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Before Fazl-i-Mahmood, J
AMIN JAN-Petitioner
versus
DIRECTOR-GENERAL, T & T AND OTHERS-Respondents
Writ Petition No 358 of 1984, decided on 16th October, 1984.
Art. 199-Constitutional jurisdiction-Inter-departmental affairs High Court, though possessed of ample power to remedy a wrong suffered by a citizen who invokes jurisdiction but at same time in its discretion and as a rule of prudence, prefers to exercise judicial restraint and, except for compelling reasons, does not favour interference with inter-departmental affairs which can be sorted out after due observance of law by contending departments-Public exhibition of discord in different departments of same Government deprecated.
-- Arts. 99, 90 & 199-Rules of Business, 1973, r. 14-Policy of Rule to achieve harmonious functioning of various Divisions and Ministries of Federal Government-Duty of Divisions/ Ministries of Federal Government to act in consonance with Rule-Burdening Courts with matters which ought to be settled at department level not approved.
The policy of Rules of - Business, 1973 appears to be to achieve harmonious functioning of various Divisions and Ministries of the Federal Government and further to ensure that they seek and act on competent expert advice in respect of (i) all legal questions arising out of any case, (ii) on the interpretation of any law ; and (iii) at the earliest possible stage whenever any civil or criminal proceedings are instituted against the Federal Government. These Rules of Business are thus based on public policy and designed to safeguard effectively the State interests. To act in consonance with these rules is a clear duty cast on all the Divisions Ministries of the Federal Government. This can be clearly spelt out from the use of the word "shall" in the opening part of rule 14 of the Rules of Business. Reference may, in particular, be made to sub-clauses (a), (b) and (f ) to sub-rule (1) of rule 14. Law, Rules and Regulations of obligatory character are meant to be obeyed and honoured by their observance and not through breaches. Any departure from the aforesaid provisions is bound to lead to anomalous results and prove injurious to smooth transaction of the business of the Federal Government by its various Divisions and Ministries. The letter and spirit of the law, when observed, will also have the wholesome effect of avoidance of frivolous litigation and waste of public time and expense. Non-observance of these rules, on the other hand, is fraught with the danger of giving rise to unnecessary litigation and bound to impede the speedy dispensation of justice. It is against public policy and public interest to burden the Courts with matters which ought to be settled at the departmental level.
Khawja Akhtar Ali for Petitioner.
Munir A. Shaikh Dy. A.-G. for Respondents.
Date of hearing : 16th October, 1984.
This constitutional petition has been filed by an Assistant Engineer in the T & T Department whose promotion to Basic Scale number seventeen as ordered by the Secretary Establishment, Government of Pakistan, has led to a discordant note from Director-General, Pakistan Telegraph and Telephone
Department. The petitioner seeks a direction from this Court in the nature of writ of mandamus for the implementation of the orders of the former.
2. On this case coming up for limine hearing a learned Judge had called for comments which have been filed. The letter forwarding these comments dated 16-9-1984, however, proceeds on a misconception as if these comments were being submitted on behalf of all the respondents. These are comments from respondent No. 1 only and are to be construed accordingly.
3. There are three respondents to the writ petition, namely, (i) Brig. Mansoor-ul-Haq Malik, Director-General T & T, Iii) Federation of Pakistan through Secretary Establishment, Government of Pakistan and (iii) Secretary Communication, Government of Pakistan. On inquiry the learned Deputy Attorney-General clarified that he is presently appearing under instructions from respondent No. 1 only.
4. After hearing the learned counsel for the petitioner and the learned Deputy Attorney General, at the preliminary stage, 1 feel that the functionaries of the Federal Government in different Departments are at loggerhead. The petitioner's learned counsel is, however, keen for immediate redress of his grievances.
5. The petitioner has invoked the jurisdiction of this Court under Article 9 of the Provisional Constitution Order, 1981, which reads as under;
"9. Jurisdiction of High Court.-(I) Subject to this Order, a High Court may, it' 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, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do or
(ii) ..
(b)
From the above, it is obvious that this Court, no doubt, under the constitutional provision, is possessed of ample power to remedy a wrong suffered A by a citizen who has knocked at its door for justice. However, at the same time, this Court in its discretion and as a rule of prudence, prefers to exercise judicial restraint and, except for compelling reasons, it does not favour interference with inter-departmental affairs which can be sorted out after due observance of law by the contending Departments. This Court is also not minded at the present juncture to lend itself to different Departments of the same Government for public exhibition of their discord.
