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Appeal No. 135 of 1980, decided on 25th November, 1985.

‑‑‑Posting‑‑Appointment‑‑Distinguished‑‑Posting against a post‑‑Not an appointment either by initial recruitment, promotion or transfer‑‑Civil servant transferred and posted against a post does not mean appointment to that post‑‑Post of Registrar Judicial Board/Supreme Court Azad Jammu and Kashmir in pay scale No. 19 upgraded to B.P.S.‑20 provided incumbent a confirmed District and Sessions Judge‑‑Sub‑Judge posted as Registrar and promoted as District and Sessions Judge (B.P.S.‑19) but not yet confirmed, held,. not entitled to B.P.S.‑20‑‑Plea that promotion order was unconditional and that no condition of probation was mentioned therein‑‑Repelled‑‑Held, provisions of Law governing probation shall have effect notwithstanding fact that any such condition is not expressed in an order and where conditions attaching to appointment or promotion are prescribed through law their repetition in an order is not at all required‑‑Kashmir Service Rules, Vol. II, Appendix II, Art. 20.

‑‑‑Pay‑scale s‑‑Employees of Azad Jammu and Kashmir Government‑‑ Principle of parity with pay‑scales of employee of Government of Pakistan and Punjab‑‑Whether Service Tribunal competent to issue directions in matters of terms and conditions of a Civil Servant for providing any pay‑scale under principle of parity‑‑Handout of Azad Government of Jammu and Kashmir, dated 18‑5‑1970, accepting as principle of policy that gazetted Government servants in Azad Kashmir would be equated with their counterparts in West Pakistan/Punjab provided they possess same qualifications and carry same responsibility‑‑Held, a command of authority capable of establishing law and order hence, enforceable by law Courts and Service Tribunals‑‑Jurisdiction of Service Tribunal‑‑Azad Jammu and Kashmir Service Tribunals Act, 1975, S. 4.

Province of Punjab through Secretary, Finance v. Ramzan Ali and others P L D 1982 S C 349, 1982 P L C 111; P L D 1964 S C 21 and Ghulam Nabi v. State P L D 1971 Azad J & K 118 rel.

P L D 1964 Lah. 413; P L D 1962 Lah. 443 and P L D 1963 Lah. 127 ref.

Kh. Muhammad Saeed for Appellant.

Sh. Abdul Aziz for Respondent.

‑This service appeal under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 is directed against the Order of the Government issued under No. Admin. 4543/80, dated 4‑3‑1980 whereby the appellant's request for grant of pay in Basic Pay Scale 20 alongwith allowances was rejected and order No. Admin. 10484‑89/80, dated 17‑6‑1980 under which his application for review of the said order has been rejected. The appeal was initially heard by Mr. Sardar Sajawal Khan who was appointed as Member, Service Tribunal to hear this appeal and was dismissed in limine on 30‑10‑1980. The appellant lodged an appeal in Supreme Court of Azad Jammu and Kashmir against the order of Service Tribunal, dated 30‑10‑1980. The Supreme Court Azad Jammu and Kashmir vide order, dated 11‑1‑1983 set aside the Service Tribunal's order, dated 30‑10‑1980 and the case was remanded back to Service Tribunal for fresh disposal in accordance with the law. Preliminary hearing of the said appeal was accordingly conducted and the appeal was admitted for regular hearing vide Service Tribunal's order, dated 18‑8‑1983. The regular hearing of the case has been conducted by Member, Service Tribunal as ordered by the Chairman Service Tribunal on 16‑6‑1983.

2. The brief facts of the case are that the appellant, who was senior most Sub‑Judge in the Judicial Department and was working at that time as Registrar, Azad Jammu and Kashmir High Court, was transferred to Judicial Board and appointed as Registrar of the Board in Pay Scale 1,000‑75‑1,750 plus 300 as special pay. The appellant took charge of the post of Registrar Judicial Board on 8‑4‑1975. Subsequently, through an amendment dated 12‑11‑1975, in the Azad Jammu and Kashmir Interim Constitution Act 1974 the nomenclature of the Judicial Board was changed to Supreme Court of Azad Jammu and Kashmir and the appellant continued to work as Registrar, Supreme Court until 28‑11‑1977 when he was transferred from the post of Registrar, Supreme Court. As stated above, at the time of his appointment as Registrar, Judicial Board, the appellant was Sub‑Judge. Since under rules only a District and Sessions Judge could be appointed as Registrar, Judicial Board the Government condoned the irregularity by promoting the appellant as District and Sessions Judge w.e.f. the date he assumed charge of the post of Registrar Judicial Board. Subsequently, on 8‑1‑1978, the Government upgraded the post of Registrar from B.P.S. 19 to B.P.S. 20. Sometime in March, 1978 i.e., after about 4 months of appellant's transfer, from the post of Registrar, Supreme Court, the appellant submitted a petition to the Government requesting that effect of the upgradation of the post of Registrar Supreme Court, to B.P.S. 20 may be given from the date the Supreme Court was set up and he be given pay of Grade‑20 ‑with allowances. His petition was rejected vide Government Order No. Admin. 4543/80, dated 4‑3‑1980. He submitted a review petition against the said rejection but this review petition was also rejected vide Government Order No. Admin/10484‑89, dated 17‑6‑1980.

