1. ' SARDAR SAID MUHAMMAD KHAN, CJ.---This appeal has been directed against the judgment of the High Court dated 5-12-1994, whereby the writ petition filed by the appellant, herein, was dismissed.
2. ' The brief facts giving rise to the present appeal are that the appellant was appointed as Overseer in the Public Works Department in the year 1956 and was promoted to the post of S.D.O. On 8th September, 1966. He was reverted to the post of Overseer but his order of reversion was challenged before the Civil Court which was set aside and, consequently, the appellant was reinstated as S.D.O. Subsequently, an inquiry was held against the appellant and he was found guilty of misconduct and was dismissed from service. The appellant preferred an appeal against the order of his dismissal before the Service Tribunal which was partly accepted and instead of dismissal from service, his punishment was changed to stoppage of promotion for five years; the Service Tribunal also observed that the appellant, herein, is reinstated in service with back benefits. The appellant challenged the decision of his punishment awarded by the Service Tribunal before this Court but his appeal was dismissed. According to the case of the appellant, in view of the decision of his reinstatement with 'back benefits' he filed a review petition before the Government that in view of the judgment of the Service Tribunal, he should be promoted as XEN from 19-4-1980 because he was entitled to promotion in ordinary routine of service on the said date. He also claimed that he was also entitled to enhanced pay scale in view of Government order dated 23-4- 1986. According to the appellant, during the pendency of writ petition in the High Court, his review petition was accepted by the Prime Minister and the Chief Secretary was directed to implement the recommendations made by the Advisor, Public Works Department, on 1-6-1991. An unattested photostat copy of the recommendations of the said Advisor and the order of the Prime Minister appears at page 75 of the file of the High Court. The operative part of the said recommendations is as under:-- {{URDU TEXT}} ' On the said recommendations, the note of the then Prime Minister, Mr. Mumtaz Hussain Rathore, appears as under:- ' According to the appellant, as after the order of the Prime Minister, the Chief Secretary did not implement the same, he amended the writ petition, and in place of Government, prayed for a writ of mandamus against the Chief Secretary for implementing the order of the Prime Minister. The High Court dismissed the writ petition on the ground that as the matter pertains to the terms and conditions of service of the appellant, no writ was competent. It is against the aforesaid order of dismissal of the writ petition by the High Court that the present appeal has been filed.
3. ' Messrs MA. Farooq and Ishfaque Hussain Kayani, Advocates, the learned counsel for the appellant, have contended that in view of the facts indicated above, the Chief Secretary was bound to implement the aforesaid order of the Prime Minister; if he did not agree with the Prime Minister, he should have sent the case back to the Prime Minister for reconsideration of the matter as envisaged in Rules of Business. The learned counsel further submitted that as a direction is prayed for against the Chief Secretary, only the writ was appropriate remedy for the redress of his grievance and not an appeal to the Service Tribunal because no direction can be issued by the Service Tribunal. The learned counsel did not seriously controvert that the reliefs claimed by the appellant, i,e,, promotion as XEN from 19-4-1980 and pay at enhanced pay scale fell within the purview of 'terms and conditions' of the appellant but as no direction can be given to the Chief Secretary by the Tribunal, the case is not hit by section 47 of the Interim Constitution Act, 1974.
4. ' In reply, the learned Advocate-General has contended that as the appellant also assails the promotion of Ali Muhammad, XEN Design, and Riaz Ahmad, XEN Highways, so as to facilitate his promotion as XEN from the year 1980, the matter essentially fell within the jurisdiction of Service Tribunal. He has also argued that the concerned civil servants who have been holding the post of XEN by promotion after the year 1980 are also necessary parties and no relief can be given to the appellant in exercise of the writ jurisdiction in their absence. He has further controverted the argument of the learned counsel for the appellant that in the instant case, the appellant was entitled to promotion and enhanced scales of pay in view of the judgment of the Service Tribunal whereby he was reinstated with 'back benefits'. The learned counsel maintained that 'back benefits' would include the pay etc. Which was admissible to the appellant at the time of the judgment of the Service Tribunal dated 24-9-1985 and not the promotion to next higher grade because that is to be done by Selection Board; besides, the appellant wants enhanced pay scales in view of the Government order dated 23-4-1986 which is not possible because said notification was issued after the judgment of the Service Tribunal. Even otherwise, in view of the said order dated 23-4- 1986 which forms Annexure 'H' to the writ petition, in para. 5 it has been clearly laid down that in case of move-over, it shall be ensured that the concerned civil servant had not been imposed any penalty during the previous five years, whereas the appellant had been awarded first punishment of dismissal from service and then stoppage of promotion for five years. Therefore, he was not entitled to the benefit of the Notification dated 23-4-1986.
5. ' I have given my due consideration to the matter. It may be pointed out that it has been repeatedly held by this Court that if the matter pertains to the `terms and conditions' of a civil servant, the writ jurisdiction of the High Court cannot be invoked for the redress of a grievance arising therefrom.
