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SUPREME COURT OF AZAD JAMMU & KASHMIR [Appellate Jurisdiction]
PRESENT: Mohammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia, J. Raja Saeed Akram Khan, J.
1. Civil Appeal No.9 of 2014 (P.L.A. filed on 24.12.2013)
1. Syed Mumtaz Hussain Naqvi, Chairman, Azad Jammu & AJ&K Public Service Commission, Muzaffarabad.
2. Professor (R) Sardar Muhammad Ibrahim, Member AJ&K Public Service Commission, Muzaffarabad.
3. Professor (R) Muhammad Aslam Zafar, Member Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
4. Khurshid Ahmed Rathore, Member, AJ&K Public Service Commission, Muzaffarabad.
5. Ch. Arif Mehmood Kataria, Member, AJ&K Public Service Commission, Muzaffarabad.
6. Muhammad Saeed Mughal, Member, AJ&K Public Service Commission, Muzaffarabad.
7. Mrs. Arifa Rabbani, Member, AJ&K Public Service Commission, Muzaffarabad.
8. Ch. Muhammad Rafique Olvi, Member, AJ&K Public Service Commission, Muzaffarabad.
9. Ch. Ghulam Mustafa, Member, AJ&K Public Service Commission, Muzaffarabad.
10. Professor (R) Muhammad Karim, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
…. APPELLANTS
2
v e r s u s
1. Raja Muhammad Farooq Haider Khan, Ex-Prime Minister of Azad Jammu & Kashmir/Member Legislative Assembly & Leader of the Opposition Azad Jammu & Kashmir Legislative Assembly, Muzaffarabad.
2. Razaq Ahmed s/o Said Muhammad, Advocate Supreme Court, Ex-President District Bar Association, Mirpur.
….. RESPONDENTS
3. Azad Government of the State of Jammu & Kashmir through Chief Secretary to Azad Government, Civil Secretariat, Muzaffarabad.
4. Secretary Services & General Administration Department, Azad Government of the State of Jammu & Kashmir, Muzaffarabad.
5. Secretary Law, Justice, Parliamentary Affairs & Human Rights Department, Azad Government of the State of Jammu & Kashmir, Civil Secretariat, Muzaffarabad.
….PROFORMA-RESPONDENTS
(On appeal from the judgment of the High Court, dated 16.12.2013 in Writ Petition No.621 of 2013)
FOR THE APPELLANTS: Mr. Abdul Rashid Abbasi,
Advocate. FOR THE RESPONDENTS: Raja Sajjad Ahmed Khan,
Advocate.
3
2. Civil Appeal No.23 of 2014 (P.L.A. filed on 13.1.2014)
1. Azad Jammu & Kashmir Government through Chief Secretary to Government of Azad Jammu & Kashmir, Muzaffarabad.
2. Secretary Services & General Administration Department, Azad Government of the State of Jammu & Kashmir, Muzaffarabad.
3. Secretary Law, Justice, Parliamentary Affairs & Human Rights Department, Azad Government of the State of Jammu & Kashmir, Muzaffarabad.
…. APPELLANTS
v e r s u s
1. Raja Muhammad Farooq Haider Khan, Ex-Prime Minister of Azad Jammu & Kashmir, Member legislative Assembly of Azad Jammu & Kashmir, Leader of Opposition in the Azad Jammu & Kashmir Legislative Assembly, Muzaffarabad.
2. Razaq Ahmed s/o Said Muhammad, Advocate Supreme Court, Ex-President District Bar Association, Mirpur.
….. RESPONDENTS
3. Syed Mumtaz Hussain Naqvi, Chairman, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
4. Professor Retired Sardar Muhammad Ibrahim, r/o District Bagh, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
5. Professor Retired Dr. Muhammad Aslam Zafar, r/o District Rawalakot, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
4
6. Mr. Khurshid Ahmed Rathore, r/o District Haveli, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
7. Ch. Muhammad Arif Kataria, r/o District Kotli, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
8. Mr. Muhammad Saeed Mughal, r/o Tehsil and District Neelum, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
9. Mrs. Arifa Rabbani, r/o Chowkian Tehsil Baloch District Sudhenuti, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
10. Ch. Muhammad Rafique Olvi, Advocate, r/o Nakyal District Kotli, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
11. Ch. Ghulam Mustafa, Retired Officer Management Group, r/o Chamb Barnala District Bhimber, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
12. Professor Retired Muhammad Karim, r/o District Rawalakot, Member, Azad Jammu & Kashmir Public Service Commission, Muzaffarabad.
….. PROFORMA RESPONDENTS
(On appeal from the judgment of the High Court
dated 16.12.2013 in Writ Petition No.621 of 2013) FOR THE APPELLANTS: Mr. Abdul Rasheed Abbasi,
advocate. FOR THE RESPONDENTS: Raja Sajjad Ahmed Khan,
advocate.
Date of hearing: 15.1.2014
5
JUDGMENT: Mohammad Azam Khan, CJ.—The titled appeals
with the leave of the Court arise out of the judgment of the
High Court dated 16.12.2013, whereby the writ petition filed
by the respondents, herein, has been accepted and Ordinances
No.LD/Legis-Ord./728-38/2012 dated 27.11.2012 and
No.LD/Legis-Ord/312-323/2012 dated 9.7.2012 have been
declared to be ultra vires the Azad Jammu & Kashmir Interim
Constitution Act, 1974 (to be referred hereinafter as the
Constitution Act) and the Public Service Commission Act,
1986 (to be referred hereinafter as the Act, 1986) and the
appointments of Chairman and Members made on the basis of
the said Ordinances, have been declared illegal for having
been made without lawful authority. The High Court has also
declared that the President cannot re-enact an ordinance while
exercising powers as visualized by the Constitution Act.
2. The President of Azad Jammu & Kashmir on 9th
July 2012, issued Ordinance No.XXX of 2012, whereby
Section 2 of the Act, 1986 has been substituted, section 3 has
been amended and Section 4-A has been added in the said Act.
On 27.11.2012, the same ordinance has been reissued by the
President under No.LXVIII of 2012 and under the provisions
of the amended Ordinance, on 9.7.2012, appellants No.1 to 10
6
in Civil Appeal No.9/2014 were appointed as Chairman and
members of the AJ&K Public Service Commission.
Respondents, Raja Muhammad Farooq Haider Khan, ex-Prime
Minister of Azad Jammu & Kashmir and Leader of the
Opposition and a member of the Legislative Assembly of
Azad Jammu & Kashmir, along with respondent No.2,
challenged the said ordinances by filing writ petition on
13.4.2013 on the ground that the amendment is ultra vires
Sections 4(1)(2) and 48 of the Constitution Act and provisions
of the Act, 1986. The powers of the President under Section
41 of the Constitution Act for re-enacting an ordinance were
also challenged and it was prayed that the appointment of the
appellants, herein, may be declared against the Constitution,
law and the procedure. After necessary proceedings, the High
Court vide its judgment dated 10.9.2013 accepted the writ
petition, declared the ordinances ultra vires the Constitution
and set aside the appointment orders of the appellants, herein.
This Court vide judgment dated 28.11.2013 accepted the
appeals filed by the appellants, herein, and respondents,
herein, and remanded the case to the High Court for decision
afresh apart from the others on the following points, after
hearing the parties:-
7
i) the scope and power of the president under the
provisions of section 41 of Act, 1974 in relation to
promulgation of the ordinance specially, despite
session of Azad Jammu & Kashmir Assembly and
not laying the same before the Legislative
Assembly;
ii) whether the president can re-enact or promulgate
fresh ordinance on the same subject matter or not
in presence of Legislative Assembly;
iii) whether in the light of the record appointment of
Chairman and members of public service
commission have been made in a prescribed mode
according to law or not, and;
iv) the point of inconsistency of promulgated
ordinances with the constitutional provision on the
touchstone of which the promulgated ordinances
have been declared as ultra vires the Constitution.
The matter was placed before the larger bench of
the High Court consisting of the full Court. The High Court
accepted the writ petition in the terms indicated above. Since
both the appeals arise out of the same judgment, hence these
are proposed to be decided through this single judgment.
3. Mr. Abdul Rasheed Abbasi, advocate, while
arguing on behalf of the appellants, submitted that the
judgment of the High Court is against law and the record. The
8
Azad Jammu & Kashmir Public Service Commission Act was
enforced in the year 1986. No qualification for the members of
the Public Service Commission is provided in the said Act. An
amendment has been introduced in the Public Service
Commission Act through an Ordinance on 9.7.2012, whereby
the definition clause has been substituted. The qualification of
members has been introduced and number of the members has
also been increased. In the amending ordinance an education
committee has been provided for the improvement of
education services. Through Section 4-A of the amending
Ordinance, oath of the office has been provided. None of the
provisions of the amending ordinance is ultra vires the
provisions of Sections 4(1)(2) and 48 of the Constitution Act
and the provisions of the Act, 1986. The provisions of a law
cannot be struck down on the ground that these are based on
mala fide. The provisions of a law can be struck down only if
these are against the provisions of the Constitution. The
respondents challenged the ordinances on three grounds that
the amendment is against the constitutional provisions, it is
against fundamental rights and it has been affected with mala
fide reasons to promote nepotism. A law cannot be struck
down on the ground that it is based on mala fide or it will
promote nepotism. The law can be struck down only if it is
9
against the clear constitutional provisions or against the
fundamental rights. Respondents failed to point out any
violation of the fundamental rights or violation of any other
provisions like Sections 4(4)(1) and 48 of the Constitution Act
in the amending ordinance. The Court cannot substitute its
wisdom to that of the legislature. The learned counsel referred
to and relied upon the cases reported as Pir Sabir Shah vs.
Shad Muhammad Khan, Member Provincial Assembly NWFP
& another [PLD 1995 SC 66], Dr. Muhammad Akram vs.
