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2003 P L C (C.S.) 789

by | Nov 12, 2020 | publications, Synopsis of Articles

2003 P L C (C.S.) 789

[Supreme Court (AJ&K)]

Present: Muhammad YunusSurakhvi, Actg. C.J. and Khawaja Muhammad Saeed, J

AZAD J&K GOVERNMENTthrough its Chief Secretary Muzaffarabad and 2 others

Versus

Ch. MUHAMMAD SAEED,STENOGRAPHER and 44 others

Civil Appeal No.74 of 2002,decided on 12th August, 2002.

(On appeal from the judgment ofthe High Court dated 6-3-2002 in Writ Petition No.497 of 2001).

(a) Azad Jammu and KashmirInterim Constitution Act (VIII of 1974)–

—-Ss, 42, 42-A, 42-B, 44 &45—Civil service—Grant of special judicial allowance—Powers of SupremeCourt—Supreme Court of Pakistan having granted special judicial allowance atrate of 20% to all its officers and servants on -their basic pay videNotification dated 9th October, 2000, employees of Supreme Court of Azad Jammuand Kashmir also requested for grant of such allowances—On direction of ChiefJustice meeting of Judges was convened on 17th November, 2000 in which it wasunanimously decided to grant allowance prayed for by employees—On sendingdecision taken in meeting to Law Department same was conveyed to FinanceDepartment for financial concurrence—Law Department through Notificationallowed 20% Special Judicial Allowance to Officers of Grade-16 and abovewhereas 10% to employees below -Grade-16—Employees of below Grade-16challenged said Notification before High Court and High Court accepting prayerof employees directed Authorities to pay 20% Special Judicial Allowance to saidemployees also in the light of decision taken by Council of Judges– Validity—LawDepartment was not justified in law to issue Notification derogatory todirections of Council of Judges of Supreme Court as Supreme Court had widepowers to issue such directions, orders or decrees as could be necessary fordoing complete justice in any case or matter pending before it—All Executiveand Judicial Authorities would act in aid of Supreme Court—Any person feelingaggrieved from any order, direction or decree of Supreme Court, subject to provisionof law could seek review of order, direction or decree of the Supreme Courtwith permission of Supreme Court—Observation made by Judges of Supreme Courtin a case in nature of obiter dicta, would be binding upon Courts and otherExecutive Authorities—Under provisions of S.42-A of Azad Jammu and KashmirInterim Constitution Act, 1974 and Rules made thereunder for exercisingauthority of Supreme Court, Executive Authorities could not exercise theirauthority in such a manner which could amount to infringe, impair or curtailany of right granted by Judges of Supreme Court—Executive Authority could notbypass a direction or order of Supreme Court which could attract invocation ofS.45 of Azad Jammu and Kashmir Interim Constitution Act, 1974—High Court, incircumstances, was justified in setting aside Notification issued by LawDepartment on basis of meeting held by. Registrar of Supreme Court as same wascontrary to direction of Council of Judges—Decision of Judges of SupremeCourt taken in their meetings whereunder right of all employees for grant of20% Special. Judicial Allowance was accepted, could not be changed or nullifiedby Law Department by issuing a notification derogatory to such decision– Suchact by itself would amount to disobeying order of Council of Judges.

Syed Sajjad Hussain v. Secretary,Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1996 SCMR284: Ihsan-ur-Rehman v. Mst. Najma Perveen PLD 1986 SC 14; Azad Government andothers v. Muhammad Fazal Qureshi and Others Civil Petition for Leave to AppealNo.55 of 2002 and Kamaluddin and 30 others v. Province of Punjab and to others1998 PLC (C.S.) 807 ref.

(b) Jurisdiction—

—- Jurisdiction conferred byAct—Jurisdiction conferred by an Act impliedly would give powers to Authorityfor doing all acts and applying means which were found essentially necessaryfor execution of such directions issued in exercise of vested jurisdiction.

Riaz Naveed Butt, Addl:Advocate-General for Appellants.

M. Tabassum Aftab Alvi, Advocatefor Respondents.

Date of hearing: 4th July, 2002.

