BASHARAT AHMAD SHAIKH, J.---The respondent in the case, Justice (Rtd) Raja Muhammad Khirshid Khan, retired as Chief Justice of Azad Jammu and Kashmir in 1990. On his retirement as Chief Justice he opted to purchase the official car in his use at depreciated price in accordance with the prevalent rules. He was appointed as Mohtasib for Azad Jammu and Kashmir on 22nd September, 1994 for a period of three years. According to a notification issued on 1st November, 1994 it was provisionally ordered that the respondent would be entitled to "the same privileges as are admissible to the Chief Justice of Azad Jammu and Kashmir". Consequently he availed of all the facilities and privileges. In order to amend the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act (Act XIV of 1992) an Ordinance known as the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir (Amendment)
Ordinance, 1996 was issued on 23rd June, 1996. At that time the respondent was about to complete his three years' tenure as Mohtasib. Inter alia a new subsection (1-B) was added to section 6 of Act XIV of 1992. Clause (b) of the new subsection was as follows:-- "(b) A Mohtasib who is a retired Judge of Supreme Court or High Court and he has availed the facility of car and driver after retirement, he shall not be entitled to get this facility again on completion of his tenure as Mohtasib."
The Ordinance was repeated one after the other by succeeding Ordinances issued on 27th October, 1996, 23rd February, 1997 and 22nd June, 1997. Ultimately it assumed the shape of an Act of the Assembly on 29th October, 1997, but on that date the respondent had already ceased to hold office as Mohtasib with effect from 23rd September, 1997. Many other amendments were carried out in the Act through the Ordinance under reference, but the present appeal only relates to the provisions reproduced above.
2. On 3rd June, 1997, when the respondent was about to complete his three years' tenure as Ombudsman, a notification was issued by the President of Azad Jammu and Kashmir in which it was laid down that the respondent would not be entitled to purchase official car at depreciated price. The notification may be usefully reproduced below:-- "NOTIFICATION
3. The respondent filed a writ petition in the High Court on 5th September, 1997, a few days before relinquishing office. In the writ petition he challenged the four successive Ordinances, mentioned above, as well as the notification of 3rd June, 1997 which has been reproduced above. The writ petition was filed on 5th September, 1997 and was decided on 27th December, 1999. During pendency of the writ petition the Ordinances passumed the shape of an Act of the Assembly on 29th October, 1997, therefore, the Act was also challenged with leave of the High Court. It was pleaded on behalf of the respondent that the provision reproduced above was in violation of subsection (1) of section 6 of the Act which reads as follows:-- "(i) The Mohtasib shall be entitled to such, salary, allowances and privileges and other terms and conditions of service as the President may determine and those terms shall not be varied during the term of office of a Mohtasib."
It was contended before the High Court that if clause (b) of subsection (1-B) had not been inserted in the Ordinances/Act the petitioner would have been entitled to purchase the .Car under his use on depreciated price. It was submitted that clause (b) was bad in law because it varied the terms and conditions which was not permissible under law. It was similarly pleaded that the notification issued on 3rd of June, 1997 was bad in law and inoperative because it also purported to vary the terms and conditions mentioned above.
4. The writ petition was admitted to regular hearing on 8th September, 1997. After more than two years, the writ petition was decided on 27th December, 1999. During this period the High Court allowed the respondent to continue with use of the disputed car as an interim measure. A Division Bench of the High Court accepted the writ petition by holding as follows:-- "Keeping in view the principles settled in the aforementioned authorities, it can be held that the provisions of clauses (a) and (b) of subsection (1-B) of section 6 of the amendment Ordinances and Notification No.Admin/A-11(1)/11/Claims/97, issued on June 03, 1997, in the light of aforesaid provisions, later on, legislated as an Act of the Assembly, are illegal, superfluous and also held to be of no legal effect, against the rights of the petitioner. It is further held that according to the terms and conditions of his service, the petitioner is entitled to a car at a depreciated price under rules, with the services of a driver, at Government expense, as permissible to the Chief Justice of Azad Jammu and Kashmir. Necessary direction shall issue accordingly. Consequently, the writ petition succeeds."
