Law:

Section:

Civil Service--- ----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.44 & 15---Azad Jammu and Kashmir Public Service Commission Act, 1974, S. 9--­Promotion---High Court, in its Constitutional jurisdiction declined to issue direction to authorities to carry into effect order/direction of Prime Minister whereby ante-dated promotion of petitioner was ordered---Reasons stated--­Scope of authority to be exercised by the Prime Minister continuing in office under S. 15 of the Constitution when the Assembly stood dissolved--­Limitations on the exercise of powers by such Prime Minister discussed. The direction/order was passed by the Prime Minister on 9-4-1991, when the Assembly stood dissolved and Prime Minister was continuing in office by virtue of section 15 of the Constitution. There is no exception to the rule that he was empowered to exercise the authority of the Government till the election of new Prime Minister by the Assembly after general elections. The democratic practice, however, is that apart from the orders, without which the authority of the Government could not be asserted or smooth working thereof is hampered, or the orders, which every Chief Executive was under law bound to issue after receiving recommendations, suggestions, advice etc. etc. from the person authorised to recommend or advice under law, all other cases should be left for the decision of a Prime Minister coming with fresh mandate of the general public. Moreover, relaxation or suspension of rule was an extraordinary function of the Government and unless a Government cannot function at all without suspending or relaxing the rule, propriety of an order passed by relaxing a rule in an individual case or passed above the rules, without compelling necessity, was not above board. The legality and propriety of an order, in some cases must co-exist, while in others it must coincide. The case of the petitioner lacked propriety, as it was not recommended or processed by the authorities vested with the power under rules. Relaxation was ordered in the individual case, may it be in the fitness of thing or in the circumstances of the case, but the functioning of the Government…

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