' The petitioner seeks a direction in exercise of the powers vested in the High Court under section 44 of the Constitution to the respondents to act upon the direction of the President dated 21-1-1998 and issue the notification of the appointment of the petitioner as member of the Public Service Commission.
2. The contentions as alleged in the petition are that the petitioner has retired in B-20 after putting in 39 years of service of the Government and retired as Director of Education with excellent service record. The petitioner alleges that the President, who is competent authority for appointment of Chairman and Member in the public service commission, has ordered the appointment of the petitioner as member of the Public Service Commission vide his order dated 21-1-1998 and the Prime Minister has also concurred with the same, but the notification of the appointment of the petitioner is not being issued on account of interception of some interested persons. On the failure of the respondent-Government to issue the notification, the petitioner has filed this petition for a direction to the respondents to act in accordance with law by issuing notification of his appointment.
3. Raja Shiraz. Kayani, Advocate-General has filed the written statement on behalf of the respondents and has objected to the validity of the order of the President by contending that the order of the President is in contravention of the provisions of Interim Constitution act and other laws enforced which cannot be acted upon, and the President has been informed. It is further contended that the President in performance of his functions is bound to act upon and in accordance with the advice of the Prime Minister and that advice is binding upon him. Advocate- General has also objected to the maintainability of the petition on the ground that the petitioner is not an aggrieved person. The petitioner has refuted the contents of the written statement by filing of replica and has placed on record earlier directions of the President while appointing Mr. Tariq Masud Chaudhry and Dr. Muhammad Khairat Chaudhry as Vice-Chancellors of the University respectively on 25-4-1997 and 6-8-1997 and has maintained that the Government has carried into effect the orders of the President by issuing of notifications without any objection, accepting the competence of the President as the appointing authority.
4. The learned counsel for the petitioner arguing the case contended that the President is appointing authority of the Chairman and Members of the Public Service Commission under section 3 of the Public Service Commission Act, 1986 read with rule 11 and Item No,18 of Schedule (v) of the Rules of Business of the Government, 1985. The learned counsel also contended that as the rules of business have been framed under section 58 of the Constitution, the advice of the Prime Minister as contemplated by section 7 of the Constitution is not the requirement in making the appointment. The learned counsel also contended that the Prime Minister has also concurred with the direction of the President, hence lecuna if any, is also filled in. The learned counsel placed reliance upon PLD 1978 SC (AJ&K) 37 in relation to Reference No,1 of 1978 by the President of Azad Jammu and Kashmir.
5. Raja Shiraz Kayani, Advocate-General controverting the arguments contended that the president in performance of his functions under any law enforced in Azad Kashmir is bound to act upon the advice of the Prime Minister, hence any direction or order of the President not based on the advice of the Prime Minister is contrary to the provisions of the constitution and law. The learned Advocate-General further contended that the president is informed accordingly. A direction of the President can, therefore, not be acted upon which is without lawful authority. It is further contended by the Advocate-General that approval contemplated by Rule 11 and Schedule
(v) of Rules of Business has to be based on the advice of the Prime Minister and any order passed independent of the proposal or recommendations of the Prime Minister, is contrary to the provisions of the Constitution, law and rules.
6. After hearing the learned counsel for the parties, I have considered the arguments advanced at bar and have perused the law on the point. The executive authority of the Azad Kashmir is vested in the Prime Minister under section 12 of the Constitution, which may be reproduced here for reference: "12. The Government.---(1) Subject to this Act, the executive authority of Azad Jammu and Kashmir shall be exercised in the name of the President by the Government, consisting of the Prime Minister and the Ministers, which shall act through the Prime Minister who shall be the Chief Executive of Azad Jammu and Kashmir.
(2) In the performance of his functions under this Act, the Prime Minister may act either directly or through the ministers.
(3) The Prime Minister and the ministers shall be collectively responsible to the Assembly.
(4) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(5) The Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it.
' The above referred section is to be read in conjunction with section 19 of the Constitution, which is as follows: "19. Extent of Executive Authority of Government.---(1) Subject to this act, the executive authority of the Government shall extend to the matters with respect to which the Assembly has power to make laws.
(2) The executive authority of the Government shall be so exercised as:--
(a) not to impede or prejudice the responsibilities of the Government of Pakistan in relation to the matters specified in subsection (3) of section 31; and
(b) to secure compliance with the laws made by the council.
(3) Notwithstanding anything contained in this Act, the Government may, with the consent of the council, entrust, either conditionally or unconditionally, to the council or to its officers functions in relation to any matter to which the executive authority of the Government extends."
7. The perusal of above referred sections makes it abundantly clear that it is the Prime Minister alone who is vested with the powers to exercise the executive authority with respect to which the Assembly has power to make laws and those powers may be exercised by the Prime Minister directly or through the ministers. Thus, all the powers contemplated by any law made by the Assembly are vested in the Prime Minister being the chief executive. He may delegate any of his powers to the ministers or to the officers of authority subordinate to him. The executive authority, however, shall be expressed in the name or the President. There is a marked distinction between the exercise of the executive authority "in the name of the President" and "by the President". A Government Notification to be issued in exercise of the powers vested in the Government has to be issued in the name of the President, irrespective of the fact that order does not require the approval or sanction of the President. However, where under the constitution, law or rules, a function is to be performed by the President, the notification exercising that authority can be issued only when the President has approved the same, subject to the advice and recommendation of the Prime Minister, view of the Constitutional and legal provisions hereinafter to be discussed. Section 7 of the Constitution which regulates the performance and functions of the President, is as follows: "President to act on advice etc.---(1) Subject to an express provision to the contrary in this act, in the performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister and such advice shall be binding on him."
