MUHAMMAD RASHID CHOUDHRY Versus CHAIRMAN, AKLASC, MUZAFFARABAD

1. BASHARAT AHMAD SHAIKH, J.‑‑‑ The facts giving rise to this appeal, by leave of the Court, are that the appellant herein filed a writ petition in the High Court challenging two orders passed by the Managing Director of the Azad Kashmir Logging and Saw Mills Corporation (hereinafter called "the Corporation") with the approval of the Chairman of the Corporation, on 7th of December, 1990 by which respondents Rashid Farooq Dar, Ch. Muhammad Yusuf and Raja Muhammad Asghar were purportedly transferred as Managers which posts carry higher grade. The grievance of the appellant, as disclosed in the writ petition, was that he was senior to the aforementioned respondents in grade and post but they had been posted against higher posts, which were in Grade‑19. It was contended that although the aforesaid respondents had been posted in their own pay and scale but since the posts were of higher grade the petitioner's rights were adversely effected thereby. The writ petition and another connected writ petition were dismissed by a learned Single Judge on 16th of July, 1992. Two reasons formed the basis of the order and we may reproduce what the learned Judge observed:

2. "(a) AKLASC is undoubtedly a Corporate Body having perpetual succession set‑up under the Azad Kashmir Logging and Saw Mills Corporation Ordinance, 1968. It stands even admitted by the position in para. 1 of their writ petitions. Since it is an admitted position that the AKLASC is a Corporation having its own rules and regulations, the question that now therefore needs resolution is whether its employees can be regarded as holder of a public office. On careful consideration the petitioners, in my view, are not entitled to claim as holder of the office of a public nature nor can they claim the status of a civil servant. Their relationship with the Corporation is to be regarded and governed entirely by law of master and servant. Constitutional safeguards available to the generality of the civil servants are not therefore available to them, and

(b) From the bare reading of these provisions it becomes clear that acts done or proceedings taken only by the persons performing functions in connection with the affairs of the State or a local authority which are done or taken without lawful authority can be declared as of no legal effect. In the instant case neither respondents namely: The Chairman, Managing Director and the General Manager, AKLASC, the functionaries of Corporation can be regarded as the persons performing functions in connection with the affairs of Azad Jammu and Kashmir Government nor could the petitioners, not being in the service of Azad Jammu and Kashmir Government, be regarded as civil servants with the Constitutional safeguard available to them."

3. The learned Judge in the High Court in reaching the conclusion as aforesaid also relied on a judgment of this Court Muhammad Shari v. Chairman, AK Logging and Saw Mills Corporation [PLD 1985 SC (AJ&K) 119]. It is a judgment by which petition for leave to appeal filed by an employee of the Corporation was dismissed on the ground that his relationship with the Corporation was entirely one of master and servant. It was further held that mandamus can only be issued to compel the restoration to an office which is of public nature. In this reliance was placed on Lahore Central Cooperative Bank Ltd. v. Sail Ullah Shah (PLD 1959 SC (Pak.) 210), The State of Pakistan v. Mehrajuddin (PLD 1959 SC (Pak.) 147) and Faiz Ahmed v. The Registrar, Cooperative Societies (PLD 1962 SC 315). The learned Judge in the High Court also held that the petitioner could, under rule 21 of the AKLASC Employees' Service Rules, 1977, file an appeal before the Board of the Corporation but he failed to avail that remedy and the writ petition was not maintainable on that score also.

4. The Azad Kashmir Logging and Saw Mill Corporation was set up by the Azad Kashmir Logging and Saw Mill Corporation Ordinance (IV of 1968). Section 3 of the Ordinance provides that the Government shall establish a Corporation. It shall be a body corporate. According to section 4 an amount of Rs.4 lacs (in the year 1968) was to be provided by the Government while Corporation's fund in future was to consist of grants and loans made by the Government and any other authority and other sum received by the Corporation. According to section 5, the Board of the Corporation was to be guided by such directions as the Government may give from time to time. The Chief Secretary of the Government was to be, the Chairman of the Board while Secretary to the Finance Department and the Chief Conservator of Forests, apart from two other persons nominated by the Government, were to be the members. According to section 10 the budget of the Corporation of the each year was to be submitted to the Advisor of the Government for approval. It is provided in section 11 that a report of the affairs of the Corporation was to be submitted to the Government every year. It was also found whenever required to submit any term or information of any kind which the Government may require. In accordance with section 12 the Auditor‑General was to audit the accounts of the Corporation. Section 16 lays down that loan raised by the Corporation with the sanction of the Government shall be liability of the Government. The Corporation has been authorised by section 17 to make rules and regulations but that can only be done with the approval of the Government.

5. It follows that Azad Kashmir Logging and Saw Mills Corporation is a statutory Corporation over which the Government keeps a control and thus persons function in connection with the affairs of the State/Azad Jammu and Kashmir within the meaning of section 44 of the Interim Constitution Act. Under section 7 of the Azad Kashmir Logging and Saw Mills Corporation Ordinance, 1968 the Board of the Corporation has been authorised to appoint for the Corporation officers, employees etc. and the Board has been given powers to prescribe the procedure for appointment as well as the terms and conditions of service of the officers and servants of the Corporation. The word "prescribed" has been defined in the Azad Kashmir Logging and Saw Mills Corporation Ordinance to mean "prescribed by the rules or regulations". Section 17 authorises the Corporation, with the approval of the Government, to make rules and regulations for carrying out the purposes of the Ordinance. Consequently the Azad Kashmir Logging and Saw Mills Corporation Employees Service Rules have been framed. The Corporation has also framed Conduct of Azad Kashmir Logging and Saw Mill Corporation Business Regulations in exercise of these powers. It is thus obvious not only that the Corporation is a statutory body but also that the relationship between the Corporation and its employees is duly regulated by statutory rules.

6. Ch. Muhammad Taj, the learned counsel for the appellant, challenged all the findings recorded in the judgment of the High Court. He vehemently submitted that the law of master and servant has no application where the terms of service of employees of a statutory Corporation controlled by the Government are governed by statutory rules. He submitted that the view taken by the learned Judge in chamber in Muhammad Shari's case was not correct view of law and needs to be reviewed. Ch. Muhammad Taj also contended that rule 21 of the Azad Kashmir Logging and Saw Mills Corporation Service Rules did not provide a remedy to an employee of the Corporation if his rights for promotion are violated. He contended that even otherwise it was not an adequate remedy. The submissions are opposed by Raja Muhammad Hanif Khan, the learned counsel who appeared for functionaries of the Corporation.

7. Both the learned counsel addressed detailed arguments in support of the contentions and also relied upon a good number of cases covering all the aspects of dispute between the parties.

8. Ch. Muhammad Taj has relied on five judgments of the Supreme Court of Pakistan in support of the proposition canvassed by him that if in a statutory Corporation the terms of service of its employees are regulated by statutory rules the law of master and servant does not apply to them and a writ petition is maintainable for enforcement of service rights including restoration to office. The first case is Raziuddin v. Chairman, Pakistan International Airlines (PLD 1992 SC 531). Pakistan International Airlines Corporation was set up under the Pakistan International Airlines Corporation Act, 1956. Some employees of the Corporation were removed from service in exercise of powers under section 10(2) of the aforesaid Act. They filed appeals before the Service Tribunal in terms of section 10(3) but the same were dismissed. They were granted leave to appeal. The appeals filed by them were dismissed on the ground that removal of service of the appellants had been ordered after fulfilling the requirements of section 10(2). The question whether, the employees of a Corporation are governed by the law of master and servant was also discussed and, after a review of case‑law, it was held that:‑‑

9. "6. The legal position obtaining in Pakistan as to the status of employees of the Corporations seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in case of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement. However, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement."

