' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been directed against an order passed by the High Court on 7-1-1998 whereby the writ petition filed by Maj. (Ret.)
Muhammad Aftab Ahmed, respondent No,1, was accepted and the Chief Secretary and Secretary Services were directed for implemention of the directions of the Prime Minister for issuance of notification of respondent No,1 as Superintendent of Police.
2. The case has a chequered history. Prior to 1996 there has been no quota/reservation of posts in the cadre of Superintendents of Police for retired/serving Army Personnel. Respondent No,1, however, in 1990 got orders from the Prime Minister of the time for his induction as Superintendent of Police against the quota reserved for Army Personnel. The order being in violation of law was not acted upon and respondent No,1 preferred a writ petition in the High Court for implementation of the orders of the Prime Minister. The writ petition was dismissed by the High Court and the said respondent filed an appeal in the Supreme Court which also met the same fate and was dismissed on 1-4-1992. The judgment of Supreme Court is reported as Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government (1992 SCR 307).
3. The respondent feeling not satisfied with the aforesaid judgments further pursued the matter and moved more applications to the Honourable Prime Minister during the period from 1991 to 1997.
The Prime Minister has been pleased to pass orders regarding respondent's induction as Superintendent of Police. It would be pertinent to mention here that on 22-8-1996 an amendment was made in the Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 providing for the first time 10% quota in the cadre of Superintendents of Police reserved for retired/serving officers of the Armed Forces. It was also provided in the said amendment that retired/serving officers of the Armed Forces already employed shall be deemed to have been employed/inducted validly from the date of their induction/employment. Copy of amendment is enclosed with the petition for leave to appeal as Annexure D' . It is worth while to mention that in the meantime during the year 1995 Maj. (Rtd.) Adalat Khan, proforma-respondent No,4, was inducted as Superintendent of Police in the Police Service of Azad Jammu and Kashmir.
4. The respondent who is also a retired Army Major applied for his induction in civil service under the rules regulating the induction of Defence Forces Personnel in the civil service. Secretary Services submitted a summary to the Prime Minister for the purpose on 20-3-1997 and the Prime Minister was pleased to accord sanction on the proposal submitted by Secretary Services on 3-4- 1997 in the following words:- {{URDU TEXT}}
5. The matter remained pending for some time. The respondent again approached to the Prime Minister who was pleased to again order on 16-4-1997 that notification in compliance of his order be issued. Both the directions of the Prime Minister have not so far been carried into effect by the respondents. Feeling constrained the respondent herein filed a writ petition seeking a writ of mandamus to the respondents for implementation of the directions of the Prime Minister for issuance of notification of the respondent herein as Superintendent of Police. The respondents before the High Court, however, did not file their written statements; they relied upon the comments filed by Secretary Services. It was stated in the comments that only 10% quota for retired Army Personnel was reserved for the purpose which has been exhausted due to the induction of 'Maj. (Rtd.) Adalat Khan in the civil service as Superintendent of Police.
6. Appellants 1 to 6 who belong to the cadres of D.S.Ps. P.D.S.Ps. And A.S.Ps. Applied for the leave of the Court by assailing the impugned judgment of the High Court dated 7-1-1998, on various grounds. The leave was granted to the appellants vide order of this Court dated 18-4-1998, to consider the following points:-
(i) whether the appellants were adversely affected - by the impugned judgment of the High Court as they were senior most officers in the cadres of D.S.Ps., P.D.S.Ps. And A.S.Ps. Entitled and eligible to be promoted as Superintendents of Police in case of availability of any post of Superintendent of Police;
(ii) that ten percent seats have been reserved for Army Personnel for direction appointment as Superintendent of Police but the quota already stands exhausted;
(iii) that the post can be filled up only through P.S.C. Or, if any, through the Selection Board but no selection procedure has been adopted;
(iv) that selection has to be made out of those who are desirous for appointment and not through one who obtains an order form the Prime Minister; and
(v) that in view of the dictum laid down by this Court in case reported as Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government (1992 SCR 307), in the appeal filed by the respondent herein it was observed that an illegal order cannot be enforced by the High Court in exercise of writ jurisdiction.
