opportunity of appearance in test/examination held by the Commission."
32. It may be seen that the High Court did not issue a writ or direction in respect of relaxation of age. In fact no prayer for such a direction was made. The High Court only expressed a desire and it was made clear that while relaxing age limit the Government was exercise to exercise its own power. Raja Muhammad Hanif Khan, therefore, is only partly right on this point.
33. The case of the respondent before the High Court was that while acting on the desire for the High Court the Government was duty bound to extend the benefit of age relaxation to all those who were placed in similar circumstances. I find that no ground in respect of this order of the High Court was incorporated in the memorandum for appeal. No tenable argument was advanced by the learned counsel for the Government against the view taken by the learned Judges in the High Court that relaxation in favour of the ad hoc and work charge appointees was discriminatory. It may be seen that the desire of the High Court was expressed in respect of those persons who were to be adversely affected by the judgment in which the aforesaid desire was expressed. It was for the Government to examine the matter in its overall context. The desire of the High Court did not absolve the Government of its duty to act in such a manner that it did not cause discrimination amongst those who were desirous of joining Government service. In my opinion the view taken by the High Court that clause (ii) under reference is discriminatory is correct. However, the relief on this point also needs to be likewise amended. Therefore; it is declared that clause (ii) of the Notification No,1 was issued without lawful authority and is void. If the Government wishes to relax the upper age limit it is desired that it should exercise its power in such a way that other persons who have suffered due to the situation under review should also be benefited.
34. Having disposed of the dispute about Notification No,1, I may now take up Notification No,2. By this Notification, Notification of 4th August, 1990 has been amended. Both the notifications have been reproduced above in the opening part of this judgment. The High Court has expressed the opinion that the posts mentioned in the deleted items Nos.3 and 4 of Schedule 'C' (Sections Officers and other posts in Local Government Department etc.) have been taken out of the purview of the Public Service Commission. This notification was declared void by the High Court as a whole. The interpretation of the Government is that the only effect of Notification No,2 is that syllabus prescribed in Schedule 'A' of the Notification of 4th of August, 1990 has become in applicable to the posts mentioned in items Nos.3 and 4 due to the deletion of these items.
35. The High Court has recorded various reasons for the conclusion that Notification No,2 was invalid. However, during the course of arguments before this Court it was pointed out to the learned counsel for parties that there was a provision in the rules known as "The Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994", which had not been brought to the notice of the learned Judges of the High Courrand was not referred to in the arguments before this Court, but appeared to be most significant for resolving this point. The relevant rule is rule 5 which is as follows:-- "The syllabus for various posts and mode of determination of eligibility shall be such as may be notified by the Commission in its instructions from time to time."
36. On our pointation the learned counsel for the parties made their submissions about. The effects of this rule. In my view this rule unequivocally confers the powers of prescribing the syllabus for various posts on the Public Service Commission. It also similarly empowers the Commission to decide the mode of determining the eligibility, which means that it is the Commission which has to decide what would be syllabus for a written examination and also can decide whether to hold or not a written examination for a given set of posts. Notification No,2 clearly is hit by Rule 5 as the Government tried to exercise powers which are vested in the Public Service Commission by ordering that the syllabus given in the order of 4th of August, 1990 shall not apply to the posts mentioned in Items Nos.3 and 4 and that there will be no written examination/test for filling up those posts. Notification No,2 was issued on 8th of November, 1994 while Azad Jammu and Kashmir Public Service Commission (Procedure) Rules came into force on 5th of September, 1994. These rules have been framed by the Government in exercise of powers vested in it under section 11 of the Azad Jammu and Kashmir Public Service Commission Act, 1986. Thus, the Government exercised the powers which were not vested in it and had become vested in the Public Service Commission, if it was not already possessed of such powers. Confronted with this situation Raja Muhammad Hanif Khan submitted that the Public Service Commission has not prescribed any syllabus in pursuance of rule 5 and the High Court in these circumstances should not have issued a direction to the Public Service Commission to prescribe the syllabus before holding any examination. In our view this submission has no force. Notification of 4th of August, 1990 was in existence when Notification No,2 was issued. In fact Notification No,2 was issued to amend it. The validity of Notification of 4th of August, 1990 has not been challenged by any party nor indeed is subject-matter for the present proceedings. The Notification of 4th of August, 1990 was issued by the Government in purported exercise of rule 16 of the Azad Jammu and kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977. This is the case of the learned counsel for the Government that the Government was fully empowered by rule 16 to prescribe syllabus. Since the Notification of 4th August, 1990 is not under challenge it has to be assumed that the notification was issued under proper authority. The position has now changed after the promulgation of rule 5 and it is only the Public Service Commission which can prescribe syllabus and the mode of determining the eligibility. In light of section 21 of the General Clauses Act it is only the Public Service Commission which can amend the syllabus and the mode already prescribed. After promulgating Rule 5 the Government has itself divested itself of powers which, according to its claim, vested in it. It follows that the Notification is bad because it runs counter to Rule 5 mentioned above.