3. The appellant's claim is that on the principle of parity with the Supreme Court of Pakistan, accepted in many cases he is also entitled to pay of B.P.S. 20 for the period he worked as Registrar Judicial Board/Supreme Court of Azad Jammu and Kashmir for a period of 2 years 7 months and 20 days. In support of his claim, the appellant has placed on record a copy of Registrar Supreme Court of Pakistan's Letter No. D R A/75‑SCA, dated 7‑11‑1975 to the address of Registrar, Azad Jammu and Kashmir Judicial Board, Muzaffarabad (Exh. P.E.) in

which it has been stated that if a confirmed District and Sessions Judge is appointed to hold the post o Registrar o Supreme Court he s entitled to a in Grade‑20 pus senior post allowance. Copy a Supreme Court of Pakistan Lahore's another Letter No. 27‑CJSC/70‑73/ SCA, dated May, 1973 (Exh. P.J.) has also been placed on record in which decision of the President of Pakistan has been conveyed to the effect that the post of Registrar, Supreme Court of Pakistan when held by a Judicial Officer who is confirmed District and Sessions Judge will carry the rank, status an pay scale o a Joint Secretary in the Central Government. Copy of Government Order issued by Law Department under No. 4731‑38/81, dated 30‑6‑1981 (Exh. P.H.) has also been placed on record under which the post, of Secretary to Chief Justice Supreme Court of Azad Jammu and Kashmir has been upgraded from Grade‑17 on the condition that for appointment against this post, qualifications, standard and method of appointment will be the same which is in force in Supreme Court of Pakistan.

4. The counsel for the appellant inter alia argued;

(1) that the appellant was promoted as District and Sessions Judge unconditionally and posted as Registrar, Judicial Board/Supreme Court when Civil Servants Act, 1976 and rules made thereunder were not in force.

(2) that the post of Registrar, Supreme Court was carrying the Pay Scale 19 but later the President of Pakistan was pleased to order that if a confirmed Sessions Judge was appointed to hold the post of Registrar, Supreme Court he shall be paid pay in N. P.S.20.

(3) that appointment of District and Sessions Judge as Registrar, Supreme Court is an ex‑cadre appointment and as long as appellant holds the post of Registrar, he shall draw pay in B.P.S. 20 whether he is promoted or not, whether or not the post of Registrar actually carries the Pay Scale 20 and whether the appointee is senior most Sessions Judge or not and such a temporary appointment outside cadre does not amount to promotion to higher grade or scale.

5. The counsel for the respondent has placed his arguments, mainly on the following points:‑‑

(1) that party cannot be accepted unless order is issued by the Government.

(2) that when the appellant was working as Registrar, Supreme Court, the post of Registrar was in Grade‑19.

(3) that the appellant was posted and was not appointed as Registrar under rules. The appellant cannot get a grade unless he is appointed to such grade or post after fulfilling the procedure required under the rules. The appellant when appointed against the post of Registrar, Judicial Board was not confirmed District and Sessions Judge. He was, therefore, not entitled to B.P.S.20.

(4) The scale of the post of Registrar, Supreme Court was upgraded from B.P.S. 19 to B.P.S. 20 w.e.f. 18‑1‑1978 whereas the appellant was transferred from the pest on 28‑11‑1977. This post was thus held by Ch. Ahsan‑ul‑Haq w.e.f. 29‑11‑1977. Ch. Ahsan‑ul‑Haq's request for grant of B.P.S. 20 was rejected by the Government and his appeal for grant of B.P.S. 20 has also not been accepted by the Service Tribunal.

