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Petitioner: Khawaja NAZIR AHMED QADRI VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through its Chief Secretary and 3 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Syed Manzoor Hussain Gillani Title:Khawaja NAZIR AHMED QADRI vs AZAD GOVERNMENT OF THE STATE OF
JAMMU AND KASHMIR through its Chief Secretary and 3 others Case No.: Writ Petition No,641 of 2001 Date of Judgment:2002-04-19 Reported As: 2003 PLC (C.S.) 460 Result: Petition accepted Judgment ORDER ' The petitioner calls in question the Notification of the Government dated 6-12-2001, whereby the petitioner is removed from the post of Custodian of Evacuee Property and respondent No,4 is appointed in his place. 2. Facts leading to filing of present petition under section 44 of the Interim Constitution Act, 1974, are that a whole time post of Custodian Evacuee Property was created by the Government through Notification dated February 13, 1971 under No,1839-43/CS/71. The Government framed rules under section 57 of the Evacuee Property Act called as Azad Jammu and Kashmir Custodian of Evacuee Property (Terms. And Conditions of Service) Rules, 1992 on June 18, 1992 (Rules). The dispute relates back to the notification of the Government dated January 17, 1996 issued underNo,90/{{URDU TEXT}}/(33)-5-71/{{URDU TEXT}} when late Raja Abdul Majeed Khan, who was then holding the office of Custodian Evacuee Property, was posted as Secretary Law on deputation and Sardar Muhammad Azim Zia respondent No,4 (hereinafter referred as respondent) was appointed against his lien. 3. Raja Majeed Khan appears to have been posted as Chairman Service Tribunal from the post of Secretary Law somewhere before 4-9-1996, when he was again transferred and posted against his own post of Custodian Evacuee Property through Government Notification dated 4-9-1996 issued under No, Administration/A-6(5)/Section 111/96. The respondent, who was initially appointed on January 3, 1992 as Additional Custodian in B-19 and appointed against the lien of late Abdul Majeed, was reverted back to the same post.
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4. Respondent alongwith two others Syed Arshad Gilani and Muhammad Bashir who were also holding the posts of Additional Custodian and posted as OSD's were removed from service on February 21, 1997. They challenged their order of removal from service in the High Court, in consequence of which the order of their removal was declared as without lawful authority on 20-3- 1998, however, on appeal, the Supreme Court set aside the judgment of the High Court on 10-12- 1998 and also rejected the Review Petition on 16-4-1999 filed by the respondent and others. On the sad demise of Raja Abdul Majeed Khan, his post fell vacant against which the petitioner was appointed on 13-6-1997 under Government Notification No,97/J/{{URDU TEXT}} /(15)21-71/{{URDU TEXT}}. The petitioner was removed from service through Notification on 6-12-2001 and respondent No,4 was reinstated to the post of Custodian Evacuee Property with effect from 4-9-1996 ostensibly by accepting his representation. ' The petitioner alleges that his removal from service is without lawful authority and mala fide and the alleged acceptance of representation of respondent No.4, as referred in the impugned order, is a manoeuvred and afterthought activity by the incumbent Government as there is no record of alleged representation of respondent or any processing thereon in the appeal branch of Prime Minister Secretariat or in the Services Secretariat. According to the petitioner, respondent No.4 was never appointed as Custodian Evacuee Property, who, however, held the post in lien for some period when he was reverted back on repatriation of Raja Abdul Majeed Khan to his post of Custodian and respondent continued occupying post of Additional Custodian till he was removed therefrom. It is also stated that respondent throughout maintained and [contested his position on the basis of his being Additional Custodian and it came to end after judgment of the Supreme Court, and proceeding (if |any) pending in the Prime Minister Secretariat, came to end with that. It! Is also stated that the petitioner was posted as OSD after being reverted to the post of Additional Custodian till he was removed from service, however, he did never challenge this position. It is also maintained that the petitioner has been politically victimized and has been removed from the substantive service in an arbitrary and colourful manner without hearing and against rules regulating appointment to the post, to adjust the respondent. The respondents in the written statement have defended the impugned order and maintained that respondent was appointed as Custodian on 17-1-1996 against vacant post when late Raja Abdul Majeed Khan was appointed as Law Secretary. It is stated that a summary was approved by the Prime Minister on 28-2-1996 whereby Raja Abdul Majeed Khan (late) was directed to be appointed as Secretary Law and respondent as Custodian Evacuee Property with the Terms and Conditions admissible under Rules of 1992. It is further stated that the Prime Minister on