1994 PLP 2339 (CLC)

S.M. Zafar, Raja Muhammad Hanif Khan, Advocates and sardar Khan, A.‑G. for Appellants (in Appeal No.39 of 1994). Ghulam Mustafa Mughal, Advocate for Appellant (in Appeal No.41 of 1994). Ijaz Ahmed, Raja Muhammad Hand Khan and Ghulam Mustafa Mughal Advocates for Appellants (in Appeals Nos.42 and 43 of 1994). Raja Muhammad Hanif Khan, Ghulam Mustafa Mughal and Sardar Rafique Mahmood Khan Advocates for Appellants (in Appeal No.44 of 1994). Ch. Muhammad Ibrahim Zia assisted by Raja Shiraz Kiani Advocates for Respondents (in all Appeals). Date of hearing: 16th June, 1994. BASHARAT AHMAD SHAIKH, J‑‑‑The High Court has struck down an Act passed by the Azad Jammu and Kashmir Legislative Assembly known as the Azad Jammu and Kashmir Civil Servants (Regularisation of Ad hoc Appointment) Act, 1992 (Regularisation Act, for short) by accepting four writ petitions by a single judgment which was pronounced on 24th of March 1992. The five abovenoted appeals, by leave of the Court, have been filed to challenge that judgment. By the Regularisation Act the persons holding posts on ad hoc basis as well as persons holding discretionary posts were treated to have been regularly appointed. The aforementioned statute was struck down as being inconsistent with fundamental rights Nos. 15 and 17 as well as to the Civil Servants Act, Public Service Commission Act and rules made there under. Right No. 15 guarantees that all State subjects are equal before law and are entitled to equal protection of law while right No. 17 provides safeguard against discrimination in services. In paragraph 85 of the judgment the declaration is so worded:‑‑ "The impugned enactment has been found quite inconsistent and in contravention to the provisions of section 4 (15) and (17) of the Interim Constitution Act, in addition to the provisions of Civil Servants Act, Public Service Commission Act and rules framed thereunder. It is also derogatory to the scheme of civil services provided under sections 48 and 49 of the Interim Constitution Act. It cannot be allowed to perpetuate its effect., It 'is, therefore, struck down." The Regularisation Act was also found to be repugnant to Qur'an and Sunnah in light of subsection (5) of section 31 of the Interim Constitution Act. Consequently in second part of paragraph 85 of the judgment it was also ordered that:‑‑ "The ad hoc appointments, desired to be regulated by virtue of these provisions shall remain on ad hoc appointments in nature and character." In addition to that all orders and notifications issued in pursuance of the Regularisation Act whereby ad hoc appointments of appellants had been regularised were declared null and void and of no legal effect. The High Court, however, observed that if any ad hoc appointee adversely affected by the judgment under appeal has passed the upper limit of age, the Government may relax it in order to enable him to avail an opportunity of appearance in tests and examinations held by the Public Service Commission. Writ Petition No. 85 of 1992 "Muhammad Yunus Tahir v. Azad Government and others" was filed by Muhammad Yunus Tahir, who was appointed as Sub‑Judge on ad hoc basis on 14th of October 1990. His services were extended by six months because the Public Service Commission had not nominated a person to occupy that post on regular basis. However, on 14th of October 1991 when he completed his second six months term his ad hoc appointment was not extended. In January 1992 the Public Service Commission advertised some posts of Sub‑Judges out of which two were meant for Mirpur District on the basis of regional quota. The petitioner, who hails from Mirpur, duly submitted an application and call letters were also issued by the High Court to him and other candidates notifying that the examination was to be held from Ist to 4th of August by the Public Service Commission. Schedule was, however, modified on July 26 and new date of examination was fixed for 6th of September intimation of which was duly given. Meanwhile, Ch. Mumtaz Hussain and Miss Shamaila Mahmood were appointed on ad hoc basis. The Regularisation Bill became law on August 16, 1992 and the aforesaid two ad hoc appointees became regularly appointed Sub‑Judges as a consequence of the Regularisation Act. Both these appointees were impleaded as respondents in the writ petition filed by Muhammad Yunus Tahir. Apart from these two the Azad Government of the State of Jammu and Kashmir, Department of Law and Parliamentary Affairs and Public Service Commission were impleaded as respondents. The petitioner also challenged an order passed in respect of Miss Shamaila