37. Rule 5 mentioned above was not cited before the High Court. It is the law of the land and since it has come to our notice it is our duty to enforce it. The fact that the parties were not aware of this rule or, although I am not inclined to believe that it is probable was purposely not brought to the Mice of the High Court does not make any difference so far as its effectiveness as a law is concerned. I may also point out that an order or decree passed by a Court can be upheld on any available ground. The effect of rule 5 is that the order of the High Court in respect of Notification No, 2 is upheld.
38. Another reason recorded by the High Court for declaring Notification No, 2 as invalid is that the Public Service Commission was not consulted by the Government while issuing the notification and thus section 7 of the Public Service Commission Act was violated. For ready reference it may be re- stated that under section 7 functions of the Commission are given in three clauses (a), (b) and (c).
In clause (a) the. Commission has been empowered to conduct tests and examinations for civil services of Azad Jammu and Kashmir and other specified posts. The function laid down in clause
(b) is to advise the President on matters relating to qualifications for, and method of recruitment to, the services and posts referred to in clause (a). Clause (c) mentions other matters which the President may refer to the Commission, but it is not relevant here.
39. It will be seen that the two functions have been specifically entrusted to the Commission. These two functions are part of the same section. It follows from the scheme of section 7 that functions prescribed is clause (a) and those mentioned in clause (b) stand on the same footing. Section 7 owes its origin to subsection (1) of section 48 of the Azad Jammu and Kashmir Interim Constitution Act, which lays down that:-- "(1) There shall be a Public Service Commission for Azad Jammu and Kashmir which shall consist of such number of members, including a Chairman, and perform such function as may be prescribed."
40. As to what functions have to be performed by he Public Service Commission have been left to be prescribed by the Constitution maker to be "prescribed"? "Prescribed" has been defined to mean prescribed by law or rules made thereunder. In presence of this provision Azad Jammu and Kashmir Public Service Commission Act was enacted.
41. In Shaikh Manzoor Ahmad's case (supra) this Court, by majority opinion, laid down that the functions prescribed by the Public Service Commission Act have the same force as functions prescribed by the Constitution itself. It was also held that it is in pursuance of the command of the Constitution that Public Service Commission performs the functions assigned to it. Thus, these provisions are mandatory in nature and must be strictly followed.
42. The use of word "President" in clause (b) was commented upon by the learned counsel for the parties. In my opinion Raja Muhammad Hanif Khan, the learned counsel for the Government, was right in submitting that the word "President" in effect means the Government because the executive authority of the Government is performed in the name of President. The requirement, therefore, is that the Public Service Commission has to be consulted by the Government in the matters mentioned in clause (b). The subject-matter of Notification No, 2 is clearly a matter relating to method of recruitment. Therefore, before making rule or passing any order it was mandatory requirement to seek the advice of the Commission.
43. Arguments were heard in the case on 8th of March, 1995 by High Court. After hearing the arguments the High Court passed the order that the learned Judges were felt persuaded to pass the following order:-- "Present Chaudhry M. Ibrahim Zia, Advocate for the petitioner; Advocate-General for respondents.
1. Arguments heard. Judgment reserved.
2. The impugned notifications challenged through this writ petition regulate the method of recruitment by the P.S.C. After hearing the arguments of the learned counsel, we feel persuaded to have an Affidavit of the Chairman of Public Service Commission as to whether the impugned notification in view of section 7 of the P.S.C. Act which regulates the method of recruitment by PSC have been issued on the advice or recommendations of the Commission. The Chairman P.S.C. Shall file the attested Affidavit on or before 15th instant."
' In response to this order the following affidavit was filed by Major-General (Retd.) Tariq Nizami, Chairman of the Public Service Commission:-- "Affidavit of Major-General (Retd.) Tariq Nizami, Chairman, Azad Jammu and Kashmir Public Service Commission.
' The above named deponent do hereby declare and affirm as under:--
1. That the Public Service Commission did not propose, suggest or advise the authority concerned to change, delete or abolish the prescribed syllabus/test etc. For the post of Section Officers and others.
2. That the Public Service Commission was not consulted before the issuance of Notification No, S&GAD/A-4/VI-R/90, dated 8th November, 1994.
' Verification ' Verified on 13th day of March, 1995 at Muzaffarabad that the contents of this affidavit are correct to the best of my knowledge and belief."
44. It was contended before us by Raja Muhammad Hanif Khan that the Government was not given an opportunity to rebut the affidavit. The order shows that it was dictated in presence of the parties. If the Government wanted to file any other document or affidavit it should have sought permission of the Court. In the petition. For leave to appeal it has been urged in ground(s) of para. 6 that:-- 'The Government has consulted the Chairman, Public Service Commission from time to time in various matters in an open meeting with the Prime Minister. The Chairman, Public Service Commission had given his opinion for issuance of the impugned Notifications in a meeting before the Prime Minister."
