' BASHARAT AHMAD SHAIKH, J.---Respondents Nos. 1 to 3, who are pleaders with Mirpur as the ordinary place of business, filed a writ petition on 21st of June, 1995 to challenge a Government Notification issued on 15th of January, 1995 by which the relevant departmental rules relating to experience were relaxed in favour of the appellant so as to enable her to sit in the competitive examination which was to be held in the year 1995 by the Public Service Commission for the posts of Judge Family Court and Sub-Judge. Subsequently, this notification was amended and the post of Judge Family Court was deleted from the notification. The writ petition has been accepted by the High Court.
2. It was stated in the writ petition that it was being filed in the background of cases decided by the High Court and the Supreme Court whereby the Azad Jammu and Kashmir Civil Servants (Regularization of Ad hoc Appointments) Act, 1992 was declared un-constitutional. It was averred that the appellant was a party in the case filed by Muhammad Yunus Tahir, reported as Javed Iqbal Khawaja v. Azad Government (PLD 1994 AJK 26), in which it was declared in para. 70 of the judgment that the Government had no legal authority to pass the order impugned before the High Court by which requirements of educational qualifications and experience of three years legal practice in the case of appellant Shamaila Mahmood were relaxed. It was stated that after the judgment about the Regularization Act mentioned above this Court in another reported case titled Sh. Manzoor Ahmad v. Azad Government and another 1995 PLC (C.S.) 59 declared that confirmation of an ad hoc appointee under section 22 of the Civil Servants Act was illegal. On the basis of these grounds, it was stated in the writ petition that the fresh order whereby the requirement of experience was relaxed was without jurisdiction. It was further stated that relaxation about experience was against fundamental rights.
3. In the written statement, the appellant averred that she was a party in the writ petition filed by Muhammad Yunus Tahir but her educational qualification was neither challenged in the writ petition nor was there any relaxation given in respect of educational qualifications. It was pleaded that she held a valid law degree from a recognised University. She attached with the written statement her degree of Bachelor of Laws (Shariah and Law) issued to her by International Islamic University, Islamabad as well as four documents issued by University Grants Commission wherein it is stated that the said degree was equal to L.L.B. From other Universities. In one of the documents it is stated that degree of L.L.B. (Shariah) from International Islamic University was not different from the law degrees of the University of the Punjab. It was pleaded that the findings of the High Court contained in paragraph 70 of the judgment in Yunus Tahir's case were in the nature of obiter dicta.
In this connection reliance was placed on paragraph 84 of that judgment.
4. The writ petition filed by respondents Mukhtar Ahmad and others, has been accepted on the ground that in para. 70 of the judgment in Javed Iqbal Khawaja's case it was held by the High Court that the Government was not empowered to relax the educational qualifications and experience required for appointment to a particular post and also that Shamaila Mahmood lacked experience of 3 years legal practice required for appointment as Sub-Judge. It has been further observed that in the judgment under appeal in Yunus Tahir's case was upheld by this Court with the result that the question with regard to the qualification and experience of Shamaila Mahmood had become final and a fresh order of relaxation was illegal.
5. We have heard Mr. Reaz Alam, the learned counsel for the appellant, and Mr. Yunus Arvi, the learned counsel for respondents Mukhtar Ahmad and two others. Mr. Shiraz Kayani, the learned Advocate-General, appeared for the Government. After giving anxious consideration to the facts of the case and going through the previous judgment mentioned earlier. We have reached the conclusion that the High Court did not adopt correct approach in the case in relying on the previous judgment of the High Court rather than the previous judgment of this Court which was the final judgment in the dispute. The High Court has observed in the judgment under appeal that the judgment of the High Court in Yunus Tahir's case was upheld by the Supreme Court and, thus, judgment of the High Court attained finality but the High Court reproduced a portion of the judgment of the High Court only and, although, it was observed that the decision of the Supreme Court is binding on all Courts, contents of the decision of this Court were neither mentioned nor reproduced. When an appeal against the judgment of the High Court is dismissed by this Court it does not follow that the reasoning adopted by the High Court has been ipso facto approved it is only the judgment of this Court which would show, on a proper reading. Whether the view taken by the High Court on a particular point has been upheld or not. When this Court dismisses an appeal it may do so by upholding the view expressed by the High Court or may record different reasons in reaching the same result.1 In the latter category of cases it is not correct to refer to the judgment of the High Court because in such case it is only the judgment of the Supreme Court which is relevant and binding. In light of this legal position we have to analyses the judgment of this Court to decide the issue raised in the present proceedings. We have noticed that even in the writ petition filed by respondent Mukhtar Ahmad and others only the judgment of the High Court was relied upon.