Mahmood which was passed under section 22 of the Civil Servants Act treating her as regularly appointed Sub‑Judge with effect from 16th of August 1992. Writ Petition No. 89 of 1992 "Raja Shiraz Kayani v. Azad Government and others" was filed by Raja Shiraz Kayani, a practising lawyer. He impleaded Azad Government of the State of Jammu and Kashmir as the sole respondent and sought a declaration that the Regularisation Act was void ab initio on the ground that it was repugnant to the fundamental rights and other provisions of the Constitution as well as to the Holy Qur'an and Sunnah. Subsequently six officers of the Civil Secretariat were impleaded as respondents. They were amongst the beneficiaries of the Regularisation Act. Raja Shiraz Khayani averred in his writ petition that if posts in Grade 19 or 20 had been advertised he wanted to apply for appointment. Writ Petition No. 91/Mzd/92 "Javed Iqbal Khawaja v. Azad Government and others" was filed by Javed Iqbal Khawaja in his personal capacity as well as in his capacity as the President of Azad Jammu and Kashmir Unemployed Graduate and Post‑Graduate Persons Association. Subsequently, one Syed Ajmal Hussain was also impleaded as a petitioner. Azad Government of the State of Jammu and Kashmir and the Azad Jammu and Kashmir Legislative Assembly were initially impleaded as respondents. Subsequently through an amendment, made with the approval of the Court, five officers of the Secretariat Service were also impleaded as respondents. Javed Iqbal Khawaja averred that applications were invited for the posts in the Civil Secretariat and he duly applied for it, whereupon a call letter was also issued. However, the examinations were postponed. It was complained that nobody is able to secure a job on. the basis of merit because appointment on ad hoc basis without reference to merit had become the order . of the day. In Writ Petition No. 91/MPR/1992 "Mansha Ghaus Mughal v. Azad Government and others" the petitioner was another person who was previously appointed as ad hoc Sub‑Judge like Muhammad Yunus Tahir but his services were not extended and the post against which he was working was filled up on ad hoc basis by appointing Ch. Muhammad Fiaz Sabir against the quota for Kotli District to which Mansha Ghous belongs. Some other orders were passed in favour of Ch. Muhammad Fiez Sabir for relaxing conditions about age and regional quota. These orders were also challenged by him. In all these writ petitions the main prayer was that Regularisation Act may be declared as violative and inconsistent to the fundamental rights, discriminatory, mala fide and also being against the Civil Servants Act and against the Islamic Injunctions. Consequential prayers were also made. This judgment will dispose of the following appeals:‑‑ (1) Civil Appeal No.39 of 1994 "Azad Government and others v. Muhammad Yunus Tahir and others" filed by Azad Government of the State of Jammu and Kashmir, Azad Jammu and Kashmir Legislative Assembly, Secretary, Law and Parliamentary Affairs and the Public Service Commission. The persons who had filed the writ petitions have been impleaded as respondents while the ad hoc appointees who were respondents in the two other writ petitions have been impleaded as pro forma‑respondents. (2) Civil Appeal No.41 of 1994 "Raja Nadeem Ehsan v. Javed Iqbal Khawaja and others". It has been filed by Nadeem Ehsan, who was one of the respondents in Writ Petition No.89 of 1992. The respondents in this appeal are also the same as in Appeal No.39. (3) Civil Appeal No.44 "Zahid Hussain Haideri and others v. Muhammad Yunus Tahir and others". This appeal was filed by 128 persons but out of them Syed Arshad Gillani was struck from the list on his own request. They are persons who have been adversely affected by the declaration that the Regularization Act was void. They have impleaded the writ petitioners as respondents and have also, apart from Azad Government, Legislative Assembly, Secretary, Law and Parliamentary Affairs and Public Service Commission, impleaded 197 persons as pro forma respondents as they were also beneficiaries of the Regularisation Act. 4. Civil Appeal No.42 "Syed Zafar Hussain Shah and others v. Muhammad Yunus Tahir". This appeal has been filed by five persons who have been the beneficiaries of the Regularization Act. The respondents are the same in Civil Appeal No.39. 