5. Azad Government of the State of Jammu and Kashmir and the President of Azad Jammu and Kashmir have filed this appeal by leave of the Court to challenge the judgment of the High Court.
6. Raja Muhammad Hanif Khan, - the learned counsel for the respondent, raised a preliminary objection which he argued with great vehemence that the appeal was not maintainable because it had not been filed under proper authority. Before noting the details of the objection it seems proper that relevant facts may first be stated. Before filing appeal in this Court the following notification was issued on 26th January, 2000 by the Law Department.- "NOTIFICATION Azad Government of the State of Jammu and Kashmir has accorded sanction for filing petition for leave to appeal in the Supreme Court against judgment of the High Court pronounced on 27th December, 1999 in writ petition titled Justice (Rtd.) Muhammad Khurshid Kayani v. Azad Government and others."
7. Copies of the notification were duly endorsed, amongst others to the Registrar of this Court. A copy has also been filed alongwith the petition for leave to appeal as Annexure 'K'. A copy was also sent to Mr. Farooq Hussain Kashmiri, Advocate "for filing and prosecuting the appeal". It is mentioned in para. 9 of the memorandum of appeal that the Government had accorded approval for filing the petition for leave to appeal in this Court. A Vakalatnama has also been filed on behalf of the petitioners/appellants which has been signed by the Chief Secretary of the Government and it is noted in the said document that the said officer was signing it on behalf of the Azad Government and the President of Azad Jammu and Kashmir.
8. The first objection raised by Raja Muhammad Hanif Khan is that the Government order by which sanction was accorded for filing of appeal is not expressed in the name of the President and is thus violative of section 12(1) of the Azad Jammu and Kashmir Interim Constitution Act which reads as follows:-- "(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."
9. It was contended that although executive authority vests in the Government but it must be exercised in the name of the President otherwise it would be invalid. After arguments it has transpired that this objection was not included in concise statement and was raised for the first time in arguments without seeking leave of the Court. This is clearly not permissible. Even otherwise we find no force in this contention. Raja Muhammad Hanif Khan has not 'cited any case-law in support of the contention. If the Government validly exercises executive authority but omits to mention the name of the President the exercise of authority is not rendered invalid.
10.There is another objection about maintainability of the appeal. The objection is that the Vakalatnama in this Court has been signed by the Chief Secretary but he is not authorised to sign a Vakalatnama on behalf of the Government. In the concise statement tiled by the respondent it was stated that Chief Secretary was not under any law authorised by the Government or by some other competent authority to engage a counsel on behalf of the Government. A reference was made to "the provisions of the Code of Civil Procedure read with Azad Jammu and Kashmir Law Department Manual". Reliance was placed on Azad Jammu and Kashmir Government v. Habibullah Lone (PLD 1984 SC(AJ&K) 13). Another point raised in the concise statement was that mandatory provision contained in para.39 of the Azad Jammu and Kashmir Law Department Manual, 1984 was violated while filing the present appeal because there is nothing on the record to prove that the Additional Advocate-General, who was incharge of the case in the High Court, made a report to the effect that an -appeal needs to be preferred.
11. As already noted when the writ petition was filed .By the respondent the following two respondents were impleaded in the writ petition,--
(i) Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government of the State of Jammu and Kashmir.
(ii) President of Azad Jammu and Kashmir through Chief Secretary.
Appeal has been filed in this Court by,------
(i) Azad Jammu and Kashmir Government through its Chief Secretary, Azad Government Civil Secretariat, Muzaffarabad.
(ii) President of Azad Jammu and Kashmir through Chief Secretary, Azad Government of the State of Jammu and Kashmir, Muzaffarabad.
Precisely the case of the respondent is that it was lawful for him to sue the Government and the President through the Chief Secretary but it is not lawful for the Chief Secretary to sign a Vakalatnama on behalf of the Government and the President.
