2. We had the advantage of hearing the Law Officer, learned Advocate for Ch. Niaz Ahmed and Mr. M. A. Aziz. Mr. M. A. Aziz and the Law Officer have canvassed the view that as under section 12(1) of the Act, the executive authority of Azad Jammu & Kashmir is to be exercised, in the name of the President, by the Government consisting of the Prime Minister and the Ministers and the President under section 7(1) of the Act being bound to act on and in accordance with the advice of the Prime Minister which is binding on him, the Prime Minister without reference or approval of the President can appoint the Chairman or any member of the Public Service Commission. According to them because of the provision of section 12(1) section 7(1) of the Act, the President is only the symbol of bat not the repository of such executive powers and authority.
' Mr. M. Akram, on the other hand has relied upon rule 11 read with Schedule III, Part A of the Rules of Business to support his view that without the approval of the President, such appointments cannot be made. Elaborating his stand, he has contended that since Rules of Business have been framed under section 58 of the Act, they have a binding force and cannot be ignored.
' It may also be stated here that Mr. B. A. Sheikh, Advocate-General stated at the Bar that his instructions were not to present any view from the Government side. So he was heard as a Law Officer of the Court. We also went through the recorded opinion of the La v Department and the Advocate-General appended with the Reference on pages 3, 4 and 5 of the file.
3. There is no doubt that under section 7(1) of the Act, subject to an express provision to the contrary in the Act, the President in the performance of his functions is to act on and in accordance with the advice of the Primo Minister and this advice is binding on him. It is also correct that under - section 12(1) of the Act, subject to the Act, the executive authority of Azad ..Jammu and Kashmir is to be exercised in the name of the President by the ,Government represented by the Prime Minister as the Chief Executive of Azad Jammu & Kashmir and his Ministers who have to act through the Prime Minister. Had there been no Rules of Business, perhaps the position taken by the Law Officer and Mr. M. A. Aziz would have been tenable. Against this, we find that under section 58 of the Act, the President has been given the power to make Rules for carrying out the purposes of the Act.
Such Rules of Business for the conduct of the business of Azad Jammu & Kashmir Government have been framed under section 58 of the Act on 8th March, 1975. Since these Rules have been made under the authority of the Act, they have a binding force and are very much operative. They can be brush aside only if they are found to be in conflict with the provisions of sections 7, 12 or any other section of the Act. It was not even contended by Mr. B. A. Sheikh or Mr. M. A. Aziz that the Rules of Business or specifically Rule 11 and Schedule III of the Rules of Business are contrary to any provision of the Act. To us, the Rules contained in the Rules of Business are rather in furtherance of the implementation of the conduct of business of the Government as envisaged in the Act than being in conflict with them. To appreciate this point, Rules 11(1) and 11(4) are reproduced as under : "(11) Part B. References to the President. --(1) No order shall be issued without the approval of the President in cases enumerated in Part A of Schedule III.
(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."
' When these Rules are read in conjunction with Schedule III, Part-A, it becomes amply clear that no valid order can be issued by the Government without the approval of the President in cases enumerated in Part-A of Schedule III. Such cases are to be submitted to the President for his orders alongwith concise summary to be submitted through the Prime Minister containing Prime Minister's specific recommendations. Thus the mode and method of passing orders concerning cases enumerated in Part-A of III Schedule is clearly spelled cut. [his is an elementary principle that if an Act or Rule prescribes a particular method of performance of an act the act C should be performed according to that method alone or not at all. Therefore all the cases listed in Part-A, Schedule III necessarily require the approval of the President before they can be validly issued.
Public Service Commission is listed at Serial No, 9 of Schedule III envisaging its strength, appointment, removal or resignation of its members, their terms and conditions of service and non-acceptance of its advice and its annual report as a case which requires the approval of the President. 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 in no way run counter to these sections of the Act, do not permit the executive authority to by pass the President and issue orders of appointment of the Chairman or members of Public Service Commission without President's approval. Before such orders can be 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 his approval. Section 12 of the At cannot be pressed into advice for by-passing the President.
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 Minister 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 t him, the Act does not provide any such solution concerning oases referred in Schedule Part-A. This might create a Constitutional impasse and probably will have to be resolved through ultra Constitutional manner otherwise. Though this is a remote possibility but the mere presence of even this remote possibility does not in any way render the provisions of rule 11, read with Schedule III of the Rules of Business as inoperative. The Reference is answered as stated above.
Answered accordingly.