2017 PLP (C (PLC(CS)N)

CH. MUHAMMAD IBRAHIM ZIA, J.

This appeal by leave of the Court arises, out of the judgment of the High Court dated 11.06.2014 whereby the writ petition filed by the petitioners, therein, against the Notification dated 29.01.2014, has been dismissed.

2. The facts briefly stated are that the appellant was confirmed in BPS-18 as Secretary Azad Jammu and Kashmir Bar Council (hereinafter to be referred as Bar Council) through Notification dated 12.07.1999. The Bar Council allowed the appellant and other employees of the Bar Council pay and allowances admissible to civil servants in AJ&K through an amendment in the rules on 03.12.2012. The appellant was allowed and promoted in BPS-20 in a meeting of the Bar Council on 20.08.2009. Since then, the appellant has been drawing his pay and allowances in the said scale. Through an amendment made in the AJK Bar Council Employees Service Rules, 1999, (hereinafter to be referred as Employees Service Rules) the pay scale and allowances of the appellant and other employees of the Bar Council have been withdrawn by the respondents and instead of the basic pay scale self-styled grades i.e., I, II and IV have been added in the Rules through substitution of appendix Rule 2.1 of the Employees Service Rules. The said amendment was made through Notification dated 29.01.2014. The appellant along with five other employees of the Bar Council filed a writ petition against the Notification dated 29.01.2014 before the High Court. Later on the employees of the Bar Council i.e., petitioners Nos.2 to 6 decided to withdraw the writ petition to their extent on 26.02.2014 and order was passed accordingly. The learned High Court after necessary proceedings dismissed the writ petition filed by the appellant. Feeling aggrieved, the appellant has now approached this Court through the instant appeal.

3. Keeping in view legal and factual propositions involved in this case, while granting leave, the following points were formulated:- "(i) The principle of parity with Punjab; (ii) whether the Azad Jammu and Kashmir Bar Council is working in connection with the affairs of Azad Jammu and Kashmir; (iii) whether the petitioner has been legally granted grade B-20; and (iv) whether the authority, controlling body or autonomous statutory body which has created the post vests with the rule making powers especially to determine the terms and conditions of the employees, can abolish, degrade or retrench the posts or not?" The learned counsel for the parties while addressing the arguments have also focused on these points.

4. Raja Ibrar Hussain Advocate, the learned counsel for the appellant argued the case at some length. He narrated the history of establishment of the Bar Council and appointments of the employees of the Bar Council i.e., the appellant, herein. He vehemently argued that the appellant has been initially inducted into grade B-18 and after rendering the services for considerable period while following the principle of parity with Punjab, Bar Council has unanimously granted him grade B-20. He submitted that the Bar Council is autonomous statutory body. According to its nature of functions and scope of rule making powers, it falls within the definition of person dealing with the affairs of Azad Jammu and Kashmir. He forcefully submitted that the principle of parity with Punjab is continuously being followed and its rule of law has to be legally enforced. He referred to the principle of law laid down in this regard in the judgment reported as Azad Government and another v. Raja Muhammad Nasab Khan and 20 others [2011 SCR 257]. He further submitted that respondents have no legal authority to change the terms and conditions of the service of employees especially to their disadvantage. The Bar Council has unanimously resolved the issue of grant of grade B-20 to the appellant. In this regard, he referred to the resolution of Bar Council and the notification of granting grade B-20 to the appellant. He submitted that in view of these legal steps which have been fully implemented, vested legal rights have been created in favour of the appellant. Thus, respondents have no legal authority of rescinding or recalling the same. He argued at some length while discussing the economical point of view and submitted that as the market prices are raising, thus, in this state of affairs, reduction of emoluments and salaries is unjust and uncalled for. He attempted to bring on record the comparison of the prices and commodities prevailing in the market. He substantiated his arguments on the principle of parity with Punjab. He referred to the Government notification issued in 1970 and subsequent notification dated 20.5.2004 in this regard. He also referred to the case reported as Azad Government and another v. Muhammad Nasab Khan and 20 others [2011 SCR 257] in support of his version and finally submitted that impugned judgment of the High Court is against the law and principles of administration of justice, hence, not sustainable. Consequently, while setting aside the impugned judgment, the relief as prayed in the writ petition by the appellant be granted.