10. Applying this principle to the Pakistan International Airlines Corporation it was noted that section 30 of the Pakistan International Airlines Corporation Act conferred the power on the Pakistan International Airlines Corporation Board to make regulations with the previous sanction of the Central Government. There were certain regulations which were in force in respect of service rights of the employees and the same were pressed into service by the employees, but it was found that the regulations had been framed without previous sanction of the Government. Therefore, the learned Judges held that "in view of the matter the regulations cannot be treated as statutory rules of the nature which would bring the case of the Pakistan International Airlines Corporation within the above qualification as to entitle the employees of the Pakistan International Airlines Corporation to claim relief of reinstatement on the ground of breach of statutory provision".

11. Karachi Development Authority v. Wali Ahmad Khan (1991 SCMR 2434). It is a case in which an employee of the Karachi Development Authority was dismissed by the said Authority. A writ petition filed by the employee was accepted and he was ordered to be reinstated to service. The Supreme Court dismissed the appeal filed by the Karachi Development Authority. The points under consideration in the present appeal were raised and exhaustively discussed by the learned Judges of the Supreme Court and the following conclusion was recorded, in light of the case‑law cited before them:‑‑

12. "The review of the cases discussed above shows that the general rule is that the service of a person with a statutory Corporation is essentially based on contractual relationship and is therefore governed by the law of master and servant, which implies that the remedy for illegal termination of service resulting into the breach of contract of service, is to file a suit for damages but no suit for declaration is maintainable, for the simple reason that a service contract is not specifically enforcible, which will result in compelling an unwilling master to accept a person in his service against his will. The position so far as the Constitutional remedy under Article 199 of the Constitution is identical. However, in cases where the post held by the employee of a statutory Corporation is a public office, as defined hereinabove, then relief in the nature of quo warranto to remove a person who is unlawfully holding the post can be granted in Constitutional jurisdiction. The other exception to the aforesaid general rule is that if the freedom of contract is placed under statutory fetters, by reserving controlling power with the Government in the matter of framing of rules or regulations touching the terms and conditions of service of the employees of such a statutory body, in such a case the pleasure of the master is taken over by the statutory provisions and the case would stand outside the master and servant rule, so that Constitutional jurisdiction would be amenable to any violation of the statutory rules or regulations."

13. In Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404) it was held that there were no statutory rules in the field to govern matters relating to employment in the Road Transport Corporation, therefore, the High Court could not issue a writ. It was held that rules framed by the Corporation relating to employment of servants of the Corporation were in fact regulations for which the approval of the Government was not required. Therefore, the rules were non‑statutory in character.

14. In The Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 170), after an exhaustive study of the case‑law on the subject the following conclusions were reached:‑‑

15. "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which he is employed, has issued for its internal use, any violation hereof will not, normally, be enforced through a writ petition:"

16. Another important aspect of the matter was also resolved. It was contended before the learned Judges that even if it may be held that a writ is maintainable by an employee of a statutory body governed by statutory rules still restoration to office can only be ordered if the dispute relates to a "public office". Nasim Hassan Shah, J. speaking for the Court observed:‑‑

17. "In this view of the matter, the holding of a "public office" by an employee is not at all that crucial because, as rightly pointed out by Qazi Muhammad Jamil, learned counsel for the respondent in Civil Appeal No. 17 of 1981, this condition is relevant only in cases wherein a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial jurisdiction of a High Court may be required to show the authority of law under which he claims to hold the said public office. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a "public office", the more important question will be whether the conditions of his service were governed by any statute and/or a statutory rule, if so, whether the statute or statutory rule was disregarded while taking the action which is impugned by him."

18. In The Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275) an employee of the Evacuee Property Trust Board was removed from service. He filed a civil suit. The Civil Judge recorded the finding that the removal was illegal but dismissed the suit on the ground that he had no jurisdiction in the case inasmuch as the remedy of the employee was to approach the High Court by the means of writ petition. This judgment was set aside by the District Judge and the suit was decreed. An appeal taken to the High Court failed. Before the Supreme Court it was vehemently contended that even if the removal of the employee was illegal nevertheless the employee at the most could have filed a suit for damages for wrongful removal. Reliance was placed on R.H.T. Janjua v. National Shipping Corporation (PLD 1974 SC 146). The argument was repelled and it was observed that in Janjua's case the power of the master to deal with the service matter of his employees was not regulated by statutory rules whereas in the instant case the subject was covered and controlled by rules. A reference was made to earlier unreported judgments in Chairman, Evacuee Trust Board v. Noor Ellahi and Chairman, Evacuee Trust Board v. Muhammad Ramzan wherein it was held that dismissal in violation of the rules adopted by the Evacuee Trust Board was illegal. The learned Judges expressed the view that where the statutory rules govern service conditions of an employee the pleasure of the master stands surrendered to that extent. Since it was found that the matter was covered by statutory rules leave to appeal was refused.

19. Raja Muhammad Hanif Khan cited a large‑number of decided cases to support the view taken by the High Court in judgment under appeal that a writ petition is not maintainable on behalf of its employees against a statutory Corporation like the Azad Kashmir Logging and Saw Mills Corporation. We begin an examination of these cases with the case of Lahore Central Cooperative Bank v. Pir Saif Ullah Shah (PLD 1959 SC 210). It was held that it was a point of considerable doubt whether a Commercial Manager of a Cooperative Bank could claim the application to himself of the Civil Service Rules. It was also held that a writ was not a proper remedy in case of dismissal of a Cooperative Bank employee. Reliance in this respect was placed on The State of Pakistan v. Mehrajuddin (PLD 1959 SC 147). It was also held that in Pakistan law has followed in all essential aspects the practice of the English Courts where the scope of mandamus was not extended to restoration to office in private Corporations.

20. Faiz Ahmad v. Registrar, Cooperative Societies (PLD 1962 SC 315). The appellant in that case was a clerk in the Pakistan Central Cooperative Bank Ltd. and he was dismissed by the Managing Committee of the Bank. The employee filed a writ petition, which was dismissed summarily on the ground that the appellant had been given ample opportunity to defend himself. On appeal the Supreme Court agreed with the High Court that the appellant was given ample opportunity to defend himself and observed that no manner of injustice was done to him and he had no legitimate ground for any complaint. At the end of the judgment it was also observed that the office held by Fail. Ahmad was not a public office restoration to which could have been ordered by means of writ of mandamus. It was held that only offices which are either corporate or elective offices or municipal position can be restored to its former incumbents by way of writ of mandamus. In this context the judgment of the Supreme Court Pakistan v. Naseem Ahmad (PLD 1961 SC 445) was referred.

21. Since the judgment is based on Nasim Ahmad's case it becomes necessary to analyse the dictum of Supreme Court in that case. By the Judgment in Nasim Ahmad's case the Supreme Court of Pakistan decided as many as 17 appeals in which common questions of law were involved. The respondents before the Supreme Court were Police Officers most of whom had been either dismissed, discharged or removed from service. They filed civil suits seeking a declaration that they had been wrongly dismissed or discharged. Their suits were decreed but the Government did not act to reappoint them. Thereupon they filed writ petitions in the High Court praying that the Government may be ordered to pay arrears of salary to them and they may be restored to their offices. The High Court rejected the prayer in respect of the arrears of salary holding that in view of the judgment of the Supreme Court in case titled The State of Pakistan v. Mehrajuddin (PLD 1959 SC 147) the salary was a bounty of the State, but issued writ of mandamus to compel restoration of the writ petitioners to the offices previously held by them. An appeal was taken by the Government which was accepted and the order passed by the High Court was set aside. It was held that in England "no Court could possibly compel the restoration to office of any public servant in the service of the Crown, for, all such servants of the Crown held offices during the pleasure of the Crown and no Court in England would presume to command the Crown". It was held that English Courts have invoked this extraordinary power for compelling restoration by writ of mandamus in cases of those offices, which are either corporate or elective offices or municipal positions. The Court finally concluded in light of this principle that the persons removed from the posts in the Police Department could not be restored to office by issuing a writ of mandamus.