6. This is a fact, as also admitted by the appellant in his statement before the Tribunal that on the principle of parity pay and grade of a post is admissible only when it is sanctioned by the Government. There is no weight in the arguments that the appellant would be entitled to pay of Grade‑20 whether the post is upgraded or not and whether the appellant is promoted or not. Exh. 'P.E.' and Exh. 'P.J.' clearly indicate that the post of Registrar, Supreme Court of Pakistan when held by a Judicial Officer who is a confirmed District and Sessions Judge will carry the rank, status and pay scale of a Joint Secretary in the Central Government. From this, it is clear that, the incumbent of the post of Registrar, Supreme Court cannot get pay in Grade‑20 unless the pay scale of the post is prescribed under a valid Government Order as such. The post of Registrar, Judicial Board/Supreme Court was upgraded to Pay Scale 20 when the appellant had been transferred from the said post. As such, he could not get pay in Grade‑20 when the pay scales of the post was 19. Section 16 of the Civil Servants Act, provides that a Civil Servant appointed to a post or grade shall be entitled in accordance with the rules, to the pay sanctioned for such post or grade. The appellant has already been allowed the pay sanctioned for the post.

7. The appellant at the time of his appointment as Registrar, Judicial Board was not even a Sessions Judge but was a Sub‑Judge. After his appointment as Registrar, he got his promotion as Sessions Judge vide Government Order No. Admin: 7482‑88/75, dated 24‑4‑1975. The promotion was given with effect from the date of appointment of the appellant as Registrar, Judicial Board. So, it follows that had the appellant not been appointed as Registrar, Judicial Board, he would not have been promoted as District and Sessions Judge, because his promotion to the post of District and Sessions Judge in his parent department depended on availability of the vacancy. Thus, the appellant has already been benefited as on his appointment as Registrar, Judicial Board, he got promotion as Sessions Judge. Further by and large, the principle of parity has not been followed (accepted) by the respondent Government in all cases. Just to quote few examples, in the case of Chairman Services Tribunal and Member Services Tribunal, the principle of parity with Punjab has not been followed/accepted. In this case, the post of Registrar Judicial Board/and later Registrar Supreme Court, was placed in grade equal to that of District and Sessions Judge during the period appellant held the post and he was allowed to draw the same and as such no legal right of the appellant has been infringed.

8. In fact as early as November, 1975, through Deputy Registrar, Supreme Court of Pakistan's Memorandum No. DRA/75‑SCA, dated 7th November, 1975, the Registrar, Azad Jammu and Kashmir Judicial Board was informed that. if a confirmed District and Sessions Judge is appointed to hold the post of the Registrar of Supreme Court, he is entitled to pay in Grade‑20. The appellant himself being Registrar of the Judicial Board, was thus fully aware of the matter and if he had felt aggrieved, he should have taken steps at that time to get the grade of the post enhanced to Grade‑20 and failing in that he should have sought redress through the Tribunal. But he seems to have acquiesced with the situation at that time. Had he been sure of justification of the stand taken by him now after so many years, he should have sought remedy from this Tribunal at that time.

9. Even if for the sake of argument, appellant's stand that on the basis of principle of parity, he should be given Grade‑20 is admitted, even then he does not become entitled to Grade‑20. Here relevant extract from Government Order No. 4731‑38/81, dated 30‑6‑1981 (Ex‑P. H.) is reproduced below:‑

From the above quotation, it is very much clear that even in cases where the principle of parity is accepted, on the basis of merits of each case, other conditions which are attached to a particular post have also to be followed. In the case of the post of Registrar, Supreme Court of Pakistan, the condition precedent for the grant of Grade‑20 is that the appointee has to be a confirmed District and Sessions Judge. In the case of appellant, he was a Sub‑Judge when he was appointed as Registrar, Judicial Board. The argument that no condition of probation or otherwise was laid down in appellant's promotion order is not relevant It is very clear that when the appellant was appointed as Registrar, Judicial Board/Supreme Court, he was not even a District and Sessions Judge. So, by any stretch of imagination he cannot become entitled to Grade‑20. It may be mentioned here that condition of probation is laid down under Article 20 of Appendix II. The Kashmir Civil Service Rules which is reproduced below:‑

"20(a)Except as otherwise provided for by special orders of Government, no person shall be eligible for confirmation as a member of a service, until he has been on probation in such service continuously or in the aggregate for a period of 2 years."

The condition of probation on promotion also exists under the Azad Jammu and Kashmir Civil Servants Act, 1976.

