2020 PLP (C (PLC(CS)N)

CH. MUHAMMAD IBRAHIM ZIA, CJ.

The titled appeal by leave of the Court is the outcome of the judgment of the High Court dated 03.12.2018, whereby the writ petition filed by respondent No.1, herein, has been accepted.

2. The brief facts of the case are that respondent No.1, herein, was appointed as Assistant Law Officer (B-17) in the Development Authority, Muzaffarabad. The nomenclature of said post was changed to Law Officer, B-17. It is alleged that vide order dated 10.05.2017 the Finance Department turned down the proposal for upgradation of the post occupied by respondent No.1 to BPS-18. Feeling aggrieved, he filed a writ petition before the High Court seekings direction for upgradation of post of Law Officer from BPS-17 to BPS-18 with effect from 26.01.2000. A direction was also sought for payment of all the due emoluments. After necessary proceedings, the learned High Court accepted the appeal through the impugned judgment dated 03.12.2018 in the following manner:- "Nutshell of the above discussion is that the petitioner has been discriminated by the Finance Department by refusing his case for upgradation to BS-18. Therefore, the writ petition is accepted and by setting aside the impugned order dated 10.05.2017, it is directed that the post of Law Officer shall be upgraded from BS-17 to BS-18 with effect from 14.11.2008 and shall remain effective until the date of retirement of the petitioner i.e. 15.06.2013. According to Upgradation of the Posts Rules, 1984, "upgradation of a post shall not mean automatic upgradation of its incumbent". So, it is directed that case of the petitioner shall be placed before the relevant Selection Board for his upgradation to BS-18." Hence, this appeal by leave of the Court.

3. Raja Ayaz Ahmed, Assistant Advocate General, the learned counsel for the appellants while arguing the case agitated the only legal point that the learned High Court in the impugned judgment has issued direction to the finance department without considering the fact that the finance department was not arrayed as party in the writ petition, thus, on this sole ground the impugned judgment is not maintainable and liable to be set-aside.

4. Conversely, Raja Muhammad Hanif Khan, Advocate, the learned counsel for the contesting respondent argued the case at some length and forcefully defended the impugned judgment. He also argued the merits of the case to justify the impugned judgment. On the moot point argued by the learned counsel for the appellants, he submitted that under the provisions of sub-rule (2) of rule 4 of the Azad Jammu and Kashmir Rules of Business, 1984 (hereinafter to be referred as Rules, 1984) the Secretary is the head of the department who was arrayed as party in the writ petition and in his presence there was no necessity of impleading the Department as party because the department is represented by Secretary being head of the Department. He further under argued that rule 8 of Rules, 1984 the functions and duties of the Secretary of the department have been mentioned. According to these provisions, it is clear that the Secretary is solely responsible for efficient administration and discipline and for the proper conduct of business assigned to the Department, therefore, the argument that without impleading the Department as party the writ cannot be issued, has no substance. This appeal has no substance and is liable to be dismissed.

5. We have heard the learned counsel for the parties and examined the record made available. The perusal of the impugned judgment reveals that the learned Judge of the High Court in paragraph 8 of the impugned judgment has categorically mentioned that through notification dated 10.05.2017, the Finance Department has refused to upgrade the post. Same like, in the concluding paragraph the learned High Court has observed that the Finance Department has discriminated the petitioner (respondent, herein). Finally, while setting aside the notification dated 10.05.2017, a direction has been issued to the Finance Department for upgradation of the post. Thus, there is no ambiguity that the order impugned in the writ petition and set-aside by the High Court, was issued by the Finance Department and not the Secretary. It is also not disputed fact that the finance department is not included in the line of respondents in the writ petition.

6. It appears that the arguments advanced at bar on behalf of both the parties have neither been properly agitated and attended by the High Court nor resolved. According to the version of the counsel for the appellants, the Secretary of the Department is not the substitute of the Department rather the department is an independent entity. The whole laws have to be interpreted according to the spirit of the Constitution. All the executive powers and authority exercised by the department or other officials infact are exercised on behalf of the Government as delegated according to the spirit of section 12 of the Azad Jammu and Kashmir Interim Constitution, 1974 read with the provisions of rules 3 to 8 of Rules, 1984. The administration of department has been expressly mentioned in sub-rule (1) of rule 4 of Rules, 1984. According to these provisions each department shall consist of Minister, a Secretary and of such other officials as the Government may determine. Same like, according to the provisions of clause (e) of sub-rule (1) of rule 8 the Secretary shall be responsible to the Minister for the proper conduct of business of the department and keep him informed about the working of the department and of any important cases disposed of by him without reference to the Minister. Whereas, the version of learned counsel for the respondent is that according to the provisions of sub-rule (2) of Rule 4 of Rules, 1984 the Secretary is the official head of the department and same like under clause (c) of sub-rule (1) of Rule 8, he is responsible for efficient administration and discipline and for the proper conduct of business assigned to the department, thus, when the Secretary is arrayed as respondent there is no necessity to array the department as party. On both sides the arguments advanced, prima facie, find support from the statutory provisions of Rules, 1984 but in our considered opinion, from this angle neither the case has been argued before the High Court nor this legal proposition has been considered or resolved by the High Court. In this state of affairs, in our opinion, for the ends of justice it is felt advised that the proposition be firstly argued before and resolved by the High Court. Without prior resolution of this proposition by the High Court the direct resolution by this Court may result into miscarriage of justice and depriving the parties of the right of appeal, specially, in the cases of extraordinary writ jurisdiction. Therefore, for doing complete justice and having authoritative and comprehensive opinion and wisdom of the High Court, we deem it appropriate to accept this appeal, set-aside the impugned judgment and remand the case to the High Court. The learned High Court, after hearing the parties, shall resolve the proposition of effect of non-arraying the finance department in the writ petition in the light of constitutional and statutory provisions, referred to hereinabove, along with other enforced laws and principle of justice. This appeal stands accepted in the above terms with no order as to costs. ZC/79/SC(AJ&K) Case remanded.