5. Messrs Meer Sharafat Hussain and Sadaqat Hussain Raja Advocates, the learned counsel for the respondents argued the case at some length. Mr. Manzoor Qadir, the Chairman Executive Committee of Bar Council who is respondent in the case has also been heard. The respondents unanimously submitted that the Bar Council is a statutory autonomous body which has to meet the expenditures from the funds according to the statutory rules. As far as the preposition whether the Bar Council is a person dealing with the affairs of Azad Jammu and Kashmir is concerned, the provision of section 53 of the Bar Council Act which enumerates the subjects on which the Bar Council can make rules, clearly indicates that according to nature of its functions and scope of rule making powers, a number of matters are of such a nature which falls within the scope of the affairs of Azad Jammu and Kashmir. Thus, Bar Council is a person dealing with the affairs of Azad Jammu and Kashmir. The learned counsel also submitted that so far as the argument regarding parity with Punjab is concerned, it is totally irrelevant as the same relates to the civil servants. Moreover, it has a status of guiding nature and not the mandatory provision of law to be enforced by the Court. They submitted that after enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, (hereinafter to be referred as Constitution Act), all the matters have to be dealt with according to the scope and spirit of the Constitution Act, and the laws made thereunder. When there is clear statutory provision holding the field, then guidance from the principle of parity with Punjab is not required. Parity with Punjab according to spirit of the above mentioned notifications can only be a factor of guidance where on this specific issue this statutory provision of law is silent. But this principle cannot be applied in supersession or negation of specific statutory provisions. They further argued that according to law a bulk of Bar Council's budget has to be spent on the salaries and emoluments of the employees of Bar Council but the very purpose of establishment of Bar Council's fund is welfare of lawyers and for regulating the legal profession, whereas in the past, a bulk of funds has only been spent to meet the salaries and emoluments of the employees of Bar Council which defeats the very purpose of the welfare of the lawyers. They further contended that even presently there is clear imbalance in the expenditures of funds and huge amount has been unauthorizedly spent from the benevolent fund to meet the expenditures, salaries, emoluments of the employees, which is violation of law. Thus, keeping in view the resources of Bar Council and the financial position whole the funds are spent for the employees' salaries and emoluments. They also argued that according to the statute, the Bar Council has full authority to make rules in this regard and there is no condition or bar. They also submitted that Bar Council cannot be enforced to employee any person or make payment of salary to such persons beyond its resources and financial means. They further argued that according to law Bar Council being statutory body has powers to abolish or create any post and make reduction in number of posts keeping in view the nature of its business and financial resources. While attending the point of granting grade B-20 to the appellant they have forcefully submitted that in fact the whole proceedings are fake and tampered with. They referred to the record and submitted that neither according to rules any such recommendations were made by the Executive Committee nor the Bar Council has unanimously resolved this issue. In fact majority of the Bar Council Members have opposed the grant of grade B-20 to the Secretary Bar Council. They also submitted that grade B-20 can only be granted in a prescribed manner. The matter is to be processed and recommended by the Executive Committee, thereafter the same is to be approved by the Bar Council, and consequently the Rules are to be amended and notified. In the instant case all these required modes and steps have not been adopted. Amazingly, the Secretary Bar Council himself has illegally, against the record, drafted the resolution in his own favour and also got issued an illegal order by his own signatures. The appellant also committed serious misconduct by tampering the official record illegally substituting the BPS-20 in the appendix of the impugned Employees Service Rules. Thus, according to record and facts of this case grade B-20 cannot be granted to the appellant according to law. They also forcefully submitted that mere by an act of concealment or fabrication and fraud by a person in whose favour does not create any legal right or interest writ petition cannot be issued for protection of ill-gotten gains. According to the celebrated principle of law fraud vitiates the most solemn proceedings. They also argued that Bar Council's financial resources are not such to bear the expenditures. In this regard they have furnished the detail of accounts and submitted that even there is imbalance of millions of rupees in the Bar Council funds. They placed reliance upon the cases reported as Syed Ali Asghar Shah v. Azad Jammu and Kashmir Public Service Commission and 5 others, [2008 SCR 133]. Bashir Ahmed Khan v. Custodian and others [1992 SCR 149], Dr. Shabir Kayani v. Dr. Syed Mushtaq Ahmed Gardazi and 4 others [2003 PLC (C.S.) 700], Secretary For Prime Minister and 3 others v. Muhammad Aslam and 5 others, [2000 PLC (C.S.) 155] Muhammad Aslam Khokhar and another v. The State and another [2000 SCMR 1797], Farrukh Mehmood Shah and another v. Government of Punjab, through Secretary, Department of Law, Punjab Civil Secretariat, Lahore and 8 others [PLD 2009 Lah. 107], Mujahid Hussain Naqvi v. Azad Government and 4 others [1999 PLC (C.S.) 237], Abdul Qayyum and another v. Custodian Evacuee Property and others [1993 SCR 162] and Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government [1992 SCR 307].

