2004 PLP (C (PLC(CS))

4. Mr. Abdul Rashid Abbasi, who appeared on behalf of respondent No. 1, while controverting the arguments addressed on behalf of the petitioner, argued in the following manner:-- (i) That the impugned judgment passed- by the High Court proceeds on sound reasoning and is also based on correct appreciation and application of law. The petition for leave to appeal, therefore, does not merit any consideration. (ii) That the writ petition on behalf of respondent No. 1 was not file" with any delay as claimed by the petitioner. It was explained that the relaxation notification was issued on 12-12-2002 Which was not accepted by the Public Service Commission but due to the handout issued by the Commission on 7-3-2003 in favour of the petitioner, the respondent became aggrieved and thus filed the writ petition on 3-4-2003 without any delay. (iii) That the rights and eligibility of candidates have to be determined according to the rules and regulations prevailing at the commencement of selection process and it commences when the applications for recruitment are invited through advertisement. Any subsequent change or addition in the qualifications or experience cannot be counted towards the eligibility or experience. The petitioner was not qualified at the time of last date of receiving the applications. The notification of relaxation for experience also could not be issued retrospectively in favour of petitioner. (iv) That the relaxation could only be made in favour of a civil servant. The petitioner, though in civil service, could not be termed as a civil servant for the purpose of this case as he was aspiring for another civil servant through a direct recruitment and not any promotion etc., as a civil servant. Therefore, the application of section 22 of the Act would not be attracted. (v) That the notification issued for relaxation of experience of legal practice could not be issued as the same offends the basic principle of law that the qualification cannot be relaxed apart from the fact that the same was issued without recording any reason. Mr. Abbasi while explaining laid a stress that this Court without any ambiguity has laid down that the relaxation of qualification cannot be made. It was submitted that the last date for receiving the applications was 15-5-2002 while the disputed notification was issued on 12-12-2002 which could not make any effect retrospectively as, according to him, no notification can be issued retrospectively particularly when the basic statute does not provide so. It was added that in any such notification there must be sound reasons shown which are not found in it. (vi) That the point with regard to qualification of respondent No.1 was not raised during the arguments before the High Court and the same was abandoned. Therefore the High Court did not record any finding on this point. It was contended that no affidavit was filed with the petition for leave to appeal in support of the assertion that the point was argued and the learned Judge in the High Court failed to record any finding on it. It was also argued that even today the learned counsel did not offer to file any affidavit in support of the aforesaid assertion though the law stands settled on the point that without filing an affidavit the assertion is without any substance. Therefore, the aforesaid point merits no consideration. It was further argued that this point does not go to the root of the controversy required to be resolved as that would only decide the fate of the petition filed by respondent No.1 but would have no effect on the other writ petition filed by the petitioner which has been dismissed by the High Court. The learned counsel in support of his submissions cited the cases reported as Muhammad Fayaz and 5 others v. Shah Nawaz Khan and 32 others (1999 PLC (C.S.) 1493). Kh. Ghulam Muhammad v. Azad Government and 2 others (1995 SCR 162), Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382), Muhammad Yasin v. Azad Jammu and Kashmir Government and others 2000 YLR 1024, Miss Azra Hafiz and 10 others v. Israr Hussain Mughal (1997 PLC (C.S.) 297) and Miss. Shamaila Mahmood v. Mukhtar Ahmed and others (1998 PLC (C.S.) 51).

5. I have heard the learned counsel for the parties and also gone through the record. The High Court dismissed the writ petition filed on behalf of the petitioner and allowed the other writ petition filed on behalf of respondent No.1 While dealing with the common questions raising the controversy between the parties, on the grounds that the petitioner herein was not a civil servant for the purposes of this appointment as such relaxation of experience for legal practice could not be made. It was also resolved that the relaxation of the qualification was made without recording any reason whatsoever in the said notification. It was also added that the notification of relaxation could not be issued retrospectively which in the circumstances of the case was shown as such. It was also held that the qualification could not be relaxed which would affect the fundamental rights of the other candidates guaranteed under the Constitution for not treating the others equal to the petitioner. The petitioner's period of service as Tehsil Mufti and Tehsil Qazi, was not counted towards the period of legal practice and it was concluded that the same shall commence from the date of issuance of licence to the petitioner and shall end on the joining of service. The other point raised with regard to non-impleadment of learned Chief Justice of Shariat Court and the Rules Committee constituted by the Government as parties in the proceedings was not accepted as valid ground for holding the writ petition as incompetent filed on behalf of respondent No.1. The point of filing the writ petition on behalf of respondent No.1 after an inordinate delay was not accepted as correct.