6. The history of the case is that the appellant was appointed as Sub-Judge on ad hoc basis.
Subsequently, the Legislative Assembly passed an Act known as "The Azad Jammu and Kashmir Civil Servants (Regularization of Ad hoc Appointments) Act, 1992 (for bravity "the Regularization Act") which laid down that all persons holding office on ad hoc basis on the coming into force of the said Act shall be treated to have been regularly appointed. Consequently, the appellant became a regularly appointed Sub-Judge with effect from 16th of August, 1992. Another notification was issued on 25th of November, 1992 for permanent absorption of the appellant purportedly under section 22 of the Azad Jammu and Kashmir Civil Servants Act. The Regularization Act was challenged by different persons by filing writ petitions which were accepted and the said Act was struck down. Appeals filed before this Court were also dismissed. In one of those writ petitions the appointment of the appellant on permanent basis, along with the appointment of Ch. Mumtaz Hussain, as Sub-Judge was challenged. It was filed by Muhammad Yunus Tahir. The order passed under section 22 of the Civil Servants Act in favour of the appellant was also challenged in the writ petition. The writ petition filed by Muhammad Yunus Tahir, alongwith other writ petitions was accepted. In the judgment of the High Court, which is reported as Javed Iqbal Khawaja v. Azad Government (PLD 1994 AJK 26) it was declared that the Government was not empowered by any law to pass the impugned order in favour of the appellant to relax educational qualifications and experience required for the post of Sub-Judge. It was also held that ad hoc appointees were not civil servants and thus section 22 of the Civil Servants Act could not be applied for permanent absorption of an ad hoc appointee.
7. Against the judgment of the High Court in Yunus Tahir's case, appeal was filed by Azad Government of the State of Jammu and Kashmir, Azad Jammu and Kashmir Legislative Assembly, Secretary Law and Parliamentary Affairs and the Public Service Commission. The appellant and CI?.
Mumtaz Hussain were impleaded as preformat-respondents. There was difference of opinion on some of the points but it was a common ground between the two members of the Bench which decided the case that the Regularization Act was volatile of Fundamental Right No, 15 (Equality of State Subjects) and was void on that ground. This was the only ground on which this Court declared the Regularisation Act as un-constitutional. The other reasons given in the judgment of the High Court were not upheld and, therefore, cannot be cited in the subsequent proceedings.
8. . The declaration that the Regularization Act was un-constitutional did not end the controversy about the appointment of the appellant because, as already noted, there was another notification which had been passed in her favour on 25th of November, 1992. The notification is not available in the present files of the High Court or this Court. We have also gone through the Supreme Court record of the previous appeal filed to challenge the judgment of the High Court in Yunus Tahir's case but the Notification of 25th of November, 1992 in favour of Shamaila Mahmood is not available even in that file. However, a certified copy of the amended writ petition is available in the file and ground No, (X) contained in para. 14 of the writ petition relates to the notification under reference. It will be useful to reproduce it-- "(x) that the impugned Notification dated 25-11-1992. No, 3/5/92--OAD issued by respondent No, 1, which was given effect from 16-8-1992 is also volatile of law, discriminatory, mala fide and based to protect the interests of a special class which is also against the rights and interest of the petitioner and of no legal effect. The aforesaid notification is creation of the powers to be given to the Government, under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976, but the bare reading of the relevant provision makes it clear that the confirmation of the appointment of respondent No, 5 is against the basic spirit of the statute and, as such, keeping in view the circumstances of the case, it is purely discriminatory and mala fide. The petitioner's writ petition was admitted for regular hearing on 18-11-1992, the answering respondents being functioning as Additional Sub-Judge at Mirpur after having the knowledge of writ petition having been admitted and she being influential and having closed affiliation with the ruling party, maneuvered to get issued the aforesaid notification. So, in these circumstances, the impugned notification is also volatile of law and beyond jurisdictional competence, copy of impugned notification is attached herewith as Annexure 'P/15.'"