6. 1 feel that the various Departments of the Federal Government involved in this case, i. e. the Ministry of Establishment, the Ministry of Communication and the Director-General T & T are acting in oblivion of the mandatory requirements of rule 14 of the Rules of Business framed under the Constitution of the Islamic Republic of Pakistan, 1973 as kept in force through the Provisional Constitution Order, 1981. This rule reads as under :
"14. Consultation with the Law Division.-(1) The Law Division shall be consulted
(a) on all legal questions arising out of any case ;
(b) on the interpretation of any law ;
(c) before the issue of or authorization of the issue of an order, rule, regulation, by-law, notification, etc. in exercise of statutory powers ;
(d) deleted vide Cabinet Division No. 104/10/76-Min, dated 26-3-1976.
(e) before instituting criminal or civil proceedings in a Court of law in which the Government is involved ;
(f) whenever criminal or civil proceedings are instituted against the Government at the earliest possible stage ; and
(g) before the appointment of a legal adviser in any Division or any office or corporation under its administrative control and the Law Division will make its recommendations after consultation with the Attorney General.
(2) ..
(3) .
(4)
(5),
7. From a plain reading of the above provisions, it is crystal clear that it is a self-contained code. For the purposes of the present case, it should suffice to observe that the policy of law, inter alia, appears to be to achieve harmonious functioning of various Divisions and Ministries of the Federal Government and further to ensure that they seek and act on competent expert advice in respect of (i) all legal questions arising out of any --case ; (ii) on the interpretation of any law ; and (iii) at the earliest possible stage whenever any civil or criminal proceedings are instituted against the Federal Government. These Rules of Business are thus based on public policy and designed to safeguard effectively the State interests. To act in consonance with these rules is a clear duty cast on all the Divisions/ Ministries of the R Federal Government. This can be clearly spelt out from the use of the word "stall" in the opening part of rule 14 of the Rules of Business. Reference may, in particular, be made to sub-clauses (a). (b) and (f) to sub-rule (1) rule 14, as they are relevant for the purposes of this case. I am, therefore. constrained to observe that Law, Rules and Regulations of obligatory character are meant to be obeyed and honoured by their observance and not through breaches. Any departure from the aforesaid provisions is bound to lead to anomalous results and prove injurious to smooth transaction of the business of the Federal Government by its various Divisions and Ministries. The letter and spirit of the law, when observed, will also have the wholesome effect of avoidance of frivolous litigation and waste of public time and expense. Non-observance of these rules, on the other hand, is fraught with the danger of giving rise to unnecessary litigation and bound to impede the speedy dispensation of justice. It is against public policy and public interest to burden the Courts with matters which ought to be settled at the departmental level.
8. I would like to refer to a decision of the Supreme Court of Pakistan in the case of Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha (P L D 1958 S C 437). In somewhat similar circumstances, the learned Supreme Court strongly deprecated the trend of Departments of the same Government in carrying their internal disputes for resolution to High Courts in writ jurisdiction. At page 496 of the report, Cornelius, J. observed "Surely there are sufficient wise heads and sober minds within the branch of the administration which deals with control of public transport to be able to devise, consistently with the statutory instrument a modus vivendi whereby these two authorities may be enabled to function together harmoniously, and with the degree of efficiency necessary to ensure the public good."
It is rather unfortunate that despite the above-quoted dictum of the Supreme Court in Tariq Transport Company's case, little heed has been paid to it by the statutory functionaries who are obliged to follow it by virtue of Articles 189 and 190 of the Constitution of the Islamic Republic of Pakistan, 1973, read with the Provisional Constitution Order, 1981.
9. In the above background and circumstances, I have called upon the learned Deputy Attorney General Mr. Munir A. Sheikh to intervene and bring the matters to the notice of the relevant quarters including the Law Division so that this contentious question instead of being voiced in the Courts is settled harmoniously in accordance with the requirements of the Rules of Business.
10. The learned Deputy Attorney General next submits that the Secretary, Establishment Division, is presently out of the country and is likely to return after a few weeks. He further submits that the petitioner need not entertain any apprehension on account of this exercise which is going to be undertaken by him as he would not be frustrated on the basis of a plea raised that in the meantime somebody else has been promoted against the vacancies which are in dispute in the present case.
11. In the above circumstances, the case is adjourned for six weeks as prayed. The learned Deputy Attorney-General shall on the next date of hearing apprise the Court about the progress of this matter.
M. Z. M. Order accordingly.
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