P L D 1988 Supreme Court (AJ&K) 53 (PLP)

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑Ss. 42 & 47(2)‑‑Azad Jammu and Kashmir Supreme Court Rules, 1978, O.XLVIII, R.4‑‑Azad Jammu and Kashmir Civil Servants Act, 1976, S.12‑‑Appeal against order of Service Tribunal in Supreme Court‑‑Scope‑‑Powers of Service Tribunal and Supreme Court in appeal, co‑extensive‑‑Supreme Court being the Appellate Court of Service Tribunal, has no more powers beyond the powers which are being enjoyed 'by the Service Tribunal‑‑Supreme Court, therefore, cannot ass an order which cannot be passed by the Service Tribunal. Khawaja Abdul Qadir v. Abdul Majid P L D 1984 S C (AJ&K) 166 ref. (b) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Record showed that Government servant tried to bribe or offered 'Nazrana' to the Prime Minister‑‑Compulsory retirement of said Government servant in public interest on his having completed the period of service qualifying for pension‑‑Government alone being the best Judge, may have variety of reasons which may have impelled it to compulsorily retire the Government servant‑‑Courts cannot sit on judgment over the action of the Government if some reasons appear to exist and if from material disclosed, it does not appear that the action taken was merely in colourable exercise of or an abuse of power. Lt.‑Co. Farzand Ali v. Province of West Pakistan P L D 1970 S C 98 ref. Mir Muhammad Sharif v. Azad Jammu and Kashmir Government P L D 1986 S C (AJ&K) 87 distinguished. (c) Precedent‑‑‑ ‑‑‑Supreme Court itself' is not bound by its own decisions because Court has power to review its judgments pronounced earlier‑‑Law enunciated in such precedents has to be respected provided it applies to a case brought 'before the Court‑‑Term "ratio decidendi", explained. ‑‑[Words and phrases]. Supreme Court itself is not bound by its own decisions because the Court has powers, ‑to review any of its judgments pronounced earlier. Besides, law enunciated in such precedents however, is to be respected provided it applies to a case brought before the Court. Any legal system which uses the precedents is to consider in what way they are relevant to future cases. For this purpose it is generally accepted that this relevancy is to be found in the fact that decision involves some principle of general application. The principles of returning the 'ratio decidendi' of a case have been evolved and only such principles a: s can be called the ratio of the decision will operate as precedents. 'Ratio decidendi' is a term often used in opposition to obiter dictum. 'Ratio' is defined as reason, the reason or ground of a decision. Lucid defin1tion of 'ratio decidendi' 'is as reproduced hereunder:‑‑ The reason for the decision given in the earlier case is to be found in the judgment, which becomes a principle of law to be applied in future cases. But there is room for argument in a later case what tithe decisive facts in an earlier case really were, and what the true reason for the decision was: what the judge actually said in his judgment seems not to be regarded as conclusive. There may be more than one ratio decidendi of a case, which must, all be considered. 'Ratio decidendi' is also defined as "the general reasons or principles of a judicial decision, as abstracted from any peculiarities of the case" The term is defined as "the point in a case which determines the judgment". Pram's Judicial Dictionary, 1964 Edition. The term has further been defined as underlying principle which forms the only authoritative element of precedent. To 'the similar effect is the definition that: 'ratio decidendi' is the underlying principle of a judicial decision which forms its authoritative element for the future". At common law not every opinion expressed by a Judge forms a judicial precedent. In of order that an opinion may have the weight of a precedent two things must concur: it must be, in the first place an opinion given by a Judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum. Jowiet Law Dictionary, Concise Law Dictionary by Osborn, 5th Edn. ; Wharton's Law Lexiction; Ayer, 1972 Edn. ; Prem's Judicial Dictionary, 1964 Edn.; Stephen on Commentaries of Law of England, Vol. I, p.11 and Prof. Chiprman Grey on Nature and Sources of Law ref. (d) Ratio decidendi‑‑ ‑‑‑Principles of determination of ratio decidendti and principle or which the judgment is based stated. The question however is how to determine the 'ratio decidendi'. How is the principle on which the judgment is based to be ascertained. The traditional theory on this matter has generally been to regard the binding part of a decision as the legal principle formulated by the Court in addition to the matter actually decided, but that would not always do, for in some cases the Court may have decided a case without enunciating any rule at all, and in other instances its formation of principle may be too wide or too narrow. Therefore, the first step is to determine material facts on which the Judge has based his opinion. Having found the material facts, the 'ratio decidendi' would be easy to be discovered‑‑it would be the conclusion reached by the Judges on the basis of the material facts and the exclusion of 'immaterial facts, which would determine the 'ratio decidendi'. In fact,' the prerogative of the Judges being not to make law by formulating and declaring it ‑‑ which prerogative pertains to the Legislature ‑‑ the Judges can make law only by applying it to facts. Judicial declaration unaccompanied by judicial application is not of binding authority. This reasoning has been used even by subordinate Judges to cut down the application of the too broad principles laid down by the superior Courts. When the points involved in the case were not directly in issue nor‑ specifically decided in other cases referred it would be presumed that the points agitated before the Court had not been decided by the referred judgments and so those judgments had no persuasive value for the Court to determine the issue before it. Besides, the 'ratio' in those oases may not be binding because despite its too wide a connotation, it could not be applied in its entirety to the case as in those cases most of the points involved in the present case were not before the Court for decision. Every judgment is applicable to its particular facts proved or assumed to be proved. Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the "expressions which may be found there are not intended to be expositions of the whole law, but governed or qualified by the particular facts of the case in which such expressions are to be found. A case cannot be quoted as binding for a proposition that may not seem to follow logically from it. Dr. Goodhart's Essays on Jurisprudence and the Common Law, 1931 Edn., pp.5‑8; Punjab Cooperative Bank Ltd., Amritsar v. Commissioner of Income‑tax, Lahore A I R 1940 P C 230 and D. D. Bilimoria Electric Contractor v. Central Bank of India A I R 1943 Nag. 340 ref. (e) Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982)‑‑ ‑‑‑S. 7‑A‑‑Azad Jammu and Kashmir Civil Servants Act, 1976, S.12(ii)‑‑Courts are governed by the codified law and if the Shariat Court alone under law is competent to decide‑any question, jurisdiction of Courts stand ousted and despite keen desire of the Courts, they cannot travel beyond it.‑‑[Jurisdiction]. State v. Matloob Hussain Shah 1983 P Cr. L J 745 [SC (AJ&K)1 and Fakir Ali v. Standard Bank Ltd. P I. D 1979 S C (AJ&K) 62 ref. (f) Azad Jammu and Kashmir Courts and Laws Code, 1949‑‑ ‑‑S. 31(5)‑‑All the commands and prohibitions contained in the Holy Quran and Sunnah having not been codified in Azad Kashmir, Courts cannot decide the matter in accordance with such commands‑‑Term "codified" meaning.‑‑[Words and phrases‑ ‑Muhammadan Law]. The Courts in Azad Kashmir are governed by codified law. There can be no quarrel with the proposition that the Holy Quran and the Sunnah contain the supreme divine law for all Muslims in Azad Kashmir as elsewhere but the whole law contained therein has not so far been enacted as the 'law of the country. Since all the commands and prohibitions contained in the Holy Quran and Sunnah have not been codified in Azad Kashmir, Courts cannot decide the matter in accordance with such commands. The term "codified" means "a systematic collection or digest of the laws of a country, or of those relating to a particular subject". The laws of a country would mean the laws enacted by the Parliament or some other secular authority vested with such powers under the Constitution or other machinery as distinguished from divine laws which cannot be termed as laws of a country unless they are so enacted or codified. Faqir Ali v. Standard Bank Ltd. PLD 1979 S C (AJ&K) 62; State v. Matloob Hussain Shah 1983 P Cr. L J 745 [SC (AJ&K)] and Eid Wali v. State 1985 P Cr. L J 987 [(SC) AJ&K] ref. (g) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑S. 11(l)‑‑Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982), Preamble‑‑Promulgation of Ordinance of 1982 by President in exercise of powers under S.11(1) of the Constitution‑‑Validity‑‑No Assembly was in existence at the time of promulgation of said Ordinance and the person holding the office of the President and Chief Executive was also functioning as the law‑making Authority‑‑Relevant provisions of the Constitution Act providing for placing the Ordinance within four months before the Assembly shall be considered to be dead law‑‑Gap between the expiry of one Ordinance and re‑enactment of the other‑‑Effect‑‑Act or Ordinance comes into operation immediately on the expiration of the day preceding its commencement thereby lending continuity to the succeeding Ordinance‑‑Court therefore cannot find fault in the promulgation by re‑enactment of the Ordinance in continuity prior to the formation of the Assembly.