1. ' BASHARAT AHMAD SHAIKH, J.---The appellant is a retired Director of Education, a post in B-20. He was purportedly appointed as member of the Public Service Commission by the President of Azad Jammu and Kashmir but his appointment order was not issued. Thereupon, he filed a writ petition in the High Court seeking a direction addressed to the Azad Government of the State of Jammu and Kashmir as well as Secretary Services and General Administration Department. Principal Secretary to the President and Principal Secretary to the Prime Minister that the order of the President may be implemented. The writ petition was dismissed. The appellant was granted leave to appeal.
2. ' A learned Judge of the High Court has held that the President of Azad Jammu and Kashmir was not empowered to independently appoint a member of the Public Service Commission as he could only do so when advice is tendered by the Prime Minister to him. Interpreting section 7 of the Azad Jammu and Kashmir Interim Constitution Act, the learned Judge observed that the President has only to act on in accordance with the advice of the Prime Minister which is binding on him. He also held that this legal position was equally applicable to powers of the President given to him under laws other than the Constitution Act itself. The High Court also repelled the argument put forward by the writ petitioner that according to Schedule-V of the Rules of Business of The Azad Government of the State of Jammu and Kashmir, the President is authorised to appoint Chairman and Members of the Public Service Commission without advice of the Prime Minister. It was unsuccessfully argued that provisions of the Rules of Business form an exception to the above rule.
3. ' The same arguments have been advanced before us with great vehemence by the learned counsel for the appellant, Mr. M. Tabassum Aftab Alvi, who contended that the High Court has not correctly interpreted the relevant provisions. The learned counsel began by submitting that section 3 of the Azad Jammu and Kashmir Public Service Commission Act empowers the President to appoint Chairman and other members of the Commission but did not seriously contest the accepted legal position that section 7 of the Azad Jammu and Kashmir Interim Constitution Act is also applicable to sub-constitutional laws just as it applies to the Constitution Act. However, the learned counsel submitted that the powers given to the President under the Rule of Business are available to him without advice of the Prime Minister as the matter was covered by an exception provided in the opening words of the section. In order to appreciate the arguments it will be useful to reproduce section 7 which is as follows: "(7) President to act on advice, etc.---(1) Subject to an expressed 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.
(2) The question whether any, and if so what, advice was tendered to the President by the Prime Minster shall not be enquired into by any Court.
4. ' Relying on the opening words of the section extracted above, the learned counsel submitted that the matter of appointment of members of the Public Service Commission formed an exception to the provision that the President has to act on the advice of the Prime Minister. His arguments may be summarized thus. Section 58 of the Azad Jammu and Kashmir Interim Constitution Act authorizes the President to make rules. In exercise of this power rules known as "Azad Government of the State of Jammu and Kashmir Rules of Business 1985" have been framed. Schedule V of the Rules of Business lays down the list of cases which have to be submitted to the President for his approval. Item No,18 in the list mentions the appointment of the Chairman and Members of the Public Service Commission. This provision was put forward by the learned counsel for the appellant as an exception to the general rule of section 7 and he contended that Schedule V gives the powers of approval to the President and does not mention advice of the Prime Minister. Thus, it was pleased that the power was exercisable independently by the President. Mr. M. Tabassum Aftab Alvi relied on President's Reference No,1 of 1977 (PLD 1978 SC (AJK) 37), Khawaja Ahmad Tariq Rahim, Bar-at-Law v. Federation of Pakistan (PLD 1991 Lah. 78), Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lah. 725), Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another (PLD 1989 Karachi 404) and Darwesh M. Arbey, Advocate v. Federation of Pakistan through the Law Secretary and 4 others (PLD 1980 Lah. 206 and 271).
5. ' It was alternatively contended by the learned counsel for the appellant that the President got advice of the Prime Minister verbally in the present case which was perfectly legal. On this factual aspect the learned counsel relied on the order of the President passed on 21st January, 1997, the order which the appellant wanted to be implemented through the writ petition filed by him. He also relied on an affidavit filed in The High Court in support of the averments made in the writ petition.
6. The learned counsel relied on Muhammad Ajaib v. Public Service Commission and 3 others (1997 PLC (C.S.) 222), Islamic Republic of Pakistan, through the Secretary, Ministry of Defence Government of Pakistan Rawalpindi and another v. Amjad Ali Mirza (PLD 1977 SC 182), Abdul Karim v. Muhammad Ibrahim (1976 SCMR 79) and Haji Muhammad Yunis and 4 others v. Muhammad Hanif Pehalwan and 3 others (1982 CLC 49) to contend that the affidavit of the appellant should be believed because it had not been rebutted by a counter-affidavit. He also relied on the appointment orders of Mr. Tariq Masood Chaudhry and Dr. Khairat Muhammad Chaudhry as Vice-Chancellors of the University of Azad Jammu and Kashmir. These orders were directly made by the President without advice of the Prime Minister but they were, as claimed, issued by the Government. These orders shall not be considered by us because the uncertified copies attached with the writ petition, even if it is assumed to be correct, do not show that the orders were implemented in the manner in which they were made.