7. In support of appeal, it was contended by Mr. Abdul Rashid Abbasi, the learned counsel for the appellants, that though the Government has not filed an appeal but three D.S.Ps., one P.D.S.Ps. And two A.S.Ps. Have filed the present petition for leave to appeal to challenge the order passed by the High Court. According to the learned counsel the appellants are directly adversely affected by the aforesaid judgment of the High Court as they are senior most officers in the cadre of D.S.Ps., P.D.S.Ps. And A.S.Ps. Entitled and eligible to be promoted as Superintendents of Police in case of availability of any post of Superintendent of Police. To explain the locus-standi of appellants it was contended by Mr. Abdul Rashid Abbasi, the learned counsel, that if the respondent, as claimed, is unlawfully appointed as Superintendent of Police one of the appellants will be deprived of promotion to the said posts as such they have a locus standi to move the present appeal. It was further elaborated that the appellants were neither impleaded as party in the writ petition filed by respondent No,1 nor did they get any knowledge about the said judgment of the High Court dated 7-1-1998 uptil 17-3-1998, when on the intimation of application of respondent No,1 for implementation of the judgment of the High Court in the Services Department one of the petitioners who happens to be in touch with the Services Department in connection with his another case pending in the Service Tribunal got knowledge of the whole affair. So, the relevant copies were applied for immediately and the petition was presented without any delay. The appellants also made a prayer for condonation of delay, if any, in the memorandum of petition for leave to appeal as well as through a separate application moved in this regard duly supported by their affidavit.
8. The learned counsel for the appellants vehemently contended that the High Court had no jurisdiction to order the implementation of the impugned orders passed by the Prime Minister as the same were violative of the relevant law and rules. The quota reserved for retired/serving Army officers, having already been filled in, the Hon'ble Prime Minister did not have any jurisdiction to order the induction of any other officer in violation of the specified 10% quota. Elaborating his point of view the learned counsel submitted that there being only twelve posts of Superintendents of Police only one post goes to the quota of retired Army officers. The rest of the posts which fall to the promotion of quota of D.S.Ps., P.D.S.Ps. And A.S.Ps., it were only the appellants who were entitled for any post falling vacant in the cadre of Superintendent of Police. It was further pressed into service by the learned counsel for the appellants that respondent No,1 having not been found suitable by the authorities concerned at the time of appointment of Maj. (Rtd.) Adalat Khan, pro forma- respondent No,4, could not insist upon his induction. Though such a plea was raised in the High Court but it escaped the attention of the High Court. Thus, the High Court committed a legal error by non-reading the material available on record. It was strenuously argued by the learned counsel that in any direct induction in a service the posts in B-16 to above could be made through a competitive examination/test to be held after thorough publicity so as to provide ample opportunity to all those who are eligible for such posts. The impugned judgment has done away with such provisions of law. The learned counsel maintained that the orders sought to be implemented by respondent No,1 through writ petition being illegal and in violation of law and rules could not have been enforced but the High Court overlooked this most material aspect of the matter which has resulted into illegal exercise of jurisdiction and miscarriage of justice.
9. Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No,1, submitted that the points raised on behalf of the appellants have yet to be examined by the Chief Secretary and the Secretary Services before issuing the appointment order. He submitted that intent of the writ issued by the High Court is not that an unlawful order may be issued by the respondents. The learned counsel contended that appeal was not competent because the orders passed by the Prime Minister from time to time have not been challenged nor the appellants impleaded the Prime Minister or the Government as respondent. The learned counsel also explained that cause of action will accrue to the appellants if and when the order of appointment is issued. It was also contended by Ch. Muhammad Ibrahim Zia that respondents were bound to carry into effect the directions of the Prime Minister who is the Chief Executive and authority competent to order the induction of retired Army Personnel in the civil service. The learned counsel placed reliance on the reported case of this Court titled Farooq Ahmad Khan and 3 others v. Shaukat Jan Bauch and 2 others (1998.PLC (CS) 425), and an unreported case captioned Mujahid Hussain Naqvi v. Azad Jammu and Kashmir Government (decided on 11-6-1996) and another case with the same caption decided by the High Court on 14-11-1996. It was also argued that the Chief Secretary and Secretary Services submitted a summary for review of the directions of Prime Minister which has also been rejected by the Prime Minister vide his order dated 30-9-1997.
10. Sardar Rafique Mahmood Khan, the learned counsel for respondents 2 and 3, submitted that the Government has after reconsideration reached the conclusion that the order of the High Court should be vacated. He fully endorsed the arguments advanced by Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No, 1 .
11. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the High Court accepted the writ petition filed by respondent No,1 mainly on the following grounds:-
(i) that it goes without saying that the Prime Minister is a competent Authority in the case of induction in the service of Government. The Prime Minister has categorically directed twice for induction of petitioner in the civil service as Superintendent of Police and the proposal for review of his directions has also been rejected by the Prime Minister on 30-9-1997 as placed on record in the High Court along-with the written statement. In view of the rule laid down in Farooq Ahmad Khan and 3 othes v. Shaukat Jan Bauch and 2 others (1998 PLC (CS) 425), (supra), wherein it is held that the Chief Secretary and Secretary Services are bound to implement the orders of the competent Authority or to submit it for reconsideration; and
(ii) that as admitted by the learned Additional Advocate-General, in his written statement that the review for directions of the Prime Minister has been rejected by the Prime Minister there remains no objection for the respondents except to carry into effect the directions of the Prime Minister dated 3-4-1997, 16-4-1997 and 30-9-1997.