‑‑[Vireos of legislation]. The President, in exercise of powers conferred upon him by subsection (1) of section 41 of the Interim Constitution Act, promulgated the first Ordinance of the kind on 7‑2‑1982 which is called the Azad Jammu and Kashmir Shariat Court Ordinance (Ordinance No. XXXII of 1982). Under this Ordinance the Shariat Court in Azad Kashmir for the first time was established. During those days, it may be mentioned here, no Assembly was in existence and the person holding the office of the President and the Chief Executive was also functioning as the law‑making authority. So far as ordinances of this period (prior to 1985) are concerned, there is unbridged gap between the expiry of one Ordinance and re‑enactment of the other. An Act or an Ordinance comes into operation immediately on the expiration of the day preceding its commencement thereby lending continuity to the succeeding Ordinance Court cannot, therefore, find fault in the promulgation by re‑enactment of the Ordinance in continuity prior to the formation of the Assembly. Since there Was no law‑making elected forum in those days, no fault can be found in the promulgation of the Ordinance by the President. The relevant provisions of the Constitution Act providing for placing the Ordinance within four months before the Assembly shall be considered to be dead law. Khalid M. Ishaque, Ex‑Advocate General, Lahore v. The Hon'ble Chief Justice and the Judges of the High Court of West Pakistan, Lahore P L D 1966 S C 628 and Ch. Muhammad Ashraf v. Chief Secretary Civil Appeal No. M.M.P. of 1979 ref. (h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑S. 41‑‑Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982), Preamble‑‑Power of President to make. Ordinance‑‑Scope‑‑Word "shall" employed in S.41, not mandatory in nature‑‑Ordinance though 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 Ordinance as nugatory and Courts also cannot declare such an Ordinance to be invalid on that score‑‑Judicial review, scope of‑‑There being no bar for the President to re‑enact an Ordinance on the subject, it is beyond the province of the Courts to import a word in the Constitution Act to create such an embargo on the powers of the President which the words otherwise do not admit, that being the function of legislature‑‑Principles of Interpretation of Constitution and statutes extensively discussed‑‑[River Wear Commissioner v. Adamson (1877) 2 A C 743 and British Railway Board v. Pickin (1974) 1 All ER 609 dissented from]. ‑‑‑[Interpretation of statutes‑‑Interpretation of Constitution]. The close reading of section 41 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 would show that an Ordinance promulgated under this section shall have the same force and effect as an Act of the Assembly and such an Ordinance shall be subject to like restrictions as the 'power of the Assembly to make laws; and secondly, an Ordinance promulgated is required to be laid before the Assembly within four months and if so is not done it shall automatically stand repealed at the expiration of four months from its, promulgation or before expiration of that period if a resolution disapproving it is passed by the Assembly, upon the passing of that resolution. An Ordinance, however, can be withdrawn at any time by the President. It is, thus, manifest that under section 41 of the Constitution ‑Act, there is no embargo on the powers of the President to make and promulgate an Ordinance and re‑enact the same after four months on the same subject. However, since the Ordinance ceases to be the law of the land after four months, giving continuity to such an Ordinance, which, by fiction, may be construed to be a dead law, by a fresh Ordinance may not be permissible under section 41 of the Constitution Act; but for the re‑enactment of the Ordinance no impediment is created. No word appears in section 41 of the Constitution Act creating any such restriction .on the President to re‑enact an Ordinance on the subject. And if it is held otherwise, it would amount to import phraseology in section 41 of the Constitution Act which would be nugatory to the intention of law7giver: Such a method is not permissible. Therefore, since under section 41 of the Constitution Act, in the event the Assembly is not in session, the President can validly re‑enact an Ordinance, it would not be permissible for any Court. to import words in the Constitution to create any artificial embargo on the powers of the President except the one stipulated under section 41 of the Constitution Act. If the Court does so it may be interpreted as an amendment in the Constitution Act which is beyond the province of the Court. The word "shall" employed in 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 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. 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 nugatory. 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 interest, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules. Court has no power to declare such an Ordinance to be invalid on that score, if the Constitution otherwise allows promulgation of such Ordinances. Such Ordinances may adversely affect the spirit of democracy, but when the supreme law of the country allows it, there remains no alternative for the Courts but to respect and accent it In the way the Constitution allows it. 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 considerations of jurisprudence and policy. In fact, the prerogative of the Judges is not to make law. This prerogative only pertains '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.' The provisions of section 41 of the Constitution Act, clothe the President with the powers of 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 of 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. Any interpretation which may destroy the spirit of any of the constitutional provisions of the Constitution Act is not permissible. 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. In view of the wording of section 41, of the Constitution Act, 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 Dl‑eases. There is, therefore, nothing wrong in the President's proroguing the Assembly with a view to enable him to issue an Ordinance under section 91 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. The President can not only re‑enact an Ordinance but can even prorogue the sessions of the Assembly for the, purpose. An Ordinance even ‑if injurious cannot be declared as invalid if it is within the constitutional framework. The Courts are not to interpret laws on considerations of jurisprudence and policy, if Courts interpret a law or a provision of Constitution on consideration of jurisprudence and policy, it may be considered as an interference with the legislative competence of the Assembly and Ordinance making power of the President guaranteed under the Constitution Act; and if Courts do so they may rightly be blamed of disturbing the functional boundaries of one of the important organs of the' State. When a Court, which is a creation of the Constitution itself, examines the vires of an Act or any of the constitutional provisions its powers are limited to declare the legislative instrument as void and inoperative, not because the judicial power is supreme in degree or dignity to the legislative power but because it enforces the Constitution as paramount law. The scope of judicial review is confined to the enforcement of Constitution as the supreme law and even if the constitutional practices or 'provisions are improper, the Courts are debarred to correct them. It is only for the Legislature to look into them. The proceedings of the Courts are judicial and not autocratic. Courts are to administer law and not to make law. One organ of the State is not expected to encroach upon the legitimate field of the other. They have their defined boundaries and it is expected of them not 'to make inroads in the fields of others but have due regard for each other. This would create harmonising atmosphere in their respective working. Due weight, to a word used in' s Constitution, must be given. It is not duty of the Courts to fill in any lacuna in the Constitution or in any law to convey a sense different from the one conveyed implicitly or by, necessary implication by the words used therein. It is also not for the Courts to speculate as to' the intention' of the Legislature, if that intention is clear by the language used. When the words admit of one meaning a Court is not at liberty to speculate on the intention of the Legislature and to construe them according to its own notions of what ought to‑have been enacted. Nothing could be more dangerous than. to make such consideration the grounds for construing an enactment that is unambiguous in itself to depart from the meaning on account of such view is, in truth, not to construe the Act but to alter it. This is beyond the, province of the Court. The business of the Court is not to improve the statute or Constitution; it is to expound it. The question for the Courts is not what the Legislature meant but what its language means, i.e., What the Act has said that meant. To give a construction contrary to or different from that which the words import or can possibly import is not to interpret law; but to make it, and Judges are to remember that their office is jus dicere, not jus dare. The Court of law is not justified in going beyond the plain words of the Act to speculate as to what Legislature intended to enact. When the words used by the Legislature are clear, it is not permissible for the Courts to depart from the ordinary and plain meaning of the words used on the mere supposition that the intention of the Legislature was otherwise than indicated by the plain and ordinary words used. However, if the words are ambiguous then the reports of the debates leading up to the passing of it can be looked into. View to the effect that the reports of the debates leading up to the passing of an Act cannot at all be looked into is correct only when the words area unambiguous and one can get the intention of the legislators and not otherwise. Therefore, the Courts had no power to examine the proceedings of the Parliament in order to determine whether the passing of an Act had been obtained by means of any irregularity or, fraud.. One cannot expect that sanctity to the words used in the Constitution or Act in the eastern countries to which they are susceptible in England or America, where democracy and the parliamentary system has deep roots