1992 PLP (C (PLC(CS))

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 15

Azad Jammu and Kashmir Public Service Commission Act, 1974, S. 9-- Promotion

High Court, in its Constitutional jurisdiction declined to issue direction to authorities to carry into effect order/direction of Prime Minister whereby ante-dated promotion of petitioner was ordered

Reasons stated-- Scope of authority to be exercised by the Prime Minister continuing in office under S. 15 of the Constitution when the Assembly stood dissolved-- Limitations on the exercise of powers by such Prime Minister discussed. The direction/order was passed by the Prime Minister on 9-4-1991, when the Assembly stood dissolved and Prime Minister was continuing in office by virtue of section 15 of the Constitution. There is no exception to the rule that he was empowered to exercise the authority of the Government till the election of new Prime Minister by the Assembly after general elections. The democratic practice, however, is that apart from the orders, without which the authority of the Government could not be asserted or smooth working thereof is hampered, or the orders, which every Chief Executive was under law bound to issue after receiving recommendations, suggestions, advice etc. etc. from the person authorised to recommend or advice under law, all other cases should be left for the decision of a Prime Minister coming with fresh mandate of the general public. Moreover, relaxation or suspension of rule was an extraordinary function of the Government and unless a Government cannot function at all without suspending or relaxing the rule, propriety of an order passed by relaxing a rule in an individual case or passed above the rules, without compelling necessity, was not above board. The legality and propriety of an order, in some cases must co-exist, while in others it must coincide. The case of the petitioner lacked propriety, as it was not recommended or processed by the authorities vested with the power under rules. Relaxation was ordered in the individual case, may it be in the fitness of thing or in the circumstances of the case, but the functioning of the Government did not depend upon it at all. Promotion of the petitioner by relaxing the rules, was ordered on the recommendations of a Minister, who was earlier dismissed by the Prime Minister himself, while the direction/order of the Prime Minister would affect the department as a whole. Comments and opinion on the petitioner's representation, as required under rules, were not sought and the persons likely to be affected were not heard. Rule of the propriety, therefore, demands that the Government in cradle may examine the case and may either agree with the earlier direction or pass a fresh order expeditiously after duly processing the case in accordance with the Service Rules applicable to the case. The matter was already being processed and examined by the Minister for Administration and Services, who was entrusted with the function by the Prime Minister, who under sections 12(2) and (5) of Constitution could delegate any of his functions to a Minister or an authority subordinate to him. Minister had issued the notices to the parties. When recourse was already taken to a remedy available under law, petition for writ cannot be allowed. Petitioner's promotion was also to be seen in the light of section 9 of the Public Service Commission Act, at the administrative level, as the promotion was ordered on 13-9-1975, a date falling in the period promotions ordered during which were to be referred to the Public Service Commission for assessing suitability of the promotees. Other legal points raised for determination of the Court by the parties against each other, being related to the terms and conditions of their service, also require an administrative decision, so as to avoid multiplicity of litigation, likely to arise between the parties. The direction/order of the Prime Minister dated 9-4-1991 is not on the file of the Department, but was attached with a private file of the petitioner. 1992 MLD 236; PLD 1978 SC (AJ&K) 37 and PLD 1992 Azad J&K 15 rer.

Administrative decisions

Orders in respect of matters which were regulated by law and rules should not be passed on simple applications of interested persons without hearing the persons likely to be affected thereby, and without opinion/advice or recommendation of departmental agency who were trained and meant for such purpose

Any order against the rules (including rules of natural justice) would be a mala fide order

Order passed in accordance with law, however harsh it may be, would maintain/restore sovereignty of the State and confidence in the institutions and was sine qua non for a civilized society. Respondents 3 to 5, in person