7. The basic point raising the controversy in both the writ petitions filed either on behalf of the petitioner or respondent No.1 is whether the petitioner is qualified in view of his legal-practice alongwith the period of his service and alternatively the relaxation of experience was validly made. Therefore, it would require at the first instance to see whether in this case the relaxation of experience could be made by the Government. The Government of Azad Jammu and Kashmir under section 22 of the Act can deal with the case of any civil servant in such manner as may appear to be just and equitable while under rule 24 of the Rules, the Government may for special reasons relax any of the rules. The relevant section 22 of the Act and rule 24 of the Rules are reproduced:-- "Powers of Government

Saving.

Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable: Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule." "Relaxation of Rules.

Government may, for special reasons, relax any of the, rules in any individual case."

8. The question arises whether a Tehsil Qazi, as the petitioner is, would be a civil servant for the purpose of seeking appointment as Civil Judge B-17 notwithstanding the fact that he is a civil servant for the purpose of his service as Tehsil Mufti and Tehsil Qazi. So far as his induction for another service is concerned, can he be treated a civil servant. For this purpose I have to seek guidance of the case-law. Reference may be made to a case titled Kh Ghulam Muhammad v. Azad Government and 2 others (1995 SCR 162) wherein it has been held as follows:-- "The reasoning of Service Tribunal is not sustainable because relaxation under section 22 of the Civil Servants Act, which has been relied upon by Sardar Rafique Mehmood, is exercisable only in respect of a civil servant but not a person who has ceased to be a civil servant or aspires to be one."

9. A similar question arose before the Supreme Court of Pakistan in a case reported as Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) wherein in para. No. 15 the same was resolved in the following manner:-- "The question which now arises for consideration is, whether an appeal by the appellant before the Tribunal in these circumstances was competent under the law. While discussing the scope of an appeal under section 4 of the Act, we pointed out that one of the jurisdictional requirements of such an appeal is, that it must be filed by a civil servant as defined in the Act. Another jurisdictional requirement of such an appeal is, that the grievance of the aggrieved civil servant must relate to a final order of departmental authority whether original or Appellate. In the case before us, the appellant was a candidate for the post of Assistant Professor of Urology alongwith Dr. Naeem and Dr. Sahu before the Commission. The later mentioned gentlemen were selected and recommended for appointment by the Commission while the appellant was not selected. The appellant having applied but not selected for the post could not acquire the status of a civil servant within the meaning of the Act. He was, therefore, in our view, not entitled to file an appeal before the Tribunal. Apart from it, the appellant besides questioning the appointments of Dr. Naeem and Dr. Sahu by the Government, had also challenged the selection/recommendation by the Commission of Dr. Naeem and Dr. Sahu, for the post of Assistant Professor of Urology, which could not be brought under challenge before the Tribunal in a service appeal as the above action of the Commission did not fall within the category of the final order of a departmental authority, whether original or Appellate."

10. Mr. M. Tabassum Aftab Alvi, the learned counsel representing l the petitioner, while pleading the case banked upon rule 24 of the Rules which, according to him, does not provide relation of rules for 'civil I~ servant' alone. It is correct that aforesaid words do not appear in the rule, but it would be sufficient to mention that the aforesaid Rules are: framed under the Act where this power is exercisable by the Government: in respect of a civil servant, therefore no rule can be framed or ready against the spirit of parent statute. It follows that the petitioner for the purposes of this matter was not a civil servant and the Government could' not make any relaxation in this regard. It is also important to mention that keeping in view the provisions of the Act and the Rules, the notification must show to have recorded reasons for exercising the aforesaid power in any individual case which is just and equitable. The proposition finds support from case-law reported as Miss Azra Hafiz and 10 others v. Israr Hussain Mughal (1997 PLC (C S.) 297) wherein it has been laid down as follows:-- "The learned counsel for the petitioners has also drawn our attention to the Government Order dated 15-8-1992 and contended that the conditions laid down in rule 23 of the appointment rules were relaxed by the Government and thus, it was, not necessary to comply with the conditions laid down in the rule. It may be stated here that the extent and scope of the powers of the Government to relax the conditions laid down in appointment rules has been previously discussed and resolved by this Court in the authorities which have been referred by the High Court in its judgment. Suffice it to say here that the power of relaxation of the rules can be exercised in individual cases which are 'just and equitable' as stipulated under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 for sufficient reasons and wholesale order of relaxation of a service rule by the Government without giving reasons is not sustainable in law. Thus we reiterate the principle laid down by this Court in some earlier cases, referred to by the High Court." Therefor, the notification under discussion on this count is also ultra vires. It would also be relevant to mention that the Government relaxed the experience at a stage where process of selection had already commenced and applications had been invited The last date for receiving applications was 15-5-2002, whereas the disputed notification was issues on 12-12-2002. Thus, the right of candidates to be considered, according to the qualifications laid down in the rules existing at the relevant time was adversely affected. The proposition stands resolved in a case titled Muhammad Fayaz and 5 others v. Shah Nawaz Khan and 32 others (1999 PLC (C.S.) 1493) wherein the observations appearing at pages 347 and 348 are as follows:-- "It is well-settled principle of law, as is also evident from the authorities cited by the learned counsel for the parties, that an. amendment in existing law would be prospective until and unless it is otherwise provided by the law-givers. In the instant case the amendment in the Rules of 1990 has not been operative retrospectively. It is also not controverted that the advertisements inviting applications had already been published in May, 1997 when the un-amended Rules of 1990 held to be filed. The contention of the learned counsel for the respondents that despite the fact that amendment in the said Rules was made after the publication of the advertisements, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively. The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualifications etc., laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisements. In the instant case, according to unamended Rules of 1990, third divisioners candidates could be considered only if eligible second divisioners were not available, whereas after the amendment, the third divisioners became eligible to be considered for the selection alongwith second divisioners. The amendment and unamended relevant rule is reproduced as under:-- .. after the amendment, the merit of third divisioners and second divisioners for selection and appointment could be considered simultaneously, of course, subject to the conditions laid down in the amended Rules. Eventually, the amendment made in the Rules of 1990 is not procedural in nature rather it enlarges the sphere of the competition by placing third divisioners at par with second divisioners for the purpose of selection. Therefore, the contention of the learned counsel for the respondents that as the amendment is procedural in nature and would operate retrospectively is not tenable and is hereby repelled. "