spreading over centuries; it would require, in eastern countries, time to attain those heights. The basic principle of interpretation of law is to know the intention of the law‑makers. The Court has to find out the intention of Legislature. In doing this one must, of course, start with the words used in the statutes but not end with them as some people in past seem to think. The principles of law laid down by the Judges in the 19th century‑‑however suited to social conditions of that time‑‑are not suited to the needs, social necessities and social opinions of the 20th century. They should, if possible, of course without violence to the clear language used, be moulded and shaped to meet the needs and opinions of today because the interpretation made in the 19th centrury may do injustice. Whenever a statute comes up for consideration, one should be alive to the facts that it is not within human power's to foresee the manifold sets of fact which may arise, and, even if it were, it is not possible 'to provide for them in terms free from all ambiguities. The English language is not an instrument of mathematical precision; its literature would be much the poorer if it were. This is where the draftsmen of Acts 'or Legislatures have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the 'language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some. or other ambiguity. It would certainly save the Judge's trouble if Acts of Parliament were drafted with perfect clarity, The words of the Constitution Act under section 41 are absolutely clear and do not suffer from any ambiguity to send for the proceedings of the Assembly to dig out the intention of the legislators. If the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature. The rule of the construction is to intend the Legislature to have meant what they have actually expressed'. It matters not, in such a case, what the consequent 'may be. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous. The underlying principle is, that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the, intention to Legislature. Intention of the Legislature' is a common fiat very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity what the Legislature intended to be done or not to be done can only be ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication. After expounding the enactment .it only remains to enforce it, notwithstanding that it may be very generally received with opinion that it 'does not produce the effect which the Legislature intended', or 'might with advantage be modified'. Even though a Court is satisfied that the Legislature did not contemplate the consequences of an enactment, a Court is bound to give effect to its clear language. The language, of the Legislature is to be interpreted according to the recognized cannons of construction, and, Court must yield to it, even if it was satisfied that it was not in the contemplation of the Legislature. But the Judges are not responsible for Acts' passed by the legislature: They ought to remember that their office is jus dicere and 'not jus dare, to interpret the law and not to make law or give law. It is their duty to abide by the words of the statute without attempting to reform it according to the supposed intention of the legislature, or exclude cases which fall within the express meaning of the rules in order to make the law reasonable. The Courts always showed reluctance to import any other meaning to a word used in a satute or make any addition in a statute or constitutional instrument to exchange explicit or by necessary implication the intention of the Legislature. Therefore, it is not permissible for Courts to add a word to the Constitution Act to get a meaning different from the one which can be gathered from the clear phraseology used. On the question as to whether the extraordinary power of the President to promulgate Ordinances can be controlled by the Courts in order to prevent it from being so used as to defeat parliamentary democracy, which was the system introduced in Azad Kashmir by the Constitution, the Supreme Court observed that it is hoped that this extraordinary power would not be used to serve political ends and the President shall himself resort to self‑restraint. But Courts cannot place any restriction on such powers of the President. Supreme Court was alive to the fact that this principle of self‑restraint varies from person to person. All Presidents do not think alike as all Ministers and Prime Ministers do not have identical ideology in the performance of their official functions. It would, therefore, look better if some safeguards and checks are created on the powers of the President to promulgate the Ordinances and also towards powers of the Prime Minister to tender advice for the purpose. These checks and cross‑checks for the President and the Prime Minister were apt to create healthy atmosphere paving a way for an examplary democratic set‑up in Azad Kashmir. Under section 41 of the Constitution Act there is no bar for the President to re‑enact an Ordinance on the subject. It is beyond the province of he Courts to import a word in the Constitution Act to create such an embargo on the powers of the President which the words otherwise do not admit. This is obviously the function of the legislators. If Courts do so, it may reasonably be interpreted as an amendment in the Constitution Act which is beyond the competence of the Courts. River Wear Commissioner v. Adamson (1987) 2 A C 7 43 and British Railway Board v. Pickin (1974) 1 All E R 609, dissented from. Tirathmal and others v. The State P L D 1959 (W.P.) Kar. 594; D.K. Krishnan v. Secretary, Regional Transport Authority AIR 1956 Andh. 129; K. Veerabhadrayya A I R 1950 Mad. 243; Maxwell on Interpretation of Statutes, 6th & 7th Edn. p.10; Chief Secretary/ Referring Authority v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95; Craies on Statute Law, 7th Edn., Chap.5th, p.65; Daily Gazette Press Ltd. v. .Karachi Municipality A I R 1930 Sind 287; Gobind Das and others v. Rup Kishore and others AIR 1924 Lah. 65; Sir Ganga Ram Trust Society v. Mehta Sunder Lai and another A I R 1940 Lah. 27 and Sheikh Muhammad Abdul Razzak and another v. Mt. Srimati Parvati Devi and another AIR 1942 All. 394 ref. (i) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑Ss.41, 7 & 12‑‑Azad Jammu and Kashmir Shariat Court Ordinance (XXXII of 1982)‑‑Power of President to make or re‑enact Ordinance and to act on advice of the Prime Minister/ Government‑‑Scope‑‑Vines of such Ordinance‑ ‑Judicial review, scope and principles of‑‑President in the performance of his functions, acts in accordance with the advice of "the Prime Minister‑‑Ordinance promulgated by the President, cannot be said to have been promulgated by a single person according to his wishes as such Ordinance has the backing of some of the elected members of the Assembly‑‑Such Ordinance therefore, cannot be construed as a purely executive act by the President Courts cannot set aside such an Ordinance except by negativing the authority of some of the members of Legislative Assembly specially when such Ordinance was protected by the Constitution.‑‑[ Vires of legislation]. The President in the performance of his functions; prima facie, acts in accordance with the advice of the Prime Minister, it would not be said that the Ordinance 'promulgated by the President under section. 41 of the Constitution Act is made by a single person according to his whims, Such an Ordinance, as would be seen, has the backing of some of the elected members of the Assembly. Every time prior to the re-enactment of the Ordinance the Prime Minister moved the President to do' so. The Prime Minister always submitted the file with the observation that since the Assembly was not in session, the promulgation of Ordinance was necessary. The President in ‑his wisdom, treating it to be an emergent situation continued issuing and re‑enacting the required Ordinance. Even some of the Assembly members were made alive to the promulgation of the Ordinance but they impliedly consented in its promulgation and never moved the Assembly to disapprove it or make it an Act of the Assembly. This at least shows an implied approval of the Ordinance by some of the members of Assembly. Their number in the Committee and Cabinet comes to twelve. In the absence of an express provision to the contrary in the Act, the President, prima facie, is bound by the advice of the Prime Minister in the performance of his functions. Section 12(1) of the Constitution Act conveys clear sense to the effect that the executive authority of Azad Jammu and Kashmir is to be exercised in the name of the President by the Government consisting of the Prime Minister and the Ministers which shall act through the Prime Minister who shall be the Chief Executive of the State. Definition of the word "Government" under section 12 of the Constitution Act unmistakably tells that the Government of Azad Jammu and Kashmir means the Prime Minister arid the Ministers of the realm. The Prime Minister, however, has been given the power to act, as Government in his capacity as Chief Executive. In the performance of his functions, i.e., the functions of the Government, the Prime Minister is at liberty to act within the meaning of section 12(2) of the Constitution Act directly or through Ministers. The Constitution Act thus, suggests clearly that it is entirely within the province of the Prime Minister either to act directly or through the Ministers in the exercise of his functions. Both the methods are duly recognised under the Constitution Act. The Prime Minister and Ministers, however, are collectively responsible to the Assembly. The purpose of sections 7 and 12 of the Constitution Act is two‑fold: one being that an Ordinance is to be made by the President on the advice of the Prime Minister and secondly; the Prime Minister alone is also competent to function as Government even in presence of his cabinet and no valid argument can be advanced that an act of the Prime Minister without the consent of the Ministers is invalid. This power to the Prime Minister, given by the Constitution, cannot be interfered with by any of the