22. In Muhammad Hayat v. West Pakistan Industrial Development Corporation (1977 SCMR 205) a writ petition filed by an employee of the West Pakistan Industrial Development Corporation was dismissed on the ground that his case was covered by the judgment of the Supreme Court in Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali (PLD 1966 SC 848). The facts in Rustom Ali's case were that Rustom Ali was an employee of East Pakistan Industrial Development Corporation and he was dismissed from service by the Secretary of the aforesaid Corporation. He filed a writ petition in the High Court. His dismissal was set aside by the High Court as being without lawful authority. An argument was raised before the High Court that the principle of master and servant governed the relationship between Rustom Ali and the East Pakistan Industrial Development Corporation but this argument was repelled by holding that the terms and conditions of his employment were recognized and maintained by the provision of law, namely, an Order of Federal Government under section 3 (b) of Ordinance XXXVI of 1962 and section 10(3) of Ordinance XXXVII of 1962. Therefore, the law of contract and the law of master and servant did not govern the relationship of the petitioner and his employer. Another argument was raised before the High Court that East Pakistan Industrial Development Corporation was not `a person' within the meaning of Article 98 of the Constitution of 1962. This contention was also repelled. On this point Supreme Court upheld the view expressed by the High Court and found support from the decision of the Supreme Court of Pakistan in University of Dacca and another v. Zakir Ahmad (PLD 1965 SC 90). However, the learned Judges of the Supreme Court expressed the view that Commercial Manager of the Bank in Lahore Central Cooperative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 SC 210) was not found entitled to a writ petition alleged wrongful dismissal from service because that post was entirely of contractual nature.

23. Abdul Salam Mehta v. Chairman, Water and Power Development Authority (1970 SCMR 40). A temporary employee of the Water and Power Development Authority filed a writ petition challenging the order of termination of his service on payment of one month's salary in lieu of notice. An argument was raised before the Supreme Court that the High Court wrongly dismissed the writ petition because the guarantees given to the civil servants under Article 177 of the Constitution of Pakistan, 1962 were available to him. The argument was repelled because the aforementioned Article was only applicable to the persons in the service of the Government. The appellant in the case was found to be a temporary employee of the Water and Power Development Authority and he was not entitled to protection of Article 177 of the Constitution of Pakistan, 1962.

24. In R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146) it was held that employee of statutory Corporation (set up under an Ordinance) could not seek redress in writ jurisdiction. The essence of the matter always is whether the aggrieved incumbent could be regarded as holder of a `public office'. `Public Office' was construed as an office by which an individual is vested with some portion of the sovereign function of Government for the benefit of public. It was observed that the law of master and servant was applicable to the statutory Corporations like Pakistan International Airlines Corporation, Water and Power Development Authority and East Pakistan Industrial Development Corporation, although the Government exercises control over them.

25. Muhammad Afzal v. House Building Finance Corporation (PLD 1976 Kar. 1121). It is a judgment of Karachi High Court in a civil suit which was filed directly in the High Court on the original jurisdiction. It was found that the plaintiff accepted a job in the service of House Building Finance Corporation, which was terminable at the pleasure of the Corporation without assigning any reason. It was held that the principle of master and servant was applicable to the service in question. It was also held that the plaintiff had died before the suit was decided and it was conceded on behalf of the plaintiffs counsel that prayer in so far as the declaration that he continued to be in service of the Corporation did not survive. It was ultimately held that in view of the contract of service there was no illegality, which could invalidate the action taken.

26. Muhammad Aslam v. National Shipping Corporation (PLD 1979 Kar. 246). A writ petition filed by an employee of the National Shipping Corporation was dismissed on the ground that the Supreme Court had consistently held that relationship between a Corporation and its employees is that of a master and servant. The cases relied upon are Malik and Haq v. Muhammad Shamsul Islam Chaudhry (PLD 1961 SC 531), Chairman, East Pakistan Industrial Development. Corporation v. Rustom Ali (PLD 1966 SC 848), Zainul Abidin v. Multan General Cooperative Bank Ltd. (PLD 1966 SC 445) and Abdul Salam Mehta v. Chairman, Water and Power Development Authority (1970 SCMR 40).

27. The aforementioned judgments deal with two questions. Firstly the applicability of law of master and servant to statutory Corporations and, secondly maintainability of a writ petition by an employee of such a Corporation. On the first question there seems to be no difference of opinion so far the learned Judges of the Supreme Court of Pakistan are concerned. In all the five judgments cited on behalf of the appellant the Supreme Court has, directly or by necessary implication, laid down the rule that if relationship of Corporation with its employees is regulated by statutory rules the law of master and servant has no application. Out of the cases cited on behalf of the respondents there is no judgment of the Supreme Court of Pakistan laying down a different view. In fact in one of these cases, "Muhammad Hayat v. West Pakistan Industrial Development Corporation" (decided in 1977) the same view has been followed, namely, that in a. situation mentioned above the law of master and servant does not apply. In this judgment the learned Judges of the Supreme Court of Pakistan based their verdict on the ratio of "Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali" decided as far back as 1966. In Rustom Ali's case it was held that since the terms and conditions of appellant's employment were recognised and maintained by legal provisions the law of master and servant did not govern his relationship with his employer. '

28. We may observe that the concept of master and servant is being consciously discarded in all spheres. Due to rapid industrialisation the modern trend is to provide safeguard to all kinds of employees and efforts are being made to cover more and more fields of employment by statutory provisions and thereby the relationship of master and servant is being eliminated even in industrial and commercial organizations. Numerous labour laws which have been brought on the statute book during the last two or three decades illustrate the point. The modern trend is that citizens are to be governed by rule of law and not subjected to arbitrariness. To urge that relationship of master and servant exists in Corporations which owe their very existence to a statute seems to be misconceived.

29. On the other question, namely, whether an employee who is not governed by law of master and servant can file a writ petition, two views have been expressed in cases cited before us. However, as summarised above the latest view expressed by the Supreme Court of Pakistan is that such a writ petition is maintainable and the High Court can order restoration to any kind of office if its incumbent has been wrongfully removed there form. This view has been expressed in the cases of Karachi Development Authority (decided in 1991), Sindh Road Transport Corporation (decided in 1990), Principal, Cadet College (decided in 1984) and Evacuee Trust Board (decided in 1983). The case of Pakistan International Airlines Corporation (decided in 1992) does not deal with the point as it arose out of an order of the Service Tribunal. There is yet another case, although not cited at the Bar, which is reported as Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612) which also lays down that employees of a Corporation can maintain a writ petition if there has been a violation of any provision of law or of any statutory rules of service. It is clear that this is the latest view. The cases cited by Raja Muhammad Hanif Khan, the learned counsel for the respondents, reflect the view of law, which is not now being followed by the Supreme Court of Pakistan. It was held in the cases of Lahore Central Cooperative Bank (1959) and West Pakistan Industrial Development Corporation (1966) that a writ of mandamus was not maintainable to compel restoration to office except when it was a "public office" which phrase referred to corporate or elective offices or municipal positions. The leading case on this subject was the case of Lahore Central Cooperative Bank, which was decided in 1959. It was followed in the subsequent years for some time. We have already reproduced a portion of the judgment of Supreme Court of Pakistan in Principal, Cadet College case, decided in 1984, in which this view has been specifically departed from.