10. We would also like to make mention of Service Tribunal's decision, dated 26‑11‑1983 in the case of Ch. Ahsan‑ul‑Haq, Registrar, Supreme Court v. Government. In the said order the Service Tribunal has dealt at length with the question whether the posting of District and Sessions Judge as Registrar, Supreme Court is a regular appointment as Registrar or not. The Tribunal in that case has held that the posting of a Sessions Judge as Registrar, Supreme Court is not an appointment either by initial recruitment, promotion or transfer. The Tribunal has held that when a Civil Servant is transferred and posted to a post it does not mean that he is appointed to a post on which he has been posted by transfer from other post. In the present case the appellant was a Sub‑Judge and he was transferred and appointed as Registrar, Judicial Board and later to regularise the appointment was promoted as District and Sessions Judge. So, in this case neither on the basis of principle of parity, nor otherwise, the appellant is entitled to Grade‑20.

In view of the reasons explained above, the appeal is found incompetent and the same, is, therefore, dismissed.

The parties will bear their own costs. The parties shall be informed of this order.

(S. Sajid Hussain)

Member.

.‑‑This case was previously heard by Mr. S. Sajid Hussain, Member to whom this case was assigned by the ex‑Chairman, but the judgment was not yet announced, that I took over as Chairman, so we heard the case afresh and also perused the written arguments, submitted by the learned counsel for the appellant. I had the privilege of going through the order written by my learned brother, S. Sajid Hussain, Member, in this case and I fully agree with the order proposed to be passed in this case but I want to add a few points in this behalf. The main points which need determination, by the Tribunal, in this case are as under:‑

(i) Whether the Government accepted the principle of parity with Pakistan/Punjab in matters of pay and emoluments of Civil Servants of Azad Jammu and Kashmir

(ii) Whether the District and Sessions Judge, appointed as Registrar, Judicial Board (now Supreme Court) is entitled to the emoluments in N.P.S‑20

(iii) Whether the Tribunal is competent to issue a direction in matters of terms and conditions of a Civil Servant for providing any pay scale, under the principle of parity

(iv) Whether the appellant is entitled to the pay and allowances in N.P.S.‑20 for the period he acted as Registrar, Judicial Board (now Supreme Court)

In matter of point No. (i), reflected above, I have come across a hand out of the Government, dated 18‑5‑1970, which is reproduced below: ‑

"DRAFT HANDOUT

The Azad Government of the State of Jammu and Kashmir has accepted in principle that the pay and allowances of gazetted Government Servants in Azad Kashmir would be equated with their counterparts in West Pakistan provided they possess the same qualifications and have to carry the same responsibilities.

Details are being worked out and decision in the matter is expected to be announced soon.

It may be recalled here that non‑gazetted Government servants have already been granted parity in the matter of pay and allowances with their counterparts in West Pakistan.

18‑5‑1970 (A.H. Suhrwardy)

Senior Secretary."

This "Draft Hand‑out" was approved by the President, Azad Jammu and Kashmir, on 18‑5‑1970, who had consulted even the Government of Pakistan on the subject and it was issued to the Press, the same day. In view of this notification, it is very much clear that the Government of Azad Jammu and Kashmir State had accepted this, as a fundamental principle of policy that the Gazetted Government Servants in Azad Kashmir would be equated with their counterparts, in West Pakistan, provided they possess the same qualification and carry the same responsibility. It is in view of this acceptance of principle of parity that since then the Gazetted Officers in Azad Kashmir have been awarded those pay scales and allowances which have been prevailing in Punjab, from time to time. The exception, if any, in Azad Kashmir is violation of the acceptance of the principle of parity. In the matter of Non‑Gazetted Officials, the same practice is prevailing, since 1970, onwards. Thus, the first issue stands decided in favour of the appellant that principle of parity has been accepted by the Government of Azad Kashmir, in matter of pay and allowances, for the Gazetted Officers.

In respect of second point, a letter Exh. P.J. has been placed on file, whereby the sanction of the President of Pakistan has been conveyed to the effect that the post of Registrar, Supreme Court of Pakistan, when held by a Judicial Officer who is confirmed as a District and Sessions Judge will carry the rank, status and pay scale of Joint Secretary in the Central Government. Another letter addressed to the Registrar, Azad Jammu and Kashmir Judicial Board (now Supreme Court) from the Deputy Registrar, Supreme Court of Pakistan, vide his No. DRA/75, dated 7‑11‑1975, is also to the same effect. Thus, from the perusal of these documents, the matter is established to this extent that a confirmed District and Sessions Judge, if appointed to the post of Registrar, Supreme Court, shall be entitled to pay in the National Pay Scale (now B.P.S) 20, alongwith the senior post allowance.