9. It will be seen that it was not pleaded in the writ petition that the Government could not relax educational qualifications and requirement of legal practice. The case of the appellant was specifically dealt with by the High Court in paras. 70, 74 and 84 in Javed Iqbal Khawaja's case, which has already been summarized above. The Notification of 25th of November, 1992 was discussed in the judgment passed by this Court on page 2384 of the report published as Azad Government and others v. Muhammad Yunus Tahir and others 1994 CLC 2339. Paragraph 84 of the judgment of the High Court was reproduced and it was observed that the learned counsel for the Government contended that the High Court fell in error in quashing the order of 25th of November.
The views expressed in paragraph 84 of the judgment of the High Court were dealt with in the judgment written by me on page 93 of the report. On the first point, it was held that the High Court was not right in holding that a separate notification in case of the appellant could not be issued in presence of the order passed in the Regularization Act. It was held that: "There is nothing in law to stop the Government to pass another order in addition to an earlier order."
' On the other point decided by the High Court in paragraph 84 that ad hoc appointees are not civil servants, and therefore, section 22 could not be applied to confirm ad hoc appointees. I took the view that section 22 of the Civil Servants Act is not available for exempting any person from the requirement of selection through the Public Service Commission. Consequently it was held that: "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."
' The view taken by the High Court that Government was not empowered to relax educational qualifications and experience was not discussed by me at all. As already seen, Muhammad Yunus Tahir had not raised the point that Government was not empowered to relax educational qualifications and experience required for the post of Sub-Judge as is apparent from ground (x) reproduced above. The learned Chief Justice in his judgment did not agree with my view that under section 22 of the Civil Servants Act a person could not be exempted from the operation of the Public Service Commission Act, but my view that the order passed in favour of the appellant, in exercise of section 22, was bad in law was shared, but on a different ground. The relevant part appears on page 2389 of the report which may be profitably to reproduced:-- "It is evident from the provisions reproduced above that the powers under section 22 of the Civil Servants Act are to be exercised irrespective of the provisions contained in the Act or rules provided the same are 'just and equitable'. What would be 'just and equitable' in a particular case depends upon the circumstances of each case and no hard and fast rules can be laid down in that regard. It may be stated that in the instant case I fully agree with the view taken by my brother Mr. Justice Basharat Ahmad Shaikh that the order made by the Government in favour of Miss Shamaila, respondent, under section 22 of the Civil Servants Act is not in consonance with spirit of law, although on somewhat different grounds. Consequently, the order passed by the Government is not sustainable because nothing has been brought on the record that when writ petition entitled Muhammad Yunus Tahir v. Azad Government to exercise powers under section 22 of the Civil Servants Act to the detriment of Muhammad Yunus Tahir, petitioner, who was also an ad hoc appointee as Sub-Judge. No material has been brought on the record that said order was ' just and equitable' as envisaged under section 22 of the Civil Servants A combined reading of the two judgments shows that the Notification of 25th of November, 1992 passed in favour of the appellant was set aside as it was found inconsistent with section 22 of the Civil Servants Act. The position which emerges from this analysis is that there was no occasion for this Court to examine the point whether the Government was legally authorized to relax educational qualifications and requisite experience and this Court did not lay down that the Government was not authorised by law to relax the requirements of educational qualifications and experience. Therefore, the view expressed by the High Court in the judgment under appeal that it already stands decided in the previous judgments that the Government was not empowered to relax educational qualifications and experience is not correct and I vacate this finding.