6. Both the parties were directed to submit written details of the funds (income and expenditures), of the Bar Council, a detail of the same has been furnished. The appellant has filed a table containing only detail of income of Bar Council from the month of January, 2013 to November, 2014. The contents of this table to the extent of income are same as furnished by the Bar Council. Thus, there is no variation to the extent of the monthly income of the Bar Council as brought on record by both the parties.

7. After consideration of the arguments advanced at bar and examination of record as well as the case law referred to and relied upon by both the parties, it is felt advised to record findings on the formulated points as reproduced hereinabove. According to nature and scope, point No.2 requires firstly to be resolved i.e., whether the Bar Council is working in connection with the affairs of Azad Jammu and Kashmir because writ petition is only competent against a person who is working in connection with the affairs of Azad Jammu and Kashmir. For determination of this point, in our opinion, the status and role of Bar Council according to the statute is to be considered. The Bar Council is established under the law known as the Azad Jammu and Kashmir Legal Practitioners Bar Council Act, 1995 (hereinafter to be referred as Act, 1995). The functions of the Bar Council have been enumerated in section 12 of this Act, as under:-- "Functions of Bar Council.

(1) Subject to the provisions of this Act and the rules made thereunder, the functions of the Bar Council shall be.-- (a) to admit persons as advocates on its roll; to hold examinations for purposes of admission; to prepare and maintain a roll of such advocates; and to remove advocates from the roll; (b) to admit persons as advocates entitled to practice before the High Court and to prepare and maintain the roll of such advocates; (c) to entertain and determine cases of misconduct against advocates on its roll and to order punishment in such cases; (d) to safeguard the rights, privileges and interests of advocates on its roll including initiation of measures for fair and inexpensive dispensation of justice by subordinate Courts and tribunals; (e) to promote and suggest law reforms; (f) to manage and administer the property and funds of the Bar Council and to invest any of its funds; (g) to conduct the election of its members; (h) to prescribe conditions for the recognition of and to recognize, and de-recognize Bar Association; (i) to perform all other functions conferred on it by or under this Act; (j) To do all other things necessary for discharging the aforesaid functions; (2) The Bar Council, may, in accordance with the rules framed by it, and within the limits of the funds at its disposal for that purpose, make free legal aid available to indigent litigants." (underlining is ours) Furthermore, the Bar Council is vested with the rule making powers by notification in the official gazette on the subject as enumerated in section 53 which is reproduced as under:- "