5. Civil Appeal No. 43 of 1994 "Sardar Atta Elahi Abbasi and others v. Muhammad Yunus Tahir and others". It has been filed by five beneficiaries of the Regularisation Act. Respondents are the same as in Civil Appeal No. 39 of 1992. Another Petition for Leave to Appeal No.48 of 1994 "Ishtiaque Ahmed and others v. Javed Iqbal Khawaja and others" was filed by 18 beneficiaries but it was dismissed as time‑barred. In support of the appeals we have heard Mr. S.M. War, the learned Advocate who appeared for the Azad Government of the State of Jammu and Kashmir, Ch. Ijaz Ahmad, Deputy Attorney‑General of Pakistan, who appeared in his capacity as counsel for the private appellants, Raja Muhammad Hanif Khan and Sardar Rafique Mahmood Khan, Mr. Ghulam Mustafa Mughal, Advocates. Ch. Ibrahim Zia, Advocate, who was assisted by Raja Shiraz Kayani, Advocate, argued on behalf of the respondents. Before examining the merits of the case it is necessary to attend to an aspect of the matter which appears to be fundamental in nature. Our attention was drawn by Mr. S.M. Zafar to the fact that Regularisation Act had been repealed and as an effect of this repeal the High Court should not have adjudicated upon the vires of the Regularisation Act. He contended that the regularisation carried into effect under the Regularisation Act through different notifications has now become past and closed transaction. He submitted that if a statute is declared void by a Court on account of its being in contravention of fundamental right the statute becomes ineffective but remains on the statute book in a state of hibernation, becoming operative again if fundamental right disappears. In . this connection he relied on Abul A'la Maudoodi v. The Government of West Pakistan (PLD 1964 SC 673) and Wali Muhammad v. Government of West Pakistan (PLD 1970 Pesh. 119). The repealing Act, referred to by the learned counsel, opens with the preamble that the Azad Jammu and Kashmir Civil Servants (Regularisation of Ad Hoc Appointments) Act was enacted to regularise certain ad hoc appointments and it was no loner necessary to keep the aforementioned Act on the statute book. Subsection (1) of section 2 repeals the Regularisation Act with immediate effect. However; subsection (2) provides that:‑‑ "Notwithstanding the provision of subsection (1) the action completed before the commencement of this Act shall not be effected by the repeal of the Azad Jammu and Kashmir Civil Servants (Regularisation of Ad Hoc Appointments) Act, 1992." The repealing Act clearly saves the regularisation carried out by the repealed Act. One effect of the repeal is that even if the fundamental rights are suspended the principle of law laid down in Abul A'la Maudoodi's case and Wali Muhammad's case would not apply, since the law is no longer on the statute book. So far as the contention that the High Court should not have gone into the question of vires of a repealed Act is concerned I find no force in this contention. In my view merely because a matter has become past and closed, the jurisdiction conferred on the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act is not ousted. This jurisdiction is multi‑dimensional. The High Court is empowered under section 44 (supra) to direct a public functionary to refrain from doing something which he is not permitted by law to do. The High Court is also empowered to declare an act or proceedings taken by a public functionary to have been done or taken without lawful authority and of no legal effect. In presence of this power the argument of the learned counsel cannot be accepted. There is no question that the jurisdiction of the High Court may be considered to be ousted just because a certain act has been performed and has become a past and closed transaction. Holding so would in fact defeat the very purpose for which the writ jurisdiction has been conferred on the High Court. If the repealing Act had repealed the Regularisation Act from the date of its enactment this argument would have been available because in that case it might have been an exercise in futility to decide whether the Regularisation C Act was a valid law or not. It is clear ‑ that the High Court acted with jurisdiction by going into the vires of the Regularisation Act in spite of its repeal. Before proceeding further it will be useful to reproduce sections 3 and 6 of the Regularisation Act:‑‑ "3. Regularisation of services of certain civil servants.‑‑Notwithstanding anything contained in any law or rule, or in any decree, order or judgment of a Court, all civil servants holding ad hoc appointment till the date of commencement of this Act, shall be deemed to have been validly selected and appointed to the post held by them on regular basis, with effect from the date of commencement of this Act: Provided that:‑‑ (i) Such civil servants possess the educational qualification and experience prescribed for the posts; and (ii) the Commission has in respect of the post held by such civil servant not recommended any other person on or before the commencement of this Act:' "6. Discretionary appointments.