the proposal of Media Advisor accorded approval to appointment of Raja Abdul Majeed Khan as Secretary Law and the petitioner as Custodian Evacuee Property with the terms and conditions of the Judge of the High Court on 20-3- 1996. It is further stated that on repatriation of Raja Abdul Majeed Khan to his position of Custodian, reversion of the respondent to the post of Additional Custodian was ordered without recalling or setting aside the directions of Prime Minister. It is alleged that the order of respondent's reversion was illegal against which a representation was filed by him in time. It is also alleged that the petitioner's appointment against the post was illegal hence it conferred no right on him. The thrust of respondents case is that he was appointed to the post of Custodian when Raja Majeed Khan was transferred and appointed as Law Secretary on 17-1-1996 and respondents terms and conditions of service should have been determined in accordance with the alleged directions of the Prime Minister dated 28-2-1996. And 20-3-1996 and that the order of his reversion to the post of. Additional Custodian dated 4-9-1996 was without lawful authority which has rightly been recalled through impugned order by accepting his representation dated 29-9-1996. The respondents, in the written statement, have raised preliminary objectioi#to the maintainability of the petition on the ground that rule 7 of the Rules is repealed and the Custodian, according to
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amended rule, is to hold office during pleasure of Govemment, hence the petition has become incompetent on account of which it is liable to be dismissed. It is also objected on the ground that the petitioner can avail alternate remedy before the Service Tribunal. 5. ' The petitioner was allowed amendment in petition on February 8, 2002 calling in question the vires of repealed rule 7 of the Rules, when the Advocate-General stated at bar that he has no objection to the amendment in the petition. It is alleged in the amended petition that repeal of rule is mala fide and the repeal does not effect the rights of the petitioner who shall be governed by the pre-repeal rule. ' The learned Advocate for the petitioner Mr. Mujahid Hussain Naqvi, arguing the case contended that the 'impugned notification has been issued contrary to the rules as he has not been heard and any order issued without hearing is without lawful authority. He further contended that the petitioner could be removed only in accordance with the procedure laid down in the rules and as the procedure visualized by the rules has been violated, hence the impugned order is without lawful authority. He relied upon PLJ 2001 SC (AJ&K) 50 and PLJ 1994 SC 13. The learned Advocate further contended hat respondent No,4 had never been appointed as Custodian Evacuee Property who was in fact appointed as Additional Custodian in B-19 and on the eve of posting of late Raja Abdul Majeed Khali as Law Secretary, respondent was appointed against his lien as Custodian when he was reverted back to his position of Additional Custodian when Raja Majeed Khan was repatriated to the post. Of Custodian Evacuee Property. The learned Advocate referring to the notification of the Government dated August 13, 1997 contended that the name of late Raja Majeed Khan was struck of from the establishment of Custodian for the first time after his death which makes it clear that late Raja Majeed Khan was occupying the: office of Custodian till his death and the petitioner was appointed in his place against clear vacancy. He further contended that the respondent claimed himself to be Additional Custodian in all legal proceedings to which he resorted before the High Court and the Supreme Court. He referred the judgments of the High Court and the Supreme Court, contending that the respondent throughout claimed to be appointed as Additional Custodian in B-19. According to the learned Advocate, had the respondent ever been appointed as Custodian, his case before the Courts would have been for restoration to the post of Custodian not Additional Custodian. The learned Advocate reacting to the alleged representation of the respondent contended that it is a fake, forged and engineered document which is an afterthought manoeuvring which has been placed on the record. According to him, assuming it having any substance, it carried to weight as he was never removed from the post of Custodian but reverted to substantial post of Additional Custodian, hence, the question of his appointment on the terms and conditions of Judge High Court 'did not arise. According to the learned Advocate, assuming any such representation having ever been filed, it shall be deemed to have been rejected or made redundant after judgments of the Supreme Court. According to the learned Advocates all the representations and alleged directions of the Prime Minister are concocted and mala fide exercise. The learned Advocate challenging the validity of the amendment in rule 7 of the Rules contending that it is mala fide and without lawful authority, for the reason that this amendment is made during pendency of the petition so as to deprive the petitioner of his lawfully accrued right and that the rights 04 the petitioner shall be determined in accordance with the rules as the' were in force at the time of his appointment. ' The learned Advocate for the respondents Raja Muhammad Hanif Khan, arguing the case contended that as post of Custodian has been made discretionary by amendment in rule 7 of said Rules, under which the petitioner is appointed, hence the petition has become infructuous. He further contended that under rule 11 of the Rules, the petitioner has alternate remedy of review available before the Government, hence the petition is not competent. He relied upon 1995 SCR 349. He also contended that as the post from which the petitioner is removed falls within affairs of