7. ' The learned Advocate-General Raja Shiraz Kayani, vehemently contested the point raised by the learned counsel for the appellant. He submitted that section 7 of the Azad Jammu and Kashmir Interin Constitution Act applies to sub-constitutional laws and wherever the law lays down that the President may exercise a function or power it is controlled by section 7 and an action of the President is not valid unless it has been taken on the advice of the Prime Minister. The learned Advocate-General dwelt on the scheme of the Constitution Act as submitted that in a parliamentary form of the Government it is the Prime Minister and the Cabinet who exercise the executive authority and not the President. He explained that Prime Minister and Cabinet are answerable for their acts and it is presupposed that the matter for which they are answerable are within their power. He submitted that the President cannot be sued in a Court of law and his actions can be challenged by impleading the Government as a respondent. He contended that if a power is vested in the President it is logically not correct to make the Prime Minister, not the President, answerable for it. He drew our attention to the protection which is given to the President by the Constitution Act, the learned Advocate-General contended that the scheme of the Rules of Business was not properly interpreted by the learned counsel for the appellant. He explained that the Rules of Business provided for upward movement of files and does to contemplate that orders may be recorded by the President and then sent downwards. In this context he strongly relied on Rule 11 of the Rules of Business and particularly on sub-rule (4) which lays down that summary to the President shall be submitted through the Prime Minister and shall contain the Prime Minister's specific recommendations. It was contended that even if the Prime Minister agrees with an order which originates from the President without advice of the Prime Minister it would not be a legal order and cannot be enforced through a Court of law.
8. Law is well-settled that section 7 of the Constitution Act is applicable to all sub Constitutional laws and, therefore, the President has to act on advice even in those matters which are not mentioned in the Constitution Act itself. It is equally well settled by now that an express provision to the contrary made in the Constitution Act itself forms an exception to the rule mentioned above Therefore, the sole point which needs to be decided is whether Schedule V appended with the Rules of Business, 1985 can be treated as an exception to the general provision about the binding nature of the advice of the Prime Minister While relying on Schedule V in support of his arguments.
9. Mr. M. Tabassum Aftab Alvi, failed to notice that Schedule V is preferable to Rule 11 of the Rules of Business as is indicated in the title of Schedule V, as a cross-reference. Rule 11 clearly lays down cases mentioned in Schedule V which shall be sent to the President for his approval but, as pointed out by the High Court, it is also laid down that in these cases specific recommendations of the Prime Minister shall also be submitted to the President. It will be useful to reproduce Rule 11:-- "(11) 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) All cases of detention by Government under subsection (1) of section (3) of the Public Safety Act and Rule 23 of the Civil Defence Rules, 1962 shall be submitted to the President through the Prime Minister for his orders.
(4) 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.
(5) The Prime Minister shall keep the President informed of all important political and administrative matters and major development, industrialization, etc."
10. ' The phraseology of rule 11 clearly reflects the provisions of section 7 of the Constitution Act. It lays down that all cases in which the approval of the President is sought, shall be submitted with the Prime Minister's recommendations. It is not laid down, that the President may act without advice.
11. Rules of Business also not visualize any order originating from the President's office.
12. ' The reliance of the learned counsel for the appellant on opinion of this Court in President's Reference No,1 of 1978 (PLD 1978 SC (AJ&K) 37) is entirely misplaced because it contradicts the stand taken by the learned counsel for the appellant rather than supporting him as is evidence from the following passage:-- '....In view -of this analysis we are of the view that in spite of the provisions of section 7 and section 12 of the Act, Rule 11 and Schedule III of the Rules of Business, which is no way run counter to these sections of the Act, do not permit the executive authority to bypass the President and issue orders of appointment of the Chairman or members so Public Service Commission without President's approval. Before such orders can by validly issued President's approval has to be obtained in the way laid down in Rule 11(4) of the rules of Business. Thus, though such cases are to be initiated by the executive containing specific recommendations of the Prime Minister, orders thereon cannot be issued in the name of the President without obtaining this approval. Section 12 of the Act cannot be pressed into advice for by-passing the President."