12. The learned counsel appearing on behalf of the appellants vehemently contended that respondents before the High Court i,e, the Chief Secretary and the Secretary Services and General Administration Department though did not file their written statements in the case, however, comments were filed on behalf of Services and General Administration Department. It was stated in the comments that only 10% quota for retired army personnel is reserved for the purpose which is exhausted due to induction of Maj. (Rtd.) Adalat Khan, in civil 'service as Superintendent of Police. In para 4 page 2 of the High Court judgment the above fact has been specifically noted but the High Court failed to give any finding on the point as to whether after induction of Maj. (Rtd.) Adalat Khan in the civil service as Superintendent of Police any quota was left for appointment of respondent No,1 as Superintendent of Police. According to the learned counsel for the appellants since no quota was left for absorbing the Army Personnel as Superintendent of Police in the civil service as such the High Court committed a grave error in accepting the writ petition and issuing the directions for carrying into effect the order of the Prime Minister. The contention raised by the learned counsel for the appellants is not without any substance. The High Court in our considered view in absence of any quota left for Army Personnel to be inducted in police service failed to exercise jurisdiction in a lawful manner.
13. The present appellants before us were neither impleaded as party in the writ petition filed by respondent nor their view point was brought on the record of the High Court. They have directly filed the petition for leave to appeal assailing the impugned judgment of the High Court on the ground that they were adversely affected by the impugned judgment of the High Court as they were senior most officers in the cadres of D.S.Ps., P.D.S.Ps. And A.S.Ps. Entitled and eligible to be promoted as Superintendents of Police in case of availability of any post of Superintendent of Police. On the basis of seniority list appended with the petition for leave to appeal some of the appellants appear to be senior most D.S.Ps., P.D.S.Ps. And A.S.Ps. And natprally they have an interest for their promotion and, as such, they are aggrieved persons to file the present appeal. It is not necessary that an aggrieved person should have a strict juristic right to enforce it by filing a writ petition but, on the other hand, if he can show prima facie some interest which has been adversely affected by an executive or judicial order, he becomes fully competent to file the appeal. Therefore, we are of the view that the appeal field by the present appellants competent under law and they are aggrieved persons within the meaning of section 44 of the Interim Constitution Act, 1974. Since they were not impleaded as party in the writ petition filed by respondent No,1 nor they had the knowledge of any order passed adversely affecting their interests; the moment they acquired knowledge of the impugned order they promptly filed the petition for leave to appeal and also made a prayer for condonation of delay in the petition for leave to appeal as well as through a separate application supported by their affidavit. The assertion made by the appellants and the explanation given by them appears to be reasonable and is duly supported by their affidavit, therefore, we condone the delay, if any, in filing the petition for leave to appeal.
14. On merits it was contended on behalf of the appellants that the order of appointment of respondent No,1 as Superintendent of Police from the quota of Army Personnel was violative of law and beyond the jurisdictional competence of the Prime Minister and for giving into effect an illegal and unlawful order no writ could have been issued by the High Court. The above raised contention of the learned counsel for the appellants being purely legal could have been raised at any time before this Court. Our aforesaid view is supported by a reported case c of this Court Raja Muhammad Ashraf Khan Kayani v. Azad Government and 4 others (1998 PLC (CS) 110) wherein it is observed at page 396 in a following manner:- ' "It is indeed a law point and it has been the consistent practice of this Court to allow a law point to be raised at any time if the same does not need any detailed investigation. However, the general rule is that the point should be raised in the appeal or the concise statement."
' Needless to say that the above point was raised in the memorandum of appeal as well as in the concise statement and was strenuously argued before us.
15. In Azad Jammu and Kashmir Public Service Commission Act, 1986 (hereinafter to be referred as Public Service Commission Act) its definition is given under section 1 as follows:- ' "This Act may be called the Azad Jammu and Kashmir Public Service Commission Act, 1986."
' Section 7 of the Public Service Commission Act deals with the functions of the Commission which reads as under:- ' "Functions of the Commission.---The functions of the Commission shall be:- ' 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;
16. Section 49 of the Azad Jammu and Kashmir Interim Constitution Act 1974 (hereinafter to be referred as the Constitution) provides as under:- ' "Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law."