Allotment Committee, Mirpur Development Authority [PLD
1985 SC (AJ&K) 113], Chief Election Commissioner AJ&K &
others vs. Abdul Majid & 2 others [PLD 1985 AJ&K 120],
Gul Sher Khan vs. Muhammad Ilyas & others [1994 SCR
281], Azad Government & 3 others vs. Genuine Rights
Commission AJ&K & 7 others [1999 SCR 1] and Fauji
Foundation & another vs. Shamimur Rehman [PLD 1983 SC
457]. The learned counsel submitted that the amending
ordinance has been issued for improvement of the functions of
the Public Service Commission. In the original Act, 1986 no
qualification was provided for appointment of a member of the
Public Service Commission. Now, through the amending
ordinance it has been provided that an outstanding person
having good reputation and educational background of not less
10
than a graduate is eligible for appointment as member, which
is in clear terms an improvement in the functioning of the
Public Service Commission. The learned counsel submitted
that number of the members as provided in Section 3(3) of the
Act, 1986, has been increased in Section 3(3) from seven to
ten. Three of them should be from education service. Increase
in the number of members is not ultra vires the provisions of
Sections 4(1)(2) and 48 of the Constitution Act. The number
has been increased due to heavy load of work. Even otherwise,
the President is empowered under Section 3 of the Act, 1986
to increase the number of members as and when required,
therefore, there is no effect of amendment. Through Section 4-
A of the Act, 1986, the Chairman and members have to take
oath before entering in the office. This all has been done to
ensure impartiality. The learned counsel submitted that the
High Court has observed in the judgment that definition clause
has been substituted, and definition of education service of
Azad Jammu & Kashmir has been deleted and instead
education service has been provided in the amending
ordinance, therefore, the purpose of the Public Service
Commission has been reduced only to education service. This
finding is not maintainable because the functions of the
Commission have been provided in Section 7 of the Act, 1986
11
and in Section 7(a), the function of the Public Service
Commission is shown to conduct the test and examination for
recruitment to the civil service of Azad Jammu & Kashmir
and such post in connection with the affairs of the
Government as may be prescribed by the Rules. No
amendment has been affected in Section 7, therefore, the
finding recorded by the High Court that the purpose of the
Public Service Commission has been reduced to the education
service only, is not correct interpretation of the law, which is
not maintainable. The learned counsel submitted that
education policy was introduced in Pakistan in the year 2009,
which was adapted in Azad Jammu & Kashmir and for
achieving the goals of education policy, the amendment has
been brought in the Act 1986 for the improvement of quality
education and number of members has been increased to meet
the load of work in the Public Service Commission. The
learned counsel submitted that the Ordinance was promulgated
on 9.7.2012. The appointment orders of the appellants were
issued on 20.11.2012 when the first amending ordinance was
not in existence. For the sake of arguments, if it is admitted
true that the ordinance cannot be repeated, then too, the
appointments were made in the light of original ordinance
because at the expiry of temporary legislation, permanent
12
legislation is restored, therefore, the appointments are valid.
The learned counsel submitted that the service of Azad Jammu
& Kashmir is defined in the original Act, 1986 as the service
of Azad Jammu & Kashmir means as defined in the
Constitution Act. The definition in the Constitution is intact.
The deletion of definition of service doesn‟t affect the function
of the Public Service Commission.
4. It is next argued by the learned counsel for the
appellants that under Section 41 of the Constitution Act, the
President has powers to issue the ordinance. These powers are
not restricted to be exercised only once rather these can be
exercised repeatedly. The Court has to interpret the law as it is
and not as it ought to be. The learned counsel heavily relied
upon the judgment of this Court reported as Raja Muhammad
Niaz Khan, Ex-Chairman Azad Kashmir Mineral & Industrial
Development Corporation vs. Azad Government of the State of
Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K) 53]
and argued that this Court has observed in the said case that
under Section 41(3) of the Constitution Act, the President has
power to issue ordinance and repeat the same and the
President can prorogue the session of the Legislative
Assembly for issuing the ordinance. He referred to the cases
reported as Chief Election Commissioner AJ&K & others vs.
13
Abdul Majid & 2 others [PLD 1985 AJ&K 120], [PLD 1985
SC 66], Novelty Enterprises Ltd. vs. Deputy Collector & 5
others [2001 SCR 191] and Federation of Pakistan & others
vs. M. Nawaz Khokhar & others [PLD 2000 SC 26]. The
learned counsel submitted that the ordinance has validly been
issued by the President. He argued that under Section 42(b) of
the Constitution Act, the judgment of this Court is binding on
all the Courts and authorities to the extent it decides the
question of law. The President has been enacting and
reenacting the ordinance in the light of law laid down by this
Court in Raja Niaz Ahmed Khan’s case. The judgment of the
apex Court was binding on the High Court. The High Court
cannot hold contrary to the judgment of this Court, which was
holding the field till the judgment of the High Court. The
learned counsel vehemently argued that the High Court has
misinterpreted the provisions of the Rules of Business, 1985.
The Public Service Commission is a special institution of the
Services & General Administration Department as laid down
at serial No.18 of schedule 1 of the Rules of Business. No
specific procedure for approval of the President has been
provided in the Rules of Business. Item 18, schedule V of the
Rules of Business only provides the list of cases to be
submitted to the President for his approval before issuance of
14
order. Under Section 7 of the Constitution Act, the President
has to act on the advice of the Prime Minister. The Prime
Minister advised the President for appointment of Chairman
and members and the President accorded the approval. The
appointment orders of the appellants are perfectly legal. The
finding recorded by the High Court on this score is not
maintainable. The learned counsel requested for acceptance of
appeal.
5. While controverting the arguments Raja Sajjad
Ahmed Khan, advocate, counsel for the respondents in both
the appeals, submitted that the judgment of the High Court is
perfectly in accordance with law. By issuing the amending
ordinance, provisions of Sections 4(1)(2) and 48 of the
Constitution Act and provisions of the Act 1986 have been
violated by deleting the definition of service of Azad Jammu
& Kashmir. By deleting the „service of Azad Jammu &
Kashmir and instead of that providing the definition of
„Education Service‟, the scope of the Act 1986 has been
curtailed only to the education service and virtually the
purpose of the Public Service Commission has been confined
to education service and all other services have been kept out
of the purview of the Act, 1986. The learned counsel
submitted that the purpose of brining the amendment is only to
15
accommodate the kith and kin of the Government and for
promoting nepotism in an indirect manner. The learned
counsel relied upon the cases reported as Azad Jammu &
Kashmir Government & others vs. Muhammad Younas Tahir
& others [1994 SCR 341] and Azad Government & 3 others
vs. Genuine Rights Commission AJ&K & 7 others [1999 SCR
1]. It was further argued by the counsel for the respondents
that under Section 41(3) of the Constitution Act, the President
has no power to repeat an ordinance. The learned counsel
vehemently argued that the appointments of the appellants
have been made against Rule 11 of the Rules of Business,
1985. He argued that no summary for appointment of the
appellants was initiated. The appointments were made without
advice of the Prime Minister, without any record and these are
in clear violation of law and not maintainable. The High Court
has correctly declared the appointments being against the
provisions of the Rules of Business. The learned counsel
submitted that the function of the Public Service Commission
is to conduct test and examination to the recruitment in the
civil service of Azad Jammu & Kashmir and such purpose can
only be achieved by appointing the persons of extraordinary
knowledge and reputation but the amendment has been
introduced to accommodate the favorites. The learned counsel
16
referred to the cases reported as Chief Secretary Punjab &
others vs. Abdul Raoof Dasti [2006 SCMR 1876] and
Corruption in Hajj Arrangements, in 2010, in the matter of
suo motu case No.240/20120[PLD 2011 SC 963]. He
defended the judgment of the High Court on all counts and
requested for dismissal of appeals.
6. We have heard the learned counsel for the parties,
perused the record and the judgment of the High Court with
utmost care. Three questions need resolution by the Court are;
(a) whether the amending ordinances are inconsistent with the
constitutional provisions and are ultra vires the Constitution;
(b) whether under Section 41 of the Constitution Act, the
President can re-enact or re-promulgate ordinance on the same
subject matter in the presence of Legislative Assembly; and
(c) whether in the light of record, the appointments of
Chairman and Members of the Public Service Commission
have been made in prescribed mode provided by law or not.
7. Firstly, we would like to look into the vires of
amending ordinances whether these are inconsistent with the
provisions of the Constitution and fundamental rights
guaranteed by the Constitution. Section 48 of the Constitution
Act provides for the establishment of Public Service
17
Commission. Section 48 of the Constitution Act lays down
that there shall be a Public Service Commission for Azad
Jammu & Kashmir. It shall consist of such number of
members including a Chairman and perform such functions as
may be prescribed and Section 49 of the Constitution Act
provides the service of Azad Jammu & Kashmir which lays
that the appointment of persons to and the terms and
conditions of service of persons in service of Azad Jammu &
Kashmir may be regulated under the law subject to this Act. In
the light of Section 48 of the Constitution Act, Azad Jammu &
Kashmir Public Service Commission Act, 1986 (Act XVII of
1986) was enforced on 9.3.1986. It may be observed that
before the enforcement of Azad Jammu & Kashmir Interim
Constitution Act, 1974 there was no Public Service
Commission in existence. For the first time the Public Service
Commission (Functions) Rules, 1978, were introduced and
thereafter the Act, 1986 was enacted. The Act, 1986 has been
amended a number of times and last amendment was
introduced through amending ordinance No.LXVIII of 2012,
issued on 9.7.2012, whereby Section 2 of the Act, 1986 was
substituted, section 3 was substantially amended and Section
4-A was added. For proper appreciation Sections 2 and 3,
enforced before July 2012 and amended sections as well as
18
permeable of the amending ordinance are reproduced as
under:-
“2. Definitions: In this Act, unless there is anything repugnant in the subject or context:
(a) “Commission” means the Azad
Jammu & Kashmir Public Service Commission;
(b) “Government” means the Azad
Government of the State of Jammu & Kashmir;
(c) “Member” means a member of the
Commission and includes the Chairman thereof;
(d) “President” means the President of Azad Jammu & Kashmir;
(e) “Service of Azad Jammu and
Kashmir” means the service of Azad
Jammu and Kashmir as defined in the Azad Jammu & Kashmir Interim Constitution Act, 1974.