JUDGMENT

KHAWAJA MUHAMMAD SAEED, J.—Thesupra titled appeal, with the leave of the Court, is directed against thejudgment of the High Court passed on 6-3-2002, whereby the writ petition filedby the respondents, herein, was accepted and Special Judicial Allowance at therate of 20% of their basic pay was granted to all the officers and servants ofthe Supreme Court including the respondents with effect from 9th October, 2000.

2. Relevant facts, brieflystated, are that the Supreme Court of Pakistan granted Special JudicialAllowance at the rate of 20% of their basic pay to all the officers andservants of the Supreme Court of Pakistan vide notification dated 9th October,2000. The employees of this Court through an application to the learned ChiefJustice requested for the grant of Special Judicial Allowance in their favouras allowed to the employees of the Supreme Court of Pakistan. On the directionof the learned Chief Justice of the time, a meeting of the Council of Judgeswas convened on 17th November, 2000 which unanimously resolved as under:–

“The staffmembers of this Court through an application to the Hon’ble Chief Justice AzadJammu and Kashmir made a submission with regard to the grant of specialjudicial allowance in their favour 20% of their basic pay as this allowance hasalso been sanctioned by the Supreme Court of Pakistan to its employees. Copy isplaced below.

The Council ofthe Judges held meeting today the 17th of November, 2000 and after givingserious thought to the matter under consideration accepted in principle that onthe basis of parity Judicial Allowance @ 20 % of basic pay may be granted toall officers and servants of the Court w.e.f. 9th October 2000, the date thesaid allowance has been given to the employees of the Supreme Court ofPakistan.

TheFinance Department be moved for financial concurrence.”

The decision taken in thatmeeting was sent to the Law Department with the direction that it may beconveyed to the Finance Department for Financial concurrence. On 1st August,2001 a notification was issued by the Law Department through which 20% SpecialJudicial Allowance was allowed to the officers of grade-16 and above whereas10% Special Judicial Allowance to the employees below grade-16 with effect from1st July, 2001. The respondents who are serving below grade-16 feelingaggrieved by this notification invoked the Constitutional jurisdiction of theHigh Court under section 44 of the Azad Jammu and Kashmir Interim ConstitutionAct, 1974 (hereinafter to be referred as Constitution Act, 1974). After takingnecessary proceedings as required by law the High Court vide judgment underchallenge to the present appeal allowed the writ petition and directed the respondents(appellants herein) to pay 20% Special Judicial Allowance even to therespondents in the light of the decision taken by the Council of Judges of thisCourt on 17th November, 2000.

3. Mr. Riaz Naveed Butt, thelearned Additional Advocate-General, argued that the notification dated 1stAugust, 2001 was issued in the light of the decision of the meeting in whichthe present appellants and the Registrar Supreme Court participated. Accordingto him the respondents, who are serving below Grade-16, have been given SpecialJudicial Allowance at the rate of 10% of their basic pay according to thenature of their job. He further argued that all the participants of the meetingtook into consideration the duties assigned to the employees of this Court withutmost care and unanimously resolved that the employees of this Court inGrade-16 and above shall be entitled to 20% of the Special Judicial Allowancewhereas the employees below Grade-16 shall be benefited by 10% Special JudicialAllowance with effect from 1st July, 2001. As this decision was taken with theconsent of the Registrar Supreme Court, therefore, the private respondents werenot justified-under law to invoke the writ jurisdiction of the High Court.