53. Power of Bar Council to make rules: The Bar Council may by notification in the official Gazette, make rules to provide for: (a) The manner in which the election of members of the Bar Council shall be held and the manner in which results of election shall be published. (b) the manner in which the election of the Vice-Chairman of the Bar Council shall be held. (c) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council or to the office of the Vice-Chairman of the Bar Council shall be finally decided. (d) the power and duties of the Chairman and Vice Chairman of the Bar Council. (e) the summoning and holding of meetings of the Bar Council, the times and places where such meetings are to be held, the conduct of business there and the number of members necessary to constitute a quorum. (f) the constitution and functions of any Committee of the Bar Council and the term of office of the members of any such committee. (g) the summoning and holding of meetings of such committee, the conduct of business thereon and the number of members necessary to constitute a quorum. (h) the qualifications and terms and conditions of service of staff to be employed by the Bar Council. (i) Matter pertaining to management, administration, utilization and investment of the fund of the Bar Council. (j) the constitution of separate funds for special purposes by the Bar Council. (k) the maintenance of books of accounts and other books by the Bar Council. (l) the appointment of auditors and the audit of the accounts of Bar Council. (m) The form and manner in which applications for admission as an advocate of the Supreme Court are to be made and the manner in which such applications are to be disposed of. (n) The fee payable for enrolment or in respect of any other matter under this Act, and the installments, if any, in which such fee may be paid. (o) The forms in which a certificate of enrolment shall be given to a person enrolled as an advocate or an advocate of the High Court/Shariat Court or an advocate of the Supreme Court. (p) The standards of professional conduct and etiquette to be observed by advocates. (q) the standards of legal education to be observed by universities in Pakistan or AJK and the inspection of Universities for that purpose. (r) the circumstances in which and the condition subject to which nationals of any foreign country may be admitted as advocates and foreign qualification may be recognized for purposes of their admission. (s) the procedure to be followed by Tribunals constituted by the Bar Council in, inquiries relating to the conduct of an advocate. (t) the course of practical training in law and the examination to be passed after such training for admission as an advocate. (u) the form and manner in which applications for admission as an advocate or an advocate of the High Court/Shariat Court are to be made and the manner in which such applications are to be disposed of. (v) the conditions subject to which a person may be admitted as an advocate or an advocate of the High Court/Shariat Court; the procedure to be followed by a Tribunal constituted by the Bar Council in inquiries relating to the conduct of an advocate. (w) the forming and regulating of firms of lawyers either throughout the District or any specified part thereof. (x) the recognition, de-recognition and functioning of Bar Associations. (y) The forming, recognition and de-recognition and functioning of a Supreme Court Bar Association or any Bar Association at the national level. Provided that, for holding the first elections to the Bar Council to be constituted under this Act, rules with reference to clauses (a), (b) and (c) be made by the Government."

8. Without any deep appreciation, the phraseology of the above reproduced statutory provision is clear that the functions of Bar Council directly or indirectly are related to regulating the legal profession, to promote and suggest the law reforms and to admit a person as advocate on its roll. Same like the Council is also vested with the rule making powers especially the standards of the Professional conduct, etiquette to be observed by advocates, the standards of legal education to be observed by Universities in Pakistan or AJK; the inspection of Universities for that purpose; the circumstances in which and the conditions subject to which, nationals of any foreign country may be admitted as advocates; foreign qualification may be recognized for purposes of their admission; the course of practical training in law and the examination to be passed after such training for admission as an advocate; the conditions subject to which a person may be admitted as an advocate or an advocate of the High Court/Shariat Court, the procedure to be followed by a Tribunal constituted by the Bar Council in inquiries relating to the conduct of an advocate; the forming and regulation of firms of lawyers either throughout the District or any specified part thereof; the recognition, de-recognition and functioning of Bar Associations etc. are such powers which clearly amounts to performing functions in connection with the affairs of Azad Jammu and Kashmir. Therefore, it can be safely held that according to the status and role assigned under law, the Bar Council is a person performing functions in connections with the affairs of Azad Jammu and Kashmir, thus, writ petition is competent against it.

9. Now, we would like to deal with points Nos.1 and 3 which basically relate to grant of grade B-20 to the Secretary Bar Council, the appellant, herein. The prime consideration in this regard in our view is whether the Secretary Bar Council has been granted grade B-20 according to law. In this regard, he has alleged that unanimous resolution has been adopted by the Azad Jammu and Kashmir Bar Council and in furtherance of this resolution the office order has been issued which is also placed on record and marked as annexure "F" which reads as follows:- "...AZAD JAMMU AND KASHMIR BAR COUNCIL SECRETARIAT, MUZAFFARABAD Office Order The Azad Jammu and Kashmir Bar Council in its meeting held at Kashmir House Islamabad on August 20th 2009 has unanimously been pleased to upgrade the post of Secretary Azad Jammu and Kashmir Bar Council from BPS-18 to BPS-20 to maintain parity with Punjab Bar Council as well as other Bar Councils of Pakistan with immediate effect. Secretary Azad Jammu and Kashmir Bar Council "