3. Composition of Commission, etc.-(1) There shall be an Azad Jammu & Kashmir Public Service Commission consisting of the following four members:-
(i) one Chairman;
(ii) an honorary Member;
(iii) an ex-officio member; and
(iv) Director Ammor-i-Deenia, Member.
(2) The Chairman and other members of the Commission shall be appointed by the President.
(3) Two members of the Commission shall be persons who have held office in the
19
service of Azad Jammu & Kashmir for not less than twenty years.
(4) The pay and other conditions of service of members shall be such as may be determined by the President.
Provided that the salary, allowances and privileges of a member of the Commission shall not be varied to his disadvantage during his term of office.”
Preamble and amended Sections 2, 3 & 4-A of the Amending Ordinance as under:
“Whereas, it is expedient to amend the Azad Jammu & Kashmir Public Service Commission Act, 1986 (Act XVII of 1986), in order to improve the education standard and to ensure the recruitment to teaching and administrative cadre of education service on merit in accordance with National Education Policy, 2009 as adapted in Azad Jammu & Kashmir and the matter connected therewith and ancillary thereto:……..
………………………………………..
(1) ………………………………………..
2. Definitions: In this Act, unless there is anything repugnant in the subject or context:
(a) “Act” means Azad Jammu & Kashmir
Public Service Commission Act, 1986. (b) “Commission” means the Azad
Jammu & Kashmir Public Service Commission;
(c) “Education Service” means civil
servants belonging to teaching and administrative cadre of Education Department.
(d) “Education Service Committee” means a committee constituted for
20
recruitment to the posts of Education Service.
(e) “Government” means the Azad
Government of the State of Jammu & Kashmir.
(f) “Member” means a member of the
Commission and includes the Chairman thereof.
(g) “President” means the President of
Azad Jammu & Kashmir; (h) “prescribed” means prescribed by
rules made under the Act.
3. Amendment of Section 3-(i) In sub-section (1) the word “seven” shall be
substituted by word “ten”.
(ii) Sub-section (3) shall be substituted as under:-
„(3)(i) seven members of the
commission shall be appointed from amongst the retired civil servants or other outstanding persons having good reputation and educational background of not less than graduation from any recognized university.
(ii) Three members of the Commission shall be educationists to be appointed from amongst the eminent educationists or scholars having good reputation and experience of not less than ten years of teaching or administration or both.
(iii) The Education Service Committee shall be comprising of three members including at least two educationist members.
4-A Oath of office. Before entering upon his office Chairman and member shall take oath in the form set out in the schedule to this Ordinance
21
before the President in case of Chairman and before the Chairman in case of a member.”
A comparative study of the Act, 1986 enforced
before July 2012, the amended ordinance and the preamble of
amending ordinance reveals that the amendments have been
introduced to improve the education standard and to ensure the
recruitment to teaching and administrative cadre of education
service on merit in accordance with National Education
Policy, 2009, as adapted in Azad Jammu & Kashmir and the
matter connected therewith and ancillary thereto. Section 2 of
the Act, 1986 relating to the definitions, has been substituted
through amending ordinance. The definition of „service of
Azad Jammu & Kashmir‟ has been deleted in the new section
and instead the definitions of “Act”, “Education Service”,
“Education Service Committee” and “Prescribed” have been
inserted and defined in the amending ordinance. By amending
Section 3, the number of members of Public Service
Commission has been increased from seven to ten and it has
been provided that seven members of the Commission shall be
appointed from amongst the retired civil servants or other
outstanding persons having good reputation and educational
background of not less than graduation from any recognized
university. Three members shall be the educationist to be
appointed from amongst eminent educationists or scholars
22
having good reputation and experience of not less than ten
years of teaching or administrative cadre or both and the
education service committee shall comprise of three members
including at least two educationist members. The newly
introduced section 4(A) of the Act, 1986, provides for oath of
the office that the Chairman before entering into office shall
take oath under the form set out in the schedule before the
President and a member shall take oath before the Chairman.
The only difference in both the amended and un-amended
sections is that the definition of „service of Azad Jammu &
Kashmir‟ has been deleted and „Education Service‟ and
„Education Service Committee‟ have been introduced. The
qualification of a member has been provided which was non-
existent in the original Act and also number of members has
been increased.
8. Sections 48 and 49 of the Constitution Act provide
for the establishment of the Public Service Commission and
service of Azad Jammu & Kashmir. The Constitution Act
provides that if a person wants to enter into the service of
Azad Jammu & Kashmir, he shall apply to the Public Service
Commission whenever a post is advertised. The function of
the Public Service Commission is that whenever the post in
the service of Azad Jammu & Kashmir falls vacant and is
23
referred to the Public Service Commission, the Commission
shall advertise the same and after receiving applications,
conduct test and interview for the said post, and it shall
forward its recommendations to the Government for
appointment, as laid down in Section 7 of the Act, 1986 and
rules made thereunder. The scope of functions of the Public
Service Commission came under consideration of this Court in
the case reported as Azad Jammu & Kashmir Government &
others vs. Muhammad Younas Tahir & others [1994 SCR
341], wherein it was observed as under:-
“In accordance with the scheme laid
down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the rules made under them, if a citizen wants to enter the civil services of Azad Jammu and Kashmir in grade l6 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission holds written and oral tests and on the basis of merit recommendations are formulated. For every post there are hundreds of applicants although they are less in posts of specialized nature. It means that a person stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliance and hard work prove themselves to be the best among the contestants. This is the plain requirement of the laws which apply to all State subjects but
24
the Regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by operation of law by depriving people like Javed Iqbal Khawaja who is un-employed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existing laws but has been taken away.
It is legal requirement, as evidenced by section 48 of the Azad Jammu and Kashmir Interim Constitution Act read with Public Service Commission Act and with Public Service Commission (Functions) Rules that the merit and suitability of the candidates must be judged by the Public Service Commission. Therefore, this function cannot be performed by any other authority. In the present case this job has been performed by the legislature through the Regularization Act, which declared them validly selected without going through the selection procedure.”
9. The amending ordinance has been challenged on
the ground that it is ultra vires the provisions of the
Constitution Act and the provisions of the Act, 1986. Section
4(1) of the Constitution Act postulates that any law or any
custom or usage having the force of law, insofar as it is
inconsistent with the rights conferred by this section, shall, to
the extent of such inconsistency, be void. For proper
appreciation Section 4(1)(2) of the Constitution Act is
reproduced as under:-
“4. Fundamental Rights.—(1) Any law or any custom or usage having the force of
25
law insofar as it is inconsistent with the rights conferred by this section, shall, to the extent of such inconsistency, be void.
(2) No law shall be made which takes away or abridges the rights so conferred and any law made in contravention of this sub-section shall, to the extent of such contravention, be void.”
A plain reading of Section 4(1) and (2) of the
Constitution Act categorically shows that any law which is
inconsistent with the rights guaranteed by the Constitution in
section 4(4), to the extent of such inconsistency is void and the
legislature shall not make any law which takes away or
abridges the rights so conferred by this Section, and shall be
void to the extent of such contravention. The judiciary is the
interpreter of the Constitution and has been assigned delicate
task of determining the extent of the powers conferred upon
the Government and the legislation by the Constitution. The
Courts are under solemn duty to protect the fundamental rights
guaranteed by the Constitution zealously and vigilantly. The
judicial review by the courts is the basic feature of the
Constitution and the power of judicial review be exercised
while keeping in view the trichotomy of power. The Court,
shall not encroach upon the domain of other constitutional
branches. Constitution confers powers in the Courts to
determine the legality of executive actions and the
26
constitutionality of legislation passed by the legislature. The
constitutionality of legislation is always examined by the
superior Courts in exercise of power of judicial review. The
legislative actions are subject to scrutiny by the superior
Courts to determine their compatibility or otherwise with the
terms of a written Constitution. Corresponding provisions
exist in article 8 of the Constitution of Islamic Republic of
Pakistan, 1973. Fundamental rights are provided under the
United Nations Declaration of Human Rights, 1948 and are
enshrined in almost all the constitutions of the world. The
constitutional provisions guaranteeing the rights, have to be
liberally interpreted. The concept for providing the
fundamental rights is that the executive has no power to
interfere with the liberty of a person and fundamental rights
guaranteed under the Constitution are paramount in
comparison to subordinate laws. The legislature and executive
have no power to take away these rights. Section 4(2) of the
Constitution Act prohibits the State including legislature from
making any law by which any fundamental right may be
curtailed or taken away and if any law is made to this effect,
then to the extent of such contraventions, it shall be void. In
the case reported as Mohtarma Benazir Bhutto & others vs.