subordinate legislation or the Courts. The advice given by the Prime Minister to the President under section 7 of the Constitution Act, impliedly carries with it the weight of at least seven members of his cabinet who are also members of the Assembly. Promulgation of he Ordinance, therefore, cannot be construed as a purely executive act. It has some semblance of an act of the Assembly. The Courts of law, cannot easily set aside such an Ordinance except by negativing the authority of some' of the members of the Legislative Assembly, especially when such an Ordinance is protected by the Constitution Act. If the Prime Minister or his Cabinet acts mala fide or the President uses his powers in making Ordinance to meet some political ends, the Constitution Act has provided political safeguards against this. If such an Ordinance is brought to the notice of the members of the Assembly and they do not wish it to be continued and think that the President should not have re‑enacted the Ordinance, and should have brought it before the Assembly in the form of a bill or Ordinance, or the Prime Minister should not have given advice to the President to enact or re-enact the Ordinance, they can vote out the President and the Prime Minister responsible for the promulgation of the Ordinance but Courts are not competent to strike down such an Ordinance on the considerations not envisaged in the Constitution Act. If the Courts of law were to interfere in such political matters, they would be arraying themselves as a party into unseemingly conflicts with political authority in the country'. The Courts are to enforce the law of the country and not to legislate on considerations of jurisprudence and policy. Here it is to be noticed that in its scope the Ordinances are not made by the President in his wisdom alone; they are made by the President on the advice of the Prime Minister. This consideration alone, as a rule of policy, would restrain Courts from enlarging their jurisdiction to such domains. The principle on which the Courts are debarred from sitting in judgment on the Legislature, therefore, is not that it is not possible or it is extremely difficult to prove that the members had not acted bona fide, or that fraud was played upon them, or that they had made a mistake; but because the Courts being themselves the creation of law must yield to the laws of' the country irrespective of the considerations of jurisprudence or of policy. Therefore, intra vires or ultra vires of an Act or an Ordinance depends simply on examining the competence of the legislative authority which enacts them and by no other criterion. The President is not bound to expound reasons for promulgating an Ordinance or, to prove them affirmatively in a Court of law. He is the sole Judge of the question whether circumstances exist which call for immediate legislation by Ordinance. The existence of such necessity is not a justifiable matter which the Courts could be called upon to determine by applying an objective test. Even if the President states the reasons which satisfied him as to the necessity of immediate action, the Courts cannot question the bona fides of such action. Section 7 of the Constitution Act is more or less pari materia with Article 74 of the Constitution of India and Article 48 of the Pakistan Constitution. In section 7 from the wording "subject to an express provision to the contrary in this Act, in performance of his functions, the President shall act on and in accordance with the advice of the Prime Minister" one may get the impression that the function of the Prime Minister is only advisory and it is left to the President to accept the advice or ignore the same and, thus, the decisions on all matters will be of the President himself. On the other hand it may also be said that the President is not bound by the advice of the Prime Minister because, the word, "shall" employed in section 7 of the Constitution Act is directory and not mandatory in nature. Since in the instant case, there had always been the advice of the Prime Minister for re‑enactment and promulgation of the Ordinance with regard to the Shariat Court and the advice throughout was honoured and respected by the President, the question whether the President is bound by the advice of the Prime Minister in the performance of his functions hardly arises and to decide this issue would be an obiter. However, in section 7(2) of the Constitution Act, the phraseology to the effect "the question whether any, and if so what, advice was tendered to the President by the Prime Minister shall not be enquired into by any Court" would need thought and consideration. Section 12(3) of the Constitution Act enacts that the Prime Minister and the Ministers shall be collectively responsible to the Assembly, while on the other hand there is no provision in the Constitution Act which makes the President responsible to the Assembly for the acts of the Government. It may, therefore, look anomalous to hold that the Prime Minister, who only gives advice while the final decision is taken by the President, is answerable for the acts and policy of the Government. So, viewing the matter from this aspect, the advice by the Prime Minister may be binding upon the President. Basu's Commentary on the Constitution of India, Third Edn., p. 715 and Ch. Qaseem‑ud‑Din v. The Province of West Pakistan PLD 1959 Lah. 76 ref. (j) Vires of a statute‑‑ ‑‑‑Intra vires or ultra vires of an Act or an Ordinance depends simply on examining the competence of the legislative authority which enacts them and by no other criterion. (k) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑Ss.41, 42, 7, 12 & 17‑‑Azad Jammu and Kashmir Shariat Court Act (XXXII of 1982), Premable & Ss.6, 9 & 10‑‑Azad Jammu and Kashmir Civil servants Act, 1976, S.12(1)‑‑Compulsory retirement of a Government servant on his having completed the period of service qualifying for pension‑‑ Repugnancy to injunctions of Islam‑‑All the Ordinances with regard to the constitution of the Shariat Court promulgated by the President being valid, Shariat Court established under such Ordinance/Ordinances and its continuity by virtue of the Ordinances later on enacted is also valid‑‑Supreme Court or the Service Tribunal, in view of the provisions of Ss.6, 9 & 10 of the Azad Jammu and Kashmir Shariat Court Ordinance, 1982 is not competent to declare a law as to be ultra vires of Quranic injunctions as after the establishment of Shariat Court such power has been validly taken away from the Superior Courts and given to the Shariat Court. After establishment of the Shariat Court the power to look into the vires of an Act or an enactment if it is violative of injunctions of Quran and Sunnah has been validly taken away from the superior Courts and given to the Shariat. Court. The powers under the Constitution Act are to be exercised "subject to the Constitution" and since according to the provisions of the Constitution itself the Shariat Court can be brought into existence by virtue of law, the Shariat Court Ordinance can, therefore, validly take away the jurisdiction of the Supreme Court and the High Court on those matters which are not specifically covered by the Constitution Act. The Shariat Court Ordinance is an Ordinance which has been preserved by section 41 of the Constitution Act. Therefore, it enjoys the status of an Act of the Assembly. Natually such an Act can competently take away the jurisdiction of the High Court and even that of the Supreme Court by reason of section 47 of the Constitution Act which clearly provides that no Court shall have any jurisdiction that is not, conferred upon it by the Constitution or under law. Besides; under section 42(1), the Supreme Court shall have the power given to it under the Constitution or law. The Ordinance is a valid piece of legislation by a competent Legislature and if it has taken away the jurisdiction of the High Court and the Supreme Court to call in question a particular law and allows its scrutiny only by the Shariat Court, the Supreme Court cannot question it unless it comes before it for consideration by way of an appeal or reference. The Ordinance takes away the jurisdiction of the High Court and the Supreme Court not only to look into the validity of an order made or direction issued thereunder, but even provisions of the said Ordinance cannot be questioned before the High 'Court or the Supreme Court. The Supreme Court and the Service Tribunal have no jurisdiction to declare a law as to be violative of the Quranic Injunctions. Azad Government of the State of Jammu and Kashmir v. Kashmir Timber Corporation PLD 1979 SC (AJ&K) 139 and Muhammad Khan v. The Border Allotment Committee PLD 1965 SC 623 ref. (l) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.7‑‑Azad Jammu and Kashmir Government Rules of Business, R.5 8, Sched. III, R.2‑Prime Minister is 'competent to pass an order of retirement under S.12(2) of Civil Servants Act, 1976 of a Government servant who held a Grade‑20 post. The Prime Minister alone in his capacity as the Government within the meaning of section 7 of the Constitution Act, was competent to pass an order of retirement under section 12(ii) of the Civil Servants Act. Apart from it, under section 5 of the Rules of Business (Schedule III, rule 2) which holds the field and which reads "no order shall be issued without the approval of the Prime Minister in cases enumerated in Schedule III", would also show that the Prime Minister alone is competent 'to pass final order of removal of an employee holding a post in Grade‑

