MUZAFFARABAD, Sept 10: The Azad Jammu and Kashmir (AJK) High Court on Tuesday declared the AJK Public Service Commission (PSC) (Amendment) Ordinance 2012, ultra vires of the Constitution as well as the PSC Act, 1986, passed by the Legislative Assembly.
As a result the appointments of the AJK Public Service Commission (PSC) chairman and members stood nullified.
“As the appointments (of PSC chairman and members) are on the basis of the annulled ordinance, they are illegal for having been made without any lawful authority,” declared the larger bench, headed by Chief Justice Ghulam Mustafa Mughal and comprising Justice M Tabassam Aftab Alvi, Justice Abdul Rasheed Sulehria and Justice Sardar Abdul Hameed Khan.
“They (PSC chairman and members) shall cease to hold the office immediately for the reasons recorded in the judgment.
However, the proceedings taken and acts done, either financial or administrative, by them in their daily business would not be affected by this judgment on the principle of de facto doctrine,” it added in the judgment authored by the CJ.
The petition, jointly filed by Leader of the Opposition in AJK Legislative Assembly Raja Farooq Haider and Advocate Razaq Ahmed, former president District Bar Association Mirpur in April this year, had challenged the AJK PSC (Amendment) Ordinance initially promulgated on July 9, 2012 and re-promulgated on November 27, 2012.
It may be recalled here that according to the PSC Act, 1986, the strength of PSC was 7 members, including the chairman.
However, on July 9, 2012, the AJK PSC (Amendment) Ordinance 2012, was promulgated by the government to “improve the education standard and ensure the recruitment of teaching/administrative cadre services in accordance with National Education Policy, 2009, as adapted in the AJK.”
Under the amended ordinance, three “educationist members” were added to the PSC, raising its total strength to 10, including the chairman.
The ordinance was re-promulgated on November 27, 2012.
Appointments against these positions were made between November 21, 2012 and March 5, 2013.
The petitioners, who were represented by Advocate Raja Sajjad Ahmed, contended that the amendments introduced in the impugned ordinance had curtailed the functions of PSC.
Apart from that, the qualifications of PSC members earlier mentioned in the PSC Act 1986 had been deleted to appoint favourites, who were either they were active political workers or nominees of the (ruling) party in last general election and had played an active role in its election campaign.
The respondents, who were represented by Abdul Rasheed Abbasi advocate, raised various objections to the maintainability of the petition as well as the eligibility of the petitioners “for not being aggrieved persons.”
However, the court rejected their contention, declaring that it was not necessary to qualify as an aggrieved person that a right in strict juristic sense should be vested in him.
Instead, a person showing that he had some interest that the respondent should act in accordance with law could approach this court for direction.
The bench, referring to the contention of Mr Abbasi, agreed that mala-fide could not be attributed to the legislature and a piece of legislation could not be quashed on this ground.
“However, an Act or Ordinance, enacted or promulgated, can be declared ultra vires of the touchstone of the constitution,” it added.
The respondents also maintained that through the impugned ordinance, not only the strength of PSC members was increased but also the qualification, integrity and impartiality of the institution was ensured, because the chairman and members had to take oath before entering the office.
The bench directed the government to amend the AJK PSC Act 1986 by the Act of Legislative Assembly and provide the qualifications for its chairman as well as members as were provided for other public office holders, such as chief election commissioner, chairman service tribunal and chairman Ehtesab Bureau, through the acts of assembly.
“If such course is adopted for the appointment of the PSC chairman by amending the PSC Act, 1986, the confidence of common man and those who aspire for jobs on merit will be ensured,” the bench observed.