President of Pakistan & others [PLD 1998 SC 388] while
27
dealing with the question of supremacy of the Constitution it
was observed in para 160 as under:-
“160. Constitution is the supreme law of the
land to which all laws are subordinate. Constitution is an instrument by which Government can be controlled. The provisions in the Constitution are to be construed in such a way which promotes harmony between different provisions and should not render any particular provision to be redundant as the intention is that the Constitution should be workable to ensure survival of the system which is enunciated therein for the governance of the country. It is held in opinion of the Supreme Court in Special Reference No.1 of 1957 (PLD 1957 SC 219) that effect should be given to every part and every word of the Constitution. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. ln support of the proposition, reference can also be made to the cases of State v. Zia-ur-Rehamn (PLD 1973 SC 49) and Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151). In the case of Nawaz Sharif also, on the subject of interpretation of the Constitution, it is held that, while interpretation of the Constitution, it is held that, while interpreting fundamental rights, the approach of the Court should be dynamic, progressive and liberal keeping in view ideals of the people, socio-economic and politico-cultural values which in Pakistan are enshrined in the Objectives Resolution so as to extend the benefit of the same to maximum possible. In the case of Al-Jehad Trust v. Federation of Pakistan [PLD 1996 SC 324), it is held that approach of the Court while interpreting a
28
constitutional provision has to be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. Court's efforts should be to construe the provision broadly, so that it may be able to meet the requirement of ever changing society. General words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In the case of Khalid Malik v. Federation of Pakistan (PLD 1991 Karachi 1) on the subject of interpretation of the Constitution a very pertinent observation is made at page 68 which is reproduced as under:--
„The Constitution is a living organism
and has to be interpreted to keep alive the traditions of the past blended in the happening of the present and keeping an eye on the future. Constitution is the symbol of statehood keeping united people of different races, diverse cultural; social, economic and historical traditions. It provides a method of legitimacy to the Government. It is the power behind the organs and institutions created by it. Constitution must be interpreted keeping l view the entire canvass of national fabric be it political, social, economic or religious."
In the case reported as Fauji Foundation &
another vs. Shamimur Rehman [PLD 1983 SC 457], it was
held that while examining the vires of an act the powers of the
Court are limited. The scope of judicial review is confined to
the enforcement of Constitution as supreme law. It was
observed at page 546 as under:-
29
“Therefore, when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examining the legislative competence or to such other limitations as are in the Constitution; and while declaring a legislative instrument as void, “its is not
because the judicial power is superior in degree or dignity to the legislative power”
but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.
68. Clearly, therefore, the scope of judicial review is confined to the enforcement of the Constitution as supreme law. Aside from the inherent prerogative to interpret the Constitution, its purpose is corrective or directory, and extends to determining the legality of an administrative action and in relation thereto the constitutionality of the legislator if however doesn‟t extend.”
In the case reported as Baz Muhammad Kakar &
others vs. Federation of Pakistan through Ministry of Law,
Justice, Islamabad, & others [PLD 2012 SC 870], it was
observed as under:-
“13. It may be mentioned that this Court has
the power of judicial review to examine the constitutionality of any provision of any enactment, if the same is found to be contrary to the Fundamental Rights as well as constitutional provisions. A perusal of COCA 2012 suggests that it has been promulgated in haste obviously for reasons which have been admitted by learned counsel for the Federation in the wake of history of the impugned legislation narrated
30
hereinabove, including the recent decision of 7-Member Bench passed on 26-4-2012, in pursuance whereof the then Prime Minister was found guilty of contempt of Court followed by another judgment declaring him to be disqualified from being a member of Parliament in terms of Article 63(1)(g) of the Constitution.
l4. The apprehensions expressed by the learned counsel for the Federation are unfounded. Pakistan has a written Constitution and all the organs of the State, namely, legislature, executive and the judiciary are functioning within their respective domains. The judiciary has never claimed supremacy over other organs of the State. However, it has a duty to interpret the Constitution and law as well as to examine the constitutionality of any law if it is concluded that it has been promulgated in derogation of the Fundamental Rights as envisaged by Article 8 of the Constitution, or where any of the provision of any law is found contrary to the Constitution. It is also one of the recognized principles of jurisprudence that person specific laws cannot be promulgated because such exercise instead of promoting the administration of justice causes injustice in the society amongst the citizens who are being governed under the Constitution.....”
In the case reported as Wattan Party through
President vs. Federation of Pakistan through Cabinet
Committee of Privatization, Islamabad &others [PLD 2006
Supreme Court 697], it has been observed as under:-
“47. Article 8 of the Constitution grants the
power of judicial review of legislation according to which this Court is empowered to declare a law void if it is inconsistent with or in derogation to the fundamental rights.
31
However, at the same time this Court is empowered to declare any legislation contrary to_ the provisions of Constitution under some of the identical provisions of the Constitution as under Article 143 of the Constitution on having noticed inconsistencies between the Federal and Provincial laws the Court is empowered to declare that which out of the two laws is in accordance with the Constitution. Besides it is an accepted principle of the Constitutional jurisprudence that a Constitution being a basic document is always treated to be higher than other statutes and whenever a document in the shape of law given by the Parliament or other competent authority is in conflict with the Constitution or is inconsistent then to that extent the same is liable to be declared un-Constitutional. This is not for the first time that a law like Ordinance, 2000 has come for examination before the Court as in the past a number of laws were examined and when found against the Constitution the same were declared void and of no legal effect. Reference may be made to the case of Syed Zafar Ali Shah v. Gen. Pervez Musharaf, Chief Executive of Pakistan (PLD 2000 SC 869) wherein it was held that judicial power means that the superior courts can strike down a law on the touchstone of the Constitution. The nature of judicial power and its relation to jurisdiction are all allied concepts and the same cannot be taken away. It is inherent in the nature of judicial power that the Constitution is regarded as a supreme law and any law contrary to it or its provisions is to be struck down by the Court, as the duty and the function of the Court is to enforce the Constitution. Prior to the case of Zafar Ali Shah, this Court had examined different laws and declared that provisions of some of them were contrary to the provisions of the Constitution. Reference to the cases of Mehram Ali ibid, Sh. Liaqat Hussain v.
32
Federation of Pakistan (PLD 1999 SC 504), Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607), etc is pertinent.”
In the case reported as Dr. Mobashir Hassan &
others vs. Federation of Pakistan & others [PLD 2010
Supreme Court 265], it has been observed as under:-
“170. It is also to be noted that while examining the vires of a Statute, the court is free to examine the same on the touchstone of different constitutional provisions as it has been held In Muhammad Mubeen-us-Salam vs. Federation of Pakistan [PLD 2006 SC 602].
„52. In this behalf it may be noted that this Court, in exercise of constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well-settled by this time that being the apex Court, it has also been vested with inherent Powers to regulate its own authority of judicial review, inasmuch as, that in Zafar Ali Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it has been held by the full Court that „so long as the superior Courts exist, they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the superior courts‟. Arguments by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution,
33
section 2-A of the STA, 1973, can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qadir Chowdhry (ibid) would indicate that „superior Courts have inherent duty, together with the appurtenant power, to entertain and enforce the provisions of the Constitution in any case coming before them.‟ In the case of A.M. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that “-----in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the constitutional provision in the absence of any bar either expressed or implied.” Similarly, in Messer Electric
Lamp Manufactures of Pakistan Ltd. vs. The Government of Pakistan (1979 PTD 42), it has been held that “the parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended, the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution.” Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it High
34
School held that “----------when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, „it is not because the power is superior in degree or dignity to the legislative power‟ but because it enforces the Constitution as paramount law either where a legislative instrument is in conflict with the constitutional provision so as to give effect to it or where the Legislature fails to keep within its constitutional limits.‟ In the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504), the conclusion was that “Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a constitutional provision. In Collector of Customs & others vs. Sheikh Spinning Mills (1999 SCMR 1402), this Court struck down the imposition of preshipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights.‟”
10. The question, whether the provisions of amending
ordinance are against the provisions of Section 48 and
fundamental rights enshrined in Section 4(4) of the
Constitution Act, is to be judged in the light of provisions of
the Act itself. The Constitution is a sacrosanct document
which establishes various institutions, apparatus of the
Government, defines the relationship between the individuals
35
and the State and the rights guaranteed to the citizens/State
subjects. It is the duty of the Court to interpret the Constitution
and implement its provisions, if any law is enacted, which is
against the provisions of Section 4(2) of the Constitution Act,
it is a void law and cannot co-exist in the presence of Section
4(2) of the Constitution Act. Respondents have not challenged
the provisions of the original Act, 1986 and only challenged
the amending ordinance. If the original provisions of Act,
1986 are not ultra vires, how any amending ordinance
providing similar provision is ultra vires the constitution? In
section 2 of the original Act, 1986, the definition of “service
of Azad Jammu & Kashmir” existed, which has been deleted
in the amending ordinance and instead of that “Education
Service” and “Education Service Committee” have been
provided. It is argued by the counsel for the respondents that
by deleting the words “service of Azad Jammu & Kashmir”
and providing the definition of “Education Service” the
functions of the Public Service Commission have been
curtailed and confined only to the extent of “Education
Service”. The functions of the Commission are defined in
Section 7 of the Act, 1986 which postulates that the Public
Service Commission shall conduct test and examination for
recruitment to the civil service of Azad Jammu & Kashmir
36
and such post in connection with the affairs of the
Government as may be prescribed by Rules made thereunder.