30. The concept that a writ of mandamus did not lie to compel the restoration of a former incumbent of an office unless that office was a public office was relatable to the concept of writ of mandamus as in vogue in England and some other countries. When writ jurisdiction was conferred on the High Courts of Pakistan it was done by inserting section 223‑A in the Government of India Act, which served as the Constitutional instrument for Pakistan till the framing of the first Constitution in 1956. The jurisdiction conferred on the High Court was in the following terms:‑‑

31. "223‑A. Every High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases any Government within those territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them."

32. As observed by this Court in Abdul Rehman v. Income Tax Officer (Civil Appeal No. 65 of 1992), the above extracted provision was, broadly speaking, a referential legislation rather than a self‑contained provision. The scope of writ jurisdiction was not defined and it was to be understood in light of the concept, practice and procedure prevalent in England wherefrom the legislation was borrowed. The result was that different principles which were relatable to the writs in the nature of mandamus, certiorari, etc. became the basis of judgments of the High Courts in Pakistan as well as of the Federal Court. Subsequently when the first Constitution of Pakistan was framed in 1956, phraseology of section 223‑A mentioned above was incorporated, with slight variation in Article 170 of that Constitution. The natural result was that the Supreme Court of Pakistan as well as other High Courts continued to apply the principles in vogue in England while exercising the writ jurisdiction. However, the Constitutional position underwent a fundamental change with the framing of 1962 Constitution of Pakistan. In Article 98 of that Constitution; which conferred writ jurisdiction on the Courts, reference to writs of mandamus, certiorari etc. was omitted and a self‑contained provision was enacted, Omitting some portions, the phraseology was to the following effect‑‑

33. "(2)....a High Court ...may, if it is satisfied that no other adequate remedy is provided by law‑‑‑

34. .....make an order‑‑

(i) directing (a public functionary) to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do; or

(ii) declaring that any act done or proceeding taken by ....(a public functionary) ....has been done or taken without lawful authority, and is of no legal effect."

35. The same phraseology was transposed to Article 199 of the 1973 Constitution and was subsequently borrowed in Azad Jammu and Kashmir when writ jurisdiction was conferred on the Azad Jammu and Kashmir High Court.

36. This brought about a fundamental change in the writ jurisdiction, a term which continues to be in use although it is not used in the Constitution. Since it was not a referential legislation but was a self‑contained provision, the principles which were relatable to the English prerogative writs ceased to be relevant. There were some peculiar characteristics of these writs in England. For instance a Court could not issue a writ of mandamus to the sovereign. Then there was a distinction between judicial/quasi‑judicial authorities and administrative authorities, and the rule was that a writ was not to issue in purely administrative matters. Another such principle was that writ of mandamus could not issue for restoration to an office except to an office which was a public office, as already mentioned. The effect of incorporation of a self contained provision is that the principles applicable to writs in England which have not been incorporated in the phraseology of the relevant provisions of the Constitution stand discarded. Therefore, when a writ petition is brought before a High Court the Court has to decide it in light of the Constitutional provision, which confers writ jurisdiction on it without referring to the concept as in vogue in England.

37. For the sake of present discussion the relevant writs are those by which directions and declarations are made, and are found in subsection (2) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act and are in the following words:‑

38. "(2) Subject to this Act, the High Court may, if it is satisfied that no other adequate remedy is provided by law‑‑

(a) on the application of any aggrieved party, make an order‑‑

(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or

(ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect; or

39. (b).............................................................................

40. Subsection (5) is also relevant and may be reproduced:‑‑

41. "In this section, unless the context otherwise requires, `person' includes any body politic or corporate, any authority of or under control of the Council or the Government and any Court or Tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services.

42. The following essential features are apparent from the wordings reproduced above:

(1) The use of word "may" shows that it is a discretionary relief and even if the petitioner succeeds in making out a legal case the High Court may refuse to issue a writ if it is in the interest of justice to do so;

(2) Writ can only issue on the application of an aggrieved party;

(3) Writ can only issue if there is no other adequate remedy provided by law;

(4) It can only issue against a person who is performing functions in connection with the affairs of Azad Jammu and Kashmir/State or a local authority.

(5) A direction under sub‑clause (i) can only be issued to enforce a law;

(6) Declaration in sub‑clause (ii) can be issued if the person mentioned above has acted without lawful authority in which case his act would be declared as of no legal effect.

43. The word "person" has been explained in subsection (5). It includes the Government or any Corporation or Authority under the control of the Council or the Government and thus excludes a private Corporation. However, what is meant by "performing functions in connection with the affairs of Azad Jammu and Kashmir/State" has not been defined or explained in the Constitution Act. This term fell for interpretation in some of the reported cases, which may be noted.

44. The University of Dacca v. Zakir Ahmed (PLD 1965 SC 90): The question arose whether a University is a person performing the functions in connection with the affairs of the Province. The question was answered affirmatively on the following grounds:‑‑

(i) University has been set up to provide for instructions in various branches of learning and for the advancement of knowledge, to affiliate Colleges to prescribe courses of studies. These are the functions which are connected with one of the affairs of the Province, namely, education;

(ii) Government of the Province has considerable power to control and regulate the activities of the University. The Governor is the Chancellor of the University and has power to interfere in the normal activities of the University and can also hear appeals;

(iii) Annual accounts and balance‑sheets have to be submitted to the Provincial Government for the purpose of audit and the Government scrutinises the audit report.

45. The Dacca High Court to its judgment reported as Rustom Ali v. Chairman, East Pakistan Industrial Development Corporation (PLD 1964 Dacca 721), held that East Pakistan Industrial Development Corporation was performing functions in connection with the affairs of the Province, namely, the economic and industrial development of the Province and thus a writ was maintainable against the said Corporation. When an appeal was filed before the Supreme Court of Pakistan this view was upheld in its judgment reported as Chairman, East Pakistan Industrial Development Corporation v, Rustom Ali (PLD 1966 SC 848). While doing so the judgment in Zakar Ahmad's case, just mentioned, was followed.

46. In Iftikharul Haq v. The West Pakistan Water and Power Development Authority, Lahore (PLD 1974 Lah. 82), while interpreting Water and Power Development Authority Act, it was held by the Lahore High Court that the object of the Act as given in the preamble was "to provide for the unified and coordinated development of the water and power resources of West Pakistan". The constitution of the Authority has a completely official complexion. Under section 4 of the Act it is to consist of a Chairman and not more than two members to be appointed by the Government. Their conditions of service, remuneration, reappointment and fixation of their tenure after reappointment rest entirely in the hands of the Government. There is, therefore, no doubt that WAPDA is a person functioning in connection with the affairs of the Province in vital and important public sphere, namely, the supply and co‑ordination of the resources of water and power.

47. The leading Supreme Court judgment in which the point has been elaborately discussed is Salahuddin v. Frontier Sugar Mills Ltd. (PLD 1975 SC 244). The following passages are illuminating:‑‑

48. "Now, what is meant by the phrase `performing functions in connection with the affairs of the Federation or a Province.' It is clear that the reference is to Governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e. by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial sphere, in the belief that free from the inhibiting effect of red‑tapism, these semi‑autonomous bodies may prove more effective, flexible and also profitable. Inevitably, Government retains effective control, over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities."

49. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province. (See Deputy Managing Director, National Bank of Pakistan v. Ataul Haq (PLD 1965 SC 201), Wali Muhammad v. General Manager, WAPDA, Lahore (PLD 1964 Pesh.167), Chairman, East Pakistan Industrial Development Corporation v. Rustom Ali (PLD 1966 SC 848), Muhammad Ashraf Pervaiz v. Agricultural Development Bank of Pakistan (PLD 1973 Lah. 425), Abdur Razaq v. WAPDA (PLD 1973 Lah. 188) and R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146).

50. However, private organisations or persons, as distinguished from Government or semi‑Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to Governmental control in the public interest. The primary test must always be whether the functions entrusted to the organisation or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organisation vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not".

51. The above extracted passages lay down, we say so with respect, the correct enunciation of law and we follow the wisdom contained therein. It may not be out of place to add, however, that the question whether functions being performed by an organisation or persons are indeed functions of the State involving some exercise of sovereign or public power is not always easy to answer. In fact sometimes it is difficult to draw a line between the functions of the State and the functions, which are outside its ambit. At one stage commercial banking was a private business and was carried on by private citizens by forming themselves into public or private limited companies but through operation of law banking was completely taken over by the Government. The recent development is that it has again been opened to private citizens. There are numerous instances where statutory Corporations are set up under control of the Government to perform functions, which apparently seem to be nothing but business. Mills set up by Pakistan Industrial Development Corporation in Pakistan is a case in hand. Then we see that the stores set up by the Utility Stores Corporation, a statutory body, are nothing but grocery shops. On the contrary there are certain activities which appear purely to belong to the State but they are being turned over to private citizens. Amongst them can be found examples of Post, Telegraph and Telephone Services. Construction of public roads is a function of the State but certain motorways are being constructed under the control of statutory Corporations with funds provided by private investors. Therefore, we are disposed to think that in order to resolve this question the acid test should not be whether a particular function is a function of the State or not but it should be whether in the performance of that function sovereign or public power is being exercised. If it is being exercised, it should be sufficient to conclude that the concerned person is performing functions in connection with the affairs of the State/Azad Jammu and Kashmir. The reason which pursuades us to reach that conclusion is that it is the legislature which determines as to what functions are to be performed by the other organs of the State. When the legislature authorises the Government through a law to set up a statutory corporation or authority to perform a particular function, under some kind of official control as may be found necessary, such corporation or authority exercises sovereign power in performance of its functions. It, therefore, follows that it performs functions in connection with affairs of the State/Azad Jammu and Kashmir.

52. The foregoing analysis shows that a writ petition has to be decided in light of the self‑contained Constitutional provision and our Courts are not bound to follow any concept, which owed its origin to the English prerogative writs but has not been incorporated in the Constitution. Thus if a person performing functions in connection with the affairs of the State acts without lawful authority the High Court has the power to declare that act to be without lawful authority and of no legal effect. It has also power to issue a direction to the respondent to do that which he is required by law to do. In light of these principles of law we are unable to follow the view of a learned Judge in Chamber of this Court as expressed in Muhammad Shari's case and some earlier judgments of the Supreme Court of Pakistan that High Court cannot restore a person to office if a statutory Corporation like Azad Kashmir Logging and Saw Mill Corporation, removes a person from office in violation of statutory rules. Section 44 of the Interim Constitution Act spells out no such bar. We would follow the view adopted by the Supreme Court of Pakistan in the subsequent judgments mentioned earlier. We may observe that the writ petition filed in the High Court did not pertain to removal from service but an employee of the Corporation challenged an order by which an order adverse to his interests had been passed in respect of his employment. However, the principles of law applicable to both the situations are the same.

53. An examination of scope of writ jurisdiction would be incomplete without interpreting the term "lawful authority" occurring in section 44 of the Azad Jammu and Kashmir Interim Constitution Act. As has been seen, the general view is that a writ is only maintainable against a statutory Corporation if the relationship between that Corporation and its employees is regulated by statutory rules. However, in some decided cases of superior Courts even violation of administrative orders of general application, which are of binding nature, has been held sufficient for invocation of writ jurisdiction. In Azad Jammu and Kashmir the High Court and this Court have consistently issued writ petitions where it was found that the Government order by which the Nomination Board set up for selection of students for the seats reserved for Jammu and Kashmir nationals in the professional Colleges of Pakistan was violated. One such case from Pakistan jurisdiction is Majlis‑i‑Intizamia v. Secretary to Government PLD 1975 SC 355. However, this question does not arise in the present case and can be decided in a case in which it falls for determination.

54. A preliminary objection which prevailed with the High Court has been raised before us with great vehemence by Raja Muhammad Hanif Khan. The High Court has held that an appeal was maintainable before the Board of Directors under rule 21 of the Azad Kashmir Logging and Saw Mills Service Rules. The learned counsel for the appellant, Ch. Muhammad Taj, argued at length that the High Court fell in error in holding that an appeal was competent: Rule 21 is worded as under:‑‑

55. "21. Right of Appeal .‑‑‑In every case of punishment, grievance or complaint an employee shall have a tight of appeal within three months from the date of award of punishment through proper channel to the competent Authority and finally to the Board of Directors who may either set aside, modify or confirm the punishment. If any deliberate attempt is made by an officer to victimise, implicate, revenge or malign any employee for imposing punishment, if it is so proved and established the former shall be liable to severe punishment."

56. It is provided in the opening words of rule 21 that in case of "punishment, grievance or complaint" an appeal can be riled but in the subsequent part of the rule the power given to the appellate authority is to set aside a punishment. It was, therefore, argued by Ch. Muhammad Taj that in fact an appeal in respect of the determination of the seniority or promotion was not contemplated by rule 21. Otherwise, the powers of appellate authority would not have been confined to setting aside an order of punishment. It was contended by him that the words "grievance and complaint" should be read as referring to "punishment" mentioned in that rule. Both the learned counsel have also referred to rules 22 and 23 and we rind them relevant for the purpose of resolving the preliminary point. Rules 22 and 23 are as follows:‑‑

57. "22. Withholding of Appeals.‑‑‑Appeals against punishment or genuine representations regarding grievances and complaints shall not be withheld by any officer if no decision ruling has already been given in the matter by the highest authority. An appeal which merely repeats a previous appeal or which has already been rejected by the higher authorities shall not be entertained or forwarded to the higher authorities.

23. Disposal of appeal .‑‑‑In every case of appeal against an order imposing any penalty or any representation of grievances or complaint the appellate authority shall keep in view the principle of justice and fairplay and shall consider:‑‑

(i) Whether the facts established afford sufficient grounds for taking action?

(ii) Whether the penalty is excessive, inadequate or improper?

(iii) Whether the representation, complaint or grievances is genuine?

58. All decisions relating to appeals/representations or complaints submitted by an employee in writing shall be conveyed to him in writing."

59. In our opinion the rules under reference are not happily worded. However, it is clear that right of appeal is only in respect of punishment and not otherwise. This conclusion is based on the following observations:‑‑

(a) Although the right of appeal has been mentioned in case of punishment, grievance or complaint under rule 21, the limitation prescribed therein is from the date of award of punishment and not from the date any other adverse order is passed.

(b) That appellate authority can only set aside, modify or confirm a punishment. If the appellate authority is not authorised to set aside, vacate or modify an order in respect of any other matter like promotion, seniority etc., it cannot be conceded that a right of appeal exists.

(c) Rule 22 says that appeals against punishment and genuine representations regarding grievances and complaints shall not be withheld by any officer. It clearly implies that the appeal is against punishment while the representation is provided in respect of grievances etc. Thus, there is no appeal in respect of grievances and complaints.

(d) The provision contained in rule 23 that the decisions will be conveyed in writing clearly classifies appeals, representations and complaints separately.

60. We are, therefore, unable to uphold the view taken by the High Court that a right of appeal was available to Muhammad Rashid Khan, appellant, which he did not avail.

