1. GHULAM MUSTAFA MUGHAL, J.-- The above captioned writ petitions, directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, involve common points of facts and law, hence, were heard together and are decided through the proposed judgment.
2. The necessary fact in writ petition No. 438/2002 are that AJ&K P.S.C. Issued advertisement No. 1/2002, on Feb 22, 2002, whereby applications for various posts including the posts of Civil Judges, were invited. Out of these, one post was allocated to District Muzaffarabad. The P.S.C. In continuation of the said advertisement issued another notice in "Daily Jung", whereby some additional posts were advertised and out of them one post of Civil Judge was allocated to District Muzaffarabad, thus, number of posts for quota of District Muzaffarabad stood enhanced to two.
3. The last date for filing the applications was fixed as 15-5-2002. The petitioner along with others, including Mrs. Shamim Khalid (Petitioner in. Writ Petition No. 90/2003) applied for the posts, against the quota of District Muzaffarabad. On 27-1 1 2002, the P.S.C. Intimated Abdul Shakoor petitioner, about his lacking the requisite legal practice and directed him to produce a certificate to this effect from the competent authority/Bar Council, before 20-12-2002, failing which he would not be allowed to participate in the exam. It appears that petitioner, Abdul Shakoor, moved the Government for relaxation of the prescribed qualification and got his application processed through the rules regularization committee, constituted for the purpose, which culminated into a Government Notification dated 12-12-2002, whereby condition of two years legal practice in his favour was relaxed. It appears that thereafter he appeal against the letter dated 27-11-2002, before the AJ&K P.S.C. But his request was declined on 21-12-2002. He has filed the instant writ petition seeking the quashment of the action of the P.S.C. And a direction for implementation of the said Notification. It is alleged that petitioner has experience of legal practice as a pleader for eight months and six days and thereafter joined the Government service as Tehsil Mufti on 29-6-2001. It is claimed that the said period is liable to be counted as experience of legal practice keeping in view the nature of duty he performed. It is also claimed that the petitioner is LL.M. and a holder of this qualification is exempt from the legal practice for the purpose of licence of advocacy, therefore, condition of legal practice, as envisaged by the rules, on the basis of which the application of the petitioner is rejected, is without lawful authority and violative of the rules. It is further alleged that the Government, being competent authority, has relaxed the prescribed qualification through the Notification dated 12-12-2002 and the P.S.C. Is bound by law to implement the Notification by allowing him to 'participate in the test and interview being conducted for the post of Civil Judge.
4. This writ petition has been resisted by the Government and P.S.C. By filing written statements. The only material point taken in the written statement is that the Notification sought to be implemented is violative of the judgment of the Hon'ble Supreme Court and the petitioner, does not possess the requisite experience of legal practice of two years, thus, is not qualified to compete for the post in question. However, during the pendency of the writ petition, this Court vide order dated 24-12-2002 allowed the petitioner provisionally to appear in the test and interview. The petitioner competed for the post of Civil Judge. Vide order dated 14-2-2003 the P.S.C. Was directed to declare the result of the petitioner. As is evident from the hand out issued by the P.S.C. On 7-32003, the petitioner was selected for the post of Sub Judge.
(a) that respondent No. 5 did not hold the minimum qualification required for direct recruitment to the post of Civil Judge, as visualised by AJ&K Judicial Service Rules, 1999;
(b) that the P.S.C. Did not have any jurisdiction to entertain the application of respondent No. 5, as he was lacking necessary qualification prescribed for direct recruitment for the post of Civil Judge.
5. The entire proceedings, therefore, right from entertaining the application of respondent No. 5 till the issuance of the hand out in his favour on 7-3-2003 is without jurisdiction and is violative of the relevant law and rules;
(c) that the Notification whereby the minimum qualification in favour of respondent No. 5 has been relaxed is without jurisdiction, ultra vres of Section 22 of Civil Servant Act, 1976. & the AJ&K Civil Servants (Appointment & Conditions of Service) Rules 1977;
(d) that the impugned Notification is without reason and has been made applicable retrospectively which has partial affect on the fundamental rights of the petitioner, therefore, is liable to be ignored and decision of the P.S.C. To this extent is justified and is in accordance with the dictum of the superior Courts.
6. The respondents have filed written statement. Besides para wise reply, respondent No. 5 has also raised some preliminary objections. It is alleged that petitioner is not an aggrieved person, as visualized by Section 44 of the Interim Constitution Act, 1974. It is also pleaded that the Notification under challenge was issued on 12-12-2002 and this fact was in the knowledge of petitioner but she kept mum till finalization of the result by the P.S.C. Thus, has acquiesced in the matter and cannot now challenge the same. It is also claimed that the impugned Notification has been issued on the recommendation of the Hon'ble Chief Justice of the Shariat Court, and rules regularization committee, thus, is not challengeable through the instant writ petition. It is also submitted that respondent No. 5 in view of the facts stated in the counter petition as well as in ground "D" of the written statement fulfils the condition of required experience of legal practice, therefore, even otherwise no relaxation was required. It is further claimed that Government has got the power to relax any rules in just and equitable manner, under Section 22 of the Civil Servants Act, 1976 read with rule 24 of the AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977 and this decision of the Government is based on sound reasons which have been recorded on the noting side of the file and cannot be substituted in writ jurisdiction.