20. Therefore, the order of retirement of appellant who held a Grade‑20 post under section 12(ii) of the Civil Servants Act was competently made by the Prime Minister. Fazalul Qadir Chaudhry's Case PLD 1963 SC 486 and Begum Shamsun Nihar's case PLD 1965 SC 120 distinguished. (m) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974). Ss.41, 7 & 12‑‑Order of retirement of a Government servant in public interest indicating that it had been issued by the President in exercise of his powers under S.12 (ii) of Civil Servants Act, 1976, would not make the order a bad one‑‑Such a defect being a defect in the form and not the substance would hardly make any difference‑‑Non‑compliance of provisions of Constitution Act‑‑Effect. The provisions of section 12 of the Constitution Act, signify that the executive authority of the Azad Jammu and Kashmir shall vest in the government, but it shall be exercised by the Prime Minister in the name of the President. Therefore, no valid argument can be advanced that, the order made in the name of the President can, in any way, be construed to be an order passed ‑by ‑the President. Any defect in the form of the order would hardly make any difference. It would only be termed to be an irregularity having no adverse effect on the substance of the order. Besides, in the Constitution Act no consequence for non‑compliance is stipulated. Therefore, non-compliance would not affect the order adversely. The general principle on which Courts have to decide such cases is: where a statute requires' that something shall be done in a particular manner without expressly declaring what shall be the consequences of non‑compliance, the word 'shall' in such cases is to be interpreted as directory in nature. The question whether the provision is of affirmative or negative import is of substantial bearing. If the provision is of affirmative nature, it is a weaker case for reading the provision as mandatory. Section 12 of the Constitution Act does not prescribe any manner in which orders of the Government in the name of the President are to be made. All that it says is that the executive authority of the Azad Jammu and Kashmir shall be exercised in the name of the President by the Government. Therefore, if an order is issued under section 12 of the Constitution Act indicating that the President has done so in exercise of the powers conferred on him, it would only mean that the wrong phraseology is used, which would not destroy the meaning of section 12 of the Constitution Act. The simple reason is that under the Constitution Act the President has very little executive authority in Azad Jammu and Kashmir; the authority is exercised by the Government and orders are only issued in the name of the President. The executive authority of Azad Jammu and Kashmir is exercised by the Government in the name of the President. It means that irrespective of the fact that the executive authority is exercised by the Government, it shall appear to have been exercised by the President. Incorrect compliance of section 12 of the Constitution Act would not, therefore, invalidate the act of the Government. J. K. Gas Plant Manufacturing Co. v. Emperor A I R 1947 F C 38 and 1939. A C 277 ref. (n) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Retirement of a Government servant under S.12(ii) is always from his service and not the post he was holding at relevant time. The order under section 12(ii) retires the Government servant from the service in the public interest. Section 12(ii) stipulates retirement from service. It does not authorise retirement of an employee from any specific assignment. Obviously, the provisions of Civil Servants Act would ‑apply to the substantive service of the Government servant only and it is not possible to accept the argument that since the word 'Secretary' has not been used in the order, the appellant has not been retired from the post of the Secretary and still retains the same. Benefit of 30 years' service for the purposes of pension given to the Government servant clearly shows that the he was retired from his substantive post of Secretary because the post he was holding at relevant time carries no pension at all. The Government order, thus, is issued in strict conformity with section 12(ii) of the Civil Servants Act which only authorises the competent authority to retire an employee from his 'Service' and not from the post such an employee is holding at the relevant time. Thus, retirement under the provisions of section 12(ii) of the Civil Servants Act is always from his service and not from a post. There is no concept of retirement from a particular post in the framework of service ~ Rules. All that is required in such cases is that the person is retired from the service of whatever kind he holds. The retirement of the Government servant as Chairman A.K.M.I.D.C/Managing Director A.K.L.A.S.C., by way of the order, only showed the last appointment the Government servant held at the time of his retirement. The argument that the Government servant had not been retired from the post of Secretary, if accepted, would disentitle him to lodge an appeal before the Service Tribunal; and his appeal may be dismissed on this short ground. An appeal before the Service Tribunal is only competent when the terms and conditions of Civil Servants Act are violated. The Service Tribunal has no authority to pass declaratory decrees and entertain appeals to the effect that a person still holds a certain post. If he feels that he is still in service as Secretary he is at liberty, to file a declaratory suit in a competent Court or invoke the extra ordinary writ jurisdiction of the High Court to get his grievance redressed. Retirement of the Government servant from the service and at the same time giving him the benefit of 30 years' service for purpose of pension shows sufficiently that he was retired from his substantive post of Secretary. His grievance that the Service Tribunal should declare that he continues to hold the post of Secretary to Government, therefore, is unfounded. Even otherwise, the Service Tribunal was and is incompetent to give such a declaration. (o) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.49‑‑Compulsory retirement of a Government servant in public interest on his having completed the period of service qualifying for pension‑‑Prior notice to the Government servant is ordinarily not necessary, competent authority can dispense with it if circumstances warrant such a dispensation‑‑Duty of Court. Since issuance of notice under section 12(ii) of the Civil Servants Act is ordinarily not necessary, competent authority can dispense with it if circumstances warrant such a dispensation. But every case varies in its nature and quality. Notice is not necessary in every case. But if in a given case circumstances warrant issuance of a notice prior to taking action, notice is to be issued. It is, therefore, for the Court to see as to whether in the circumstances notice was necessary and if so is not done, how would it affect the order. It would be, however, unfair to give blank cheque to the Government to use its powers for the purposes not stipulated under section 12(ii) of the Civil Servants Act. Courts cannot overlook such an exercise by the rulers especially in developing countries like Pakistan and Azad Kashamir. Arbitrary powers given to the Government, therefore, would frustrate the very spirit of the Civil Servants Act, 1976. It is not permissible to interpret the law in a way as to give the Government unfettered powers to remove any Government servant after the service of 25 years irrespective, of the consideration of public interest. No doubt, section 12(ii) of the Civil Servants Act does not visualise any notice prior to the retirement order, would it be, therefore, said that notice is not necessary even if circumstances resulting in his retirement would cast a stigma on his character is also an important question to be considered. There may be cases in which prior notice to a person affected is necessary. This would, however, depend on the circumstances of each case. The precise point which requires consideration, where no notice is provided, is to see as to whether the order is within the powers of an authority and if so whether in the circumstances, a notice was necessary or not. These conditions or condition may be implied in he discretion granted and non‑compliance with such condition may invalidate an act as the breach of an express condition. (p) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑S.12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.31, 51 & Third Sched.‑‑Azad Jammu and Kashmir Mineral end Industrial Development Corporation Act, Ss.28‑A & 5(2)‑ Compulsory retirement of Chairman, A.K.M.I.D.C. in public interest in his having completed the period of service qualifying for pension‑ Government of Azad Jammu and Kashmir was competent to retire such official without the concurrence of the Government of Pakistan. The Azad Jammu and Kashmir interim Constitution Act, 1974 came into force on 24th of August, 1974. The Interim Constitution Act defines the extent of powers of Government of Azad Jammu and Kashmir, the Azad Jammu and Kashmir Council and the Government of Pakistan under section 31 of the Constituti6n Act. After the enforcement of the Interim Constitution Act the Government of Pakistan is only concerned with the matters enumerated in subsection (3) of section 31 and the Council Legislative List as set out in 3rd Schedule to the Constitution Act and all other matters fall within the authority and power of the Government of Azad Jammu and Kashmir. Section 51 of the Constitution Act, inter alia, provides that all Acts and laws in force at the time of the commencement of the Interim Constitution Act will remain on the statute book until altered, repealed or amended by the competent authority subject to the provisions of the Act. The words 'subject to the provisions of the Act' used in section 51 signify that the authority of the Government of Pakistan ceases to exist in the matters falling within the executive authority of the Government of Azad Jammu and Kashmir. Therefore, section 28‑A of A.K.M.I.D.C. Act referred to above which prima facie, creates fetters on the authority of the Government of Azad Jammu and Kashmir for the appointment of the. Chairman, being derogatory to the provisions of the Constitution has no longer remained as an effective law and such a law is to be construed as non‑existent (q) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑S.49‑‑Azad Jammu and Kashmir Civil Servants Act, 1976. S.12‑ Retirement of a civil servant of Azad Jammu and Kashmir Government‑‑ Government servant of Azad Kashmir on deputation even outside Azad Kashmir retains its character as the servant of Azad Kashmir