61. Confronted with this situation, Raja Muhammad Hanif Khan contended that if an appeal is not held to be competent a representation was competent. The case of the respondent before the High Court was that an appeal was competent and the finding of the High Court also is that an appeal was maintainable. In the concise statement filed in this Court the plea of the respondents was that an appeal was competent before the Board of Directors. To urge that a representation was competent is to raise a new point but a point which has not been taken up in the concise statement cannot be allowed to be raised during arguments for the first time. Even otherwise we have found that a representation does not appear to be an adequate remedy. The only function given to the appellate authority in respect of a representation in clause (iii) of rule 23 is to consider whether the same is genuine. In presence of this phraseology, the appellate authority cannot be deemed to be clothed with sufficient powers to give the relief sought by the appellant herein.

62. Now we turn to the merits of the case. Let us first see whether appellant Muhammad Rashid is senior to respondents Rashid Farooq Dar, Ch. Muhammad Yusuf and Raja Muhammad Asghar Khan, as claimed by him. The High Court has not recorded any finding on this point as the writ petition was dismissed on technical ground. After a perusal of the record we are of the opinion that the fact stands established that the appellant is senior to the respondents mentioned above. In the writ petition the appellant averred in para. 3 that being the senior officer in 1974 he was entrusted with the charge of Timber Technologist, a Grade 18 post and on Ist of June 1977 he was promoted to Grade 18 and the post was re‑designated as Deputy Manager (Production). In para. 4 of the writ petition it was averred that in 1984 he was given move‑over to Grade 19. In the written statement about the contents of these two paragraphs the reply was that they were not correct. In para. 5 of the writ petition it was averred that respondent Rashid Farooq Dar was promoted in Grade 18 on 1st of June, 1977 (the date on which Muhammad Rashid Chaudhry was promoted in that grade) while Ch. Muhammad Yusuf and Raja Muhammad Asghar were promoted to that grade on 16th of September, 1980 and 18th of October, 1986. The dates of promotion of the respondents were accepted as correct in the written statement. If the claim of the appellant made in para. 3 of the petition stands proved then the result which follows is that the seniority of the appellant is beyond doubt. The appellant filed an affidavit in support of the writ petition but the respondents did not file a counter‑affidavit to rebut it. They did not file any document to show that this assertion was incorrect. This is sufficient to prove that the appellant was entrusted the charge of Timber Technologist, a post in Grade 18, in February 1974 as being the senior officer and that he was subsequently promoted to Grade 18 on Ist June, 1977. Additionally in support thereof there are other two documents which are on the file of the High Court. The first is a seniority list and the second is a copy of the order which shows that the appellant and respondent Rashid Farooq Dar were promoted to post in Grade 18 with effect from Ist of June 1977, as claimed in. the writ petition. Annexure `F is a copy of an order confirming the seniority of Ch. Muhammad Rashid appellant as against Ch. Muhammad Yusuf respondent by rejecting his representation. The fact stands established that the appellant was decidedly senior to Ch. Muhammad Yusuf and Raja Muhammad Asghar because they were promoted to Grade 18 much later. So far as Rashid Farooq Dar is concerned he was promoted to Grade‑18 alongwith the appellant on the same day but, as is proved due to the absence of a counter‑affidavit, the appellant being senior to him in the lower grade was already working against a post in Grade‑18. Thus appellant continued to be senior in Grade‑18.

63. Let us now examine the two orders challenged by the appellant in the writ petition filed in the High Court. Both the orders were issued on 7th December 1990. The relevant parts of the orders (translated in English) are as follows:‑‑

64. "(1) With the agreement of the Forest Minister/Chairman, AKLASC the following transfers are ordered in the interest of the Corporation:‑‑‑

(1) Mr. Rashid Farooq Dar, Deputy Forest Manager, AKLASC/Deputy Manager Sales, Islamabad is transferred and posted in his own pay and scale as Mill Manager, AKLASC, Mirpur.

(2) Ch. Muhammad Rashid, Deputy Manager (Production), Mirpur is transferred and posted as Deputy Manager, Sales, Islamabad."

(2) With the agreement of the Forest. Minister/Chairman, AKLASC the following transfers are ordered in the interest of the Corporation:‑‑‑

(1) Raja Muhammad Asghar, Deputy Forest Manager attached with General Manager, AKLASC, Mirpur is transferred and posted in his own pay and scale as Forest Manager, AKLASC, Muzaffarabad.

2. Ch. Muhammad Yusuf, Officiating Forest Manager, AKLASC, Muzaffarabad is transferred and posted in his own pay scale as Manager, Planning and Technical AKLASC, Muzaffarabad."

65. The orders were attached on the ground that power of appointment, posting and transfer in respect of officers in Grade‑18 and above is vested in the Board of Directors and since the orders were not passed by the said Board the same were coram non judice, It was also contended that posting against these higher posts could only be ordered by the Board on the recommendations of the Selection Committee. The orders were also termed as mala fide as they were recorded oh a holiday. It was averred that the petitioner's rights were adversely affected by the orders because the posts were of higher scale. There was also an allegation in the writ petition that the orders had been passed to deprive Muhammad Rashid Chaudhry of his lawful rights.

66. In support of these contentions Ch. Muhammad Taj referred us to section 7 of the AKLASC Ordinance, 1965 to contend that it is the Board, which is appointing authority of the officers and employees of the Corporation, therefore, the power to deal with the officers and employees of the Corporation shall be deemed to be vested in the Board alone. He invited our attention to the chart of delegation of powers forming part of Regulations called the Azad Jammu and Kashmir Logging and Saw Mill Corporation (Conduct of Business) Regulations, 1969 framed in pursuance of section 17 of the Ordinance wherein powers of transfer of different officers and employees of the Corporation up to Grade‑17 posts have been delegated to the Managing Director etc. but there is no mention of Grade‑18 or higher posts. This is a clear position and was not contested but the learned counsel for the respondents, Raja Muhammad Hanif Khan, relied on Regulation 4 (iv) of the Regulations mentioned above which, inter alia, lays down that: "Chairman shall, for the disposal of urgent cases, exercise all the powers of the Board". According to the learned counsel the impugned orders were transfer orders and fell within the category of urgent cases.

67. In our considered view the impugned orders cannot be justified by relying on Regulation 4 (iv) mentioned above. The impugned orders are simply orders by which administrative charges were brought about involving as many as four people and five posts at different places, namely, Muzaffarabad, Mirpur and Islamabad. To call them "urgent cases" is stretching things too far, which cannot be allowed. The term "urgent cases" has been left undefined but it appears to refer to matters relating to the business activity of the Corporation. Even otherwise we find that these order were not orders of the Chairman but have been passed by the Managing Director with the "agreement" of the Chairman. It means that the orders were passed by the Managing Director and he sought the agreement of the Chairman. Exercise of power involves much more conscious application of mind and higher level of decision making than mere agreement. It cannot, therefore, be said that the Chairman exercised any power by signifying his agreement.