7. Mr. Abdul Rashid Abbasi, the learned Advocate representing Mrs. Shamim Khalid, petitioner (hereinafter referred as the petitioner), raised the following submissions:-
(1) that the process of P.S.C. Commenced when applications were called through advertisement specifying the qualification and other conditions of the candidates. As respondent No. 5, who is petitioner in petition No. 438/2002 (hereinafter referred as respondent No. 5) was lacking the prescribed qualification for recruitment, therefore, it was enjoined upon the P.S.C. To reject his application in view of P.S.C. (Procedure) Rules, 1994 and conditions of the advertisement. The P.S.C.
8. Fell in error in entertaining the application of the petitioner when he was not eligible on the last date fixed for receipt of applications. Thus the whole process from entertaining the application up to issuance of the hand out was without jurisdiction and is of no legal effect. The Notification dated 12-122002 could not made applicable retrospectively from date of advertisement. The practical effect of the Notification is that it has enlarged the last date for receipt of the applications which had already expired on 15-5-2002;
(2) that the Notification dated 12-12-2002, is violative of the fundamental rights, and ultra vires of Section 22 of the Civil Servants Act, 1976 read with rule 24 of the AJ&K Civil Servants (Appointment & Conditions of Service) Rules. 1977, therefore, has rightly been ignored by the P.S.C. And cannot be implemented through the writ jurisdiction;
(3) that no source of power is mentioned in the Notification nor any special reasons are recorded which persuaded the Government for relaxation of the prescribed qualification, thus, the Notification has been issued in a colourable exercise of power and is arbitrary and ab initio void;
(4) that respondent No. 5 admittedly has only 8 months legal practice that too cannot be counted in his favour as he has no practical experience in the filed and his service as Tehsil Mufti or Tehsil Qazi cannot be counted towards his legal practice. Alternatively it was submitted that the power of relaxation vesting in the Government under the Civil Servants Act and the Civil Servants (Appointment & Conditions of Service) Rules, 1977, can only be exercised in favour of civil servants.
9. The contest of respondent No. 5 for direct recruitment, therefore, cannot be regarded as being in the capacity of a civil servant for the aforesaid purpose and the rules cannot be relaxed to provide him an edge of qualification over the other candidates which in fact he is lacking, thus, the Notification under challenge is discriminatory, mala fide and is against the fundamental rights of the candidates.
10. The learned Advocate in support of his submissions placed reliance on PL] 1999 SC (AJK)-334, PL] 1999 SC (AJK)-142, 1995 SCR-162, PLJ 2002 SC (Pak.)-415, PL] 2001 SC-109, 1996 SCR-211, 2003 PLC (CS)-400, 2002 SCR-146, PLD 1967 Karachi-184 & 2003 PLC (CS)-419.
11. Mr. M. Tabassum Aftab Alvi, the Advocate for Abdul Shakoor, respondent No. 5, controverted the arguments of Mr. Abdul Rashid Abbasi, the learned Advocate representing Mrs. Shamim Khalid, petitioner. The learned Advocate strenuously argued that in written test, conducted for the post of Civil Judge, the petitioner was placed at serial No. 10 of the merit list and it is impossible that subsequently she could have been placed at serial No. 3 of the merit list. The learned Advocate added that in absence of any material on the record it is impossible to believe that the petitioner attained 3rd position in the final selection, made by the P.S.C. The learned Advocate further contended that the impugned Notification was issued on 12-12-2002 and the writ petition has been filed in Apr 2003. The issuance of Notification as well as well as qualification of respondent No. 5 was in the knowledge of the petitioner, thus, her petition merits dismissal in view of the known principle of ladies. The learned Advocate by referring to the various documents and writ petition as well as written statement, vehemently contended that the petitioner has a legal practice of more than five years as a pleader, as a Tehsil Mufti and as a Tehsil Qazi. Alternatively it was submitted by Mr. M. Tabassum Aftab Alvi, that LL.M. Degree holders are not required the legal practice, thus, on the same analogy the petitioner hardly required any practical legal experience for the permanent recruitment. The learned Advocate submitted that keeping in view the nature of the duty, the service rendered by respondent No. 5 in different capacities could be treated as legal practice and leaving aside the Notification, rejection of his application by the P.S.C. Was without lawful authority. The learned Advocate also vehemently contended that the Government was competent to issue the impugned Notification in view of Section 22 of the Civil Servants Act, 1976, read with rule 24 of the AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977.
12. Moreover, according to the learned Advocate, the competency of the Government cannot be disputed in view of rule 4 of the Judicial Service Rules 1999. Whereby the provision of the AJ&K Civil Servant (Appointment & Conditions of Service) Rules, ,1977, have been made applicable. The learned Advocate also objected to the maintainability of the writ petition on the ground that neither the Hon'ble Chief Justice of the Shariat Court, on whose recommendation the case of the petitioner was referred to the regularization committee nor the committee has been arrayed as a party in the writ petition, therefore, the writ is liable to be dismissed for not having impleaded the necessary party. The learned Advocate also stated that respondent No. 5 is a civil servant and in that capacity applied through the proper channel and it is wrong to contend that rule 24 of the AJ&K Civil Servants (Appointment 8I Conditions of Service) Rules, 1977 is not applicable. The learned Advocate is of the view that as rule 24 referred hereinabove does not contain the word "Civil Servant", therefore, relaxation can be ordered in favour of any person irrespective of the fact whether he is or not a civil servant. The learned Advocate also contended with vehemence that all the documents have been placed on the record with the replication filed on behalf of the petitioner, Mrs. Shamim Khalid, and replication is not a part of the pleading nor the documents appended therewith can be considered. The learned Advocate supported his view point by placing reliance on 1993 SCR 327, 1997 SCR 239, 2002 SCR 128, AIR 1990 SC -857, 1990 PSC-1033, 1996 SCR-211, Black's Law Dictionary page 1172, 1993 CLC-81, 2000 SCR 78 & 1988 SCMR 169.