45. This is an averment which is not supported by an affidavit sworn by a person who was present when the meeting mentioned in it was held. However, this aspect is insubstantial. Section 7 requires consultation with the Public Service Commission and not the Chairman. Chairman of the Commission and the Public Service Commission have separate entities, and are not interchangeable terms. Consultation which is required by law is with all the members, including the Chairman, and not with one of them. Therefore, even if we assume that the Chairman had been consulted in an open meeting it is of no legal significance. In light of this discussion the view taken by the learned members of the Division Bench is correct and is upheld.
46. The High Court has also held that the posts mentioned at serial Nos. 3 and 4 of Schedule 'C' of Notification of 4th of August, 1990, namely, the posts of Section Officers and Misc. Non-technical general cadre posts (BPS-17) in the departments of Local Government, Food etc. Stand deleted from the purview of the Public Service Commission. It has been vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the Government, that it has no such effect. His contention was that the effect of Notification No,2 was only that syllabus mentioned in Notification of 4th of August, 1990 upon coming into force of Notification No, 2, became inapplicable to the posts referred to above. In my opinion the matter already stands resolved in the judgment of this Court in Shaikh Manzoor Ahmad's case mentioned above. It is laid in section 7 of the Public Service Commission Act that Public Service Commission shall hold tests and examinations for initial recruitment to civil services of Azad Jammu and Kashmir. Thus, it is a requirement of the Act that recruitment to Civil Services shall be made through the Commission. In exercise of powers under section 23 of the Azad Jammu and Kashmir Civil Servants Act, the Azad Government of the State of Jammu and Kashmir has constituted a large number of services such as:--
(1) Azad Jammu and Kashmir Secretariat (Section Officers) Service Rules, 1978.
(2) Azad Jammu and Kashmir Secretaries Service Rules, 1992.
(3) Azad Jammu and Kashmir Deputy Secretaries Recruitment Rules, 1978.
(4) Azad Jammu and Kashmir Management Group (Composition and Promotion) Rules, 1980.
(5) Azad Jammu and. Kashmir Extra Assistant Commissioner (Recruitment and Promotion) Rules, 1980.
(6) Azad Jammu and Kashmir Public Service (Composition and Cadre) Rules, f983.
(7) Azad Jammu and Kashmir Food Department Service Rules, 1984.
(8) Azad Jammu and Kashmir Health Department Service Rules, 1984.
(9) Azad Jammu and Kashmir Cooperative Department Service Rules, 1990.
(10) Azad Jammu and Kashmir Local Government and Rural Development Department Service Rules.
(11) Azad Jammu and Kashmir Zakat and Ushr Department Service Rules, 1985.
(12) Azad Jammu and Kashmir Industries, Commerce, Sericulture, Labour and Mineral Development Department Service Rules, 1984.
' All these services are "civil services" within the meaning of section 7. Therefore, all posts forming part of these and other services have been brought within the purview of the Commission by virtue of section 7 of the Act. In light of the rule laid down in Sh. Manzoor Ahmad's case these posts cannot be taken out of the purview of the Commission except by amending the Public Service Commission Act. Then there are posts which do not form part of a civil service. It is required by section 3 of the Public Service Commission (Functions) Rules that those posts carrying B-16 and above would also be filled up through the Commission. According to the settled rule a post falling in rule 3 cannot be taken out of the purview of the Commission without amending the said rule.
47. When I turn to Schedule 'C' of the Notification of 4th of August, 1990, I find that most of the posts in Schedule 'C' are included in one service or the other. For example the posts of Section Officer forms part of the Azad Jammu and Kashmir Secretariat (Section Officers) Service Rules. The posts carrying Grade-16 and above in the Departments of Local Government, Food, Cooperative and Industries are also likewise encadred in separate services. In light of the rule laid down in Sh.
Manzoor Ahmad's case those posts which stand included in different services cannot be taken out of the purview of the Commission except by amending the Public Service Commission Act. A similar step has to be taken about posts prescribed under rule 3 of the Public Service Commission (Functions) Rules. Since no such amendment has been carried out the deletion of these posts from Schedule 'C' mentioned above cannot have the effect of exempting these posts from the operation of Public Service Commission Act or the rules made thereunder. Therefore, the conclusion is that Notification No, 2 does not have effect of exempting posts mentioned in Schedule 'C' of the Public Service Commission Act and the rules made thereunder. I hold accordingly.
' As a consequence of the foregoing conclusions the appeal is dismissed, but the reliefs granted by the High Court are modified. Therefore, it is,--
(A) declared that Notifications No, S&GAD/A-4(170)/VI-R/90 and No, S&GAD/A-4(170/VI-R/90 have been issued without lawful authority and are of no legal effect;
(B) desired that Government may relax the upper age limit of candidates for recruitment in posts under the Government in such a way that the benefit accrues to all candidates equally.
' However, the parties are left to bear their own costs in this Court. I agree.