12. We have already reproduced above the Government order issued by the Law Department on 26th January in which it was decided that leave to appeal will be filed in this Court against the judgment of the High Court in the present case. It follows that the Government gave sanction for challenging the order of the High Court in this Court. We have gone through the provisions of the Law Department Manual and we find that there is no specific provision as to who would sign the Vakalatnama in a petition for leave to appeal or appeals filed in this Court. Therefore, there is nothing in the Manual to support the objection raised by the respondent. According to the Manual the Law Department has to process the case if appeal is intended to be filed and has also to make selection of the Advocate. Both these conditions have been fulfilled as is evident from the Government order issued on 26th January, 2000 which has been reproduced above. The fact that the order was issued by the Law Department shows that the case was processed by the said Department. The endorsement of this order to Mr. Farooq Hussain Kashmiri for filing and prosecuting the appeal shows that the learned Advocate was selected by the Law Department and Government order was endorsed to him instructing him to file and prosecute the appeal.
Thereafter the Chief Secretary signed the Vakalatnama. According to Rule 7 of the Rules of Business Chief Secretary is the official head of Secretariat. A more formidable objection on the same lines was raised in the case titled Federation of Pakistan v. Malik Muhammad Miskeen and others (PLD 1995 SC (AJ&K) 1). About maintainability of appeal but was rejected by this Court by majority view.
In the precedent case appeal, with leave of the Court, was filed on behalf of the Government of Pakistan, Ch. Fazal-e-Hussain by Advocate who filed a Vakalatnama executed on behalf of the Federation of Pakistan by Secretary of Kashmir Affairs and Northern Affairs Division. An objection was raised that the said Secretary was not competent to sign the power of attorney in view of the provisions contained in the Rules of Business of the Federal Government. It was contended that under Item No.22 forming part of Schedule 11 attached with the Rules of Business "legal proceedings and litigation concerning the Federal Government" was the subject of Law and Justice Division but the power of attorney had not been signed by the Secretary of the said Division. When this objection was raised Ch. Fazal-e-Hussain contended that he had been duly appointed to act on behalf of the Federation of Pakistan by the Law and Justice Division. He placed on record copies of a number of documents showing that in fact he was appointed by Law and Justice Division to act on behalf of the Federation of Pakistan and was also paid fee by the same Division. The objection was overruled for various reasons but following observations are directly relevant to the objection under consideration:-- "However, even if it is assumed that the Secretary and other officers enumerated in Item 1 of Schedule IV to the Rules of Business means Secretary etc. Of the Division to which a particular business is concerned, it would not make any difference in the instant case because the letter, dated 5th April, 1993 whereby Ch. Fazal-e--Hussain was engaged as counsel, has been signed by the Section Officer of Law and Justice Division.. Only the 'Vakalatnama' was signed by Ahmad Sadiq, the Secretary of the Kashmir Affairs and Northern Affairs Division. It has already been stated that as the matter also pertained to the Kashmir Affairs and Northern Affairs Division, under Rule 8 of the Rules of Business, the consultation between Law and Justice Division and the Kashmir Affairs and Northern Affairs Division was necessary which was duly made. As is evident from the letter, dated 5-4-1993, Ch. Fazal-e-Hussain, Advocate was appointed counsel for Federation of Pakistan by the Law and Justice Division at the instance of Kashmir Affairs and Northern Affairs Division whose Secretary of the time, Mr. Ahmad Sadiq, signed the power of attorney in favour of Ch. Fazal- e---Hussain. Raja Muhammad Hanif Khan, the learned counsel for the respondents, did not specifically mention in the concise statement as to who was competent to sign the 'Vakalatnama' on behalf of Federation of Pakistan. However, during the course of arguments, he contended that it should have been signed by any of the competent officers of Law and Justice Division and not by the Secretary of Kashmir Affairs and Northern Affairs Division as has been done in the instant case.
Even if it is assumed for the sake of argument that as the subject of litigation between Federal Government and any other Division belonged to Law and Justice Division, the ' Vakalatnama' should have also been signed by a competent officer of the said Division, it is merely an irregularity which is not fatal to the appeal field on behalf of the Federation of Pakistan, especially so when the authority of Ch. Fazal-e-Hussain, Advocate, to file appeal is not challenged by the Federation of Pakistan, rather the same is owned."