13. Raja Muhammad Hanif Khan, the learned Advocate appearing for the Government has supported the arguments of the learned Advocate representing the petitioner and submitted that legal practice was .a condition precedent for appearing in test and interview which cannot be relaxed in any case. The learned Advocate further argued that word "legal practice" has not been defined in a single term in any dictionary, however, in view of different dictionary meanings the word ' legal practice', could only be construed with reference to the rules on the subject. According to the learned Advocate while interpreting so the petitioner's service cannot be regarded as a substitute of the legal practice. The learned Advocate referred to and relied upon 1994 SCR 297, 1996 SCR 40, 1985 CLC 974 az 1216, 2000 SCMR 367, PLD 1991 SC 546 & 2001 SCR 109. it was opined that a Government Notification cannot operate retrospectively.
14. I have heard the learned Counsel representing the parties and perused the case law referred to and relied upon by them. I have also perused the record appended with these petitions, with my utmost care.
15. After a profound analysis of the pleadings of the parties and arguments of the learned Advocates, I am of the view that the following points need resolution, in both the writ petitions:-
(i) as to whether the P.S.C. Fell into error in entertaining the application of respondent No. 5, in view of rule 4(1) of the AJ&K P.S.C. (Function) Rules, 1994, as he was lacking the prescribed qualification on the last date fixed for receipt of the applications.
(ii) as to whether the Notification dated 12-12-2002 has competently been issued by the Government? And refusal on part of P.S.C. For implementation is without lawful authority. If the answer is in negative then as to whether the service rendered by respondent No. 5 as Tehsil Mufti etc. Can be counted to his legal practice;
(iii) as to whether the petitioner is not an aggrieved person;
(iv) as to whether the writ petition filed by the petitioner (Mrs. Shamim Khalid) merits dismissal on the ground of laches.
16. So far as the first point is concerned, in AJ&K the P.S.C. Has been established in view of Section 48 of the AJ&K Interim Constitution Ac, 1974. The functions of the P.S.C. Have been regulated through an act of AJ&K Assembly known as "AJ&K Public Service Commission Act, 1986." Its functions are listed in Section 7 of the aforesaid Act, which are as under:- "7, Functions of the Commission:- The functions of the commission shall be:-
(a) to conduct test 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;
(b) to advise the President on matters relating to qualifications for, and method of recruitment to, the services and posts referred to in clause (a); and
(c) any other matter which the President may refer to the Commission."
17. For carrying out the purpose, the AJ&K Public Service Commission (Functions) Rules, 1978 and AJ&K Public Service Commission (Procedure) Rules, 1994 have been framed (hereinafter be referred as Function Rules, 1978 and Procedure Rules, 1994, respectively). Under rule 4(1) of the Procedure Rules 1994 eligible candidates are required to file their applications within the period fixed for the purpose. For proper appreciation of the matter it will be useful to reproduce rule 4 of the Procedure Rules, 1994 which is as follows:- "4.(1) An eligible candidate may submit an application to the commission on a prescribed form before the last date fixed by the commission. The application received after the last date shall stand rejected: Provided that if a candidate satisfies the Chairman that the circumstances preventing him to submit the application in time were beyond his control, the Chairman may for the reasons to be recorded, allow him to submit the application after the due date.
(2) Applications which are incomplete or are not on a prescribed form shall be rejected by the Commission: Provided that the candidate out side Pakistan may apply on simple paper and submit prescribed application form and fee before test and interview.
(3) A candidate shall have three chances for a particular post.
(4) The aggrieved candidate may apply to the commission for review against the rejection order and the decision made by the Commission shall be final."
18. Sub-rule ( I ) of Rule 4 postulates that the application to the Commission is to be made on a prescribed form, before the last date fixed by the Commission and the application received after the last date shall be rejected. Sub-rule (2) of rule 4 further makes it obligatory that the applications should be complete in all respect and the applications which are incomplete or are not made on the prescribed application form, shall be rejected by the Commission, except as provided by the proviso of the same rule. The scheme of the rules appears to be mandatory and where the rules required the performance of an act in a mandatory form then it is enjoined upon the authority working under the rules to perform its functions in the manner provided in the rules.
19. The word "eligible" appearing in sub-rule ( 1 ) of rule 4 has significantly been used by the rule making authority. The word "eligible" has not been defined in the rules and according to Concise Oxford Dictionary "eligible" has been defined as fit or entitled to be chosen for office etc. Therefore, the requirement of the rule is that on the date of advertisement one must fulfil the qualifications prescribed by departmental rules and if an application is incomplete due to lacking the prescribed qualification, it must be rejected.