6. The learned Judge in the High Court while dismissing the writ petition has also relied upon some of the authorities of this Court in that regard. In view of the principle laid down in those authorities, the point has not been seriously controverted. However, the learned counsel for the appellant, as stated earlier, have argued that direction to the Chief Secretary could not be issued by the Service Tribunal. It may be stated that in view of section 5 of the Service Tribunals Act, it possesses all the powers which a Civil Court possesses. Thus, it is not correct to say that the matter in dispute in the present case will not be hit by the mischief of section 47 of the Interim Constitution Act, 1974 because no direction can be issued by the Service Tribunal. Even otherwise, a relief in exercise of writ jurisdiction is discretionary; if a civil servant does not comply with an order of the Prime Minister which is violative of the law, no writ can be issued against the concerned civil servant. The Prime Minister could not direct the Chief Secretary to implement an order of promotion even if it is found against law. The appellant could be promoted as XEN only according to the relevant rules which stipulate to send the cases of promotion to the relevant Selection Board. The learned counsel for the appellant tried to wriggle out this predicament by arguing that under the Rules of Business, 1985, the Chief Secretary should have sent the matter to the Prime Minister for reconsideration. No such point has been taken in the amended writ petition. Irrespective of the question as to whether the Chief Secretary was bound' to send the matter for reconsideration in view of the Rules of Business, the fact remains that as the point has not been taken in the amended writ petition, at the time of arguments in the High Court and in the memorandum of appeal and concise statement filed in this Court, it cannot be permitted to be taken during the course of arguments.
7. ' Even otherwise, the recommendations for the promotion of the appellant as XEN were made by Advisor to the Prime Minister for the Public Works Department. No provision with regard to the functions of an Advisor or Special Assistants existed in the Rules of Business, 1985 prior to June, 1993.
8. It was on 7-6-1993 that Rule 6-A was inserted in the Rules of Business which stipulates that there would be Advisors and Special Assistants to the Prime Minister who would perform such duties and functions as may be specified from time to time. As has already been stated, the recommendations for promotion of the appellant were made on 1-6-1991, when the Advisor to the Prime Minister had no place in the Rules of Business. Under rule 8 of Rules of Business, it is the Secretary of the Department who has to bring into the notice of the Minister of the concerned department as to which of the cases were to be referred to the Prime Minister under the rules and in case of difference of opinion between the Minister and the Secretary, the matter was to be submitted to the Prime Minister under rule 8 (g) of the Rules. The Secretary of the Department has to keep the Chief Secretary informed of the cases which are to be disposed of by the department.
9. There is nothing on the record that the aforesaid provisions of the Rules of Business were complied with. Thus, the recommendations of the Advisor of the Department and the aforesaid notes written on the said recommendations, being in clear violation of the Rules of c Business, the Chief Secretary was not bound to refer the matter to the Prime Minister for reconsideration.
10. ' In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.
11. ' BASHARAT AHMAD SHAIKH, J.---A perusal of the amended writ petition filed by the appellant shows that he was seeking implementation of the order passed by the Service Tribunal. In order to appreciate the point the prayer clause of the writ petition may be kept in view:-- "It is, therefore, prayed that in the light of the judgment of the Service Tribunal which was also upheld by the Supreme Court, the copy of the order of the Supreme Court being Annexure 'L'. The non-petitioner be ordered to promote the petitioner as Executive Engineer from 19-4-1980 till today with all the increments and collateral benefits. The petitioner be also given the benefits of extension of the existing pay scale to the higher pay scale vide Notification No, FD-R 1-(220), dated 23-4-1986 according to Annexure 'H' and the orders of the Prime Minister to this affect be notified by respondent No,1 (The Chief Secretary to the Azad Government of the State of Jammu and Kashmir)."
12. ' In para. 8 of the writ petition it was stated that "Service Tribunal in crystal clear words ordered that the petitioner be reinstated in service with back benefits " It was claimed that the benefits ordered by the Service Tribunal included promotion as Executive Engineer and higher pay scale. It was averred in para. 9 that the Government reinstated him as Assistant Engineer and not as Executive Engineer which was violative of the order passed by the Service Tribunal. In the prayer clause, reproduced above, the appellant wants an order to be issued in writ jurisdiction that he be promoted as Executive Engineer and also be given the higher pay scale. It may be noticed that the Service Tribunal did not specifically pass any order to those effects but the appellant's stand point is that these two reliefs were necessary part of the order of the Service Tribunal. About this interpretation this Court is not called upon the express its views but even if this interpretation is found to be correct my view is that a writ petition does not lie for implementation of an order passed by the Service Tribunal. My view is based on the analysis of the law relating to powers of the Service Tribunal.