10. The respondents have seriously objected to the correctness of these documents. The first objection in this regard is that no such unanimous resolution was passed by the Bar Council. In this regard a copy of the minutes of the meeting of Bar Council has been submitted along with the written statement filed before the High Court which is marked as annexure "RB". A perusal of the minutes of meeting clearly reveals that the matter has been considered in the meeting but no unanimous resolution has been passed. There is divergence of opinion among the members as some of them have suggested that the matter should be properly processed through the Executive Committee. Thus, the contention of appellant that the Bar Council has unanimously granted grade B-20 in his favour is not supported from the record.

11. Leaving aside whether the resolution was unanimous or by majority; whether according to law, merely on the basis of such resolution it can be deemed that the post of Secretary Bar Council, B-18 has been upgraded to grade B-20. The Bar Council is a statutory body and for performance of its functions under law, manner has been prescribed. Under the provision of clause (h) of section 53 of the Bar Council Act, the Bar Council is vested with the powers to make rules by notification in the official Gazette regarding qualification, terms and conditions of service of staff to be employed by the Bar Council. According to the statutory provisions, there are two conditions: first is making rules and the second is publication of same in the official Gazette whereas according to the provisions of rule 73 of the Azad Jammu and Kashmir Legal Practitioners Bar Council Rules, the Executive Committee of Bar Council is vested with the powers to recommend the Bar Council the qualifications and terms and conditions of the staff of Bar Council. Thus, from cumulative examination of the statutory provisions dealing with the subject in the case in hand, it is clear that according to law, the matter of qualification and terms and conditions of the staff to be employed in the Bar Council has firstly to be considered by the Executive Committee who will have to recommend the same to the Bar Council; and thereafter the Bar Council either has to accede the recommendations of Executive Committee or decide otherwise; and if the Bar Council affirms the recommendations of the Executive Committee, same may have to be effected through amendment in the rules. After incorporation of the amendment in the rules, the same has to be notified in the official Gazette.

12. As in the Azad Jammu and Kashmir, Bar Council has made the rules known as the Azad Jammu and Kashmir Bar Council Employees Rules, 1999, therefore, any change in the qualifications, terms and conditions of service of the employees of Bar Council can only be effected by amendment in these rules in the manner discussed hereinabove. When the case of the appellant is judged in the light of the prescribed manner, leaving aside whether resolution was unanimous or majority, there is no other conclusion except that neither the matter has been placed before the Executive Committee nor there are any recommendations in this regard. Furthermore, under the rules no amendment has been incorporated in the Bar Council Employees Rules, thus, the question of notifying of same in the official Gazette does not arise.

13. In this state of affairs, according to celebrated principle of law, now it is almost settled that for performing any act when the law has prescribed a specific manner then it has to be performed in that manner or not at all. In this regard, this Court has consistent opinion and there is a chain of authorities latest one of which is the case reported as AJ&K Government and 4 others v. Mohi-ud-Din Islamic University and 2 others, [2014 SCR 382] wherein this Court has observed as under:

"

11. The law is settled on the point that things provided to be done in a prescribed manner must be done in that way and no deviation can be made from it. Reliance can be placed on a case reported as Habibullah v. Police and 3 others [2004 SCR 378], wherein it has been held by this Court as under:-- ' it is a settled proposition of law that when a particular method of performance of an act is prescribed under an Act or Rule then such act must be performed according to the prescribed method alone or not at all'. In another case titled Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another [2008 SCMR 1148], it has been held as under:-- ' it is also settled proposition of law that if law has provided to a particular act in a particular manner the same is to be done in that particular manner or not .' Similarly in a case reported as Muhammad Younas Tahir and another v. Shaukat Aziz, Advocate, Muzaffarabad and others [PLD 2012 SC (AJ&K) 42] it has been held by this Court as under:-- '

26. It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or Rules, then such, act must be performed according to that particular method or not at all .' The learned counsel for the respondents was confronted with the situation that whether the prescribed procedure was adopted or not, while executing MOU/agreement between appellant No.2 and respondent No.1, he very frankly conceded that the proper procedure as laid down under the Rules of Business, 1985 has not been followed, however, he has argued that it was the fault of the Government and not the respondent and no person can be penalized for the fault of the Government. It is correct that no one can be penalized for the fault of the others but while executing MOU/agreement, the respondents were equally liable to look into the documents on the basis of which they claimed that valuable rights have been accrued in their favour. The respondents have to keep in mind whether the document upon which they claimed the valuable rights has legally been executed or not.