68. The appellant who is senior to the private respondents is working as Deputy Manager while the aforementioned respondents are enjoying the status and powers of Managers and this arrangement has been going on for more than two years in spite of the fact that it was claimed in the written statement filed in the High Court that it was a stopgap arrangement. The present arrangement is decidedly adverse to the service rights of the appellant, which makes him an aggrieved person within the meaning of section 44 of the Interim Constitution Act. In this connection the dictum of this Court in Maqsood Hussain v. Chairman, Municipal Committee, Mirpur (1992 CLC 2203) is relevant:‑‑

69. "Next, it has been half‑heartedly contended by the learned counsel for respondent No.4 that the appellant is not an `aggrieved person' because the plot was allotted to respondent No. 4 in the year 1987, when the appellant had not yet submitted any application for the allotment of the plot in dispute. Assuming for the sake of argument that the order passed in September, 1987 would be regarded to be a final order in the matter, the fact remains that plot in question was, available for allotment to any deserving person from public at large. Thus, if the order of Chairman dated 28‑9‑1987 was violative of the law and without jurisdiction that would not debar the appellant from seeking the allotment of the plot in question. It is not disputed that the appellant falls within one of categories, which have been declared entitled to allotment of plots in Mirpur Town. It is true that no right in the strict juristic sense vested in him, but clearly the appellant is a person who has personal interest that the respondents should not perform their legal duties in a manner not provided by law because if the plot in question becomes available for allotment to a deserving person it is certainly an advantage or benefit which would accrue to the appellant. If any authority is needed on this point we may refer to Mian Fazal Din v. Lahore Improvement Trust, Lahore (PLD 1969 SC 223) and particularly the following passages from the judgment of Hamoodur Rehman, C.J., who spoke for the Court in that case:‑‑

70. The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise.

71. A corporation entrusted with the task of formulating two improvement schemes had appropriated a particular site for the use of the public as a market place and this induced one M to purchase a piece of land just opposite to the proposed market place in the hope of opening a shop there. Subsequently, however, the scheme was altered and M was deprived of the facility he had hoped for. The Supreme Court‑ held that the deprivation of such a facility conferred a sufficiently valuable right to enable him to maintain a writ petition.

72. This judgment was followed in the case reported as Pervaiz Akhtar v. Municipal Committee, Mipur (1993 CLC 426). The judgment of the Supreme Court of Pakistan in Muhammad Afzal v. Government of Pakistan (1987 SCMR 2078) also lays down the same rule.

73. The learned counsel for the appellant contended before us that the impugned orders were in fact promotion orders. The plea was raised before the High Court but the learned Judge observed that this plea was not raised in the writ petition. A perusal of the writ petition shows that the observation of the High Court is correct. However, this point was included in the memorandum of appeal and subsequently incorporated in the concise statement. This is the manner in which, according to the practice of this Court,' a law point can be raised in this Court for the first time. Since we have already found that the orders impugned before the High Court were without jurisdiction we need not resolve this question which is being raised for the first time in this Court. However, we want to make some necessary observations in this respect.

74. According to rule 27 of the AKLASC Employees' Service Rules in case of matters not expressly provided in those rules members of the service shall be governed by appropriate rules/orders of the Government. Therefore, the Civil Servants Act and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 8 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of "transfer" is the shifting of an official to an equal post. There is no concept in the service laws of transferring a Civil servant to a post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board. However, if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the Rules of 1977 mentioned above. These rules provide for appointment on acting charge basis (rule 10‑A), appointment on current charge basis (rule 10‑B) and appointment by promotion on officiating basis (rule 13). In rule 10‑B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government should amend the Rules. The prevalent practice of ordering civil servants to posts carrying higher grades should be brought to an end because sometimes the senior persons are left to work in the same position while their juniors enjoy higher status and enhanced powers without adjudication of their suitability for promotion by the Promotion Board. In this context we may usefully reproduce the following j passage from the judgment of this Court in Mubashar-ul-Haq v. Azad Government of Jammu and Kashmir 1991 PLC (CS) 426:‑‑

75. "The other ground on which the order of the Service Tribunal proceeds is that no additional benefit had been conferred on the two respondents. We find this ground equally untenable. The two respondents are functioning as Executive Engineers which posts carry higher responsibilities and, therefore, enhanced powers and status. Under an Executive Engineer many S.D.Os. work as his subordinates and the possibility cannot be ruled out that even the appellant himself could have been posted under one of the respondents. Mere fact that they have not been allowed salary in the higher scale does not lead to the conclusion that there is no additional benefit to them."

76. Another point which needs to be resolved is whether the present appellant had withdrawn the writ petition so far as it relates to Raja Muhammad Asghar. It is recorded in the judgment of the High Court that:‑‑

77. "4. Ch. Muhammad Taj the learned counsel for the petitioners to begin with stated that he has decided not to press the writ petition filed by Muhammad Hafeez Ullah as against respondent No. 4, Ch. Muhammad Yusuf. Similarly he would not press the writ petition filed by Muhammad Rashid Choudhri as against respondent No. 6."

78. In the memorandum of petition for leave to appeal filed in this Court it was averred that it was not factually correct that the writ petition was not pressed against Raja Muhammad Asghar. It was stated that in fact the main grievance was against the said respondent, therefore, there was hardly any reason for not pressing the writ in so far as it related to him. The learned counsel, who appeared in this case on behalf of the appellant, also appeared for him in the High Court and an affidavit verifying all the averments made in the petition for leave to appeal was fled by the aforementioned counsel. This contention was not contested on behalf of Raja Muhammad Asghar Khan, who is respondent No.6 in any way. He did not repudiate it in the concise statement filed by him nor indeed did he file a counter‑affidavit. Since the statement has gone uncontested we conclude that the observation that the petition was not pressed against Raja Muhammad Asghar is an error, which has crept into the judgment of the High Court.

79. When arguments were about to be heard in this appeal the learned counsel for the respondents filed an application stating that during the pendency of the appeal respondents Rashid Farooq Dar, Ch. Muhammad Yusuf and Raja Muhammad Asghar had been substantively promoted to the posts which were temporarily held by them as consequence of the impugned orders Photo copies of two orders whereby the aforesaid three respondents were promoted were also filed. It was prayed in the application that the learned counsel for the respondents may be allowed to argue the following point:‑‑

80. "(f) That the respondents Nos. 4 to 6 have been promoted substantively by the competent authority in AKLASC and the appellant had lodged an appeal which is pending for‑adjudication. In presence of present state of affairs, the appellant has accepted that the respondents have been promoted now and that the appellant has got a right of appeal under the AKLASC Service Rules. In view of the matter the writ petition as well as the appeal before this Honourable Court are incompetent."

81. Photo copy of a n appeal purportedly filed by the appellant has also been filed alongwith the application. In our view the issuance of these orders and filing of an appeal do not affect the present appal. These are subsequent events which are not interwoven with the subject‑matter of the appeal in such a way that the appeal should be treated as having become incompetent. The prayer made by the appellant is that the impugned orders may be quashed and this is the only relief, which we propose to grant. The latest orders do not alter or amend the impugned orders, which are independent orders. These orders can be challenged by the appellant, if so advised, and if we make any observation about these orders it may prejudice one party or the other. Since these orders were not under challenge in the High Court we cannot legally adjudicate upon their validity. However, the passing of these orders cannot affect the jurisdiction of this Court to decide whether the previous orders impugned in the writ petition‑were valid or not.

82. We may also observe that where points of law of public importance are involved, as in the present case, it has been the practice of this Court as well as the Supreme Court of Pakistan to decide the points even if relief cannot be transposed in a concrete shape. In this connection we may refer to the Judgment of the Supreme Court of Pakistan in The Government of the Punjab v. Dr.. (Mrs.) Shamim Raza Bukhari (PLD 1990 SC 731) where an objection was raised that by the time the appeals came for hearing the respondent No. 2 had retired from service and he was not interested in prosecuting his appeal nor contested the counter‑appeal filed by the Government of the Punjab. The other respondent had also retired and was not represented before the Supreme Court. The Court made the following observation:‑‑

83. "However, as the questions raised in the appeal of the Government of Punjab concern question of law of public importance, we have under‑taken to dispose of this appeal independently on merits and ex parte against the respondent:"

84. This Court in Sardar Sikandar Hayat Khan v. Government of the Azad Jammu and Kashmir PLD 1978‑ SC (AJ&K) 12 decided the appeal filed in respect of a detention order when the detenu had already been released for the reasons as will appear from the following:‑‑

85. "We do not think that there is any bar, in the circumstances of this case, against hearing the appeal, challenging the legality and other allied matters of the detention. It is moreso when it is conceded that on vital matters of law, High Court had departed from the time tested conventional views. We, therefore, proceed to hear the appeal on all points raised therein."