13. This dictum is directly applicable to the present case. Mr. Farooq Hussain Kashmtri was duly appointed as counsel for the appellants by the Law Department. In fact there is another important fact that in the precedent case there was no Government order that appeal should be filed while in the present case a Government order was duly issued by the Law Department and copy of it was duly endorsed to Mr. Farooq Hussain Kashmiri instructing him to file the appeal and to prosecute it.
In this view of the matter the objection is overruled.
14. However, before parting with this aspect of the case we would like to bring on record that Habibullah Lone's case, cited by Raja Muhammad Hanif Khan, proceeded on entirely different facts because Law Secretary had issued direction to Advocate-General to file petition for leave to appeal without obtaining the approval of the Government.
15. The High Court has accepted the writ petition on the ground that the terms and conditions under which the respondent was to hold office as Ombudsman had been duly determined and were subsequently varied to the disadvantage of the respondent which was not permissible under law.
16. In support of the appeal the learned counsel for the respondent, Raja Muhammad Hanif Khan, raised a new point which does not find mention in the judgment of the High Court. He included it in the concise statement and also stated that this point was in fact argued before the High Court. The point is that the Ordinances under challenge were either not published in the official Gazette at all or were published in the Gazette after the retirement of the respondent. He claimed that due .To non-publication of the Ordinances during his tenure of office they were never became law. He submitted the following facts:--
(i) first Ordinance was issued on 23rd June, 1996 but the Gazette in which it was published was received in the Supreme Court on 5th March, 1998, which should be presumed as the actual date of its promulgation;
(ii) second Ordinance was issued on 27th October, 1996 but has not so far been received in the Supreme Court. It may be presumed that it was never promulgated; ` (iii) third Ordinance was issued on 23rd February, 1997 but was received in the Supreme Court on 5th March, 1998;
(iv) forth Ordinance was issued on 22nd June, 1997 but it has not so far been received in the Supreme Court;
(v) the Ordinances took the shape of an Act of the Assembly on 25th September, 1997 when the respondent had already relinquished office. In absence of a provision that the Act would take effect retrospectively, the said Act was not applicable to the respondent's case.
17. The learned counsel relied on Muhammad Tariq Khan v. The State and another PLD 1998 SC (AJ&K) 17 in which this Court laid down that an Ordinance assumes force and effect as an Act of the Assembly from the date it is published in the official Gazette. We find force in the contention raised by the learned counsel but as will be presently seen, this point is of no consequence so far as the result of this appeal is concerned.
18. We have reproduced the notification, issued on 3rd of January, 1997 in which it is laid down that the respondent would not be entitled to get the car in dispute at the depreciated price because he had "already utilised this facility as Chief Justice of Supreme Court". This notification was challenged by the respondent but has not been quashed by the High Court. It would ordinarily mean that the said notification is valid but we do not like to decide the case on this technicality. In our view the crucial. Point in the case is whether when the respondent was appointed as Ombudsman did a rule or law exist which entitled him to obtain a car at the termination of his tenure as Ombudsman at the depreciated price. The High Court has quashed the Ordinances under reference on the ground that the provisions contained in it have taken away a right which became vested in the respondent at the time when he was appointed as Ombudsman but the High Court has not discussed the provision of law under which this right had come to reside in the respondent. The case put forward by Mr. Farooq Hussain Kashmiri on behalf of the Government and the President of Azad Jammu and Kashnur is that no such right ever existed.
19. However, before this point can be examined the question is whether this point can be considered in this Court or not because the learned counsel for the respondent vehemently contended that although this contention is mentioned in the memorandum of appeal but this point runs counter to the stand taken in the High Court by the respondent. It was vehemently contended by Raja Muhammad Hanif Khan that before the High Court the position adopted by the present appellants was that the right to purchase a car at depreciated price was initially available to the respondent but has been taken away, although rightly, by the impugned amendment. After going through the pleadings we find no force in this contention. The fact of the matter is that in the comments filed in the High Court, which were treated as written statement, it was nowhere accepted that the respondent was initially entitled to purchase a car at depreciated price. Even otherwise there are two other factors which are relevant. It is the respondent who had to establish his case by proving that there was initially a provision of law which entitled him to get 4 car at depreciated price and it was not for the present appellant to prove to the contrary. The second and more important aspect of the case is that the present dispute is purely legal in nature and no part of the case on the factual side is disputed. The simple point is that whether there was a legal provision which entitled the respondent to purchase a car at depreciated, price. It is well settled that a law point can be raised for the first time in this Court. It is equally well settled that there is no estoppel against law. Therefore, the objection has no force.
