2003 PLP (C (PLC(CS))

Rules prescribed being subservient to the original Act

Any rule enacted in derogation of original Act or defeating the spirit of Constitution, could not be allowed to prevail. M. Tabassam Aftab Alvi for Petitioners Raja Ibrar Hussain Khan, A.-G. for Respondents. Through this Constitutional petition, the petitioners seek direction to the respondents to frame Rules intravires to "The Azad Jammu and Kashmir Civil Servants Act, 1976" and "The Azad Jammu and Kashmir Interim Constitution Act, 1974".

2. The petitioners are serving as Social Welfare Officers in Social Welfare and Women Development Department in Grade-B-17. The Government respondent being Competent Authority promulgated "The Azad Jammu and Kashmir Social Welfare and Women Development Services Rules, 1993 through Services and General Administration Department while exercising its powers under section 23 of Azad Jammu and Kashmir Civil Servants Act, 1976. On the basis of above-mentioned Rules dated 14-7-1993, the posts of Social Welfare Officers B-17 were advertised and the petitioners being eligible applied for the said posts who, after qualifying the relevant test, were inducted in the services of Azad Jammu and Kashmir as Social Welfare Officers and they are serving in the concerned Department as such. Thereafter, the Rules Committee proposed certain amendment in the' rules enacted in the year 1993. The amendment proposed in the said Rules were yet to be approved by the Government when the Rules Committee once again constituted a sub-Committee to examine the Rules already proposed and to submit its report with further amendment. The sub-Committee, after its deliberation, recommended the following amendment in the Rules:--

3. The above-mentioned proposed amendment is yet to be approved by the, Government and this is the controversy between the patties through the present petition.

4. The learned counsel for the petitioner attacked the aforesaid proposed amendments in the rules on two grounds:-- Firstly; that the Rules Committee could not constitute sub Committee and this act of the Rules Committee was without lawful authority. Secondly, the proposed amendment in the Rules is ultra vires to "The Azad Jammu and Kashmir Interim Constitution Act, 1974 and Azad Jammu and Kashmir Civil Servants Act itself. During his arguments, he drew the attention of this Court to sections 8 and 23 of "The Azad Jammu and Kashmir Civil Servants Act, 1976" and the provisions of the Constitution dealing with fundamental rights of a citizen.

5. Conversely, the learned Advocate-General representing the respondents submitted that neither the formation of sub-Committee was contrary to law nor the proposed amendment was without lawful authority as such the writ petition being without merits was liable to be dismissed.

6. After hearing the learned counsel for the parties, the record made available to the Court was examined in the light of sections 8 and 23 of "The Azad Jammu and Kashmir Civil Servants Act, 1976" alongwith the Constitutional provision dealing with fundamental rights of a citizen. The proposed amendment shows that the petitioners already holding posts of Social Welfare Officer in Grade B-17 are to be promoted to Assistant Directors who also hold the same grade i.e. B-17. The question arises whether a civil servant already holding a grade can be promoted in the same grade against another position in the civil service. To resolve this controversy, we have to look into the relevant provision of Civil Servants Act wherein the definition of promotion is provided i.e. section 8 of "The Azad Jammu and Kashmir Civil Servants Act, 1976", which reads as under:-- "Promotion:

(1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a post, for the time being, reserved under the Rules for departmental promotion in any higher grade of the service or cadre to which he belongs".

7. The above-referred provision of law as that promotion can only to be made in the higher grade and not in the same grade. The dictionary meaning of promotion also conveys the same sense. Promotion means to contribute to growth, enlargement, or prosperity of, to forward; to further, to encourage, to advance. Therefore, it becomes crystal clear that a civil servant can only be promoted to next higher grade and mere change of designation does not fall within the ambit of promotion. In view of this matter when the proposed amendment is seen it appears to be an action based on mala fide just to deprive the .petitioners from their legitimate right of promotion because they shall become junior to all those Assistant Directors who are already working in the department. It means that they shall practically be refused to their rights of service. This action of the respondents is neither recognized by the Civil Servants Act itself nor it is allowed by the Constitution being supreme law of the State. All State subjects are equal before law and are entitled to equal protection of law and in the case of service they could not be discriminated or refused to their rights of service. Right of service means and include appointment, promotion and all other ancillary matters attached to the service of a citizen. Therefore, the proposed amendment, if allowed, shall deprive the petitioners from enjoying the fruits of service to which they are entitled under law. The Rules are always prescribed being subservient to the original Act, therefore, any rule enacted in derogation of original Act or defeating the, spirit of Constitution cannot be allowed to prevail. The proposed amendment in the Rules is in derogation of Civil Servants Act and the Constitution.

8. The action of Rules Committee to form a sub-Committee is also violative of section 23 of "The Azad Jammu and Kashmir Civil Servants Act" wherein the powers to make Rules are provided. According to the said provision of law, the Government or any person authorized in this behalf may make such rules as appears to be necessary or expedient for carrying out the purpose of this Act. There is nothing in this section to further authorise a person to constitute sub-Committee to frame Rules or report with certain recommendations to amend the Rules. Thus, the formation of sub-Committee is also illegal and without lawful authority.

9. The result is that the recommendations proved id the meeting of Rules Committee dated 29-7-2002 for amendment in Rules regarding promotion of Social Welfare Officers is declared to be unlawful and ultra vires to the Azad Jammu and Kashmir Civil Servants Act and Azad Jammu and Kashmir Interim Constitution Act, 1974. The respondents are directed to frame the Rules governing the service matter of the petitioners in accordance with the provisions of Civil Servants Act and the Constitution as in forced in Azad Jammu and Kashmir and they are restrained to take any action violative of relevant law. H.B.T./47/AJ&K Order accordingly.