11. It follows that the disputed notification which is shown to have been read retrospectively could. not be taken into consideration for the above reasons as the process of selection in respect of receiving applications according to qualifications determined for it had already completed. Therefore, it could not be read retrospectively for having not been so provided by law-givers.

12. Closer to the facts of the case in hand while dealing with the question of relaxing the rules to the extent of experience so as to enable a candidate to appear in the competitive examination for the post of Sub-Judge by the Public Service Commission, a notification was issued by the Government which came under consideration before this Court in the case reported as Miss. Shamaila Mahmood v. Mukhtar Ahmed and others (1998 PLC (C.S.) 51) wherein the proposition was resolved at pages 278 and 279 in a following way:-- "Contents of the passages reproduced above may be summarized, thus, when a set of rules is framed under section 23 of the Civil Servants Act it has to be construed that it has been framed to carry out the purposes of the Civil Servants Act. If in any rule a special power is granted to override or relax the rules this power will be deemed to be for carrying out the purposes of section 22 of the Civil Servants Act, namely, to advance the ends of justice and equity. This purpose shall be deemed to be incorporated in every rule under the Civil Servants Act which gives the power of relaxation of rules for overriding them. The question as to what is just and equitable depends on facts of each case and if exercise of this power is challenged in a case the ,reasons on which the order is passed will be judicially scrutinized by the Courts of law. The validity of the impugned notification by which the requirement of experience was dispensed with has to be answered in light of the principles stated above. When the notification in favour of the appellant was challenged by respondents, Mukhtar Ahmed and others, the Government and respondents in the writ petition, including Shamaila Mahmood, did not bring on record the reasons which persuaded the Government to exempt the appellant from the requirement of experience laid down for the post of Sub-Judge. Therefore, there is nothing on record to show that he order was passed for. just and equitable' consideration. I would, therefore, hold that he notification of" 15th of June, 1995 was bad in law and I would order acceptance of the writ petition filed by the present respondents for the reasons stated in this judgment."

13. The learned counsel for the petitioner on the strength of cases titled J.C. Yadav and others v. State of Haryana and others (AIR 1990 SC 857) and Muhammad Mazhar v. Chairman Federal Public Service Commission and 2 others (1992 CLC 81) laid a stress that the High Court fell in error in holding that the period served by the petitioner as Tehsil Mufti and Tehsil Qazi cannot be counted towards his legal practice. I have carefully examined the above-referred two authorities and am of the view that, those do not apply to the case in hand for their distinct facts. It would be useful to state the facts of both these citations. No doubt the case titled J.C. Yadav and others v. State of Haryana and others (AIR 1990 SC 857) related to relaxation of rules but the facts of that case were that persons promoted to Class-I possessed all requisite qualifications but had not completed 8 years service as required under rules and no qualified officers of Class-II service was available for promotion to Class-I service although a number of vacancies were existing in Class-I service: In the circumstances, the State Government, with a view to meet the particular situation, decided to relax the qualifying length of service to such officers who had completed four years of service in Class-II. It, therefore, relaxed the requirement of rule to the extent that a member of Class-II service having four years service was qualified for being considered for promotion to Class-I service.