12. Both the learned counsel for the parties have admitted the legal position before this Court that no such prescribed procedure has been adopted and the MOU/agreement has been executed, while bypassing the rules and regulations. In this state of affairs, there can be no second thought except that MOU/agreement has been signed by both the parties without following the prescribed procedure provided under law, therefore, the MOU/agreement cannot be considered to be a legal agreement and the same is void under law, which does not create any right in favour of a party. Under the term of MOU/agreement, a date of commencement was to be agreed between the parties. Since we have reached to the conclusion that the document does not confer any right to the respondents, therefore, there is no need to resolve the question of date of commencement." Thus, while applying the enunciated principle of law in our opinion the matter of up-gradation of the post of Secretary Bar Council from Grade B-18 to B-20 has not been dealt with in a prescribed manner. Therefore, claim of the appellant regarding the sanction of grade B-20 in his favour is not valid, according to law.

14. It has also been pointed out on behalf of the respondents that the appellant has un-authorizedly issued the order in his own favour under his own signatures. Same like while publishing the Azad Jammu and Kashmir Legal Practitioners and Bar Council Act, 1995 and the rules, under the authority of Bar Council he has tampered with the official record and without any proper amendment made in the rules by the Bar Council or competent authority, has substituted the BPS-18 for BPS-20 in the Azad Jammu and Kashmir Bar Council Employees Rules. As it is hereinabove discussed that neither the employees rules have been amended by the Bar Council nor grade B-20 has been validly granted to the appellant, thus, substitution of the words "BPS-18" for "BPS-20", in the appendix of the Bar Council Employees Rules, is incorrect and invalid. If such act is intentional, it is a serious misconduct on the part of the Public Office Holder. However, the matter falls within the domain of the concerned Executive Authority, if so felt advised, to take necessary action according to law and if the act of misconduct stands proved against any of the officials, he may be penalized according to law.

15. The writ jurisdiction is a discretionary. According to celebrated principle of law any act in violation of law neither creates any legal right in favour of its beneficiary nor writ can be issued for protection of ill-gotten gains or implementation of illegal orders. In this regard, one may refer to the cases reported as Bashir Ahmed Khan v. Custodian and others [1992 SCR 149], Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government [1992 SCR 307], Dr. Shabir Kayani v. Dr. Syed Mushtaq Ahmed Gardazi and 4 others [2000 SCR 557] and Secretary For Prime Minister and 3 others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155.

16. In the light of above discussed reasons, it appears that the substitution of the words "BPS-20" for "BPS-18" in the appendix of the Azad Jammu and Kashmir Bar Council Employees Service Rules and same like issuance of the office order dated 22.8.2009 are without lawful authority, thus, the appellant was not legally entitled to the emoluments of grade BPS-20. Therefore, on the basis of such illegal act, the emoluments drawn in excess to grade BPS-18 are refundable from the appellant and the needful has to be done by the concerned according to law. Therefore, the findings of the High Court on the point that the order of up-gradation of the posts is not valid appears to be consistent with the statutory provisions, hence, does not call for any interference.

17. As the appellant has based his case on resolution and office order which in the light of hereinabove discussed reasons has no legal validity, therefore, consequently consideration of the point of the principle of parity with Punjab remains mere of academic discussion. Thus, keeping in view peculiar facts of this case, we do not feel any necessity of academic discussion on this point and leave it open for resolution in any other case at appropriate stage.