20. It was the case of the respondent before the High Court that the "provisional" order passed on 1st November, 1994 also included the privilege of getting a car at the depreciated price. We therefore, proceed to examine this question. The respondent was appointed as Mohtasib on 1st November, 1994. Since he was given all the privileges as are admissible to the Chief Justice of the Supreme Court it has to be seen as to what was the state of law on the subject of purchase of car applicable to Chief Justice of Supreme Court on that date.
21. The relevant provision was subsection (9) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act which runs as follows:-- "(9) The remuneration and other terms and conditions of service of a Judge of the Supreme Court of Azad Jammu and Kashmir shall be as provided in the Fourth Schedule. "
Fourth Schedule as amended through Azad Jammu and Kashmir Interim Constitution (10th Amendment) Act (Act XX of 1993). The Fourth Schedule since then reads as follows:-------- "Fourth Schedule.
[See section 42(9)] The Chief Justice and the Judges of the Supreme Court of Azad Jammu and Kashmir shall be entitled to the same Salary, Allowances, Privileges and Pension as are admissible to the Chief Justice and Judges of the Supreme Court of Pakistan. "
22. In Pakistan facility of purchase of car is not incorporated in any statute or statutory rules but is based on various administrative orders which are being reproduced below.
23. The first is a letter issued by the Law Division of the Federal Government on 30th December, 1975 and is addressed to the Registrar of Supreme Court and the High Courts. It reads as follows:-- "Sub: Purchase of Official Cars by the Judges of the High Courts and the Supreme Court.
Sir, I am directed to say that it was proposed to the Prime Minister that the Judges who retire from the High Courts and the Supreme Court may be given the option to purchase the official cars in their use at the depreciated price and this concession may be allowed to those who have been Judges for at least three years.
(2) The Prime Minister has been pleased to approve this proposal.
(3) I am, therefore, to request you to kindly issue necessary instructions to all concerned."
Similar letter was written on 3rd January, 1976 by the same Division and was addressed to the Chief Secretaries of the four Provinces. It reads as 'Sub: Purchase of Official Cars by the Judges of the High Courts and the Supreme Court.
Sir, I am directed to say that it was proposed to the Prime Minister that the Judges who retire from the High Courts and the Supreme Court may be given the option to purchase the official cars in their use at the depreciated price and this concession may be allowed to those who have been Judges for at least three years.
(2) The Prime Minister has been pleased to approve this proposal.
(3) I am, therefore, to request you to kindly take necessary action to implement the above decision."
Third letter signifying change in the policy decision mentioned above was issued on 18th May, 1976 by the Law Division and addressed to the Chief Secretaries of all the Provinces. Through this letter it was notified that the concession of retaining a car on depreciated price would not be extended to a Judge who already possessed a car or he had obtained permit for a car. The letter is as follows:-- "Sub:- Purchase of Official Car by the Judges of the High Courts and the Supreme Court.
Sir, I am directed to refer to the correspondence resting with this, Division's letter of even number dated 30th March, 1975, on the subject cited above and to say that the Prime Minister has been pleased to agree with the proposal of the Chief Justice of Pakistan that if a Judge of the High Court already possessed a private car or he had obtained permit for a car the concession now being given that on his retirement, he can retain the car on payment of depreciated value should not be extended to him.
I am, therefore, to request you to kindly take necessary steps to implement the above decision."
The last letter on the subject was issued by Law and Justice Division on 15th May, 1991 by which guidelines approved by the competent authority were communicated to the Registrar of the Supreme Court and Registrars of the High Courts as well as that of the Federal Sharaih Court. It reads as' follows:---- Sub: PURCHASE OF OFFICIAL CARS BY RETIRED JUDGES OF SUPREME COURT SHARIAT COURT AND HIGH COURTS AT DEPRECIATED PRICE.