Under section 11 of Act, 1986 the Commission has 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 any other matter which the President may refer
to the Commission. No amendment has been brought in
Section 7 and functions of the Public Service Commission
have not been curtailed, primary function of which is to
conduct the test and examination for recruitment to the civil
service of Azad Jammu & Kashmir and such post in
connection with the affairs of the Government as may be
prescribed by rules. Functions of the Public Service
Commission have not been affected by deleting the definition
of „service of Azad Jammu & Kashmir‟. The „service of Azad
Jammu & Kashmir‟ is defined in Section 2 of the Constitution
Act, which provides that the service of Azad Jammu &
Kashmir means any service, post or office in connection with
the affairs of Azad Jammu & Kashmir including the Council,
but doesn‟t include service as Chairman of the Council,
President, Speaker, Deputy Speaker, Prime Minister, Minister,
Federal Minister, In-charge of the Council Secretariat or
Advisor appointed under Section 21, Parliamentary Secretary,
37
Advisor to the Prime Minister or a member of the Assembly or
member of the Council. The functions of AJ&K Public
Service Commission under the Act, 1986 are confined to the
„service of Azad Jammu & Kashmir‟ and such post in
connection with the affairs of Azad Jammu & Kashmir and
not the Council, as such the definition of „service of Azad
Jammu & Kashmir‟ provided in the Constitution Act is fully
applicable in the case. The deletion of definition of service of
Azad Jammu & Kashmir will not affect the constitutionality or
any fundamental rights guaranteed under Section 4(4) of the
Constitution Act. It has been argued by the counsel for the
appellants that the definition of “Education Service” and
“Education Service Committee” have been provided in
Section 2 of the amending ordinance in the light of education
policy of the Government of Pakistan formulated in the year
2009 which has been adapted by the Azad Jammu & Kashmir
Government in the same year. The definition has been
provided for achieving the purposes of education policy. He
referred to chapter 6.1(5) of the Education Policy. A perusal of
Chapter 6.1(5) of the Education Policy reveals that in the
education policy, it has been laid down that the “Government
shall take steps to ensure the education recruitment,
professional development, promotion and posting are based on
38
merit and merit alone.” The function of the Public Service
Commission is to conduct test and interview for the service of
Azad Jammu & Kashmir as laid down in Section 7 of the Act,
1986. The Public Service Commission conducts test and
interview and makes recommendations for appointment to the
service of Azad Jammu & Kashmir including the post in
connection with the affairs of Azad Jammu & Kashmir. The
jurisdiction of the Public Service Commission under Section 7
of the Act, 1986 extends to all civil services of Azad Jammu &
Kashmir. Specifically mentioning of „Education Service‟ and
„Education Service Committee‟ appears to be unnecessary. An
amendment was introduced in the Act, 1986 in the year 1991,
whereby Section 7-A was added which provides that the
Chairman of the commission may, with the approval of the
Government, make rules for regulating the conduct of the
business of the commission, and such rules may provide for
any of the functions of the Commission specified by it being
performed by a Committee composed of two or more
members, constituted by the Chairman for the purpose. This
provision already empowers the Chairman to constitute a
committee which shall consist of not less than two members
for conducting the business of the Commission and any of its
functions. In the presence of this provision, providing of
39
„Education Service‟ and „Education Service Committee‟
appears surplus. The preamble indicates that the amendment is
being brought to improve the education standard and to ensure
the requirement of teaching and administrative service on
merits. The recruitment in service of Azad Jammu & Kashmir
on merit is the duty of Public Service Commission.
It appears that apparently no useful purpose will
be served by the introduction of „Education Service‟ and
„Education Service Committee‟, however, when judged on the
touchstone of Sections 48, 49 and 4(4) of the Constitution Act,
the provision is not in contravention of the Constitution.
11. In the amending Section 3 of the Act, 1986, the
number of members has been increased from seven to ten.
This power was already available in section 3(1) of the un-
amended Act of 1986 to the President that the President may
increase the number of members for such period as he may
determine and may appoint one or more persons in the service
of Azad Jammu & Kashmir to be member‟s ex-officio for the
discharge of such functions as he may determine. In the
presence of said provision, the amendment specifically for
increasing the number of members from seven to ten seems to
40
be surplus, however, it is not in contravention of Sections 48,
49 and 4(4) of the Constitution Act.
12. In the newly introduced Section 3(1), the
qualification of graduation has been provided which was not
available in the original Act, 1986. A graduate, either from
retired civil servants or outstanding persons having good
reputation is qualified to be appointed a member. The
Education Committee under Section 3 shall consist of eminent
educationists or scholars having good reputation and
experience of not less than ten years of teaching or
administrative cadre or both, which shall consist of at least
two educationist members.
It may be observed that the laws applicable in
Pakistan particularly in Punjab province are adapted in Azad
Jammu & Kashmir and rule of parity with Pakistan and Punjab
is applicable in Azad Jammu & Kashmir. The privileges and
benefits are claimed which are admissible in all the fields of
life in Pakistan, particularly in Punjab but where the question
arises to that of protection of rights of the people, instead of
performing the functions or acts according to law and the
Constitution, criteria based on favoritism and nepotism is
fixed, which is not permissible. The Public Service
41
Commission is the most important constitutional organ of the
State, the functions of which are to conduct test and
examination for the recruitment to the civil service of Azad
Jammu & Kashmir and such post in connection with the
affairs of the Government. The persons inducted in the service
of Azad Jammu & Kashmir have to remain in the Government
service for more than thirty years and future of the generations
in Azad Jammu & Kashmir depends upon such persons, who
are inducted in service through the Public Service
Commission. The Federal Public Service Commission and
Punjab Public Service Commission consist of such persons,
who are highly qualified and persons of high reputation and
integrity. It will be useful to reproduce here the relevant
provisions of Federal Public Service Commission of Pakistan
and Punjab Public Service Commission, which are as under:-
Federal Public Service Commission
“3. Composition of Commission, etc.---(1)…………………………………………...
(2) ………………………………………….
(3)………………………………………….
(4) The Commission shall have:
(a) not less than one-half of the members who shall be persons having held in the service of Pakistan in basic pay scale 21 or above post;
42
Provided that no serving Government servant shall be appointed as a member;
(b) at least one member each from
(i) retired judges of the superior judiciary;
(ii) retired officers not below the rank of Major-General or equivalent of the Armed Forces; and
(iii) Women and the private sector possessing such qualifications and experience as the Federal Government may by rules prescribe.”
(5) …………………………………….”
Punjab Public Service Commission
“(3) Composition of the Commission etc.—(1) …………………………………… (2)…………………………………………. (3) ………………………………………….
(4) The Commission shall have:-
(a) Not less than one-half of the members who have held office in the Service of Pakistan for not less than 21 years or above;
(b) at least one member each from—
(i) retired Judges of the superior judiciary
(ii) retired officers not below the rank of Major General or equivalent of the Armed Forces; and
(iii) Women and persons from private sector possessing
43
such qualification and experience as the Government may by rules prescribe; and
(iv) retired professionals in basic scale 20 or above of the Government with not less than fifteen years experience in the field of engineering , agriculture, education, medicine or dentistry, forensic, environment, information technology, law or any other professional field.
(5) …………………………………”
A perusal of the provisions of Federal Public
Service Commission makes it abundantly clear that one
member of the Commission is from amongst the retired Judges
of the Supreme Court of Pakistan or the High Court, one
member is a retired army officer not below the rank of Major
General and at least two other members of the Commission
are retired civil servants of not below grade B-21. Similar is
the composition of Punjab Public Service Commission. The
persons like Mr. Justice (R) Rana Bhagwan Das, a highly
respected retired Judge of the Supreme Court of Pakistan,
remained Chairman of the Federal Public Service Commission
and similar is the case with other members in the Federal
Public Service Commission, Punjab Public Service
Commissions and Public Service Commissions of other
44
provinces of Pakistan. This Court while dealing with the
importance of Public Service Commission in the case reported
as Azad Jammu and Kashmir Government vs. Javed Iqbal
Khawaja and another [1996 SCR 40], observed as under:-
“20. I may observe that the Public Service Commission of Azad Jammu & Kashmir is an institution which follows an international pattern. Such institutions exist in many countries of the world. In England recruitment of all permanent civil servants in the hands of Civil Service Commission which conducts competitive examination for that purpose. The qualification for appointment to any appointments under the Crown, whether permanent or temporary, are also subject to the approval of the Commission. The function of Canadian Civil Service Commission is to conduct recruitment to civil service. It also supervises promotion and organization of services. In Australia the Public Service Board recruits and qualifies personnel and also makes suggestions for promoting departmental efficiency and economy. It is the power of the Board to report to the House of Parliament if its suggestions are not accepted. There is a similar commission in United States and is known as „Federal
Service Commission‟ and covers practically the entire federal services. However, it is like the Public Service Commission of Azad Jammu & Kashmir, an advisory body. Public Service Commission is in existence there from the very birth of Pakistan. Such a Commission was in existence in undivided India under Government Act of 1935.
21. Service Commissions are Constitutional bodies and enjoy independence in their functioning so that best results are achieved. These
45
commissions are manned by persons nominated by executive but it is universally recognized that they have to be free from executive control. This is not pious wish but is explicitly found in the laws of Azad Jammu & Kashmir. Section 48 of the Interim Constitution Act gives constitutional status to Public Service Commission and its functions then it is laid down in Section 10 of the Public Service Commission Act that the commission shall present to the President annually a report on the work done by the Commission and the President shall cause a copy of the report to be laid before the legislative assembly of Azad Jammu & Kashmir. It is further laid down that the report to be submitted by the Commission shall set out the cases in which the advice of the Commission was not accepted and the matters on which the Commission was, where the required, not consulted. The reasons for not accepting the advice or for not consulting it have also to be stated. It is provided in the Public Service Commission Act that Chairman and members of the commission shall be appointed by the President and on ceasing to hold office they shall not be eligible for further appointment in the service of Azad Jammu & Kashmir. All these provisions show the independency of the Public Service Commission. On the contrary there is no law which may directly or indirectly lay down that the Government may control the functioning of Public Service Commission or may otherwise give directions to that Constitutional body. Our constitution lays down separate functions for all organs set up by it. These functions cannot be controlled or circumvented except in accordance with the constitution. Thus in my view para 1 of notification No.1 is without lawful authority.”