13. ' Before the enactment of the Service Tribunal Act in pursuance of section 47 of the Interim Constitution Act, the High Court was fully empowered to pass any order in accordance with law in respect of terms and conditions of service of civil servants. Civil Courts were also equally competent to deal with such matters. The High Court and the Civil Courts were also clothed with the necessary powers to get their orders implemented. The Constitution-makers enacted section 47 and visualised the setting up of a Service Tribunal and laid down that upon such setting up all the powers vested in the High Court and the Civil Courts will be taken away from those Courts. The purpose of law in creating the Service Tribunal was to create a, forum of exclusive jurisdiction fully devoted to service matters. The purpose was not to take away remedies which previously vested in civil servants for protection of their rights but to substitute them. It may be emphasised that by section 4 of the Service Tribunals Act an appeal is provided from any order made by a departmental authority in respect of any of the terms and conditions of service of an aggrieved civil servant. This power is much wider than the powers which were previously vested in the High Court with reference to the writ jurisdiction and the Civil Courts with reference to the Code of Civil Procedure. The place enjoyed by the Service Tribunal can also be judged from the fact that appeal against its order lies to this Court and that also only if a matter of public importance is involved.
14. There is no question that the Tribunal with such high powers should have been conferred with jurisdiction which did not enable it to pass an effective order. I may refer to Azad Jammu and Kashmir Service Tribunals (Procedure) Rules, 1977 which have been framed by the Azad Government of the State of Jammu and Kashmir in exercise of powers conferred by section 10 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. Rule 28 is to the following effect:- "A copy of every order on final adjudication on an appeal shall be provided by the Tribunal free of costs to the competent authority and the said authority shall forthwith give effect to it."
15. ' The rule makes it clear that the law requires total obedience of orders passed by the Service Tribunal. In my view the Service Tribunal is possessed with adequate powers to see that its orders are implemented. It is an accepted principle of law that when a jurisdiction is conferred on a Court or Tribunal to pass an order the power to have the order implemented is implicit in that jurisdiction.
16. In the Interpretation of Statutes by Maxwell, 1962 Edition, at page 350 under monograph "Implied Powers and Obligations" there is. a statement to the following effect:-- "Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdictio data est, sa quoque concessasse videntur, sines quibus jurisdictio explicari non potuit."
17. ' This well-known principle was upheld by the Supreme Court of Pakistan in Commissioner, Khairpur Division, Khairpur v. All Sher Sarki PLD 1971 SC 242. Therefore, as I read it, the power of implementing its orders is available to the Service Tribunal.
18. ' Apart from that, section 5(2) of the Service Tribunals Act lays down that "a Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908)". This provision gives all the powers of a Civil Court to the Service Tribunal. This is the position which is by now well settled. However, since the words "for the purpose of deciding any appeal" have been used by the legislature, the question is whether the powers of a Tribunal come to an end when decision of an appeal has been announced by the Tribunal or they continue to available to it even after that.
19. While answering this question two considerations must be kept in mind, both of them having already been alluded to. Firstly rule 28 of the Service Tribunals (Procedure) Rules and secondly the principle that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Keeping these two in mind the words "for the purpose of deciding any appeal" cannot be given restricted meaning. There is another aspect which must be considered if the order of the Service Tribunal cannot be implemented by that Tribunal, even when it has been upheld by this Court in appeal under section 47 of the Constitution Act, then the whole legislation becomes futile. As is well accepted if two interpretations are possible Courts do not accept a construction which renders a egislation futile. In the case in hand two interpretations are possible and we adopt the interpretation which does not render the law under consideration nugatory. Therefore, the words "purpose of deciding any appeal" have to be liberally construed so that the power continues till the order passed by the Service Tribunal has been implemented.
20. ' The proceeding initiated by the appellant asking the High Court to implement the order passed by the Service Tribunal clearly was misconceived. Not only he wanted a direction from the High Court for implementation of the order passed by the Service Tribunal but also wanted the High Court to interpret an order which had not been passed by it. The powers of the High Court have already been taken away as the combined effect of section 47 and the Interim Constitution Act and the provision of the Service Tribunals Act. Thus, in my view the High Court has rightly reached the conclusion that the matters which were subject of the writ petition related to the terms and conditions of service and that, therefore, no order could be passed by the High Court in this respect. The High Court has rightly relied on a judgment of this Court reported as Raja Naveed Hussain v. Khalilur Rehman 1994 SCR 267. The appellant wanted, as a result of the acceptance of the writ petition promotion and higher pay scale which are decidedly part of the terms and conditions of service. The claim of the appellant in paragraph 11 was that the Prime Minister had accepted the aforesaid interpretation but the order was not being implemented. In my view it creates no justification for an inroad in the jurisdiction of the Service Tribunal {{PAGE MISS 345, 346, 347, 348, 349, 350, 351, 352}} set aside. We, therefore, see no force in the plea of discrimination advanced by his learned counsel.
21. 5-A. To our minds, order of the learned Service Tribunal against the petitioner does not call for any interference. We, therefore, refuse to grant leave to the petitioner to appeal against the said order and dismiss his petition.