14. The facts of the other, case titled Muhammad Mazhar v. Chairman Federal Public Service Commission and 2 others (1993 CLC 81) ate that the Enrolment Committee after examining all aspects and material placed before, it took a decision that the period of service rendered by respondent No.3 in the Ministry of Law shall be counted towards his practice as an Advocate. On the basis of aforesaid decision a candidate was selected by the Public Service Commission. 'The appointment was challenged through a Constitutional petition on the ground that the period of, service as Legal Assistant in the Ministry of Law could not be counted towards the legal practice. The writ petition was dismissed by the High Court and an appeal by the Supreme Court of Pakistan was also disallowed on the ground that all the disputes relating to seniority as an Advocate are determined by the Enrolment Committee. The question as to whether in the facts and circumstances of a particular case services rendered by an Advocate in an Organization while doing work of legal nature could be counted towards ,the practice as an Advocate, is a matter germane to determination of question of seniority among the Advocates which falls within the exclusive jurisdiction of Enrolment Committee which decided the matter after examining all the aspects and material placed before it. The decision was within the competence of Enrolment Committee which was validly, taken into consideration by the Public Service Commission and therefore, no illegality was committed.

15. In view of distinct facts and circumstances of the above referred two authorities, it can safely be held that there is no similarity of the facts with the case in hand and thus it cannot be held that law point decided in those authorities could in any way be helpful to the petitioner.

16. It was. raised on behalf of the petitioner that the writ petition oil behalf of respondent No.1 was filed with an .inordinate delay and thus the same was liable to be dismissed on the ground of laches. After appraising the facts no delay is found in filing the writ petition. It will be useful to mention that the notification for relaxation of experience was issued on 12-12-2002 which was not accepted by the Public Service Commission. However, the petitioner was provisionally allowed, to ahem in the test and interview and again at the stage. of arguments before the High Court while looking to the proposition of aggrieved person the Court directed the Public Service Commission to announce the result whose the petitioner was shown to have qualified against one of the two posts reserved for Muzaffarabad District while respondent No.1 was placed at third position. Therefore, it cannot be said that after the aforesaid event the filing of writ petition on behalf of respondent could be regarded as hit by laches.

17. The point with regard to impleading the learned Chief Justice of the Shariat Court and the Rules Committee as party is also without any substance. According; to the petitioner the recommendations were made by the learned Chief Justice and the Rules Committee. Since the notification of relaxation was issued by the Government, which was duly impleaded as party, therefore, there was no requirement of law to implead the learned Chief Justice of the Shariat Court or the Rules Committee.

18. The learned counsel representing the petitioner vehemently argued that admitted facts proved that respondent No.1 was not qualified to be appointed as she was lacking the experience of two years legal practice. The learned counsel on the basis of annexures 'R' and advanced that the principle laid down by the High Court while deciding the question of legal practice did not resolve the point in respect of respondent No. 1 which was specifically raised by the petitioner herein in his written statement filed in reply of her writ petition. It was contended that the point was raised in the pleadings and was also argued at the time of arguments but the learned Judge in the High Court failed to decide the he learned counsel for the opposite side opposed the aforesaid point on two grounds. Firstly the aforesaid point was abandoned before; the High Court and secondly the counsel for the petitioner who also happened to be a counsel before the High Court did not file any affidavit in support of the assertion. The learned counsel also pressed the point with further argument that even at this stage the counsel for the petitioner did not offer to file any affidavit that he had argued the aforesaid point before the High Court but the same was not resolved. It is correct that Mr. Alvi did not file any affidavit in support of the aforesaid point nor did he offer to file the affidavit at this stage. It seems that he has abandoned the aforesaid point as no resolution is found in respect of the same in the exhaustive judgment passed by the High Court. In spite of the aforesaid fact, I would have granted leave on this point as the factual side of the point was not disputed particularly in view of documents placed on record but, I have decided not to allow leave on the point for the reason that the aforesaid fact even if proved, would not go to the root of the basic controversy which confined to the qualification of the petitioner in both the writ petitions and the point would, at the most, decide the fate of the writ petition filed by respondent No.1 that she was not aggrieved for having not qualified to have filed a writ petition against the petitioner herein but the resolution would not have any effect on the result of other writ petition which decided the same controversy.

19. In view of above discussion, no valid ground is available for the grant of leave against the well-reasoned judgment passed by the High Court. The petition is merit less which is dismissed and the leave is refused. S.A.K./385/S Leave refused.