‑‑All civil servants holding discretionary appointment to a post on or before the 30th day of June, 1992 who have held discretionary post continuously for more than five years shall be deemed to have been appointed on regular basis from the date of commencement of this Act." The plaint reading of the Act is that persons who commenced their ad hoc appointment at any time before the bill passed by the Assembly received p Presidential assent on 16th of August 1992 would be covered by this statute. It will be assumed by fiction of law that they had been "validly selected" although they did not appear before the Public Service Commission. It will also be assumed that by operation of law they have been regularly appointed. Mr. S.M. War began his exposition by referring to subsection (1) of section 49 of the Azad Jammu and Kashmir Interim Constitution Act which is to the following effect:‑‑ "(1) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law." The learned counsel submitted that the Azad Jammu and Kashmir Civil Servants Act, was a law in which provision was made for the appointment and conditions of service, is referable to section 49 reproduced above. He submitted that Regularisation Act was as much referable to section 49 of the Interim Constitution Act as the Civil Servants Act was. He submitted that both these Acts had been framed in pursuance of the same Constitutional provisions but were, as observed by the High Court, in conflict with each other. The principle of law that in case of inconsistency between two statutes earlier has to yield to the later was applicable to the present situation with full force. According to the learned counsel the result was that the persons who were ad hoc appointees on the commencing day of the Regularisation Act would be governed by the provisions of Regularisation Act to the exclusion of the inconsistent provisions of Civil Servants Act and the rules framed thereunder. He submitted that the High Court fell in error in holding that the Regularisation Act was void because it was inconsistent with the Civil Servants Act. The learned counsel drew our attention to the fact that the Regularisation Act was not the solitary statute of its kind because similar statutes had been framed by the Federal as well as some provincial Legislatures of Pakistan. He mentioned the following:‑‑ (1) N.‑W.F.P. Ad hoc Civil Servants (Regularisation of Service) Ordinance, 1987: This Ordinance was enacted on 21st of January 1987 and it was provided in section 3 that all civil servants holding appointments on ad hoc basis on or before 20th of September 1986 and continuing as such till the commencement of that Ordinance shall be deemed to have been validly selected and appointed to the posts held by them on regular basis. (2) N.‑W.F.P. Civil Servants (Regularisation of Service) Act, 1988: The Ordinance mentioned above was replaced by this Act which came into force on 19th of January 1988. Its provisions were somewhat different from the Ordinance. It laid down that all civil servants holding appointment to a post on ad hoc basis immediately before the commencement of that Act shall be deemed to have been validly selected and appointed on regular basis. However, it was made subject to preferential right of appointment of a select of the Public Service Commission, if any. (3) N.‑W.F.P. Employees on Contract Basis (Regularisation of Service) Act, 1989:.Section 3 of this Act laid down that specified persons who were appointed on contract basis shall be deemed to have been appointed on ad hoc basis. (4) Sindh Civil Servants (Regularisation of Ad hoc Appointments) Act 1989: This Act became law on 12th of May 1989. It provides that a civil servant holding ad hoc appointment from 12th of October 1989 shall be deemed to have been validly appointed to that post on regular basis. (5) Medical Officers (Regularisation of Appointments) Act, 1992: This Act of Majlis‑e‑Shoora received the assent of the President on 26th of July 1992 and from that date all persons appointed as Medical Officers on ad hoc basis at any time before 12th of October 1992 were, deemed to have been appointed on regular basis subject to certain conditions about character, domicile age etc. Mr. S.M. War then referred to the following reported cases in which the aforementioned regularisation statutes had been mentioned:‑‑ (1) S. Iftikhar Hussain v. President of Pakistan (1988 PLC (C.S.) 5),