20. However, the position would be different where a candidate applying for the post fulfils the requisite qualification but is unable to produce his papers or testimonial on the due date for some sufficient cause. In such cases even rules recognize an exception and the Chairman is competent to condone the delay for genuine cause. The rules prohibit the admission of any testimonial or other documents pertaining to the qualification which were not in existence on the last date fixed for receipt of the applications; in such eventuality, the Government or any other authority directly or indirectly cannot enlarge the time fixed by the P.S.C. For conduct of test and interview. The scope of rule 4(1) received the attention of the apex Court in Civil Appeal No.73 of 1995, titled "Farkhanda Ikram and another vs. Dr. Ejaz Ahmed and others", decided on 3-12-1995. In this case the last date, fixed for receipt of the applications, was extended by the Government and this action was challenged by Ejaz Ahmed through a constitutional petition. The writ was granted by this Court on 4-9-1995. An appeal was taken to the apex Court. The apex Court while discussing Section 7 of the AJ&K P.S.C. Act, 1986 and rule 4(1) at page 15 of the judgment has observed as under:- "It is evident that power to conduct tests and examinations for recruitment are to be exercised by the Public Service Commission according to the rules made under section 1 I of the Act. Rules 4 and 5, reproduced above, have been framed under section. 11 of the Act whereby only the Public Service Commission has been invested with the powers to determine the merit of the candidates through tests/interviews etc. The final date for receiving the applications from the candidates is to be fixed by the Public Service Commission and if a candidate fails to apply within the period fixed by it or submits an incomplete application, his application must be rejected under sub-rules (1) and (2) of Rule 4.
21. Similarly Rule 5 empowers the Public Service Commission not only to prescribe the syllabus for the examination for various posts but also to lay down the mode of determination of the eligibility' .The expression mode of determination of the eligibility' is comprehensive enough and includes all the steps commencing from receiving the applications and culminating in final recommendations to the Government; the fact whether the candidates must possess the degree showing requisite qualifications before the last date fixed for receiving the applications or not is to be determined by the Commission and not by the Government."
22. The proposition was also considered by Quetta High Court in a case titled "Dr. Haq Nawaz v.
23. Baluchistan P.S.C. Through Chairman and two others" [1996 PLC (CS) 872]. A division bench of Quetta High Court rejected the plea of the petitioner therein and up held the order of the P.S.C.
24. Whereby his application was rejected for being submitted after expiry of the date fixed by the P.S.C.
25. The Azad Jammu and Kashmir P.S.C. Plays a pivotal role in the recruitment process for the State service and to maintain impartiality, transparency as well as for upholding the public confidence, is bound to follow the rules strictly so that no one may doubt the performance of this constitutional body. The position in case of respondent No. 5 however, is different. The P.S.C. Instead of rejecting the application itself directed respondent No. 5 to produce a practice certificate from the AJ&K Bar Council on 27-11- 2002 which was to be filed before 20-12-2002. It appears that respondent No. 5 instead of contacting the Bar Council applied to the Government for relaxation of the qualification and obtained the impugned. Notification which after consideration has been rejected by the P.S.C.
26. On 21-12 2002. In exceptional circumstances a candidate cannot be deprived of the right of fair competition merely for non filing of the testimonials which were available at the time of advertisement but due to' some genuine cause could not be appended with the application and were being produced after obtaining the same from competent authority. This view lends support from the cases titled "Habib-ul-Rehman v. Govt. Of Pakistan and others", 1979 SCMR 121], "Dr. Zia Suleman Farooqi v. Punjab Public Service Commission", [PLD 1994 Lah. 55].
27. This brings me to the next question as to whether the Government has competently relaxed the qualification of respondent No. 5 as envisaged in Judicial Service Rules, 1999 (hereinafter to be referred as Judicial Service Rules).
28. AJ&K Judicial Service Rules 1999, for appointment of a Civil Judge prescribe the following qualifications:-
(i) Law Graduate from a recognized University; and
(ii) two years experience of legal practice.
29. Admittedly respondent No. 5 is a Law Graduate and as per record has obtained his pleader-ship licence on 21st March, 1996 and on the basis of the aforesaid certificates, claims experience of his legal practice which admittedly is not up to the prescribed standard.
30. Mr. Abdul Rashid Abbasi, the learned Advocate for the petitioner, has even challenged this period on the ground that he had not practically worked as a legal practitioner and had joined the Government service on 8-12-1996. I would like to deal with this point at a later stage. As already observed, the precise question which falls for determination is whether the Government is competent to relax the basic qualifications prescribed for initial recruitment for the disputed post.
31. The contention of the learned Advocate for respondent No. 5 is that his client moved for relaxation through proper channel and the matter was recommended firstly by the Hon'ble Chief Justice of the Shariat Court and thereafter by the regularization committee, constituted for the purpose and ultimately the Government has relaxed the qualification. This power, according to the learned Advocate, is available to the Government in view of Section 22 of the Civil Servants Act, 1976, read with rule 24 of the AJ&K Civil Servants (Appointment 81 Conditions of Service) Rules, 1977. Mr. Abdul Rashid Abbasi, has opposed the contention of respondent No. 5, on several counts. Firstly he argued that the contest of respondent No. 5 was for direct recruitment and he could not be regarded as a civil servant for the purpose of Section 22 or Rule 24, referred to and relied upon by Mr. M. Tabassum Aftab Alvi. Secondly, the learned Advocate argued that the Government cannot relax the prescribed qualification to give the petitioner an edge over the other candidates, which act of the Government is discriminatory, arbitrary, without reason and also offends the fundamental right of his client.
32. Viewing the submissions of the learned Advocates in view of the case law referred to and relied upon by them, I am of the view that the submission, made by Mr. Abdul Rashid Abbasi, the learned Advocate for the petitioner, has a force and are duly supported by the case law relied upon by him.
33. The claim of the respondent No 5 is for direct recruitment against the post of Civil Judge. In such situation it cannot be said that respondent No. 5 was a civil servant and Section 22 of the AJ&K Civil Servants Act, 1976, in any manner, attracted to his case. In this regard may refer a case from Pakistan jurisdiction. In "Dr. Ahmed Suleman Waris, Assistant Professor, Services Hospital, Lahore, v.