86. A similar situation arose in Ghulam Mustafa Mughal and another .v. Azad Government and others [Civil Appeal No.32 of 1991, decided on 17‑6‑1992 (1992 MLD 2083)] in the circumstances that the appointment of an Additional Judge of the High Court which had been challenged was rescinded by the Government. The‑main ground on which the appeal was decided on merits was:‑‑

87. "----There is a judgment of this Court reported as Amjad Hussain v. Ghulam Rasool Mir (1991 PCr.LJ 685) laying down that a quo warranto writ lies against a Judge but this judgment has been hold to be distinguishable in the judgment under appeal and the High Court has reached the conclusion that a writ of quo warranto cannot issue against a Judge of the High Court even if his appointment is held to be invalid. The other question involved in the case, namely, whether an Additional Judge can be appointed without advice of the Azad Jammu and Kashmir Council and whether consultation with the Chief Justice in this respect is necessary or not is also a Constitutional point of public importance and the state of law on this point cannot be left in a melting pot."

88. As an upshot of the foregoing, we accept the appeal and set aside the order of the High Court. Consequently the writ petition is accepted and it is declared that the two impugned orders passed on 7th December 1990 were passed without lawful authority and were of no legal effect. However, the parties are left to bear their own costs throughout.

89. SARDAR MUHAMMAD ASHRAF KHAN, J: ‑‑ I have had the privilege and advantage of going through the draft judgment recorded by my learned brother Mr. Justice Basharat Ahmad Shaikh but regret my inability to subscribe to his views expressed therein on some of the legal questions requiring determination in this case which may be formulated as follows:‑‑

(i) Whether an employee of Azad Kashmir Logging and Saw Mills Corporation (hereinafter referred as Corporation) has the right to invoke the writ jurisdiction of the High Court for the redress of his grievance arising out of the order made by the competent authority of the said Corporation?

(ii) Whether the appellant is a person aggrieved by the impugned orders whose validity was challenged by him in the writ petition in the High Court?

(iii) Whether no other adequate remedy was provided by law against the impugned orders and as such the writ petition to challenge their validity was maintainable?

(iv) Whether the writ petition was not pressed against Raja Muhammad Asghar Khan respondent No.6 in the High Court by the counsel for the appellant.

90. As regards the decision of my learned brother on point No. (i) above I am in full agreement with it that the Corporation is not immuned from the writ jurisdiction in the matter of grant of redress to its employee who is aggrieved by an order made by its competent authority suffering from inherent vice and for that reason is ab initio void. It is undisputed that the Corporation is a statutory body and the terms and conditions of its employees are governed by statutory rules known as AKI.ASC Employees Service Rules, 1977 (hereinafter referred to as Service Rules, 1977). Since the services of the employees of the Corporation are governed by statutory rules the writ jurisdiction of the High Court can be invoked by its employees for the redress of their grievance arising out of an order of competent authority of the Corporation made in violation of any of such rules and the general law of master and servant shall not be applicable to them under which contract of service cannot be enforced in the Court of law.

91. As regards the point No. (ii) formulated above my learned brother Mr. Justice Basharat Ahmad Shaikh has come to the conclusion that the appellant is a person aggrieved by the orders impugned by him in the writ petition as he being senior to the respondents Nos. 4 to 6 (hereinafter. referred to as respondents) the respondents are enjoying the status and powers of Managers for a period of more than two years which arrangement is decidedly adverse to his service. But with due respect I may say that the appellant cannot be held to be a person aggrieved by the impugned orders whose validity was challenged by him in his writ petition before the High Court mainly on the ground of his seniority over the respondents in the cadre of Deputy Managers. The appellant and the respondents were undoubtedly holding the posts of Deputy Manager carrying BPS‑18 in the Corporation and by virtue of the impugned orders the respondents were simply transferred and posted as Managers in different branches of the Corporation in their own pay scales. The grievance of the appellant made in his writ petition was that he being senior to the respondents in the cadre of Deputy Managers was entitled to be transferred and posted to the senior post of Manager in preference to the respondents. As the reading of the impugned orders would show the respondents do not stand promoted to the higher posts of Managers in BPS‑19 but were only transferred and posted to the aforesaid posts to perform the functions of the Managers in various branches of the Corporation in their own pay scales as a stopgap arrangement. The appellant can only be considered a person aggrieved by such transfers and postings of the respondents if he was entitled to any such posting and transfer in preference to the respondents on the basis of being senior to them under the relevant rules which governed the terms and conditions of his service in the Corporation. I have gone through the AKI.ASC Employees' Service Rules, 1977 and also the appropriate rules/orders of the Government which have been made applicable to the employees of the Corporation in all matters not expressly provided in the Service Rules, 1977 but have not been able to lay my hands on any rule under which only a senior‑most employee of the Corporation is entitled to be transferred and posted to a post borne on the higher cadre nor any such rule has been referred to by the learned counsel for the appellant. An employee of the Corporation would, in my view, be a person aggrieved by an order of the competent authority of the Corporation only if it adversely affects any of the terms and conditions of his service guaranteed to him either under the Service Rules, 1977 or any other rule/order of the Government but as said above the impugned orders are not violative of any of the terms and conditions of service of the appellant by which he is governed under the relevant rules. The impugned orders are not promotion orders of the respondents which only tantamount to an ad hoc arrangement till the posts in the cadre of Managers are filled up on permanent basis and they do not in any way adversely affect the seniority of the appellant in the cadre of Deputy Manager nor give an edge to respondents over him in the matter of promotion to a higher post or cadre. His seniority over the respondents in the lower grade or cadre shall be duly considered if and when promotions to the higher posts are made.

92. As regards the question as to whether or not an adequate alternative remedy was available to the appellant under the law, I am of the opinion that in view of my decision on point (ii) above no remedy was provided under any law for the redress of his grievance arising out of the impugned orders as no legal right was vested in him to claim transfer and posting to higher post in preference to the respondents. But generally speaking when rules 21 to 23 of the service rules are read together an employee of the Corporation has at least a right to make representation, if not an appeal, of his grievance or complaint arising out of the order of the Officer of the Corporation to the higher authority and finally to the Board of Directors. This is the only benevolent interpretation that can be made of the rules 21 to 23 of the Service Rules, 1977. The Board of Directors of the Corporation is obliged to give its decision on such a representation which would be final decision in the matter under rule 23 (iii) of the Service Rules, 1973.

93. As regards point No. (iv) above I agree with my learned brother that the observation made in the judgment of the High Court that the appeal was not pressed against Raja Muhammad Asghar Khan is an error having crept into the aforesaid judgment.

94. The upshot of the above discussion is that though the employees of the Corporation have the legal right to ask for the issuance of writ under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provided other necessary conditions are fulfilled but in this case the writ was not maintainable as the appellant was not a person aggrieved by the impugned orders. The result is that this appeal is liable to be dismissed on the above score.

ORDER OF THE COURT

95. Since there is division of opinion the majority judgment will be the judgment of the Court in light of clause (b) of section 42 (13) of the Azad I Jammu and Kashmir Interim Constitution Act, 1974.

96. A.A./5/SC. A Order accordingly.