8. A perusal of the above referred section makes it clear that the president is to perform his functions only when the advice is tendered by the Prime Minister to him. A specific emphasis has been put on three mandatory words "act on", "in accordance with" and "such advice shall be binding on him". The above referred words leave no room for the President to act in any manner under any law unless he is adviced to do so.
9. Section 7 opens with the words "subject to an express provisions" in this act. In the light of this opening sentence, the petitioner contended before the Court that express provision provided in this behalf is section 58 of the Constitution which authorises the President to make rules for carrying out the purpose of this Act. According to the petitioner, Rules of Business, 1985 have been framed in exercise of the powers under section 58 of the Constitution. According to him rule 11 and Schedule
(v) of the rules of business empowers the President to make appointment in the Public Service Commission, hence, according to the petitioner, the advice contemplated by section 7 is not .Attracted in the case in hand. Section 58 of the Constitution is as follows: "58. Power to make rules.---The President may make rules for carrying out the purposes of this Act."
' The above referred section, as it reads, authorises the President to make rules for carrying out the purpose of this act. Section 7 of the Constitution is a part of the Act and any Rule framed in exercise of the powers under section 58 has to be subject to and in furtherance of section 7, not contrary or derogatory to it. Rules have to be framed in a way that mandatory nature of the advice of the Prime Minister is given full effect. The delegation of powers to the President is also not visualized by section, neither can it be, for the reason that the executive authority of the Government can be delegated in view of section 12 of the Constitution to the officers or authorities subordinate to the Government. The President being the head of the State, can neither be said, nor he is, an officer subordinate to the Government. Hence the argument that Government while making rule under section 58, has delegated the powers of appointment of member of the Public Service Commission to the President. Runs contrary to subsection (5) of section 12 of the Constitution.
10. The opening sentence, "subject to an express provision to the contrary in this Act" in section 7 of.
The Constitution refers to these provisions of the Constitution under which the President is to act on the advice of the council. The advice of the Prime Minister in those cases is not binding upon the President.
11. The rules relating to the appointment etc. In the Public Service Commission framed under section 58 of the Constitution find place in rule 11 and Schedule (v) of the Rules of Business, 1985 (hereinafter to be referred as rules of business). Relevant part of the rules may be reproduced as follows:-- "Reference to the President.---(1) No order shall be issued without the approval of the President in cases enumerated in Schedule (v).
(2) The cases enumerated in Schedule VI shall be submitted to the President through the Prime Minister for his information.
(3) A case submitted to the President for his orders shall be accompanied by a self-contained concise summary stating the relevant facts and points for decision. The summary to the President shall be submitted through the Prime Minister and shall contain the latter's specific recommendations."
SCHEDULE (V): "List of cases to be submitted to the President for his approval before issue of orders
18. Public Service Commission.
(i) Appointment, removal or resignation of Chairman and members of the Public Service Commission and their terms and conditions of service."
11-A. The above referred rules of business relied upon by the learned counsel for the petitioner are also crystal clear in stating that the President is to approve the summary submitted to him through the Prime Minister containing specific recommendation of the Prime Minister. The President is only to approve the recommendation not to direct the Prime Minister to act in any manner.
Appointment of the member in the Public Service Commission under subsection (2) of section 3 of the Public Service Commission Act, is a function of the President which is subject to the control of section 7 of the Constitution being the source of all the laws enforce in Azad Jammu and Kashmir, over which the executive authority is vested in the Prime Minister, under section 12 of the Constitution. The appointment cannot be made unless President approves the summary and recommendation submitted by the Prime Minister to him. Approval by the President before issuance of the order is a condition precedent and any order issued without approval of the president, notwithstanding the fact that executive authority with respect to all the laws made by the assembly vests in the Government, is without lawful authority. But it does not mean that the President can act independent of the advice, though it is the descretion of the President to approve any one out of the panel, if any submitted by the Prime Minister. The rules of business are subject to section 7 of the Constitution. The report of the Supreme Court made in Reference No,1 of 1978 reported as PLD 1978 SC (AJ&K) 37 is also in consonance with what has been stated above and is respectfully followed, through an advice.
12. The reference by the learned counsel for the petitioner that the appointment of Vice- Chancellors on the directions of the President in the similarly coached sections of the University Act which is carried into effect by issuance of notification by the Government, does not create a precedent for setting at naught the rules of business of the Government. As these matters are not in dispute before the Court, so it is not proper to comment on them.
13. The learned Advocate-General has rightly contended that the business of the Government is to be conducted in the manner it is visualized by the Constitution and the rules of business and any action contrary to it, is without lawful authority. Every case which requires the approval of the president under the above referred rules of business has to be approved on the advice of the Prime Minister. A direction without advice, approval without proposal or a subsequent ratification of the note or direction of the President by the Prime Minister is neither allowed nor recognized by the Constitution.
14. The contention of the petitioner that the Prime Minister has also agreed with the direction of the President and the same is intercepted by some interested persons is not accepted by the respondent Government. The assertions of the petitioner have been categorically denied and it is unequivocally stated that the direction of the President is against the Constitution and law. It is also stated that the President has been informed of the same. Thus, the contention does not hold field.
15. In view of above, finding no force in this petition, it is hereby dismissed without any order as to costs.