4. On the other hand, Mr. M.Tabassum Aftab Alvi, the learned counsel for the respondents, supported thejudgment of the High Court. According to him on the basis of parity SpecialJudicial Allowance @ 20% of basic-pay was granted to all the employees of thisCourt with effect from 9th October, 2000, the date when the said allowance wasgiven to the employees of the Supreme Court of Pakistan by the learned Judgesof the said Court. According to the learned counsel the decision of the learnedJudges of this Court was sent to the Law Department of Azad Jammu and Kashmirfor further necessary action. The Law Department under law was bound to issue anotification in conformity with the decision of the Council of Judges of thisCourt whereas the notification issued by the Law Department on 1st August, 2001was derogatory to the direction of the Council of Judges because according tothis notification a discrimination was created by allowing 20% allowance to theofficer of Grade-16 and above and 10 % to the employee below Grade-16. Hefurther argued that the learned Judges had clearly given a direction that thisSpecial Judicial. Allowance shall be granted to the employees of the Court from9th October, 2000, the date when the said allowance was given to the employeesof the Supreme Court of Pakistan, whereas under the notification dated 1stAugust, 2001 the employees of this Court were held entitled to this allowancewith effect from 1st July, 2001. The private respondents, in thesecircumstances, were justified in challenging the legality and propriety of thisnotification before the High Court. The learned counsel further argued that allthe employees in Azad Jaminu and Kashmir on the accepted principle of parity:are enjoying pay and other privileges which their counterparts are enjoying inthe Punjab. The Judges of this Court arc enjoying the same pay and otherprivileges which are admissible to the Judges of the Supreme Court of Pakistan.In the same way the officers of this Court in Grade-16 and above are enjoyingthe same pay and privileges which are admissible to their counterparts in theSupreme Court of Pakistan whereas the remaining staff has been deprived of thepay and other attached privileges without any lawful justification.

5. We have attended the argumentsof the learned counsel for the parties and gone through the record of the case.In the earlier part of this judgment we have reproduced the decision which wastaken by the learned judges of this Court on 17th November, 2000. In thatdecision the Council of Judges on the basis of parity allowed 20% SpecialJudicial Allowance of their basic pay to all the officers and servants of thisCourt with effect from 9th October, 2000, the date the said allowance was givento the employees of the Supreme Court of Pakistan. The matter was sent to theLaw Department in order to move the Finance Department for Financialconcurrence. The Law Department, therefore, was not justified in law to issuenotification derogatory to the directions of the Council of Judges of thisCourt. Under the provisions of Constitution Act; 1974 the Supreme Court has gotvery wide powers to issue such directions, orders or decrees as may benecessary for doing complete justice in any case or matter pending before it.It is laid down in the Constitution Act, 1974 that all executive and judicialauthorities throughout Azad Jammu and Kashmir shall act in aid of the SupremeCourt. However, any persons feeling aggrieved from any order, direction ordecree of the Supreme Court subject to the provisions of law may seek review ofthe order, direction or decree of this Court with the permission of the Court.This shows that without the permission of this Court no executive authority canpass any order which would be derogatory to the direction of this Court. It hasbeen laid down in numerous authorities that the observation made by the Judgesof this Court in a case in the nature of obiter dicta shall be binding upon theCourts and the other executive authorities. In a case titled Syed SajjadHussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabadand 2 others (1996 SCMR 284) the Supreme Court of Pakistan observed as under:–

“We are notsatisfied with the reasons advanced by the learned Tribunal that the appellantcould not be given the requisite relief because he had resigned from theCommission: The appellant’s appeal was rejected wholly on flimsy grounds whichcould not be upheld in view on the rule laid down by this Court in Mazhar Ali’scase referred to above. Needless to observe that the law declared by theSupreme Court would bind all the Courts Tribunals and also the bureaucraticset-up in Pakistan as mandated by Articles 189 and 190 of the Constitution ofIslamic Republic of Pakistan 1973.” (Underlining is ours).

In Ihsan-ur-Rehman v. Mst. NajmaPerveen (PLD 1986 SC 14.) the litigated controversy was argued by the partiesin the Supreme Court of Pakistan. However, the relevant statute was amendedprior to the decision of the Supreme Court. Therefore, an application was movedby the aggrieved party that in the light of the amended statutes the matter atissue be resolved. The Supreme Court observed as under:–

“Although the presumption isthat redundancy is not to be imputed to an enactment nor ignorance of law is tobe imputed to the law-making Agency; but this presumption can differ from caseto case. And in proper situations the superior Courts have even madecorrections where the legislature is demonstrably shown to have made a visibleerror. Here one visible error is that the Karachi view was deemed to have beensubordinated to the Lahore view which on no jurisprudential basis can be upheldas correct. The two judgments were not rendered by the same Court as it used tobe the situation when the West Pakistan High Court had different Benches atKarachi and Lahore. Secondly for more weighty reason the amendment would not bedeemed to have diluted, in any way, the effect of the law declared by thisCourt in Sakhawat Ali’s case, which was decided on 22nd of March 1981 while theamendment a was made on 26th of March, 1980. The declaration of law in the caseof Sakhawat Ali by the Supreme Court of Pakistan in pursuance of the mandate ofthe Constitution will override the amendment made in section 47 and nullify itseffect by virtue of Article 189 of the Constitution”. (Underlining isours)

