2020 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, CJ.

The captioned appeal with the leave of the Court has been filed against the judgment of the High Court dated 22.01.2019, whereby, the writ petition filed by the respondent, herein, has been accepted.

2. The brief facts of the case are that the respondent, herein, filed a writ petition before the High Court by alleging therein that he is a retired Additional Chief Secretary of the Azad Government of the State of Jammu and Kashmir. It was stated that through Notification dated 19.04.1994 the Azad Jammu and Kashmir Grant of and appointment to BS-21 and BS-22 Rules, 1994 (hereinafter to be referred as Rules, 1994) were promulgated. The aforesaid notification was issued on the basis of principles mentioned in notification dated 11.02.1991, issued by the Government of Punjab to which the Government of Azad Jammu and Kashmir is maintaining the parity. It was further alleged that in continuation of the aforesaid notification, the Government of Punjab vide notification dated 19.04.2006, upgraded a number of posts of the Secretaries in BPS-22. It was further alleged that in the aforesaid perspective of the matter, the promotion of respondent, herein in BPS-21 was accorded vide notification dated 06.06.2003. In continuation of the aforesaid notification, vide notification dated 02.09.2004, he was appointed to the post of Additional Chief Secretary. It was further alleged that the promotion of the respondent in BPS-21 was due with effect from 01.01.2001. In this regard, he submitted a review petition before the competent authority upon which the Government vide notification dated 16.05.2009 appointed Chief Secretary as the officer authorized to hear the representation on behalf of the Prime Minister. The recommendations were furnished by the Chief Secretary for acceptance of the said appeal but no formal order was issued in his favour. It was further stated that in the meantime the Prime Minister of Azad Jammu and Kashmir vide order dated 30.07.2010 has sanctioned the grant of grade BS-21 w.e.f. 01.01.2001 and grade BS-20 w.e.f. 01.01.2006. The respondent has been discriminated as the similarly placed other officers have been promoted. The respondent finally prayed for implementation of the approval of the Prime Minister dated 20.07.2017. The writ petition was contested by the appellants, herein, on the ground that the special grade can be granted once. The necessary parties have not been arrayed in the writ petition, hence, the respondent is not entitled for any relief. The learned High Court after necessary proceedings has accepted the writ petition through the impugned judgment and directed the appellants, herein, to promote the respondent in the light of approval of Prime Minister dated 20.07.2010, hence, this appeal by leave of the Court.

3. Mr. Sajjad Ahmed Khan, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the impugned judgment of the High Court is against law and the facts. Neither the necessary parties, specially, the finance department have been arrayed nor the learned High Court has considered the statutory rules dealing with the subject-matter. He submitted that according to law the special grades BS-21 and BS-22 can only be granted once in the whole service of a civil servant. The respondent has already been granted grade BS-21, hence, he is not entitled for grant of grade BS-22 in his service career for second time. He further argued that so called order of the Prime Minister which is issued on stray paper is not enforceable rather only a legal order can be enforced. The learned High Court has also committed another error that through the impugned judgment it granted the grade itself, whereas, if at all the respondent had any legal claim according to Rules, 1994 the matter was to be sent to the selection Board and only on the recommendations of the Selection Board such grade can be awarded. Neither the Prime Minister nor any other authority in violation of the rules can exercise such powers, therefore, the impugned judgment of the High Court is illegal. He further argued that this appeal has been filed on behalf of the Government with the sanction of the Government, thus, so-called direction of the Prime Minister on the stray paper shall be deemed not enforceable and recalled. Hence, while accepting this appeal the impugned judgment may kindly be recalled and the writ petition filed by the respondent be dismissed.

4. Conversely, Ch. Shoukat Aziz, Advocate, the learned counsel for the respondent forcefully defended the impugned judgment and submitted that the arguments advanced on behalf of the appellants are misconceived. The Prime Minister has competently passed the order. The learned High Court has rightly issued the writ, however, he further submitted that the argument that the finance department was necessary party is misconceived neither any remedy has been sought against finance department nor it is a necessary party. However, he conceded that if the judgment of the High Court is partially modified to the extent of referring the matter to the Selection Board, he has no objection.

5. We have heard the learned counsel for the parties and gone through the record. According to the admitted facts for grant of grade BS-21 and 22 the Special Rules, 1994 are holding the field and in these rules the specific manner has been prescribed. According to the celebrated principle of law when an act is required to be performed in a specific manner it has to be performed only in that manner or not at all. The learned counsel for the respondent has also conceded on this point that the matter has to be processed by the Selection Board. In this state of affairs, in our opinion, the discussion of other detailed propositions remains mere academic in nature.

6. So far as the implementation of the order of the Prime Minister is concerned, it is no more any disputed proposition rather according to the enforced law and principle of law laid down by this Court only a legal order issued in a case processed properly has to be considered and implemented by the concerned authority. The order which is not issued in the prescribed manner has to be ignored and has got no value. In this regard the cases reported as Muhammad Rehman and other's case [2014 SCR 298] and Shehzad Sharif v. Azad Government and others [2016 SCR 24] can be referred.

7. So far as the argument of the learned counsel for the appellants that the Government has filed the appeal, thus, the sanction of the Prime Minister should be deemed reviewed, is concerned, no doubt it has some force but in our opinion as the matter has to be considered and disposed of according to rules by the concerned Selection Board, therefore, in this regard any further verdict is not felt advised.

8. For the above stated reasons, while accepting this appeal the impugned judgment of the High Court is modified to the extent that the claim of the respondent shall be placed before the Selection Board constituted under Rules, 1994 and the Selection Board shall dispose of the same strictly in the manner and conditions prescribed under rules without having any influence from the judgments of the Courts or order of the Prime Minister. This appeal is accepted in the manner indicated above with no order as to costs. ZC/92/SC(AJ&K) Appeal allowed.