10. The High Court has not given any reason while accepting the writ petition except relying on the previous judgment of the High Court. It appears from paragraph 3 of the judgment under appeal that some other points were also agitated but these points have not been disposed of in light of the view formed by the learned Judge that the matter already stood concluded by the previous judgment of the High Court, which had attained finality and the judgment of this Court which was binding on all Courts in Azad Jammu and Kashmir. Since the sole reason recorded by the High Court has turned out to be wrong, the case can be remanded for adjudication of the points left undecided by the High Court. However, we are of the view that the points left undecided are purely legal in nature which can be decided by this Court. Even otherwise it will advance the ends of justice if the parties are saved from the inconvenience which an order of remand entails.
11. I may now take up the impugned notification. It was issued on 15th of June 1995 and, after the subsequent amendment, it lays down that the President of Azad Jammu and Kashmir was pleased to relax the departmental rules to the extent of experience so as to enable Shamaila Mahmood daughter of Mahmood Ahmad Khan of District Mirpur, Azad Kashmir to appear in the competitive examination for the post of Sub-Judge to be held in 1995 by the Public Service Commission. The notification does not disclose the authority under which the relaxation had been ordered. However, Mr. Shiraz Kayani, the learned Advocate-General, submitted that the power of relaxing the rules was available under rule 24 of the Azad Jammu and Kashmir Civil Servants (Appointment and Condition of Service) Rules, 1977 (the Rules of 1977, for bravity) Rule 24 runs as follows:-- "24. Government may, for special reasons, relax any of the rules in any individual case."
' It is provided in rule 18 of the Rules of 1977 that a candidate for initial recruitment to a post must possess the prescribed educational qualifications and experience.
12. In his arguments the learned counsel for the respondents did not address arguments in light of rule 24 of the Rules of 1977. This was due to the mistaken belief that the matter already stood decided in the previous judgments discussed elsewhere. The validity of rule 24 has not been challenged before us in this or any other case. The Rules of 1977 have been framed in exercise of powers given to the Government by subsection (1) of section 23 of Azad Jammu and Kashmir Civil Servants Act, 1976, which is as follows:-- "S.23(1). The Government or any other person authorised in this behalf may make such rules as appear to him to be necessary or expedite for carrying out the purposes of this Act."
13. The overriding powers given in different service rules have been examined by this Court in a recent judgment pronounced in Civil Appeal No,16 of 1997 titled Mir Abdul Hamid v. Azad Government of the state of Jammu and Kashmir and 2 others (1997 PLC (C.S.) 805). The case arose out of a dispute relating to the allotment of a Government residence. One of the points which fell for determination in that case was the scope of power given to the Prime Minister of Azad Jammu and Kashmir in sub-rule (3) of Rule 6-A of the Azad Jammu and Kashmir Allocation (Accommodation) Rules 1981. The sub-rule runs as follows:-- "3. Notwithstanding anything contained in these rules or any other rules for the time being in force, the Chief Executive shall have the powers to allot a house to a Government servant at his discretion at any Time."
' The ratio laid down in Mir Abdul Hamid's case in respect of such powers is directly applicable to the present case. I may, therefore, quote the relevant portion of that judgment: "17. While interpreting the power granted in the above extracted sub-rule, we may observe that laws are made and rules are framed for being implemented and not for being violated. This is the concept of law in every State which is governed by a written constitution. The framing of Accommodation Rules is preferable to the Azad Jammu and Kashmir Civil Servants Act. Power to make rules is provided in subsection (1) of section 23, which lays down that
(1) The Government or any other person authorized in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. '
' On a plain reading, rules can only be framed for carrying out the purposes of the parent Act.
