SUPREME COURT OF AZAD JAMMU & KASHMIR [Appellate Jurisdiction]

Transcription

1 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 ) 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 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 in Writ Petition No.621 of 2013) FOR THE APPELLANTS: Mr. Abdul Rashid Abbasi, Advocate. FOR THE RESPONDENTS: Raja Sajjad Ahmed Khan, Advocate.

3 3 2. Civil Appeal No.23 of 2014 (P.L.A. filed on ) 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 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 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:

5 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 , whereby the writ petition filed by the respondents, herein, has been accepted and Ordinances No.LD/Legis-Ord./728-38/2012 dated and No.LD/Legis-Ord/ /2012 dated 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 9 th 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 , the same ordinance has been reissued by the President under No.LXVIII of 2012 and under the provisions of the amended Ordinance, on , appellants No.1 to 10

6 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 on the ground that the amendment is ultra vires Sections 4(1)(2) and 48 of the Constitution Act and provisions of the Act, 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 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 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 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) iii) whether the president can re-enact or promulgate fresh ordinance on the same subject matter or not in presence of Legislative Assembly; 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 8 Azad Jammu & Kashmir Public Service Commission Act was enforced in the year 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 , 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, 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 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 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 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 The appointment orders of the appellants were issued on 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 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 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, 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 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, The learned counsel submitted that the purpose of brining the amendment is only to

15 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, 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 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 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 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 , 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 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, Composition of Commission, etc.-(1) There shall be an Azad Jammu & Kashmir Public Service Commission consisting of the following four members:- (i) (ii) one Chairman; an honorary Member; (iii) an ex-officio member; and (iv) Director Member. Ammor-i-Deenia, (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 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, (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 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 subsection (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 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 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 nonexistent 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 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 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, 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 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 subsection 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 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, 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 27 dealing with the question of supremacy of the Constitution it was observed in para 160 as under: 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 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 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 30 hereinabove, including the recent decision of 7-Member Bench passed on , 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 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 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: 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 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 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 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 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 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