There is a dire need for ensuring the merit and
induction of proper persons in the service of Azad Jammu &
46
Kashmir. We desire that a suitable amendment shall be
brought in the Public Service Commission Act, 1986
providing similar qualification for the members as in the
Federal Public Service Commission and Punjab Public Service
Commission. The Public Service Commission before the
amendment consisted of seven members, two of whom were
persons who have held the offices in the service of Azad
Jammu & Kashmir without mentioning the status or grade of
the civil servant, meaning thereby that any person having
service as Junior Clerk in the service of Azad Jammu &
Kashmir for twenty years, was eligible for appointment as the
member of Public Service Commission. This is in common
knowledge that some times in Azad Jammu & Kashmir the
members in the Public Service Commission had been
appointed, who were simple matriculate and they used to
conduct the test and interview for the posts of grade B-16 and
above. It is argued by the counsel for the appellants that by
introducing the amendment in Section 3 of Act, 1986, it has
been provided that seven members of the Commission shall be
appointed from amongst retired civil servants or other
outstanding persons having good reputation and educational
qualification of not less than graduation. Although this
amendment is an improvement but there is a number of
47
persons who have higher education of M. A. but they are
serving against the posts of peons and Junior Clerks in the
service of Azad Jammu & Kashmir may be appointed as
member, therefore, if this is allowed, then merit shall be
violated due to nepotism. It has been provided that an
outstanding person having good reputation as a graduate, a
retired civil servant having ten years‟ service can be
appointed. A person living in a far flung area, who is a
graduate, has never been admitted to a University or a
College, runs a grocery shop, has a good reputation amongst
the community of being honest person, under the amended
provision is qualified to be appointed a member of the Public
Service Commission. Three members of the Public Service
Commission shall be educationists, who have served for ten
years in teaching or administration department. Again no
qualification is provided. If the qualification has been
amended for improvement, then it was required that the
qualification of 20 years should have been provided by
providing that a person of BPS-21 or above is eligible and
instead the period of 20 years has been reduced to 10 years.
Despite the drawbacks, the amendment brought in Section 3 is
not ultra vires the provisions of Sections 48, 49 and 4(1)(2) of
the Constitution Act or any other provisions of the
48
Constitution Act. Similarly, section 4-A, which provides for
the oath of the office, is also not ultra vires the provisions of
the Constitution Act. It is dire need of the hour that the Public
Service Commission Act, 1986 be suitably amended on the
lines of Federal Public Service Commission of Pakistan and
Punjab Public Service Commission. We fully endorse the
desire of High Court made in para 14, at page 48 of the
judgment under appeals for amendment in the Act, 1986 for
appointment of Chairman and the members. The amending
ordinance is not ultra vires the provisions of the Constitution.
13. The second question which needs resolution is
whether under Section 41 of the Constitution Act, the
President is empowered to reenact an ordinance on the same
subject or not. The amending ordinance was promulgated by
the President on 9.7.2012 and after its expiration, second
ordinance on the same subject was issued on 27.11.2012. The
ordinances were challenged by the respondents apart from
others, on the ground that the President has no power to re-
enact an ordinance on the same subject. For resolving the
proposition it will be useful to go through Section 41 of the
Constitution Act which empowers the President to promulgate
the ordinance. The same is reproduced as under:-
49
“41. Power to make Ordinance.—(1) The President may, except when the Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an ordinance as the circumstances may require. (2) An ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and shall be subject to like restrictions as the power of the Assembly to make law, but every such Ordinance;
(a) shall be laid before the Assembly and shall stand repealed at the expiration of four months from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution; and
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of sub-section (2), an Ordinance laid before the Assembly shall be deemed to be a Bill introduced in the Assembly.
(4) The President shall likewise, except when the council is in session, if so advised by the Chairman of the council make, promulgate and withdraw an Ordinance as the circumstances may require; and the provisions of sub-section (2) and sub-section(3) shall apply to an Ordinance so made as if references therein to „Act of the
Assembly and Assembly were references respectively to „Act of the council‟ and „council‟.
A plain reading of Section 41 of the Constitution
Act makes it clear that the President is empowered to
promulgate an ordinance when the Assembly is not in session
50
and the President is satisfied with the existing circumstances
which render it necessary to take immediate action, he may
promulgate the ordinance. Such ordinance shall have the same
powers as an Act of the Assembly and the ordinance will be
subject to restrictions on the powers of the Assembly to make
law. The Section further provides that it shall stand repealed
on expiration of four months from its promulgation. It shall be
laid before the Assembly within a period of four months and if
a resolution before expiration of four months is passed by the
Assembly by which it is disapproved, then it shall be repealed.
It is further laid down that the President may withdraw an
ordinance at any time. Similar provision exists in Article 89 of
the Constitution of Islamic Republic of Pakistan, 1973. The
proposition came under consideration of the superior Courts of
Azad Jammu & Kashmir and Pakistan in number of cases.
Divergent judgments have been delivered by the Courts.
Firstly we would like to consider the judgment of
this Court recorded in the case reported as Raja Muhammad
Niaz Khan, Ex-Chairman Azad Kashmir Mineral & Industrial
Development Corporation vs. Azad Government of the State of
Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K)
53]. The facts of the case were that Raja Niaz Ahmed Khan, a
Secretary to the Government, was retired from service on
51
18.9.1985 under Section 12(2) of the Azad Jammu & Kashmir
Civil Servants Act, 1976. Initially, he filed a review petition
before the Government. Later on, he filed an appeal in the
Service Tribunal by challenging the correctness of his
retirement order. The Service Tribunal dismissed the appeal
on 10.2.1987, whereupon he filed an appeal before this Court
through petition for leave to appeal. The appellant challenged
the vires of the Azad Jammu & Kashmir Shariat Court
Ordinance, 1982, being temporary which was issued
repeatedly by the President under Section 41 of the
Constitution Act. It was observed by this Court that the
provisions of Section 41 of the Constitution Act allow the
President to make and re-enact an ordinance on the same
subject in continuity of the previous ordinance. The Court
went further that for re-enacting an ordinance, the President
even may prorogue the session of the Assembly. It was
observed as under:-
“30. It appears that the word “shall”
employed under section 41 is not mandatory in nature. It is directory in the context it is used. It is used in the context of placing the Ordinance before the Assembly for its approval or making it an Act of the Assembly. If it is not placed before the Assembly the Ordinance will cease to have legal effect after four months. The word “shall” is used in this context only. Thus, the
word “shall” in the context it is used is not
52
mandatory; it is directory in nature. It is the will of the Government to place the Ordinance before the Assembly within four months or allow it to be repealed by operation of law.
31. Our conclusion, therefore, is that notwithstanding the word “shall” used in
section 41 of the Constitution Act the requirement of laying the Ordinance before the Assembly is directory. The Ordinance no doubt will cease to operate at the expiration of four months, but it would not affect the initial validity of the Ordinance and would also not render re-enactment of the Ordinance as a nugatory. D. K. Krishnan vs. Secretary, Regional Transport Authority AIR 1956 Andhra 129, is clear authority on the point. It is observed in that case:-
“But, after considering the question
carefully, we are inclined to adopt the view that, in the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned is not following the procedure should not be made to affect the members of the public governed by the rules.”
32. We can well conceive and smell the unhealthy effect of making ordinances in continuity on the same subject spreading over years in presence of legislative forum meant for the purpose; but this unhealthy aspect would not give powers to the Supreme Court to declare such an ordinance to be invalid on that score, if the Constitution otherwise allowed promulgation of such ordinance. Such
53
ordinances may adversely affect the spirit of democracy, but when the supreme law of the country allowed it there remains no alternative for the Courts but to respect and accept it in the way the Constitution allows it. It is to be noticed that things with the injurious consequences of the ordinance cannot be the criteria to ignore it, because the Courts are to interpret the laws of the country as they are and not to legislate on consideration of jurisprudence and policy.
33. In fact, the prerogative of the Judges is not to make law. This prerogative only relates to the legislative forum. The Judges can make law only by applying it to facts. Judicial declaration unaccompanied by judicial application is not of binding authority in most of the cases.
34. The provisions of Section 41 of the Constitution Act, as said earlier, clothe the President with the power to make and re-enact an ordinance on the same subject in continuity spreading over even years and there is no express or implied prohibition in the Constitution Act on the powers of the President to do so. This constitutional power to the President, of course, may not look desirable in a democratic set up but the Constitution, being the supreme law, it is to be respected, despite the fact that its provisions may not seem to fit in within the framework of a democratic set up. It is settled law that any interpretation which may destroy the spirit of any of the Constitutional provisions of the Constitution Act is not permissible. In this view of the matter, it is beyond the competence of the Supreme Court to interpret the Constitution Act in a way which may reasonably be construed as an addition or amendment in the Constitution Act.
35. In view of the wording of Section 41 of the Constitution Act, we are even of the
54
view that even where the session of the legislative assembly is prorogued deliberately with a view to enabling the President to promulgate the ordinance, it is a valid act of the President and this exercise of the powers of the president cannot be called fraudulent or mala fide because under the Constitution Act, it is within the powers of the President to prorogue the legislature at any time he pleases. There is, therefore, nothing wrong in the President‟s proroguing
the assembly with a view to enable him to issue an ordinance under Section 41 of the Constitution Act. The reason seems to be this: The legislature, which is democratically constituted is, at times, slow to move in the matter of legislation, having regard to the rules of procedure laid down in that behalf, and if urgent action is necessary at any rate, the President, after having the advice of the Prime Minister, if he has reasons to believe that immediate action is necessary, may resort to the power of issuing an ordinance under Section 41 of the Constitution Act; rather than approach the legislature for the necessary legislation. A case reported as Re: K. Veerabhadrayya A I R 1950 Mad. 253, is an authority on the point.
It would be thus manifest that the President cannot only re-enact an ordinance but can even prorogue the sessions of the Assembly for the purpose.”
In the case reported as The Collector of Customs,
Karachi & others vs. New Electronics (Pvt.) Ltd. & 59 others
[PLD 1994 SC 363], after going through all the precedents on
the subject, it was observed that Article 89 of the constitution
of the Islamic Republic of Pakistan expressly prohibits against
reenactment of an expired ordinance even if it is not laid
55
before the Assembly and it shall lapse on the expiration of
four months period. It was observed at page 387 as under:-
“19. It may be observed that Article 89 of the Constitution does not expressly prohibit against the re-enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months as pointed out by Mr. Kakikaus J. in the case of Tirathmal and others v. The State (supra) while construing more or less an identical provision of 1956 Constitution. In spite of absence of an express prohibition in some of the above cases, it has been held that the President or the Governor cannot re-enact an expired Ordinance. In the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra), I speaking on behalf of the Full Bench (comprising five Judges), highlighted the rationale for holding so, the relevant portion of the above judgment has been reproduced hereinabove in para 12 and need not be repeated. However, it will suffice to observe that the underlined idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a province while the Assembly exists. The above reason will not hold good if an Assembly stands dissolved and for a justifiable reason, it has not been reconstituted within the period specified in the relevant Article of the Constitution.