18. Now, the very crucial point regarding powers of the statutory body for amending and changing the terms and conditions of its employees has to be considered. As somewhere else we have already discussed that the Azad Jammu and Kashmir Bar Council is creation of statute which according to its constitution and incorporation is a body corporate. Under the provision of section 53 of Act, it is also vested with unconditional powers of making rules regarding qualifications, terms and conditions of staff employed by it. Thus, according to the statutory powers vested in it, the Bar Council is competent to make rules regarding qualifications, terms and conditions of service of its employees. Therefore, the arguments that the amendment in the Bar Council Employees Rules, 1999 is without lawful authority has no legal substance. Our this view finds support from the case reported as Dr. Muhammad Hussain v. Principal Ayub Medical College and another [PLD 2003 SC 143] wherein while dealing with the matter of amendments in the law relating to terms and conditions of civil servants, the apex Court of Pakistan has observed as under:- "

6. There is neither any logic nor rationale behind the submission made on behalf of petitioner that no amendment could be made in the regulation concerned which should be kept intact as it was at the time of the appointment of petitioner for the simple reason that he was initially appointed as Assistant Professor on 27.05.1984 and he has no vested right to be appointed as Professor when he has absolutely no experience, in the medicines and on the basis of qualification which is no more in existence since 15.01.1984 and M.B.B.S. or equivalent qualification in medicines is now a prerequisite for the post of Professor. The petitioner should be thankful to his stars that he was appointed as Associate Professor without having the requisite qualifications of medicines. Insofar as promotion of one Dr. Shaukat to the post of Professor without having requisite qualification is concerned that should have challenged in the year 1991. It is however, to be noted that plausible justification has come on record that promotion of Dr. Shaukat was made in the urgency, exigency of the service, in the interest of college and non-availability of qualified persons as relevant time. There is no denying the fact that the amendment regarding qualifications was made in the year 1984 which was got incorporated in the concerned regulation with effect from 07.01.1997 but, it hardly renders any assistance to the case of petitioner who admittedly is not M.B.B.S. and has no experience in the medicines and the said amendment was made prior to his joining service and hence the question of infringement of any vested right which otherwise is not available to the petitioner does not arise. The degree of M.Sc. can by no stretch of imagination be equated with M.B.B.S. or equivalent thereto irrespective of the fact when the petitioner was appointed as professor as it would not be in the interest of students and institution. The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations. The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice. We cannot endorse the unique idea and novel concept as put forth by Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that since no other applicant is available the petitioner may be appointed as Professor for the simple reason that he does not possess the requisite qualifications. In the light of what has been stated hereinabove the petitioner has absolutely no vested right and the competent Authority is fully competent to make amendment in the prescribed qualifications and by doing so no illegality whatsoever has been done. We are, therefore, not inclined to accept this petition which is dismissed being meritless." 19 Although in the statute, there is no such embargo that the Bar Council cannot change the qualification, terms and conditions of service of its employees. As the Bar Council is autonomous body which has to meet its expenditures from its financial resources and the Bar Council cannot be forced to make expenses beyond its financial resources. According to rules, the funds of Bar Council have to be spent in a specified manner and under different heads such like as Benevolent fund, Gratuity funds etc. The tables of income and expenditures of Bar Council has been placed on record which shows that expenditures. In this state of affairs, no doubt the Bar Council is in a better position to take decision to maintain the balance between its income and expenditures. However, in the light of peculiar facts of this case, the Bar Council has materially changed terms and conditions of its employees as follows:- "....Appendix to Rules 2.1 with amended Azad Jammu and Kashmir Bar Council Employees Service Rules, 1999 S# Name of post Minimum Qualification Mode of Recruitment Pay Scale Appointing Authority

1. Secretary Law Graduate (i) By promotion from amongst employee having 10 years services in grade-II having academic qualification as mentioned in column No.3. (ii) By initial recruitment from advocate having 5 years practice as an Advocate of Bar Council Grade-I Rs.50000/- per month 10% annual increment subject to approval of Bar Council Executive Committee

2. Superin-tendent Graduate By initial recruitment Grade-II Rs.35000/- pm 10% annual increment subject to approval of Bar Council Executive Committee

3. Accountant Graduate By initial recruitment Grade-II Rs.35000/- pm 10% annual increment , subject to approval of Bar Council Executive Committee