The third point agitated in this case is very important, whether the Tribunal is competent to issue any direction to the Government, for awarding a particular scale to any officer. The principle of parity, as mentioned earlier, was accepted by the Government of Azad Jammu and Kashmir in 1970 and the same is being followed consistently, so much so, that whenever any change is brought about in the pay scales, and allowances in Pakistan, such changes are enforced in Azad Kashmir from the date, these are effected in Punjab. Any custom or usage being adopted in society or by a Government for tile long time, acquires the force of law. Just like this, in the matter of inheritance, the custom was accepted as a law and enforced in whole of Punjab and many other parts of India and even it was applied in Jammu and Kashmir State in the case where such custom was proved to be in existence. The principle of parity is not only followed by the Government rather it is accepted in black and white as general rule for all the Civil Servants. This declaration of the Government as to the acceptance of parity principle gets predence over the pay rules enforced in consequences of the acceptance of the principle and the Government is bound to stand by its pledge. Since the authority making the pledge and enforcing the rules is the same, the rules have to yield to the declaration of the Government, made through its hand‑out issued after its approval. The departure from an accepted principle and a settled policy, is violation of the concept, which any Government servant has in his mind about his terms and conditions. The Government Servants were assured in 1970, that in future they will receive the pay and allowances, which would be admissible to their counterparts, in West Pakistan. The West Pakistan was later on construed to mean Punjab for the purpose. Thus, acceptance of this principle casts a responsibility on the Government that the terms and conditions of Civil Servants should be brought in confirmity, with this accepted principle and departure from the same will certainly give a cause of action to the aggrieved Civil Servants. I am fortified in my view by the authorities, 1 hereinafter referred.

In the case Province of Punjab, through Secretary Finance v. Ramzan Ali and others P L D 1982 S C 349, the matter of 21 Private Secretaries of Lahore High Court was considered who were refused four advance increments, by the Finance Department of Punjab, which were advanced to Stenographers, Stenotypists and Judgment‑writers. They moved the Service Tribunal and the Tribunal accepted their claim and held that these Private Secretaries of High Court were entitled to four advance increments, who were performing the work of judgment writers. In this case, there was no notification by the Finance Department of Punjab, for the Private Secretaries nevertheless the Service Tribunal Punjab determined their entitlement. The decision of Tribunal is cited as 1982 P L C 111. The Government of Punjab went in appeal in the Supreme Court, against the decision of the Service Tribunal but the Supreme Court dismissing the appeal of the Government of Punjab, confirmed the decision of the Tribunal. So far as the powers of the Service Tribunal are concerned, it has been observed by the Supreme Court of Pakistan in this behalf in this judgment at page 353.

As the powers of the Service Tribunal are co‑extensive with the powers vested in the departmental authority, the order of the departmental authority could be set aside, varied, substituted by the Service Tribunal with a view to correcting any arbitrary, discriminatory, unjust, reasonable or improper exercise of power by the departmental authority and for avoiding injustice, oppression or hardship to the aggrieved civil servant.'

There is another unreported case of Azad Kashmir, High Court in the case entitled; Ghulam Ahmad v. Azad Kashmir, decided on 11‑7‑1972. In that case, the Superintendent, High Court moved the Government for grant of a pay‑scale, viz. 525‑40‑845 and the Gazetted Cadre, which was refused to him. He challenged order of the Government in the High Court through a writ petition, which was accepted by the High Court and the Government was directed to place the petitioner in the pay scale 525‑40‑845 as well as in the Gazetted Cadre. This judgment of the High Court is based on a number of other authorities viz. PLD 1964 Lah. 413, P L D 1962 Lah. 443, P L D 1963 Lah. 127. The extract of the judgment is reproduced below:‑

'We may quote only 'one such ruling namely P L D 1964 Lah. 413 wherein it was laid down:‑

"The provisions of Article 98 are not confined to cases where the person against whom the order is proposed to be passed has been performing judicial or quasi‑judicial functions. Administrative or Executive Authorities also fall within the orbit. of the jurisdiction conferred by the above article on the superior Courts."

It was held in P L D 1962 Lah. 443.