I am inclined to hold that if the National Assembly doesn‟t stand dissolve, the
President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly. Kaikaus, J. though has given weighty reasons in the case of
56
Tirathmal (supra) for taking a contrary view, but in my humble view, it runs counter to the spirit/scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (supra). But if the National Assembly stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause 5 of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance. Shafiur Rahman, J. in his above-quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the re-constitution of the Assembly. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate on a particular subject. The observations of Shafiur Rahman, J. in the above-quoted portion of his opinion, namely, “However, it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a)” are to be viewed in the context of the facts of the above case i.e. the elections were to be held on 16-11-1988 and 19-11-1988 and the above opinion was rendered on 24-10-1988 and, therefore, by the time new Assemblies would have been re-constituted, the Ordinance could have been placed before the National and the Provincial Assemblies within a period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observations do not lay down that in no case, there can be a second ordinance.”
57
In the case reported as Raja Muhammad Niaz
Khan, Ex-Chairman Azad Kashmir Mineral & Industrial
Development Corporation vs. Azad Government of the State of
Jammu & Kashmir, Muzaffarabad [PLD 1988 SC (AJ&K)
53], this Court observed that under Section 41(1) of the
Constitution Act, the President has power not only to
promulgate an ordinance but to reenact it repeatedly. It was
also observed that the President has even power to prorogue
the assembly session for issuing the ordinance. It is celebrated
principle of law of interpretation of statutes that the plain
dictionary meanings are always assigned to the words
incorporated in a provision. The Courts are bound to assign
the ordinary and plain meaning to a word used in a statute.
The plain reading of section 41 of Constitution Act shows that
the President is empowered to promulgate the ordinance; (a)
when the assembly is not in session; (b) when the President is
satisfied that circumstances exist which require immediate
action, then he may make and promulgate an ordinance. The
powers vested in the President under Section 41(1) are not
unfettered. The powers of the President are subject to same
restrictions which apply to the Assembly to make the laws.
Further restriction is imposed that the ordinance shall be laid
before the Assembly and at the expiration of a period of four
58
months from its promulgation it shall automatically. Further
power is vested in the President that he may withdraw the
ordinance at any time. The conditions for issuing an
ordinance, thus, may be summarized that when the Assembly
is not in session and the President is satisfied that the
circumstances exist which render immediate action, he may
promulgate an ordinance. The existence of circumstances for
satisfaction of the President taking immediate action is
necessary.
14. The Constitution is an organic whole and its all
provisions have to be looked into for interpreting a provision.
Under Section 41 of the Constitution Act, the President has
been empowered to issue and promulgate an ordinance, which
shall be repealed at the expiration of a period of four months.
The life of an ordinance has been fixed as four months unless
it is disapproved by the Assembly within that period.
Subsection 2(a) of Section 41 of Constitution Act makes it
abundantly clear that the ordinance shall be laid before the
Assembly before expiration of four months. Fixing of period
of four months for laying an ordinance before the Assembly is
supported from other provisions of the Constitution. Section
22 of the Constitution Act deals with the Legislative Assembly
and subsection (3) of Section 22 provides that every assembly
59
unless sooner dissolved, shall continue for five years and
expiration of said period of five years shall operate as
dissolution of assembly and subsection (4) of Section 22
postulates that general elections to the Assembly shall be held
within a period of sixty days immediately preceding the date
on which the term of assembly is due to expire unless the
assembly has sooner been dissolved. The provisions of
conducting elections within a period of sixty days immediately
before the day on which the term of assembly expires, is
supportive of the argument that the life of an ordinance cannot
be extended by reenacting the same. The proposition is further
supported by subsection (3) of section 27 of the Constitution
Act which postulates that there shall be at least four sessions
of assembly every year and three months shall not intervene
between the first sitting of assembly in one session and first
sitting of the assembly in the next session. Meeting of the
assembly after a period of three months is clear indicative of
the fact that the life of an ordinance provided for a period of
four months is in line with section 22(3) and (4) and section
27(3) of the Constitution Act and when the assembly is in
existence, it has to meet under the provisions of section 27
after expiration of every three months. The laying of
ordinance before the Assembly within fourth months also
60
finds support from Rule 34 of the Rules of Business, 1985. It
is provided in Rule 34 of the Rules of Business, 1985 that the
Law, justice, Parliamentary Affairs & Human Rights
Department, Azad Government of the State of Jammu &
Kashmir, shall in due course of time arrange to lay an
ordinance promulgated before the assembly, as required by
clause (a) of subsection (2) of Section 41 of the Constitution
Act. Rule 34(2) refers to clause (a) of subsection (2) of section
41 of the Constitution Act, which postulates that an ordinance
shall be laid before the assembly and shall stand repealed on
expiration of four months. It is obligatory for the Law, Justice,
Parliamentary Affairs & Human Rights Department that after
promulgating the ordinance, it shall lay the ordinance before
the Assembly within a period of four months as laid down in
clause (a) of subsection (2) of Section 41 of the Constitution
Act. It is mandatory that the ordinance is to be laid before the
assembly before expiry of four months. The view expressed in
Raja Niaz Ahmed Khan‟s case [PLD 1988 SC (AJ&K) 53]
that the President has power to reenact an ordinance in all the
circumstances is not correct and the view that the president
can prorogue the assembly session for issuing an ordinance is
overruled. The judgment has been delivered in the
circumstances that the ordinance was promulgated in the year
61
1982. The assembly was not in existence and the President
remained reenacting the ordinance repeatedly on the same
subject. There may be extraordinary circumstances where the
assembly is not in existence, the elections to the legislative
assembly are not held within time due to unforeseen
circumstances. In that case for smooth running of the business
of the Government, the President may reenact an ordinance.
15. There is a certification issued by the Secretary
AJ&K Legislative Assembly brought on record by the
respondents, herein, that after promulgation of the amending
ordinance on 9.7.2012 nine sessions of the legislative
assembly have been convened. Thus, it is held that under
subsection (2)(a) of Section 41 of the Constitution Act, it was
mandatory to lay the ordinance before the assembly within the
period of four months and the President has no power to
reenact the same. Ordinance No.LXVIII of 2012, made by the
President on 27.11.2012 is a verbatim copy of ordinance
No.XXXVII of 2012, issued on 9.7.2012 on the same subject.
The President has no power to re-enact the same. It is not a
valid law.
16. The third point which needs resolution is whether
in the light of record, the appointments of the Chairman and
62
the members of the Public Service Commission have been
made in a prescribed mode provided under law or not. The
counsel for the appellants along with the written statements,
filed copies of the notifications whereby Chairman and
members were appointed. The counsel for the appellants and
the learned Advocate-General produced the file of the
Services & General Administration Department pertaining to
the appointment of Chairman and members of the
Commission. In the said file there are only photocopies and
facsimile of the advice and the order passed by the President.
No other file having the process for initiation of case for the
appointment is on the record. The learned Advocate General
frankly conceded that no other record is available with the
Department. It was vehemently argued by the counsel for the
appellants that no procedure has been prescribed for
appointment of Chairman and members of the Public Service
Commission, therefore, the advice of the Prime Minister under
Section 7 of the Constitution Act, is sufficient for appointment
of Chairman and members. The learned High Court has
observed that “the Senior Additional Secretary Services &
General Administration Department was summoned by us
who stated that except Photostat copy of the above script there
is no other record in the Services & General Administration
63
Department.” We have ourselves perused the record with
utmost care. It appears from the record that initially in the
Services & General Administration Department a summary of
the retired Government Secretaries was prepared for
appointment as Chairman and members which contains their
qualification, their length of service and date of their
recruitment but subsequently no action was taken on this
summary. Instead, the Prime Minister while acting under
subsection (2) of Section 3 of the Act, 1986, read with Section
7 of the Constitution Act advised the President for the
appointment of six persons namely Syed Mumtaz Hussain
Naqvi, advocate, as Chairman, Prof. (R) Sardar Muhammad
Ibrahim, Prof. (R) Dr. Muhammad Aslam Zaffar, Ch.
Muhammad Ilyas, advocate, Ch. Muhammad Ashiq, Retired
District & Sessions Judge and Ch. Muhammad Arif Kataria
for appointment as members. The advice is shown to be
received in the Presidential Secretariat on 19.1.2012. Except
Muhammad Ashiq and Ch. Muhammad Ilyas, other four
persons were appointed as Chairman and members
respectively and later on through other orders, appellant No.4,
6, 7, 8, 9 and 10 were also appointed as members in the above
dates. There is no other record available except the
notification of appointment of these members. We are aware
64
of the fact that no specific mode for appointment of Chairman
and members of the Public Service Commission is provided in
the Act, 1986 or rules but the appointing authority is the
President and orders have to be passed by the President and
Section 7 of the Constitution Act postulates that the President
shall act on the advice of the Prime Minister. As per serial
No.17 of Schedule I of the Rules of Business, 1985, the Public
Service Commission is a special institution of Services &
General Administration Department. All the files relating to
the Public Service Commission have to be initiated and routed
through the said Department. Schedule V of the Rules of
Business, 1985, shows the list of cases to be submitted to the
President for approval before issuance of order and entry
No.18 of the schedule relates to the appointment, removal or
resignation of the members of the Public Service Commission
and other terms and conditions of service, its strength and non-
acceptance of advice of the Commission. Rule 11(4) of the
Rules of Business provides the procedure for submitting a case
to the President. We deem it proper to reproduce the said
rules, which read as under:-
“11. Reference to the President.- (1) No order shall be issued without the approval of the President in cases enumerated in Schedule V.