Government and said Government is clothed with the authority to retire him even if he is serving anywhere in connection with the affairs of the Government of Pakistan, Provincial Government or a Corporation as Azad Jammu and Kashmir Government, in all eventualities retains its character as an appointing authority of such a servant. (r) Executive discretion‑‑ ‑‑‑ Purely executive acts‑‑Judicial control‑‑Scope. The Legislature, which grants powers to an authority to pass an order wants it to be exercised fairly, reasonably and cautiously. It cannot be said that the Legislature supports caprice, malice or wanton action. These are evils and evil the Legislature cannot intend. It may not however be misunderstood to be saying that in every case of exercise of executive powers the Court will itself determine what is the proper order to be passed and so substitute its judgment for that of the executive. That would be usurping the functions of the executive. Therefore, where the order is passed within the spirit and inconformity with the relevant law, it would' be said that the order is passed justly, fairly and reasonably and the Court will not disturb such an order. These are the only limits of the inquiry by' the Court. But statutory powers must be exercised reasonably and with due care. A body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of the Service Tribunal if it can be shown that the action taken is otherwise tainted with some glaring defect short of mala fide. Where, as in a multitude of Acts, something is left to be done according to the discretion of the authority on whom the power of doing it is conferred the discretion must be exercised honestly and in the spirit of the statute otherwise the act done would not fall within the statute. In exercise of discretion an act is to be done according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised hot capriciously, but on such grounds and for substantial reasons and it must also be exercised within the limits to which an honest man ought to confine himself, that is, within the limits and for the objects intended by the Legislature. Leslie Williams v. Haines Thims Giddy 11 I C 509; Halsbury's Laws of England, Vol. 31, p. 533 and Maxwell on Interpretation of Statutes, Ninth Edn., p. 129 ref. (s) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42, 47, 7 & 12‑‑Retirement of a Government servant in public interest on his having completed the period of service qualifying for pension‑‑Competent Authority is sole Judge to determine the question whether it was in public interest to retire Government servant‑‑Judicial review‑‑Scope‑‑Service Tribunal has to see whether order of retirement of such a Government servant could be so construed as to have been passed in colourable exercise of the powers of the Prime Minister/ Government and if such questions were answered in the affirmative, how it would affect the order of retirement. There may lie circumstances apart from inefficiency or dishonesty which may be relevant for considering the suitability of an officer for his being kept in service in public interest. An intelligent and efficient public officer may not, .in circumstances, be thought to be fit to be kept in service and in certain circumstances may be considered as unsuitable to be retained in service in public interest. On the other hand in some cases even an officer of average capability may be regarded to be a fit person to be kept in service. This is a matter which an employer can determine and, therefore, it must necessarily be left to the satisfaction of the employing authority. But there must be some material to suggest that there existed some good reasons not to retain any more a. Government servant in service in the public interest. Therefore, if from material disclosed it appears that the action taken was merely in colourable exercise of or in abuse of powers, such an order shall be considered as to have been passed not in public interest and is to be struck down. This power of the Courts cannot be taken away and in fact such a power is inherent in the Courts: The question whether it is in the public interest to retire a public servant under section 12(ii) of the Civil Servants Act, thus, is a question of which the competent authority is the sole Judge. The Court cannot enter on a detailed inquiry on the question of, public interest but if the circumstances on the record suggest otherwise naturally the Order cannot be construed as to have been passed within the meaning of section 12(ii) of the Civil Servants Act. The order should not be a mechanical one it must have some support from some material on the relevant file. No doubt, it is upto the Government to see as to whether a 20 grade officer should be retained in service after attaining 25 years of service, qualifying for pension or retired in the public interest. Discretion is also with the Government to measure the desirability or undesirability to keep or not to keep such an employee any mire in service; but one thing must be established that a Government servant is retired from service in accordance with the spirit of section 12(ii) of the Civil Servants Act, i.e., in public interest alone. It is correct that the Courts are not to scrutinize and look deeply into the advisability or otherwise of the retirement of a public servant, if retirement order is made within the scope and spirit of section 12(ii) of the Civil Servants Act. Because the Government is the sole Judge to see as to whether a Government servant, after completing 25 years' service qualifying for pension is to be retained in service or public interest demands his retirement. But if the Government feels that the retirement of an employee is necessary in public interest, there must be some material on the relevant file justifying such an action and to suggest at least that the Government had applied its mind within the meaning of statutory provisions to retire an employee in the interest of public. If there is no such material, it may be said that the Government has not applied its mind in the matter and such a retirement may be construed as to have been made not in public interest within the meaning of section 12(ii) of the Civil Servants Act. Besides, if it appears that the order is a motivated one or the same is made in colourable exercise of the powers, the Courts and especially the Service Tribunal do have jurisdiction to declare that such an order is a void one not for the reason that the Government has no discretion to pass the order but for the reason that it is not passed within the spirit of section 12(11) of the Civil Servants Act. The relevant record maintained by the Government must show that the retirement of a Government servant under section 12(ii) of the Civil Servants Act was made for reasons which are indicative of the fact that at least the action was taken in 'public interest. The discretion must be exercised without taking into account any reason which is not a legal one. If people who have to perform a public duty by, exercising their discretion, take into account matters which the Courts consider not to be proper for the exercise of their discretion, then it will be said that they have not exercised their discretion properly and honestly: Compulsory retirement is different from the removal or dismissal. There may be variety of reasons which may compel a Government to compulsorily retire an officer having completed the period of service qualifying him for pension and the Government alone is the best Judge of those reasons. It is not possible for the Court to sit on the judgment over the action of the Government. But the order must be on the basis of at least some material which may suggest that the order was passed in conformity with section 12(ii) of the Civil Servants Act, 1976. The Courts even have no competence to look into the, desirability or otherwise of the order passed and the Courts would also be‑very slow to look into the sufficiency or insufficiency of the material on which the retirement was ordered. That is the prerogative of the Government. But the reasons and grounds must not be perfunctory or of the nature to suggest that the retirement has not been effected in the interest of public. If from the material disclosed it appears that the action was taken merely in colourful exercise or in abuse of powers, the same being bad in law, is to be recalled. Where the Service Tribunal had failed to apply its mind to this very important question and disposed it of in a cryptic way, it was held to be not desirable. Ordinarily it is for the Government or the competent authority to see as to whether public. interest demands the retirement of a public servant, but there must exist some circumstances to suggest so. Therefore, if circumstances suggest that the order was made in colourable exercise of powers for the purposes different from the one stipulated under section 12(ii) of the Civil Servants Act, 1976, the order will be struck down by the Service Tribunal. In that case the Service Tribunal has competence to look into it and to see as to whether the presumption attached under section 12(ii) of the Civil Servants Act that the retirement has been effected in public interest stands rebutted; and if it stands rebutted it would be said that the removal was not made in public interest, rather it is made in colourable exercise of powers and not in accordance with law. It is for the Tribunal of exclusive jurisdiction (Service Tribunal) to decide the issue and to see as to whether a particular incident was the cause of impugned order of retirement of the servant and if so whether .the order shall be construed as to have been passed in colourable exercise of the powers of the Prime Minister/Government and if the above two questions are answered in affirmative, how it would affect the order. It is true, that the Service Tribunal will not interfere with or revise the opinion of the Government if there is anything on which the Government could reasonably have come to its conclusion. But if the Government has allowed itself to take into consideration the material which has no bearing upon the merits of the case but certain incident had erroneously influenced the mind of the Prime Minister (Government) to retire the Government servant under section 12(11) of the Civil Servants Act, would it be said that the Government had exercised its discretion in violation of section 12(ii) of the Civil Servants Act and thus failed to proceed in accordance with law. This important issue has not been determined by the Service Tribunal. The Service Tribunal has not exercised its discretion in a judicial spirit in the sense that it has allowed extraneous considerations to affect its decisions. If it has allowed itself to take into consideration matters which had no bearing upon the merits `of tire 'case before it, but which nevertheless influenced its mind in arriving at its decision, it has nut exercised its discretion properly and has not heard and determined the case according to law. The Service Tribunal was of the view that no notice in any circumstances was necessary. Reliance by the Service Tribunal was placed on a decision of Supreme Court entitled Mir Muhammad Sharif v. Azad Jammu and Kashmir Government P L D 1986 S C (AJK)