17. Rule 16 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service)
Rules, 1977 postulates as follows:- ' "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."
' In accordance with the scheme laid down in section 49 of Constitution, the Public Service Commission Act and the rules made thereunder and the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of the Service) Rules, 1977, if a citizen wants to enter in the civil service of Azad Jammu and Kashmir in Grade 16 or above he 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 specialised 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 law which applies to all state subjects.
18. In a case reported as Maj. Muhammad Aftab Ahmad (Ret.) v. Azad Jammu and Kashmir Government (1992 SCR 307) the following observations are recorded by this Court at page 312:- "Even if it is assumed for the sake of arguments that the Prime Minister had. Made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even though it is competent Authority to pass such order in a lawful manner. Since, as said earlier, the appointment of the appellant could not be made to the post of Superintendent of Police under the rules the orders of the Prime Minister claimed by the appellants to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do not justify and call for to do so."
19. Prior to the amendment of Azad Jammu and Kashmir Police Service (Composition and Cadre)
Rules, 1983, the appointment of Superintendent of Police was governed by the service rules according to which the vacancy in the post of Superintendent of Police could only be filled by way of promotion from the officers of the Police Department in the cadres of Assistant Superintendents of Police, Deputy Superintendents of Police or the Prosecuting Deputy Superintendent of Police and not by direct recruitment, but as said earlier on 22-8-1996, an amendment was made in the Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 providing for the first time 10% quota in the cadre of Superintendents of Police reserved for retired/serving officers of the Armed Forces. However, in the said amendment no procedure for direct recruitment to the post of Superintendent of Police is provided.
20. From the readings of the provisions of the Constitution and the Public Service Commission Act and the rules made thereunder and Azad Jammu and Kashmir Civil Servants (Appointments and Conditions Of Service) Rules, 1977, it becomes crystal clear that if a serving or retired Army Officer wants to be appointed as Superintendent of Police, the appointment shall be made on the basis of examination and test conducted by the Public Service Commission whereas the vacancy of Superintendent of Police can also be filled by way of promotion from the officers of Police Department in the cadre of Assistant Superintendents of Police, Deputy. Superintendents of Police or the Prosecuting Deputy Superintendents of Police with the approval of the Selection Board. Since the impugned order of appointment of respondent No,1 as Superintendent of Police through direct recruitment was passed by the Hon'ble Prime Minister without the recommendations and approval of the Public Service Commission so it, being an illegal and unlawful order, could not have been enforced in exercise of writ petition jurisdiction.
21. So far as the objection of Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No,1, is concerned that the points raised by the appellants or argued by them before this Court have yet to be examined by the Chief Secretary and the Secretary Services at the time of issuance of notification of appointment of respondent No,1 merits no consideration for the simple reason that we cannot shut our eyes to the direction given by the High Court.. The direction given by the High Court, as rightly pointed out by the learned counsel for the appellants, virtually amounts to issuance of a notification of appointment in favour of respondent No,l. The next contention raised by the learned counsel for respondent No,1 that respondents, before the High Court. Were bound to carry into effect the orders of the Prime Minister who is the Chief Executive and competent Authority to order induction of appointment of retired/serving Army officers on careful consideration is found to have no substance in it as it is always a legal order passed by the Chief Executive for which the respondents were bound to give it effect. The cases cited by the learned counsel for respondent No,1; Farooq Ahmad Khan and 3 others v. Shaukat Jan Bauch and 2 others (1998 PLC (CS) 425), and unreported case captioned Mujahid Hussain Naqvi v. Azad Kashmir Government (decided on 11-6- 1996) and another case with the same caption decided by the High Court on 14-11-1996, have no relevancy to the case in hand as the facts in those cases were clearly distinguishable.
22. The last contention of the learned counsel for respondent No,1, however, merits a serious consideration that order of appointment of respondent No,1 was passed by the Prime Minister but the Government was not impleaded as a party in the appeal by the appellants, as such, the Government was a necessary party and without giving it an opportunity of being heard the order passed by the Prime Minister could not be set at naught. This contention appears to be substantially weighty and correct. In this view of the matter without this revision petition is directed against the judgment dated 28-1-1993 of the learned. District Judge, Bhakkar, whereby the judgment of the learned quashing the impugned order passed by the Prime Minister we hold that a writ for implementation of or giving effect to such an order could not have been issued by the High Court in exercise of discretionary jurisdiction.
23. In the light of what has been stated above, by accepting the appeal we set aside the impugned judgment passed by the High Court on 7-1-1998, and order the dismissal of writ petition filed by respondent No,1, without any order as to costs.