"A writ may issue to the Government to pay to Government Servant his salary at a certain rate and it is only logical to say further that mandamus can issue to require Government to pay his salary or to pay arrears of salary."

Again, it was held in P L D 1983 Lah. 127.

"The Article 98 makes no distinction between administrative, judicial or quasi‑judicial orders. Even if the order is purely administrative, relief can be granted by the High Court."

Now coming to the other part of the arguments, we must frankly state that we were surprised to be told that a solemn declaration made by the Government and later enforced and implemented in all branches of the civil service, was sought to be repudiated just to escape its responsibility in the case of the petitioner.' Notification No. 1484‑1585/ Admin, dated 22‑3‑1969 and the Order No. Admin./12903‑53 dated 29‑7‑1970, as already quoted elsewhere are no pious declarations, without, consequence but by their very wording show that they are in the nature of orders creating certain specific rights in the services and corresponding liability on the part of the Government. An order, in order to constitute law, need not be termed as an Act or an Ordinance nor was it necessary that the Government must have referred to its powers under some rule of the Kashmir Service Regulations. After all, what is law No rigid definition can be attempted. That is why it is universally defined as an order, rile or command of an authority or having the sanction of an authority, capable of establishing law and order and which is thus enforced or recognised by Courts and other law enforcing agencies. These orders were issued by the Government whose writ does run in the territory; the said Government had the power and the authority of passing the said orders and what is more, even acted upon them and has implemented them. That is why these orders are as binding and as effective as statutory rules. It was held in P L D 1964 S C 21:

"Administrative instructions contained in memorandums issued by authority competent to alter or amend rules, can be as effective and binding as statutory rules."

It was held in the same ruling:

"If an order is made by a competent authority which has the effect of amending previous rules which are capable of being so amended, then the efficacy of such an order is not diminished merely because it does not in so many words specify that it is an order making a rule‑‑‑‑‑‑‑We must look at the substance and NOT the form of the order."

From the perusal of this judgment and the authority quoted therein, it is very much clear that it is lawful for a Court to give a direction in the matter of terms and conditions of a Civil servant, which in a particular case should be given by any Government on the basis of the principles of parity. The Service Tribunal is an authority, succeeding the High Court, since August, 1974 under the provisions of the Constitution, in matter of the terms and conditions of the Civil Servants, as such it has the powers to issue such directions. In the case of Ghulam Nabi v. State P L D 1971 Azad J & K 118 (125), it was held that rules of business 1957 held the position of a Constitution for Azad Jammu and Kashmir. From this it will follow that it is not only the constitution rather the other documents can also have the legal force, which have the sanction of the competent authority. Therefore, acceptance by the Government of the parity principle in whatever form it was, enjoins upon it responsibility to take the subsequent steps in consonance with the accented principle.

Apart from the above, legal position in Pakistan and Azad Jammu and Kashmir, illustrated hereinbefore, I may state that in the United Kingdom there is no written constitution consolidated as one Statute but the documents like Magna Carta, Petition of Right and Bill of Rights etc. are nevertheless considered as sacred as the constitution. I may refer from a book 'Select Constitutions of the World' which was prepared for presentation to the Constituent Assembly in 1949 by the Government of Pakistan, wherein it has been observed, at pages 2 to 5, as under:

"1. Legislation. ‑‑‑Although Great Britain has no written constitution a large part of it is based on statutes. The importance of this source of constitution can be illustrated by reference to a few statutes of major importance, which, though in law in no different position from any other Acts of Parliament, have always been regarded with peculiar veneration by constitutional authorities.

Magna Carta, 1215.‑‑The importance of first of them, Magna Carta, 1215, and its numerous confirmations in later years lies not so much in the actual contents, since it preceded the era of representative Government, as in the fact that it contained a statement of grievances the settlement of which was brought about by a union of important classes in the community. The Charter set out the rights of the various classes of the mediaeval community according to their different needs. The Church was to be free; London and other cities were to enjoy the liberties and customs; merchants were not to be subject to unjust taxation. The famous clauses which laid it down that no man should be punished except by the judgment of his peers of the law of the land, and that to none should justice he denied, have been described as the origin of trial by jury and the writ of habeas corpus. Trial by jury is, however, to be traced to another source, and the writ of habeas corpus had not yet been devised. But these clauses embody the protest against arbitrary punishment and assert the right to a fair trial and to justice which need not be purchased. The observance of the Charter came to be regarded both by lawyers and politicians as a synonym for Constitutional Government. It was the first attempt to express in legal terms some of the leading ideas of Constitutional Government.