34. Dr. Naeem Akhtar and five others" [PLD 1997 SC-382, appellant therein applied for direct recruitment against the post of Assistant Professor of Urology in Health Department, Government of Punjab, in response to an advertisement of Punjab P.S.C. Eight candidates including the appellant therein were called for interview by the Commission. After test and interview, respondent No. 1 therein was selected and subsequently was appointed. This appointment was challenged through writ petition which ultimately came before superior Courts of Pakistan. It was contended that the matter agitated in the writ petition related to the eligibility of one of the candidate which is exclusively triable by the tribunal and the writ was liable to be dismissed as being not maintainable. The apex court observed as under:- , "15. The question which now arises for consideration is, whether an appeal by the appellant before the Tribunal in these circumstances was competent under the law. While discussing the scope of an appeal under section 4 of the Act, we pointed out that one of the jurisdictional requirements of such an appeal is, that it must be filed by a civil servant as defined in the Act. Another jurisdictional requirement of such an appeal is, that the grievance of the aggrieved civil servant must relate to a final order of departmental authority whether original or appellate. In the case before us, the appellant was a candidate for the post of Assistant Professor Urology alongwith Dr. Naeem and Dr. Sahu before the Commission. The latter mentioned gentlemen were selected and recommended for appointment by the Commission while the appellant was not selected. The appellant having applied but not selected for the post could not acquire the status of a civil servant within the meaning of the Act. He was, therefore, in our view, not entitled to file an appeal before the Tribunal.'
35. On the basis of the aforesaid dictum of the apex Court of Pakistan it can safely be concluded that respondent No. 5 cannot be regarded as a civil servant for the purpose of his contest for direct recruitment against the post of Civil judge and thus Section 22 of the Civil Servants Act, 1976 read with rule 24 of the AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977, is not applicable to his case.
36. Mr. M. Tabassum Aftab Alvi, attempted to create an exception that though Section 22 of the Civil Servants Act, 1976, refers to the word "civil servant" but in rule 24 of the AJ&K Civil Servants (Appointment at Conditions of Service) Rules, 1977, no such word has been used. According to the learned Advocate this is a. Wilful omission on the part of the rule making authority to cover the situation like present one. Mr. Abdul Rashid Abbasi, controverting the arguments, contended that the rule cannot be read in isolation or in derogation of the phraseology used in the parent Act. I am of the opinion that this submission of Mr. Abdul Rashid Abbasi, is again in line with the pronouncements of the superior Courts. It is settled position that where the rules are framed under an enactment then the provision of the Act shall be given effect to and rules cannot defeat the intentions of the legislature expressed in the parent statute nor rule making authority can clothe itself with the power which is not given to it under the parent Act. Assuming for the sake of arguments that the Government has the power to relax the rules, even in those cases relaxation could only be ordered for carrying out the purpose of the Act and in just and equitable manner. The proposition came under consideration in "Azad Govt. And others. v. Muhammad Younas Tahir and others" [1994 SCR 341]. At page 397 of the report, the scope-of power of the Government with reference to Section 22 of the Civil Servants Act, 1976, has thoroughly been examined. The relevant portion of the judgment is as under:- "It is evident from the provisions reproduced above that the powers under section 22 of the civil Servants Act are to be exercised irrespective of the provisions contained in the Act or Rules, provided the same are "just and equitable". What would be "just and equitable" in a particular case depends upon the circumstances of each case and no hard and fast rule can be laid down in that regard. It may be stated that in the instant case I fully agree with the view taken by my brother Mr. Justice Basharat Ahmad Shaikh that the order made by the Government in favour of Miss Shamaila, respondent, under section 22 of the Civil Servants Act is not in consonance with spirit of law; although on somewhat different grounds. Consequently, the order passed by the Government is not sustainable because nothing has been brought on the record that when writ petition entitled "Muhammad Yunus Tahir v. Azad Govt. Of the State of Jammu and Kashmir and others" was already pending what prompted the Government to exercise powers under section 22 of the Civil Servants Act o the detriment of Muhammad Yunus Tahir, petitioner, who was also an ad hoc appointee as Sub-Judge. No material has been brought on the record that said order was 'just and equitable' as envisaged under Section 22 of the Civil Servants Act."
37. (Under lining is mine)
38. Be that as it may, it has finally been concluded by the apex Court in Kh. Ghulam Muhammad's case [1995 SCR 162] that power under section 22 of the Civil Servant Act, 1976, could be exercised in respect of civil servant and not in favour of one who is aspiring for entry into civil service. It is useful to reproduce the relevant observation of the apex Court which is to the following effect:- "the reasoning of Service Tribunal is not sustainable because relaxation under Section 22 of the Civil Servant Act, which has been relied upon by Sardar Rafique Mehmood, is exercisable only in respect of a civil servant but not a person who has ceased to be a civil servant or aspires to be one. Section 22 reads as follows.
39. "22. Saving:- Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable.,"
40. Under section 22 an order which is just and equitable can be passed. The Service Tribunal observed that the government considered the difficulties of respondent No. 3 and relaxed the service rules.
41. We have seen that no such difficulties are referred to in it, although it is claimed that the government can pass any order to meet any injustice. No situation or justification is on the record to justify the impugned order as just or equitable. It is now well settled that the power under Section 22 cannot be exercised in such a way that it may adversely affect the seniority of any other civil servant, for instance the appellant, because such an order would not be just or equitable."