65
(2)…………………………………………..
(3)…………………………………………
(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 though the Prime Minister and shall contain the latter‟s specific recommendations.”
(5)…………………………………………”
A combined study of Rule 11(1) and (4), entry
No.18 of Schedule V of Rules of Business read with Section
3(2) of the Act, 1986, makes it crystal clear that the Chairman
and members of the Commission shall be appointed by the
President on the advice of the Prime Minister and no order
shall be issued without approval of the President as
enumerated in Schedule V which contains serial No.18
relating to the appointment of Chairman and members of the
Public Service Commission. Sub-rule (4) of Rule 11 postulates
that whenever a case is submitted to the President for orders, it
shall be accompanied by a self-contained summary stating
relevant case and points for decision and said summary has to
be submitted to the President for approval and shall contain
latter‟s specific recommendations. As it has been observed
that the Public Service Commission is a special institution of
the Services & General Administration Department, the
process of appointment of Chairman and members is to be
66
initiated and a summary shall be prepared in the Services &
General Administration Department. The words “self
contained summary” signify that mere writing the name of a
person for obtaining the order of the President for appointing
him against a post is not sufficient. Self contained summary
denotes that all the facts relevant have to be brought on the
record. The qualification for appointment of Chairman and the
members of the Public Service Commission is provided in
Section 3 of the Act, 1986. For submitting a summary to the
President for appointment of a person as Chairman and
Members; (a) firstly it should come on record that for which
post the summary is being sent; (b) which law is relevant for
the appointment, a copy of the same is to be made part of the
file; (c) what are the qualifications laid down in the said law
for appointment of a person; (d) the details, that the person
qualifies to be appointed for the said post; and (e) copies of
decree, certificate or other necessary documents, shall also be
made part of the file. Then the file shall be placed before the
President for orders through the Prime Minister, who shall
advise the President for appointment under Section 7 of the
Constitution Act. In Sardar Muhammad Ayub Khan‟s case
[1999 SCR 235], it was observed that the appointment shall be
67
made by the President on the advice of the Prime Minister. It
was observed at page 239 of the judgment as under:-
“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, Mr. M. Tabassum Aftab Alvi, failed to notice that Schedule-V is referable 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:-
„1l. References 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 Sub-section (l) of
68
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.‟
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. Rules of Business also not visualize any order originating from the President‟s
office.”
17. The law is settled on the point that if a thing is
provided to be done in a specific manner, it has to be done in
that manner or not at all. In a recent judgment of this Court
titled Azad Government & others vs. Mohi-uddin Islamic
University & others (Civil Appeal No.113 of 2013, decided on
22.11.2013), it has been observed as under:-
“11. The law is settled on the point that things provided to be done in a prescribed
69
manner must be done in that way and no deviation can be made from it. Reliance can be placed on a case reported as Habibullah vs. D.I.G. Police and 3 others [2004 SCR 378], wherein it has been held by this Court as under:—
“.........it is a settled proposition of law
that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all”
In another case titled Government of the Punjab, Food Department through Secretary Food and another vs. Messrs United Sugar Mills Ltd. and another [2008 SCMR 1148], it has been held as under:—
“...........it is also settled proposition of
law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not.....”
In the case reported as Muhammad Younas Tahir
& another vs. Shaukat Aziz, Advocate, Muzaffarabad and
others [2012 SCR 213], it has been observed as under:-
“26. It is celebrated principle of law that
when a particular method for performance of an act is prescribed under an Act or Rules, then such act must be performed according to that particular method or not at all as has been laid down in a case titled Habibullah v. D.I.G. Police & 3 others [2004 SCR 378], wherein. The relevant observation is reproduced as under:-
„….It is a settled proposition of law
that when a particular method of performance of an act is prescribed under an Act or Rule then such act
70
must be performed according to the prescribed method alone or not at all.”
In the case reported as Munawar Hussain vs. The
University of AJ&K & others [2011 SCR 27] while
interpreting the Rules of Business it was observed as under:-
“…The power/authority in fact is a limitation which has to be exercised as stipulated by law, rules and Regulations and if a bar is constituted, it cannot be exercised or performed particularly in absence of specific provision.”
Similarly in a case titled Raja Hamayun Sarfraz
Khan and others vs. Noor Muhammad [2007 SCMR 307], it
was observed by the Supreme Court of Pakistan as under:-
“…It is a settled law that when a thing is to
be done in a particular manner, it must be done in that way and not otherwise as the law laid down by this Court in Atta Muhammad Qureshi‟s case PLD 1971 SC
61.”
In the case reported as Govindan Sellappah Nayar
Kodakan Pillai vs. Punchi Banda Mudanayake & others [PLD
1953 Privy Council 51], it was observed as under:-
“….It was common ground between the parties and is in their lordship‟s opinion the
correct view that judicial notice ought to be taken of such matters as the reports of Parliamentary commissions and as such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed (ef. Lahore vs. Bennett (1) and both parties have
71
referred their lordships to a number of paragraphs in the report of the Soulbury Commission of 1945.
With much of the reasoning of the Supreme Court of Ceylon their Lordships find themselves in entire agreement but they are of opinion that there may be circumstances in which legislation though framed so as not to offend directly against a constitutional limitation of the power of the legislature may indirectly achieve the same result, and that in such circumstances the legislation would be ultra vires.
The principle that a legislature cannot do indirectly what it cannot do directly has always been recognized by their Lordships‟
Board and a legislature must of course be assumed to intend the necessary effect of its statutes. But the maxim omina praesumuntur rite essc acta is at least as applicable to the Act of a legislature as to any other acts and the Court will not be astute to attribute to any legislature motives or purposes or objects which are beyond its power. It must be shown affirmatively by the party challenging a statute which is upon its face intra vires that it was enacted as part of a plan to effect indirectly something which the legislature had no power to achieve directly.”
In the case reported as Habibullah vs. DIG Police
& 3 others [2004 SCR 378], it was observed as under:-
“......It is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all. In a case titled Habibullah vs. Government of the Punjab & 5 others [PLD 1980 Lah. 337], the same view was expressed. In this case the decision against the appellant was
72
taken by the Members of the Board by circulation of the letter whereas under rules the decision should have been taken in a meeting. He challenged the infringement of his service rights through a writ petition before the High Court. The case was entrusted to a very learned Judge Gul Muhammad Khan, who decided the same in favour of the petitioner. In that authority the learned Judge observed “when law provides for doing a particular thing in a particular way, then all other modes are prohibited”. In
that case the decision was taken by the members of the Board by circulation of matter to the members of the Board individually, whereas under rules the decision should have been taken in a meeting. On this very ground the decision taken against the petitioner was held illegal; even though in that case the competency of the members was not under challenge.”
We find support from the judgment of the
Supreme Court of Pakistan in the cases reported as Agha
Shorish Kashmiri’s case [PLD 1969 SC 14], Atta Muhammad
Qureshi’s case [PLD 1971 SC 61] and Government of Punjab,
Food Department through Secretary Food & another v.
Messrs United Sugar Mills Ltd. and another [2008 SCMR
1148]. Thus, it can safely be held that the process of
appointment of Chairman and members of the Public Service
Commission had to be initiated from Services & General
Administration Department coupled with self-contained
summary. Without a self-contained summary no file can be
placed before the President for orders.
73
18. We have perused the file pertaining to the
appointment of Chairman and members of the Commission
summoned from Services & General Administration
Department. There is no record of appointments. No summary
was prepared by the Department. There is nothing on the
record for ascertaining as to whether the appellants are
qualified to be appointed as Chairman and members, as the
case may be. There are only photocopies/facsimiles whereby
the President has accorded approval and notification has been
issued on the strength of these photocopies. No proper process
was adopted. Without adopting the due process, the orders
were issued by the President, these are against law and not
maintainable.
19. The learned High Court in para 9, at page 33 of
the impugned judgment has observed that, “the script, supra,
was received in the Secretariat of Presidency vide No.3566 on
19.11.2012. The word approved seems to be written in the
facsimile of the said script, however, signature of the President
is doubtful.” It may be observed that the observation made by
the High Court relating to the signature of the President that it
is doubtful is unwarranted. If the High Court was of the view
that signature appears to be doubtful, then Secretary,
Presidential Secretariat, had to be apprised for clarification.,
74
without clarification the observation is unwarranted. The
observation to the extent, “signature of the President is
doubtful” is expunged.
20. It is regrettable that Services & General
Administration Department failed to maintain the record
regarding the appointment of Chairman and members of an
important Constitutional institution i.e. Public Service
Commission.
21. The result of the above discussion is as follows:-
(a) We partly accept the appeals. It is declared that the
provisions of ordinance No.XXXVII, issued on 9.7.2012
are not ultra vires the fundamental rights or the
Constitution. The writ petition to this extent is
dismissed.
(b) The President under Section 41 of the Constitution Act
has no power to re-enact an ordinance on the same
subject. It is mandatory to lay the ordinance before the
assembly before expiry of its life. Resultantly,
Ordinance No. LXVIII, issued on 27.11.2012 and the
subsequent ordinance re-enacted are declared to be not
valid law. All the ordinances promulgated/re-enacted on
any subject in violation of Section 41(2)(a) are required
75
to be laid before the Assembly within a period of four
months.
(c) The appointments of the appellants having been made in
violation of law have no legal sanctity and have rightly
been quashed by the High Court.
22. Before parting we may observe that all acts done
and functions performed by the Chairman and members of the
Public Service Commission are valid in the light of judgment
of this Court reported as Muhammad Younas Tahir & another
vs. Shaukat Aziz, Advocate, Muzaffarabad and others [2012
SCR 213].
With the above observations the appeals are
disposed off with no order as to the costs.
CHIEF JUSTICE JUDGE JUDGE
Muzaffarabad
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