The principal provisions of the Charter were as follows:‑

(1) Heirs were to enter upon their possessions upon payment of the customary relief, and infants upon coming of age were not to pay either relief or fines. Wardship and marriage were regulated, and mense lords were only to exact the normal aids.

(2) Land was not to be taken in execution for debt if sufficient chattels were to be found.

(3) The City of London was to enjoy its ancient customs and liberties.

(4) No scutage or aid was to be imposed without the common counsel of the realm, except the three customary feudal aids, ransoming the king, Khighining his son, and giving a dowry to his eldest daughter.

(5) To have the common counsel of the realm for the purpose of assessing aids and scutages, were to be summoned the following persons: (I) Archbishops, Bishops, Abbots, Earls, and greater barons by individual writ; (2) all other tenants in capite by general writ addressed to the sheriff.

(6) The Common Pleas were not to follow the Kings Court, but were to be held in a fixed spot (in aliquo carto loco).

(7) Fines were to be regulated according to the magnitude of the offence, and earls and barons were not to be fined except by their peers.

(8) No Sheriff, constable, or corone, or other officer of the Crown, was to hold pleas of the Crown, which thus were reserved to the royal justices.

(9), No freeman was to be arrested, imprisoned, put out of his freehold, outlawed, exiled, destroyed, or put upon in any way except by the lawful judgment of his peers or the law of the land.

(10) Justice was not to be sold or denied to any one, or to be delayed.

(11) Merchants were to be free to enter and leave the kingdom, and to remain there for purposes of buying and selling, subject only to the customary tolls.

(12) Justices, constables, sheriffs, and other officers of the Crown were only to be appointed from upright persons possessing knowledge of the law.

(13) All lands afforested in the reign of King John to be forthwith disafforested; the forest laws to be reformed.

(14) Twenty‑five barons were to be chosen as representatives of the nation, the King contracting to allow them to see that the terms of the Charter were enforced and observed; a provision unworkable no doubt and a proof of constitutional immaturity but a valuable testimony to the contractual aspect of feudal monarchy, and a fundamental assertion of the subjection even of the King to restrictions imposed by law.

Petition of Right, 1628.‑‑The second document is the Petition of Right, 1628, which contained protests against taxation without consent of Parliament, arbitrary imprisionment, the use of commissions of martial law in time of peace and the billeting of soldiers upon private persons. To these protests the King yielded, though the effect of the concessions was weakened by the view Charles I held that his prerogative powers were not thereby weakened. The Petition of Right humbly prayed His Majesty as follows:‑

(1) That no man should be compelled to make or yield any gift, loan, benevolence, or tax without common consent by Act of Parliament.

(2) That no freeman should be forejudged of life or limb, or imprisoned or detained against the form of the Great Charter and the law of the land.

(3) That soldiers and marines should not be hence forward billeted upon private persons.

(4) That commissions should not be issued to try persons according to the law martial, as is used by armies in time of war.

Bill of Rights, 1689.‑‑The Bill of Rights, after reciting the various ways in which James II had infringed upon the liberties of the subjects and that, the throne being vacant by the abdication of James II, the Prince of Orange had caused letters to be written summoning such representatives as would ordinarily be elected for Parliament to meet and sit at Westminster, declared as follows:‑

(1) That the pretended power of suspending of laws or the execution of laws by legal authority without consent of Parliament is illegal.

(2) That the pretended power of dispensing with laws or the execution of laws as it hath been assumed and exercised of late is illegal.

(3) That the commission for erecting the Court of Commissioners for Elecesiastical causes and all other Commissions and Courts of like nature are illegal and pernicious.

(4) That levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament or for longer time or in other manner than the same is or shall be granted is illegal.

(5) That it is the right of the subject to petition the King and all commitments and prosecutions for such petitioning are illegal.

(6) That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law.

(7) That Protestant subjects should have arms for their defence as allowed by law.

(8) That the election of members of Parliament ought to be free.

(9) That freedom of speech and debates, or proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament.

(10) Excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishments inflicted.

(11) That jurors ought to be duly impanelled and returned, and in treason cases should be free‑holders.

(12) That all grants and promise of fines and forfeitures of particular persons before conviction are illegal and void.

(13) That for redress of all grievances and for the amending, strengthening, and preserving of laws, Parliaments ought to be held frequently."