6. In the instant case it becomesclear that the law laid down by this Court is necessarily to be followed. ThisCourt has followed the authorities including the authority of this Court in acase titled Azad Government and others v. Muhammad Fazal Qureshi and others(Civil PLA No.55 of 2002 decided on 6-5-2002) wherein the benefit of parity hasbeen given to the aggrieved employees of the High Court of Azad Jammu andKashmir. It is celebrated principle of law that the jurisdiction conferred byan Act impliedly gives powers to the authority for doing all acts and implyingmeans which are found essentially necessary for the execution of suchdirections issued in the exercise of vested jurisdiction. We are sorry toobserve that in the present case the Law Department issued the notificationdated 1st August, 2001 without moving the Council of Judges seeking review ofthe order, direction prior to the issuance of notification in derogation to thedecision of the Council of Judges which, in our view, amounts to disobeying theorder of the Council of Judges. The learned Judges of this Court in theirmeeting held on 17th November, 2000, had accepted the right of all employeesfor grant of 20% Special Judicial Allowance to them and such decision could notbe changed or nullified by the Law Department by issuing a notificationderogatory to such direction on the basis of some meeting convened by it withthe Registrar of this Court. This act by itself amounts to disobeying the orderof the Council of Judges.

7. In a case reported asKamaluddin and 30 others v. Province of Punjab and others (1986 PLC (C.S.) 807)the facts of this case were that before introduction of National Pay Scales in1972, the Readers of their lordships the Chief Justice and the Judges of theHigh Court were enjoying the pay scale of Rs.275-600 whereas the judgmentwriters were receiving their salaries in the pay scale of Rs.285-500. On theintroduction of National Pay Scales in 1972 the employees of the High Court inaforementioned categories were given NPS-11. However, subsequently thejudgment-writers were placed in NPS-11 with effect from 2-12-1975. The othercategory of Stenographers who were serving as Secretaries to the Chief Justiceand other Judges of the Lahore High Court were upgraded from NPS-11 of NPS-16and their up gradation was given effect from 17-10-1974. The judgment Writersand Readers were demanding their upgradation from NPS-11 to NPS-16. The ChiefJustice of the High Court recommended their case to the Provincial Governmenton 3rd .May, 1981. The Provincial Government approved the recommendations fortheir upgradation. However, the Finance Department did not agree with therecommendations and allowed the judgment-Writers and Readers NPS-12 instead ofNPS-16 from 22-6-1981 by issuing a notification on 27-6-1981. The matter wastaken to the Service Tribunal and the Service Tribunal set aside thenotification on the ground that upgradation of posts from NPS-11 to NPS-16 wasapproved by the Chief Justice of the High Court, ‘therefore, the FinanceDepartment was not justified to pass derogatory notification by upgrading suchemployees from NPS-11 to NPS-12. The Finance Department was directed that theposts of judgment-Writers and Readers in the High Court shall be upgraded toNPS-16. In the said case it may be mentioned here that the recommendations madeby the Chief Justice of the High Court in favour of Readers were not bindingupon the Finance Department. Even then the recommendations were upheld by theService Tribunal whereas in the instant case in the light of provisionscontained in section 42-A of the Constitution Act, 1974 and the rules madethereunder for exercising the authority of this Court, the executiveauthorities cannot exercise their authority in such a manner which tray amountto infringe, impair or curtail any of the right granted by the Judges of thisCourt. Any executive authority having any doubt about any direction or decisiontaken by this Court could get the same resolved by submitting a review petition.It cannot bypass a direction or order of this Court which may attract theinvocation of section 45 of the Constitution Act. The learned Ju8ge in the HighCourt was justified in setting aside the notification issued by the LawDepartment on the basis of meeting held by the Registrar of Supreme Court withthe appellants as the same was contrary to the direction of the Council ofJudges.

For the foregoing reasons,finding no force in this appeal the same stands dismissed with costs.

H.B.T./329/SC(AJ&K) Appealdismissed.