87. In this judgment it is observed that the Government or the competent authority, as the case may be, is the sole judge as to whether the retirement of a civil servant is in the public interest or not. It is not possible for the Court to sit on judgment over the view taken by the Government in the matter. The Court would interfere only if a case of mala fide or colourable exercise of power is established. It would, thus, appear that it was observed by the Supreme Court that the Service Tribunal or any Court is competent to interfere with a case of mala fide or colourable exercise of powers and the Service Tribunal or any Court would not sit on the judgment over the view taken by the Government. 'View' or 'finding' obviously can have no footing in vacuum. Such a view must have some support from record. The law enunciated by Supreme Court does not give a blanket protection to the Government to pass any order of retirement in accordance with its whims. If it is a mala fide one or is passed in colourable exercise of powers, it is to be struck down. The Service Tribunal failed to consider and decide the question involved in the light of the law enunciated by Supreme Court. If on material placed before a Court it can be held that the Government did not exercise its discretion in accordance with the law but only exercised powers in colourable way, the order would be struck down. S. K. Gosh v. Vice‑Chancellor, Utkal University A I R 1952 Orissa 1; Lord Redcliffe Nakkuda Ali v. M.F. De. S. Jayaratne (1951) 1"A C 66 at p.77; Galloway v. Corporation of London (1984) 46 ER 356; Mayor & C. of Westminster v. L & N W Rly. Co. (1905) AC 496; The Queen v. Church Wardens of All Saints. Wigan (1876) I A C 611; Sanitary Commissioners of Gibralter v. Orfila (1980) 15 AC 400; Ch. Muhammad Ismail.v. The Punjab Province P L D 1956 Lah. 129; Zafar‑ul‑Hasasn v. The Republic of Pakistan PLD 1960 SC (Pak.) 113; Joygun Bibi v. The State P L D 1960 S C (Pak.) 313; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Lt.-Col. Farzand Ali and others v. Province of West Pakistan P L D 1977 S C 98; Rex v. London County Council (1915) 2 K B 466; Dipa Pal v. University of Calcutta A I R 1952 Cal. 594; K.N. Bhatia Ghisalal v. Regional Transport Authority A I R 1952 Madh. Bh. 128; Cooper v. The Wandsworth Board of Works 143 Eng. Rep. 414 and Syed Hadi Ali v. The Government of Pakistan P L D 1956 Lah. 824 ref. Mir Muhammad Sharif v. Azad Jammu and Kashmir Government P L D 1986 SC (AJK) 87; Islam Muhammad v. Azad Government of the State of Jammu and Kashmir Civil Appeal No.5 of 1985 and Raja Muhammad Akram v. Azad Government Civil Appeal No.10 of 1986 distinguished. (t) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Whether premature retirement under S.12(ii) was a stigma and punishment‑‑If premature retirement was a punishment, whether notice was necessary.‑‑[Civil service]. Pakistan and others v. Public At Large and others P L D 1987 S C 304 ref. (u) Mala fide‑‑ ‑‑‑ Plea of‑‑Allegation of mala fide has to be specifically pleaded alongwith its particulars‑‑Failure to do so‑‑Effect‑‑Colourable exercise of jurisdiction‑or power is altogether different from mala fide. The allegation of mala fide, is to be specifically pleaded alongwith its particulars. This having not been done the appellant cannot be heard that the order stands vitiated on the ground of mala fide. Mala fide must be pleaded with particularity, and once one kind of mala fide is alleged, no one should be allowed to adduce proof of any other kind of mala fide nor should any enquiry be launched merely on the basis of vague and indefinite a allegations, nor should the person alleging mala fides be allowed a roving inquiry into the files of the Government for the purposes of fishing out some kind of a case. In order to establish a case of mala fide, some specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession. Mala fide, thus, is a question of fact and is to be pleaded. The question of mala fide could not be examined when it had not been specifically pleaded and proved. Mala fide, is one of the most difficult things to prove and onus is entirely on the person alleging mala fide to establish it, because there is, to start with a presumption of regularity with regard to all official acts and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fide. Colourable exercise of jurisdiction or powers is altogether a different thing from mala fide. District Magistrate, Lahore v. Syed Raza Kazim P L D 1961 S C 178; A.M. Khan Leghari v. Government of Pakistan P L D 1967 Lah. 227; Muzaffar Ali Shah v. Registrar, Co‑operative Societies, Karachi P L D 1968 Kar. 422; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14; Mst. Sardara v. Hanifullah 1970 S C M R 508; The Federation of Pakistan v. Saeed Ahmad Khan P L D 1974 S C 151; Sardar Khan v. Ghulam Sarwar PLD 1982 Azad J & K 128 and Faouji Foundation and another v. Shamim‑ur‑Rehman P L D 1983 S C 457 ref. (v) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12‑‑Appeal before Service Tribunal‑‑Service Tribunal failed to apply its mind and decide the contentions missed by the parties, especially the contention of colourable exercise of powers and jurisdiction agitated by the appellant‑‑Judgment of Tribunal also suffered from misreading or non‑reading of the evidence‑‑Lapse on the part of the Service Tribunal to decide vital part of colourable exercise of the jurisdiction being a substantial error showing misapplication of mind, case was remanded back to the Tribunal by Supreme Court. Gouranga Mohan Sikdar v. The Controller of Import and Export 1970 S C INI R 323 and Adamjee Jute Mills Ltd. v. The Province of East Pakistan P L D 1959 S C (Pak.) 272 ref. (w) Practice and procedure‑‑ ‑‑‑Judgment‑‑Courts, in appeal cases, should pronounce their opinion on all the relevant points which arise or have been raised in a case‑‑Court has to look into all the relevant points though not raised or argued at the Bar‑‑Omission on the part of lower Court on whose orders appeals are permissible to the Supreme Court to decide all points is a grave omission and cannot lightly be ignored‑‑Judicial order has to be self‑speaking.‑‑[Judgment]. In appealable cases it is always desirable that the Courts should pronounce their opinion on all the relevant points which arise or have been raised in a case. It is the duty of the Courts to look into all the relevant points though not raised or argued at the Bar. Omission on the part of the lower Court on whose orders appeals are permissible to the Supreme Court to decide all points is a grave omission and cannot lightly be ignored. Since the omission is a vital one, it would be said that omission has prejudiced the appellant's case and possibility cannot be excluded that in case the learned Tribunal had considered the point with application of mind the conclusion might be in favour of the appellant. The impugned judgment in ignoring to' decide the important point, referred to above, has flouted the principle to be followed in deciding a matter. It is a mistake floating on the surface of the judgment. Judicial order must be self‑speaking and manifesting by itself that the Court has applied its mind to the resolution of all the material points involved and arising out of the controversy; superfluous disposal of such important points which do not show that the mind has been applied is always undesirable. Where the Court had not applied its mind and had not read or misread the evidence,' judgment would be of the type which could not be considered to be a judgment in the eye of law because it frustrated the object of appeal. The litigants, who bring their disputes to the law Courts with the incidental hardships and expense, do expect judicial treatment to their cases in deciding all the important matters arising out of the lis, irrespective of the fact that such points have not even been argued at the bar, if they have direct bearing on the lis and need no further evidence. Disregard to the provisions of law and omission would not only waste the valuable time of the parties but would cause unnecessary trouble to them. (x) Remand‑‑ ‑‑‑ Judicious discretion of the Court which is to be exercised in accordance with the dictates of justice‑‑Factors to be kept in view while remanding the case. Whether there should be a remand in a matter is always a judicious discretion of the Court which is to be exercised in accordance with the dictates of justice, the nature of the error committed, magnitude of the miscarriage of justice and the possibility and extent of prejudice to the person affected are all relevant factors to be duly weighed for a remand. As a general rule an order for remand would be proper when the hearing in the lower Court has been illegal, irregular or otherwise defective; for instance when some vital points arising out of the controversy have not been decided in an objective way. There are also other vital compelling reasons under which there is no alternative but to remand the case. (y) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑Ss.42 & 47‑‑Azad Jammu and Kashmir Civil Servants Act, 1976, S.12(ii)‑‑Maxim: Audi alteram partem‑‑Application‑‑Service Tribunal, jurisdiction of‑‑Powers of Supreme Court under Ss.42 & 47 in respect of the matters within exclusive 'jurisdiction of the Tribunal‑‑Service Tribunal alone is competent to examine the vires of S.12(ii) and determine as to whether or not S.12(ii) of the Civil Servants Act, 1976 was hit by the principle of "Audi slteram partem" and whether action taken by the Authorities was in the colourable exercise of it.