Sir, I am directed to refer to the above subject and to state that the following guidelines have been approved by the competent authority for disposal of pending and future cases regarding purchase of official cars by the Judges who retired from the Supreme Court, High Courts and the Federal Shariat Court:--
(a) The amount of depreciation shall be calculated on the basis of the actual period from the date of purchase of the staff car to the date of retirement of the Judge. Depreciation for each month would be 1/12th of the assumed rate. A period of 15 days or more would count as one month. Less than 15 days would be ignored.
(b) The concession for purchase of an official car at depreciated price shall be admissible to a retiring Judge of the superior Court only if he has not availed the facility previously.
(c) The concession for purchase of an official car would be extended to a Judge who has served the superior Court for at least three years.
(d) The retired Judges who possess a private car would also be eligible to enjoy the facility."
24. From the phraseology of the policy decisions reproduced above it is clear that the concession for purchase of official car at depreciated price is only available to a Judge at the time of his retirement. This is mentioned in all the four policy decisions reproduced above. It is further clear that as from 15th May, 1991 the concession for purchase of official car is admissible to a retiring Judge only if he has not availed the facility previously.
25. The respondent was appointed as Mohtasib under the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992. Section 4(1) of the Act reads as follows:-- "4. Tenure of the Mohtasib.--(1) The Mohtasib shall hold office for no a period as may be determined by the President not exceeding three years and shall not be eligible for any extension of tenure or for reappointment as Mohtasib under any circumstances."
26. The President of Azad Jammu and Kashmir issued the appointment order of the respondent in the following terms on 22nd September, 1994:-- "President of Azad Jammu and Kashmir has appointed Mr. Justice Raja Muhammad Khurshid Khan (Rtd.) Chief Justice Supreme Court of Azad Jammu and Kashmir as Mohtasib in terms 'of sections 3 and 4 of the Azad Jammu and Kashmir Establishment of the Office of Mohtasib (Ombudsman) Act, 1992 for a period of three years."
On 1st November, 1994 it was ordered, though provisionally, that the respondent would get all the privileges as are admissible to the Chief Justice of Supreme Court.
27. As is known the respondent held office for three years. There is nothing in the Act or the appointment order that the respondent was to retire after the expiry of three years. It is also not provided that he will get any pension or other pensionary benefits after he ceases to hold office. For the purposes of determining the terms and conditions of service and other privileges it was subsequently laid down that the respondent would get all the privileges of the Chief Justice of Supreme Court. However, as has been seen above, Chief Justice of Azad Jammu and Kashmir was entitled to purchase a car only at the time of his retirement and not otherwise. Since the respondent did not retire as Ombudsman it should follow that the respondent was not entitled to purchase a car when he completed his tenure as Mohtasib.
28. The second provision which is relevant is that it has been laid down in policy decision circulated on 15th May, 1991 that a Judge cannot purchase another vehicle at depreciated price if he has availed of this facility previously. This, being a clear provision, is not susceptible to two interpretations. It follows that the respondent could not purchase the disputed car because, as is undisputed, he had availed this facility when he retired as Chief Justice of Azad Jammu and Kashmir.
29. It follows from the above discussion that the High Court fell in error in holding that according to the terms and conditions of his service the respondent was entitled to purchase the car under his use on depreciated price and that the right has been taken away. According to section 44 of the Azad Jammu and Kashmir Interim Constitution Act the High Court can issue a direction to a public functionary to do an act which he is required by law to do but the High Court did not point out any law under which the respondent was entitled to a car at depreciated price. As seen above there was no legal provision under which the respondent could support his claim.
30. In light of the conclusion reached above the question whether the Ordinances were validly made loses importance. The right asserted by the respondent never existed and the High Court fell in error in issuing a direction that the car in dispute may be made available to the respondent at depreciated price.
31. The direction given by the High Court about providing a driver to the respondent cannot also be upheld because this facility is likewise available when a Judge retires and not otherwise.
Resultantly this appeal is accepted and the judgment of the High Court is set aside. The writ petition filed by the respondent stands dismissed.