13. ' Para. 4 of the report is also instructive on this point as would be clear from its perusal-- "(4) A remote possibility was pointed out to us as to what would happen if the President refuses to accord his approval in spite of the advice of the Prime Minster tendered under section 7(1) of the Act. We find that unlike the provisions of section 36(2) where the remedy is provided if the President does not assent to a bill within seven days after it has been presented to him, the Act does not approve any such solution concerning cases referred in Schedule III, Part A. This might create a Constitution impasse- and probably will have to be resolved through ultra-Constitutional manner or otherwise. Though this is a remote possibility but the mere presence of even this remote possibility but the possibility does not in any way render the provisions of Rule 11, read with Schedule III of the Rules of Business as inoperative."
14. It is, therefore, clear that Schedule V of the Rules of Business is in line with the main provisions of section 7 of the Constitution Act that the President has to act on the advice of the Prime Minister and does not fall under the exception clause. We may observe here that if we hold, as canvassed by the learned counsel for the appellant, that Schedule V contains independent powers of the President - it would lead to anomalous result. A personal of the list contained in Schedule V would show that these are clearly no independent powers of the President. Item No,2 of the Schedule is "Promulgation of Ordinance". If we accept the argument of the learned counsel for the appellant then the promulgation of an Ordinance will be an independent power of the President but this would be inconsistent with the Constitution Act. Item No,12 mentions the appointment of Chief Justice and other Judges of the Supreme Court and item No,13 carries reference to the appointment of Judges of the High Court. These are also not powers of the President because appointments have to be made on the advice of the Azad Jammu and Kashmir Council as is provided in sections 42 and 43 of the Constitution Act. Item No, 20 relates to appointment of Chief Election Commissioner about whom it is laid down in section 50 of the Constitution Act that he will be appointed on the choice of the Council.
15. ' The cases of Khawaja Ahmad Tariq Rahim and Kh. Muhammad Sharif related to Article 58(2) (b) of the Constitution of Pakistan which gave power to the President to dissolve the National Assembly ;without advice of the Prime Minister. It was rightly held by the Lahore High Court in these cases that this was an independent power available to the President and was not dependent on the advice of the Prime Minister. The power under Article 58(2)(b) was to be exercised by the President of Pakistan in his discretion and it was provided in Article 48 that no such matters of advice of the Prime Minister will be binding. We may reproduce relevant part of Article 48:--- "48. President to act on advice, etc.--(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, (or the Prime Minister);
(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever."
16. ' Under Article 58(2)(b) it was provided as follows:-- "58(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion..............................
17. ' These provisions made it clear that the advice of the Prime Minister was not necessary under Article 48 (2) of the Constitution of Pakistan, 1973. It is in light of this provision that the Lahore High Court' held that the dissolution of National Assembly can be ordered by the President in his discretion without advice of the Prime Minister. Since there is no analogous provision in the Azad Jammu and Kashmir Interim Constitution Act the judgments do not advance the case of the appellant. The view expressed by the Karachi High Court in Sharaf Faridi's case cited by Mr. M.Tabasum Aftab Alvi, that the Judges can be appointed by the President without the advice of the Prime Minister, is not the correct law. The correct law was laid down by the Supreme Court of Pakistan in Al-Jahad Trust through Raees-ul-Mujahidin Habibi Al-Wahabut Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others (PLD 1997 SC 84), when it was authoritively held that the President has to act in accordance with the advice of the Cabinet or the Prime Minister in the matter of appointment of Judges of the superior Courts. It was also held that appointment of a Judge is an executive action. The ratio in Darwesh M. Arbey's case also stands overruled.
18. ' Having reached the conclusion that to qualify as a valid order of the President the case must be submitted to the President under summary containing specific recommendations of the Prime Minister and also that an order needing advice of the Prime Minister cannot originate from the President. The arguments raised by Mr. M. Tabassum Aftab Alvi that the Prime Minister at one stage agreed to issue the appellant's order passed by the President, even if true, does not have any force.
19. Before parting with the case we may point out that the High Court has held that the executive authority of Azad Jammu and Kashmir vests in the Prime Minister. Section 12 of the Azad Jammu and Kashmir Interim Constitution Act lays down that the executive authority of Azad Jammu and Kashmir shall be exercised by the Government consisting of the Prime Minister and the Ministers. It is also laid down in section 12 that the Prime Minister shall be the Chief Executive. We want to clarify that we have not dealt with this question as it did not fall for determination in the present case.
20. Therefore, it shall not be construed on the basis of this judgment that the view of the High Court has been upheld that the executive authority of Azad Jammu and Kashmir vests in the Prime Minister.
21. ' As upshot of the foregoing conclusions, the judgment of the High Court is upheld. This appeal, therefore, fails with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.