42. The same view was followed in Sheikh Manzoor's case [1994 SCR 297] and thereafter in Mir Abdul Hamid's case [1997 SCR 96]. In the latter authority it was opined that residuary power available to the Government under Section 22 could only be exercised for the advancement and for the ends of justice and equity and not otherwise. This proposition was also considered in Miss Shamaila Mehmood's case [PL] 1997 SC(AJK)270] This is a direct authority on the point. Facts of the case were that Shamaila Mehmood was appointed as Sub Judge by relaxing legal experience and qualification under a Government order issued under Section 22 of the AJ&K Civil Servants Act, 1976 and rules made there under.
43. This appointment was challenged by Mukhtar Ahmed and others, through a writ petition and the writ was accepted in view of the result of the judgment in Muhammad Younus Tahir's case, referred herein above. On appeal the apex Court again examined the scope of Section 22 of the Civil Servants Act, 1976 and opined as under:- "14. Contents of the passages reproduced above may be summarised thus. When a set of rules is framed under section 23 of the Civil Servants Act it has to be construed that it has been framed to carry out the purposes of the Civil Servants Act. If in any rule a special power is granted to override or relax the rules this power will be deemed to be for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advante the ends of justice and equity. This purpose shall be deemed to be incorporated in every rule under the Civil Servants Act which gives the power of relaxation of rules or overriding them. The question as to what is just and equitable depends on facts of each case and if exercise of this power is challenged in a case the reason on which the order is passed will be judicially scrutinised by Courts of law.
15. The validity of the impugned notification by which the requirement of experience was dispensed with has to be answered in light of the principles stated above. When the notification in favour of the appellant was challenged by respondents, Mukhtar Ahmed and others, the Government and other respondents in the writ petition, including Shamalia Mahmood, did not bring on record the reason which persuaded the Government to exempt the appellant from the requirement of experience laid down for the post of Sub-Judge. Therefore, there is nothing on record to show that the order was passed for just and equitable consideration. I would therefore, hold that the notification of 15th of June 1995 was bad in law and I would order acceptance of the writ petition filed by the present respondents for the reasons stated in this judgment."
44. The authorities referred to and relied upon by the learned Advocate for respondent No. 5 are irrelevant for the reasons that in Anayatullah Chaudhry's case, observation of the apex Court had been recorded in a case of civil servant who was declared adhoc by the apex Court itself resultantly was likely to suffer. In AIR 1990 SC-851, altogether a different proposition was involved and case was one of promotion and relaxation was up held by the apex Court of India, after examining the facts of the case therein which has no similarity with the present case. As is evident from the above referred case law, the relaxation cannot be ordered for the benefit of one individual and to deprive the other. Especially so when the fundamental rights of the citizen are involved. This view lends support from a judgment of this Court in Arshid Hussain Chaudhry's case [1998 PLC (CS)1229].
45. The point as to whether the experience of respondent No. 5 as pleader, or his service as Tehsil Mufti etc.- can be regarded as legal practice is of fundamental importance. The learned Advocates for the parties are unanimous on the point that there is no statutory definition of the word "legal practice" and even this word has not been used in a single terminology, in the dictionaries. In various dictionaries, the words "legal practice" & "Practice of law" have separately been defined. In Black's law Dictionary, referred to by both the parties, these words have been defined as under:- Legal, adj.
1. Of or relating to law; falling within the province of law .
2. Established, required, or permitted by law; LAWFUL it is legal to carry a concealed handgun in some states 3 Of or relating to law as opposed to equity.
46. Practice, n.
1. The procedural methods and rules used in a court of law . .
2. PRACTICE OF LAW Practice of law. The professional work of a duly licensed lawyer, encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various transactions from conveying land to effecting corporate mergers, preparing legal opinions on various points of law, drafting wills and other estate-planning documents, and advising clients on countless types of legal questions. the term also includes activities that comparatively few lawyers engage in but that require legal expertise, such as drafting legislation and court rules-Also termed legal practice. OF LAW PRACTICE.
47. "19. Classes of Advocates:- There shall be the following four classes of advocates, namely:-
(a) Senior Advocates of the Supreme Court;
(b) Advocates of the Supreme Court;
(c) Advocates of the High Court/Shariat Court; and
(d) Other Advocates.
20. Right of Advocates to practise:- (1) Save as otherwise provided in this Act, no person shall be entitled to practise the profession of law unless he is an advocate.
(2) Subject to the .Provisions of this Act, the rules made thereunder and any other law for the time being in force-
(a) an advocate of the Supreme Court, High Court or Shariat Court shall be entitled as of right to practise throughout Azad Jammu and Kashmir and to appear, act and plead before any Court or tribunal in Azad Jammu and Kashmir; and
(b) any other advocate shall be entitled as of right igo practise throughout the Azad Jammu and Kashmir.
(3) No advocate shall appear or act for any person in any court or tribunal unless he has been appointed for the purpose by such person by a document in writing signed by such person or his recognized agent or some other person duly authorised by him to make such appointment, and such document has been filed in such court or tribunal: Provided that nothing in this sub-section shall apply to:
(a) a public prosecutor or any advocate appointed by the State: or
(b) an advocate when appearing on behalf of another advocate, if the advocate so appearing has filed a memo of appearance: Provided further that an advocate may be allowed to appear for an accused in custody on his undertaking to file the document required under this subsection.