The perusal of the foregoing provisions will show that these have not been passed by any Constituent Assembly nor by the Parliament, in any conventional form of legislation but these are being honoured by the civilized state.

The misfortune of our Country is that the people at the helm of affairs forget their duty to the society or the State, which is Supreme, than the ordinary duty towards the pest of their appointment. The personal consideration, he liking and disliking which results in the unjust decision, should be avoided so that the basic principles are not violated and the fundamental principle of policy should at no cast be sacrificed for the minor considerations of administration.

It is reiterated here that the discriminatory treatment to an individual is a negation of the spirit of the constitutional provisions, safeguarding the equality before law and of the equal treatment, which cannot be justified in a civilized society of the present day world and of course we also cannot disclaim to be civilized people. Once it is accepted, that the officers of Azad Jammu and Kashmir shall be equated with their counteparts in Punjab, and it is followed also then, there can be no justification for discrimination in any individuals case, provided the other two conditions viz. the requisite qualification and the nature of responsibilities being the same, are fulfilled. Concluding on the point, we cannot hesitate to remark that once the principles are settled or accepted by any society, a nation or a state, its political hierarchy or the trichotomy of powers comprised of the executive the judiciary and the legislative must honour those principles. A departure from that cannot be justified in cases where there is no threat to morality decency or the security of the State, or any greater setback to the economic conditions, in the application of the principles. It cannot be denied by anyone that well‑being of a society lies in the adherence to the principles and not in the departures and deviations.

The fourth point is whether the appellant is entitled to the Grant of N.P.S.‑20 (now B.P.S.) for the period, he remained Registrar Supreme Court. It is very much clear from the contents of his own appeal that at the time of his appointment, as Registrar, he was Sub‑Judge and at a later stage, he was promoted as District and Sessions Judge, vide Government Order No. Admin/7482‑88, dated 24‑4‑1975. The perusal of this order makes it clear that at the time of his appointment, he was not a confirmed District and Sessions Judge. The question of as to what the confirmed District and Sessions Judge means, reference shall have to be made to the provisions of K.S.R.I embodied in Appendix II, of Article II, because before the enactment of Civil Servants Act, 1976, which came into force on 20‑4‑1976, the service matters were governed by K.S.R. The case of appointment of the appellant, which was made on 1‑4‑1975, is to be seen in the light of the law as it existed on 1‑4‑1975. The provisions of Article 20, K.S.R. Appendix II, Volume II, regarding the probation are as under:

20. (a) Except as otherwise provided for by special orders of Government, no person shall be eligible for confirmation as a member of a service, until he has been on probation in such service continuously or in the aggregate for a period of 2 years.

(b) No probationer shall, during the period of his probation, except for the purposes of instruction or training, be employed on duties which are not normally discharged by members of the service in the category to which he belongs.'

Under the provisions of K.S.R. any Civil Servant, appointed to a post, remains on probation for at least 2 years and cannot be treated to be confirmed incumbent of such a post, to which he is appointed, unless he has completed two years service as member of that service. Thus, the appellant who was appointed as Registrar on 1‑4‑1975, and Promoted as District and Sessions Judge on 24‑4‑1975, could not be treated as confirmed District and Sessions Judge upto 23‑4‑1977 i.e., till the expiry of two years, from the date of his promotion as District and Sessions Judge. Our attention was also drawn to the provisions of section 6 (i) of the Judicial Board Act, 1974, as amended vide amending Act of 1975, which empowers the Government to appoint District and Sessions Judge as Registrar of the Judicial Board. There is no dispute about the powers of the appointment of the Government in this behalf, but that will not place an unconfirmed District and Sessions Judge in the position of a confirmed District and Sessions Judge, for the purpose of pay and allowances, on the basis of parity principle. The contention of the appellant is that the condition of probation did not exist in the order of his promotions, therefore, he may be treated as confirmed District an Sessions Judge. I am afraid that we cannot subscribe to this view because the provisions of law governing the probation shall have effect notwithstanding the fact that any such conditions is not expressed in the order in question, where the conditions attaching to the appointment or promotions are prescribed through law, their repetition in the orders is not at all required.

Since the conditions for the grant of National Pay Scale 20 (now B.P.S.) to the petitioner are not fulfilled, which is a prerequisite for such a claim, on the basis of principle of parity, therefore, the petitioner is not entitled to pay relief.

Thus, the appeal as held by the learned Member, stands dismissed. We make no order as to the costs.

A. E.

Appeal dismissed.

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