4. Naib-Qasid/ Chowkidar Literate By initial recruitment Grade-IV Rs.22000/- pm.10% annual increment subject to approval of B/Council Sd/- (Kh. Manzoor Qadir) Chairman Executive Committee AJ&K Bar Council"

20. In this case we are only concerned whether the scales and emoluments provided in the new grades are proportionately changed as compared to the earlier pay scales. According to the running pay scales of time, the post of Secretary Bar Council was of grade B-18 with the pay scale of 5085-366-8785, whereas the post of Superintendent Bar Council BPS-2535-197-5490, The pay of Superintendent is fixed as Rs.35,000/- whereas the pay of Secretary Bar Council is Rs.50,000/- which means that the emoluments of Superintendent have been enhanced almost 14 times and as compared to it the emoluments of Secretary Bar Council appears to have been enhanced 10 times. In our opinion, it is not proportionate. Here, we would also like to observe that although, in the law there is no specific provision that the terms and conditions of employees cannot be changed by the authority in disadvantage of the employee but the matter has to be dealt with in a judicious manner. Mere vesting of powers to Bar Council for making rules does not mean that it is empowered to make rules while ignoring the constitutional legal norms in the arbitrary manner. The powers must have to be exercised reasonably in a judicious manner keeping in view the spirit of equity and vested legal rights of the State Subjects. Keeping in view the principles of equity and rectitude, we can borrow wisdom from the other statutes. Under the provision of clause (2) section 3 of the Civil Servants Act, 1973, the terms and conditions of service of any person shall not be varied to his disadvantage. In our opinion, this statutory provision is more nearer to the justice and the spirit of equity. Therefore, the authority vested with the powers to change the terms and conditions of the employees, should have kept in mind that such change shall not be made in disadvantage of the employee. The appellant who was inducted into service as Secretary Bar Council in grade B-18, his case also deserves to be considered on this touchstone. Our this view finds support from the case reported as Mrs. Farkhanda Talat v. Federation of Pakistan through Secretary Establishment Division, Islamabad and others [2007 SCMR 886], wherein while discussing the scope of section 3(2) of the Civil Servants Act, 1973 it has been observed as under:- "

15. The fundamental principle which is thus, clearly enunciable from the said provisions of section 3(2) of the said Act of 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect the terms and conditions of their service e.g. the tenure of their employment; the pay and the grade earned by them through years of labour and hard work; the right to promotion including the legitimate expectancy of future advancement in their respective careers; the retirement benefits such as pension, the gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter II, of the said Act of 1973 and by other laws, rules and regulations relating to the subject. The above quoted provisions contained in the main body of section 11-A of the said Act is a reiteration of the same principle assuring even the employees who stood declared surplus that they would also be entitled to appointment to posts; carrying the basic pay scale equal to the posts held by them prior to being rendered surplus."

21. The Bar Council while adopting new system should have been mindful that at least same should be proportionate to the emoluments admissible to the employees at the time of change according to the previous system especially in case of the appellant, the emoluments admissible to him according to grade B-18 at the relevant time.

22. As it has been hereinabove observed that grant of grade B-20 to the appellant is illegal, thus, he was legally at the time of change in the Azad Jammu and Kashmir Bar Council Rules, treated in grade B-18. According to record, in the month of September, 2009 when illegally, the appellant jumped up to grade B-20, his emoluments in grade B-18 were Rs.56,646/, per month and thereafter till introduction of new amendments, annual increments according to the prescribed rate were also admissible to him. Thus, approximately, subject to proper calculation it appears that on 29th January, 2014, when the amendments in the rules were made, the appellant's emoluments in B-18 were near about Rs.60,000/- per month. According to the above discussed reasons, in the new system, his emoluments at least should not be less than Rs.60,000/- per month. Therefore, to this extent the impugned judgment of the High Court requires modification. Hence, the writ petition filed by the appellant is partially accepted in the terms that the amendment in the rules incorporated vide notification dated 29.1.2014 to the extent of serial No.1 of the appendix as discussed hereinabove, be modified accordingly by the concerned authority. This appeal is disposed off in the stated terms with no orders as to costs. ZC/41/SC(AJ&K) Appeal disposed of.