48. It will not be out of place to mention there that some other professions have also been regulated in Pakistan as well as in AJ&K e.g. The profession of engineering has been regulated by Pakistan Engineering Council Act, 1976. The scope of functions of this council has also been extended to AJ&K. Certain qualifications with regard to the engineering profession and right to practice as engineer are laid down in the said Act. Similarly Medical and Dental Council has also been established in Pakistan who advised the Government to provide qualification etc. In the relevant field. The Govt. Also prescribes the qualifications for these professions in consultation with these statutory bodies. In A)&K, prior to the enforcement of the Bar Council Act, 1995 and after promulgation of the said Act no one can practice as a Vakeel, Pleader or an Advocate until and unless he possessed the relevant qualification and obtained a licence from the relevant forum.
49. Similarly under Section 20 of the Bar Council Act, 1995, the right to practice has been curtailed and nobody is entitled to practice until he fulfils the qualification listed in Section 24 of the said Act. A careful study of the provisions of the Bar Council Act and the rules, leads to the irresistible conclusion, that a person must possess the relevant qualification and thereafter must have been enrolled as an Advocate or pleader and only then is entitled to practise. Thus, there is no concept of legal practice without being in the profession. For a professional work qualification provided by the rules and licence required is a condition precedent. Mr. Abdul Rashid Abbasi, is right in saying that one must actually practise and a person who is a holder of a licence but is not practically practicing cannot be said to have the experience of legal practice. Similarly a person though he is a law Graduate, serving in a Government Department needs no licence and his this service is confined to limited field only and cannot be held a substitute of legal practice as visualized by law, referred to herein above.
50. Mr. M. Tabassum Aftab Alvi, has attempted to convince me by referring to the rule that a holder of I.L.M. Qualification is exempt from apprenticeship like an ex judicial officer. 1 am of the opinion that this relaxation is applicable only for obtaining the licence of advocacy for the High Court and not beyond that. The aforesaid conclusion is supported by a judgment of High Court, Karachi in a case titled "Muhammad Azam Jamil and others. v. Govt. Of Pakistan and others" [1991 PLC (CS) 983]. In the said case, the provisions of Pakistan Engineering Council Act, 1976 were interpreted by his lordship Mr. Justice Ajmal Mian, Judge (as his lordship then was). The facts of the case were that petitioners therein challenged the appointment of respondents who were holding the posts of Executive/Divisional Engineer in grade-18, on the ground that a diploma holder is not a professional engineer thus, cannot undertake professional engineer work within the meaning of Pakistan Engineering Council Act, 1975. The learned Judge while interpreting "professional engineer worker" as defined in clause (k) of Section 2 of the Act has discussed the scope. Of "professional engineer" and "professional consultants" and has compared them with the word "in practice". The words "in practice" and "profession" were explained with reference to the various dictionary meaning in the following manner:-
(a) Venkataramaiya's Law Lexicon with Legal Maxims Second Edition, page 1867. " ' practice' what the expression ' practice' means is duly laid down by the Supreme Court to include both acting and pleading. See Aswini Kumar Ghose v. Arabinda Bose, [1952 SC 369] State of Madhya Pradesh v. Lohra Maghe Urson (1975 Jab. LJ. 687 at p. 687)."
51. The phrase "practising as e a solicitor" connotes a person who is a principal/it connotes a person who has clients; it connotes a person, in short, who has practice. The expression is not apt to describe the managing clerk of a solicitor who is acting as the servant of another who is a practising solicitor, Way v. Bishop [(1928) Ch. 647 at p. 660]
(b) Stround's Judicial Dictionary, Fourth Edition.
52. "(5) ' Solicitor practising in the Court' (Sheriff Courts)( Scotland) Act 1907 (c. 51) Sched. 1,152), see Hunter, 1959 S.L.T. (Sh. Ct) 75; Sh. Ct. Rep. 124. (6) To "practise" as a "SURGEON": see Rawlinson v.
53. Clarke, 14 L.J. Ex. 364. See further Robertson v. Buchannan, 90 L.T. 390 cited SET UP."
(c) Words and Phrases Permanent Edition vol. 33. PRACTICE A PROFESSION, That one making survey for his father, who was owner of property, had no licence under C.L.S. 4696 to practice surveying, did not render his testimony as to location of corner incompetent; to practice a profession' being to hold one's self out as following it, as calling or one's usual business, Beaver Brook Resort Co. v. Stevens, 230 p. 121, 122, 76 Colo. 133.
(d) Venkataramaiya's Law Lexicon with Legal Maxims Second Edition, page 1921.
54. Profession' as defined in the Concise Oxford Dictionary means, .Among other things, vocation, calling, specially one that involves some branch of learning or science, as the learned profession (divinity, law, medicine). A profession is normally associated with the exercise of intellectual or technical equipment resulting from learning or science.
55. A Chartered Accountant is approached by his client for advice and guidance in his problems with regard to trade, business or industry, and it is expected that the chartered accountant to the best of his ability would be in a position to help him in his difficulties and not betray the confidence that is placed in him. This is one of the elements which should be sought when considering whether a particular person is practising a profession or is merely doing a business." The learned judge in para 32 and 33 of the judgment analysed the comparative features of Pakistan Engineering Council Act with the Legal Practitioners and Bar Council Act ,1973, and came to the conclusion that position of engineers who are not practicing engineer or professional consultants, is similar to that of law graduates who are not in practice. The legislature or the rule making authority has not intended that a person who in fact has not been enrolled as a practicing ,advocate still can enter upon the legal profession as a legal practitioner nor could his such practice be regarded as a legal. Practice. The contention of the learned Advocate that even simply holder of licence without any practical experience cannot be considered in legal practice, is also weighty. I would like to refer a case from Pakistan jurisdiction titled "Muhammad Siddique, Advocate v. Farhat A.I Khan and another" [PLD 1994 Lah. 183]. In this case a writ of quo warranto was filed against judicial member and chairman of Income Tax Tribunal on the ground of lacking the qualification for such appointment. The requirement of rules was 10 years standing at the bar.