18. Sub-rule (3) of rule 6-A, already reproduced, gives powers to the Chief Executive to override all rules. Such powers, wherever given in any service rules, are only referable to section 22 of the Azad Jammu and Kashmir Civil Servants Act which is as follows:- "22. Saving.--Notwithstanding 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 that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
18.It has been held by this Court in Sh. Manzoor Ahmed v. Azad Government and another 1995 PLC (C.S.) 59 that power under section 22 of the Azad Jammu and Kashmir Civil Servants Act has to be exercised to advance the ends of justice and equity and not to give an undue advantage to a civil servant in contravention of the relevant law. Under section 23 the Government is only empowered to make rules for carrying out the purpose of the Azad Jammu and Kashmir Civil Servants Act.
Therefore, if a rule confers discretionary power which is exercisable to override the rules, it has to be construed that such powers have been conferred for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance ends of justice and equity. In our view, this purpose must be deemed to be incorporated in sub-rule (3) under discussion and all other provisions of this type.
Therefore, sub-rule (3) of rule 6-A of the Accommodation Rules must be construed accordingly, with the result that the Chief Executive can pass an order only to advance ends of justice and equity. The question as to what is just and equitable cannot be answered by laying down a hard and fast definition. Even otherwise it is not possible to address to this question in vacuum. This depends on the facts of each case. Even the dictates of justice and equity may be different in different situations and what is just and equitable in one case may not necessarily be just and equitable in another case. Therefore, each case has to be examined by the Chief Executive on its own merits in light of persuading reasons. We may add that since a writ petition lies to challenge such an order, reasons must be such that can stand the scrutiny of judicial review."
14. Contents of the passages reproduced above may be summarized thus. When a set of rules is framed under section 23 of the Civil Servants Act it has to be construed that it has been framed to carry out the purposes of the Civil Servants Act. If in any rule a special power is granted to override or relax the rules this power will be deemed to be for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance the ends of justice and equity. This purpose shall be deemed to be incorporated in every rule under the Civil Servants Act which gives the power of relaxation of rules or overriding them. The question as to what is just and equitable depends on facts of each case and if exercise of this power is challenged in a case, the reason on which the order is passed will be judicially scrutinised by Courts of law.
15. The validity of the impugned notification by which the requirement of experience was dispensed with has to be answered in light of the principles stated above. When the notification in favour of the appellant was challenged by respondents, Mukhtar Ahmed and others, the Government and other respondents in the writ petition, including Shamaila Mahmood did not bring on record the reason which persuaded the Government to exempt the appellant from the requirement of experience laid down for the post of Sub-Judge. Therefore, there is nothing on record to show that the order was passed for just and equitable consideration. I would, therefore, hold that the Notification of 15th of June, 1995 was bad in law and I would order acceptance of the writ petition filed by the present respondents for the reasons stated in this judgment.
16. Mr. Reaz Alam, the learned counsel for the appellant, moved an application that he may be allowed to argue the point that the respondents were not aggrieved persons and the writ petition was not maintainable at their instance. I am inclined to grant the requested leave. The point is purely legal as it can be resolved on the present record. However, the point is not of any substance.
In order to show that the writ petitioners were aggrieved persons it was stated in the writ petition that they had been "asked to complete the required experience." In support of this averment the letter from the Public Service Commission addressed to respondent No,1 Mukhtar Ahmad, was attached an Annexure 'C'. Through this letter Mukhtar Ahmad was ordered to produce a certificate to the effect that he had practised law for a period of three years. In my opinion, this clearly gave the right to Mukhtar Ahmad to challenge the relaxation order in favour of the present appellant.
17. It was also contended by the learned counsel for the appellant that the writ petition was of academic interest only because the examination for which relaxation was ordered had already taken place and the appellant did not sit in the said examination. This point was first raised before the High Court but was repelled on the ground that in presence of clear verdict of the superior Courts the Government has attempted to exercise power not vested in it and it was appropriate to decide the issue to avoid any confusion. I agree with the reasoning and overrule the objection raised by the learned counsel for the appellant.
18. In light of the reasons recorded in this judgment, which are different from the reasons recorded by the High Court, the appeal is dismissed leaving the parties to bear their respective costs throughout.