‑‑[Words and phrases]. The Supreme Court, under the provisions of section 42(2) of the Constitution Act, has jurisdiction as is conferred on it by the Constitution Act or under any law. These powers, however, are to be exercised subject to other provisions of the Constitution Act. Therefore, if there is any other express provision which ousts the jurisdiction of the Supreme Court in any particular matter, section 12 must give place to that and the Supreme Court would not be competent to adjudicate upon such a matter. Section 47(2) of the Constitution Act opens with the words "notwithstanding anything hereinbefore contained" and proceeds to command that where any Administrative Tribunal is established "no other Court" shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Tribunal extends. The term "no other Court" will include the superior Courts, i.e. High Court and the Supreme Court. Under the relevant law, it is the Tribunal alone which exercises the exclusive jurisdiction in respect of matters relating to the terms and conditions of the service of the civil servants including disciplinary matters. The terms "matters relating to the terms and conditions" and "disciplinary matters" are of wide connotation. If a person has been dismissed, removed from service, reduced in rank or retired compulsorily, these terms would embrace the entire process beginning with the initiation of tire proceedings and culminating in the final order, including the question as to whether provisions of section 12(ii) of the Civil Servants Act has been properly applied. Administrative Tribunal has complete jurisdiction to decide all connected matters arising in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of other Courts including the Supreme Court and the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal is so complete that even the orders of the Administrative Tribunal cannot be assailed either by a suit or by a writ petition. In order to decide a dispute or a matter, it is competent for a Court or Tribunal to determine all questions arising there from, the determination of which is necessary for the decision of the main dispute or matter, unless‑its jurisdiction to determine the same is expressly or impliedly barred. The Service Tribunal alone is competent to determine whether or not section 12(ii) of the Civil Servants Act is hit by the principle of 'audi alteram partem' and whether the action taken is in colourable exercise of the powers of the Prime Minister. Order passed by an Administrative Tribunal can only be interfered with by the Supreme Court subject to the grant of special leave to appeal. It is the Tribunal, therefore, which is to give finding on the validity or otherwise of the order of retirement passed under section 12(ii) of the Civil Servants Act because these questions have arisen in connection with a matter within the exclusive jurisdiction of the Service Tribunal. It is the Tribunal which is competent to examine even the vires of section 12(ii) of the Civil Servants Act affecting the terms and conditions of the appellant. Service Tribunal has been constituted with the object of providing forum with the exclusive jurisdiction in the service matters relating to the terms and conditions of the civil servants subject to an appeal to the Supreme Court. The Service Tribunals Act creates a special forum and provides a special remedy to redress the grievances of Government employees including their terms and conditions of service. When jurisdiction has been conferred upon a special Court for the investigation of a matter which may possibly be in controversy, such jurisdiction is exclusive. Where a special Tribunal out of the ordinary course is appointed by an Act to determine the question as to the rights which are the creation of that Act, then except so far as otherwise expressly provided or necessarily implied the Tribunals jurisdiction to determine those questions is exclusive and if such Tribunal functions and gives a decision, whether right or wrong, the Civil Court would have no jurisdiction. It is only when the special Tribunal refuses to function that a Civil Court exercises the jurisdiction which the proper Tribunal has failed to exercise. It is the exclusive jurisdiction of the Service Tribunal to decide as to whether the retirement order of the appellant under section 12(ii) of the Civil Servants Act was passed in colourable exercise of the powers and whether a notice prior to his retirement order, especially in view of the decision of the Supreme Court of Pakistan that premature retirement is a stigma, was necessary; the Supreme Court would look into such issues in appeal only and give its finding. It is the exclusive jurisdiction of the Service Tribunal to decide these matters and the Supreme Court only comes into picture when they are decided by the Service Tribunal and an appeal is entertained by this Court and in no other way. In cases which are in the exclusive jurisdiction of the special Tribunal, the superior Courts very rarely exercise their powers and decide them without having the view point of the Tribunal which, unlike ordinary Courts, is clothed with the exclusive powers to decide such questions. Therefore, the Supreme Court, in appeal, would be very slow to decide a matter which has not been decided by a Tribunal of special jurisdiction for the simple reason that such function is exclusively entrusted to such forum and deciding such issue without the wisdom of the Court of exclusive jurisdiction, may be considered to be violative of the spirit and wisdom in pursuance of which a special Tribunal is established. Special Tribunals are created to decide specified matters and jurisdiction of all the Courts ordinarily stands ousted. Naturally, on appeal a matter cannot be decided unless the appellate Court has the decision of the Court or Tribunal who is only competent to decide such an issue. If the appellate Court decides such a matter, it may be taken to have frustrated the very object for which Service Tribunal was established. If Supreme Court decides such issues, it may also be blamed to decide the issue in vacuum and creating inroads in usurping the powers of the Service Tribunal. The moment the Service Tribunal was constituted, jurisdiction of the Supreme Court was completely ousted to determine an issue which has not been decided by the Tribunal of exclusive jurisdiction. As to the contentions that the order has been passed by the Prime Minister/ Government in colourable exercise of the powers or in violation of the principle of natural justice in not affording an opportunity to explain his case etc. all those issues and other issues involved fall within the compass of the Service Tribunal's jurisdiction and Supreme Court would rarely decide them on merits if they do not come before the Court for consideration in appeal after they have been decided by the Service Tribunal. Mr. Justice Khan Faizullah Khan v. Government of Pakistan PLD 1964 Lah. 519; Iqan Ahmed Khurrum v. Government of Pakistan P L D 1979 Kar. 610; Akhtar Ali Parvez v. Altafur Rehman P L D 1963 Lah. 390; Saibesh Chandra Sarkar v. Bijoychand Mohatop Bahadur A I R 1922 Cal. 4; Vice‑Chairman, Chidambaram Municipality v. Ganasambandham Pillai A I R 1926 Mad. 798; Sarvothama Rao v. Chairman, Municipal Council, Saidapet A I R 1923 Mad. 475 and Bhaishankar Nanabhai v. Municipal Corporation (1907) 31 Bom. 60.4 ref. (z) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑ ‑‑‑S.41‑‑Recourse by which Ordinance was allowed to be repealed under S.41 of the Constitution and then a new Ordinance on the subject was continuously enacted being not unconstitutional cannot be questioned. Moulvi Tamiz‑ud‑Din Ahmad v. The Province of East Bengal PLD 1949 Dacca 1; The Sargodha‑Bhera Bus Service v. The Province of West Pakistan P L D 1958 Lah. 77; Rajab Ali Bepari v. The Province of East Pakistan P L D 1958 Dacca 552; Begum Zeb‑un‑Nisa Hamiddullah v. Pakistan P L D 1958 S C (Pak.) 35; The Sargodha‑Bhera Bus Service Limited v. The Province of West Pakistan P L D 1959 S C (Pak.) 127 and Mehreen Zaibun Nisa v. Land Commissioner, Multan P L D 1975 S C 397 distinguished. (aa) Precedent‑‑ ‑‑‑Ratio decidendi of case makes a decision a binding precedent for future. It is the 'ratio decidendi' of a case which makes the decision a binding precedent for the future. However, the ground of a decision is the material fact of the case, so that if a similar or comparable set of facts come before the Court in future in a given case and the case is on all fours with the earlier case, the Court will follow and apply the decision made in the earlier case and not otherwise. When the facts and legal points involved in cases, are different from those in the case before a Court, and the decisions made in those cases are not on all fours with the facts, factual and legal, involved in the case before a Court the cases cannot provide a binding force for the decision of the case before Court. (bb) Supreme Court‑‑ ‑‑‑Jurisdiction‑‑Legal point even if not agitated before the lower Courts can be taken up for the first time before Supreme Court.‑ [Jurisdiction]. Faqir Ali v. Standard Bank Ltd. P L D 1979 S C (A J&K) 62; Sub-Major Fazal Ellahi v. The State P L D 1978 S C (A J&K) 80 and Habibullah v. Mahmood 1984 C L C 309 ref. (cc) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑ ‑‑‑S.12(ii)‑‑Retirement‑‑Opportunity of hearing‑‑When opportunity of hearing to Government servant before retirement was .necessary, it could not be rectified by allowing him to explain his case at the time of hearing the review petition as that would amount to placing the cart before the' horse which was not permissible.‑‑[Civil service].