56. Respondent in the case was enrolled as advocate on 21-3-1971 and on 12-8-1974 he joined the service in a foreign country and remained there till 10-101979. Thus, it was opined that an Advocate in common parlance, means a person who is engaged in practicing profession of law. A mere licence holder being not in practice cannot be regarded as-legal practitioner. This appointment was vacated for not having the practical experience of advocacy and this judgment was upheld by the apex Court of Pakistan in 1995 SCMR 1570. Para 10 of the High Court's judgment referred to hereinabove is as under:- "10. Advocate, in the common parlance, means a person who is engaged in practising the profession of law. If he ceases to be in the profession, how he can claim to be an advocate merely for the reason that he had remained on the rolls of the Bar Council. In the Law Lexicon of British India by P. Pramanatha Aiyar, 1940 Edition, advocate has been defined as "one who pleads the cause of another in a Court of law, or other judicial tribunal. His duty is two-fold--- to advise his client before going into Court, and to act for him when in the Court. He is a person learned in the law and duly admitted to practice, who assists his client with advice and pleads for him in open Court." We are, therefore, of the view that while computing period of 10 years in terms of clause (a) of sub-Article (2) of Article 193 of the Constitution of Islamic Republic of Pakistan, 1973, the period during which respondent No. 1 had remained in service in Uganda has to be excluded.
57. There is thus no escape except to hold that respondent No. 1 was not qualified to be appointed as a Judge of a High Court and consequently not eligible for appointment as a Member/Chairman of Income Tax Appellate Tribunal."
58. The contention of Mr. M. Tabassum Aftab Alvi, that the service of the respondent No. 5 as Tehsil Mufti can be counted because of its judicial nature, in view of the aforesaid case laws, is devoid of any force. The functions of Tehsil Mufti have no nexus with the judicial functions. Be that as it may, the authority now to recognize the legal qualification is vested in the Bar Council in view of sub- section (6) of Section 24 of the Bar Council Act referred to herein above and the Government does not have any jurisdiction to relax the rules treating the service of Tehsil Qazi as judicial one. In this regard the authority referred to and relied upon by the learned Advocate for respondent No. 5 as 1993 CLC 81 supports the case of his opponent. This submission is also not tenable in view of a division bench judgment of Lahore High Court rendered in Miss Hadia Awan's case reported as PLJ 1998 Lahore 200, wherein the learned Judges in similar situation opined as under:- "5. Having heard the learned counsel for the parties, we are of the opinion that the view taken by the learned single judge is un-exceptionable. Rule 7 of the Punjab Judicial Service Rules, 1994 prescribes that no person shall be appointed to the judicial service unless he has practised the profession of law for not less than two years. According to section 22(1) of the Legal Practitioners and Bar Councils Act, 1973, no person is entitled to practice the profession of law unless he is an Advocate. The word "Advocate" has been defined in section 2(a) as an Advocate entered in any roll under the provisions of this Act.
6. It follows from the above that only a person whose name is borne out from the register as an Advocate, maintained by the Bar Council can claim to have a right to practise. The pupilage which the appellant did before her enrolment as an Advocate did not entitle her to practise the profession of law. That being so we have no option but to dismiss this appeal,"
59. I am in agreement with Raja Muhammad Hanif Khan, the learned Advocate, that if a statutory provision is unhappily worded for want of skill and drafting it would not go to the root of the matter and would not affect the correct interpretation of the statute but this point is not directly involved in this case, therefore, needs not to be discussed. From a perusal of the preamble of AJ&K Bar Council Act, 1995, Sections 19, 20, 24 and the relevant rules, I have no hesitation in holding that where a profession has been regulated by an enactment, regulations or rules then the practice performed alone in the prescribed manner could be considered as legal practice and the same interpretation will advance the intention of the legislature.
60. So far as the contention of Mr. M. Tabassum Aftab Alvi, the learned Advocate representing respondent No. 5, is concerned, that the petitioner is not an aggrieved person as there is no material on the basis of which it can be said that certainly she has qualified the exams. This argument was raised conditionally by the learned Advocate that in case of perusal of record if it appears that she has qualified the exams then he will not stress on this argument, I have examined the relevant record and found that Mrs. Shamim Khalid is at No. 3 in the merit list. So, in view of the stand of the learned advocate, no deliberation is required on this point.
61. So far as the question of laches is concerned, in my view, this principle varies from case to case and in the present case the cause of action, has arisen to the petitioner on declaration of the result of respondent No. 5, therefore, the petition cannot be held as time barred. The contention of the learned Advocate that the Hon'ble Chief Justice of the Shariat Court, and regularizations committee are necessary party, is also misconceived. Application has been- forwarded only to the Law Department with approval of the learned Chief Justice and recommendations have culminated into Govt. Order which is under challenge, therefore, none of them is a necessary party.
62. The upshot of the above discussion is that finding no force in writ petition No. 438/2002, the same is hereby dismissed. Writ Petition No. 90/2003 is accepted, resultantly recommendations in favour of Abdul Shakoor, respondent No. 5, against the quota of District Muzaffarabad are hereby declared as null and void. The Public Service Commission is directed to recommend petitioner, Mrs. Shamim against the quota of District Muzaffarabad for appointment, against the post of Civil Judge, Muzaffarabad. No order as to costs.