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the Government, hence the petitioner being a Civil Servant, proper remedy for him is before Service Tribunal. In this behalf he relied upon PU 1999 SC (AJK) 89 and 1999 PLC (C.S.) 1439. The learned Advocate further contended that the respondent was appointed as Custodian Evacuee Property on 17-1-1996 and as per order of appointment his terms and conditions were settled later under directions of the Prime Minister dated 28-2-1996 and 20-3-1996, but the notification was not issued in accordance with the directions of the Prime Minister and the appointment of the petitioner without recalling the directions of the Prime Minister is without lawful authority. He further contended that the rules or law cannot be challenged on the ground of mala fide. He placed reliance upon 2000 SCR 380, 2001 SCR 17 2001 PLC (C.S.) 93 and 2000 PLC (C.S.) 155. ' After hearing the learned Advocate for the parties, I have gone through pleadings of the parties, judgments of the High Court and the Supreme Court in the earlier round of case by respondent and alleged directions of the Prime Minister besides file of the Government on the basis of which the impugned notification is issued. ' The disposal of the case depends upon the position of posting of respondent at the time of his first removal from service, hence the arguments of the learned Advocates for the parties will be discussed in that sequence and order. ' As stated in the earlier part of the judgment, the respondent was appointed as Additional Custodian on January 3, 1992 in B-19. He was appointed in lien of late Raja Abdul Majeed Khan as Custodian Property on 17-1-1996 who was posted as Law Secretary. The order is reproduced as follows; {{URDU TEXT}} ' When Raja Majeed Khan was repatriated to the post of Custodian Evacuee Property through Notification dated 4-9-1996, respondent was reverted to his original position of Additional Custodian. This order is also reproduced as under; {{URDU TEXT}} ' The above referred unequivocally state the position of the respondent to be Additional Custodian. He was removed from the post of Additional Custodian on 21-2-1997 alongwith other Additional Custodian. Syed Arshad Gilani and Muhammad Bashir Khan. This notification is also reproduced as under; {{URDU TEXT}} ' He alongwith others contested case of their removal from the post of Additional Custodian before the High Court which was decided in their favour on March 20, 1998 and their removal from service was held as without lawful authority. In appeal before the Supreme Court against the order of the High Court, the respondent defended, his position as Additional Custodian. The order of the High Court was reversed by the Supreme Court vide its judgment reported as 'Chaudhry Muhammad Fiyyaz, Additional Custodian and another v. Arshad Gilani and others' (PLJ 1999 SC (AJK) 89). Perusal of all these documents unequivocally leads to the conclusion that the respondent was never appointed as Custodian Evacuee Property, however, for a temporary period of time, he held the office of Custodian against the lien of late Abdul Majeed Khan and when he came back, the petitioner was reverted to his original position and when he was finally removed from the post he was Additional Custodian. He never ever was appointed as Custodian and he never claimed so. After the judgment of the Supreme Court, referred above, he alongwith others filed a Review Petition against the judgment that was also rejected and the case is reported as 2000 PLC (C.S.) 66 (Syed Arshad Gilani and others v. Azad Government and others). Even the notification dated 13-8-1997, whereby late Raja Majeed's name was struck off from the establishment of Custodian suggests that he was Custodian till death. Hence, the question of the respondent's being appointed as Custodian does not arise.
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' As far alleged representation filed by the respondent on 29--91996 against the order dated 4-9- 1996 is concerned, it never found place in the file of the department till process of removal of the petitioner was initiated. It was for the first time on 3-12-2001 that the Prime Minister recorded a note cancelling the Notification dated 4-9-1996 by accepting alleged representation dated 29-9-1996. There is nothing on record showing representation of the respondent between 16-10-1999, (when the file was closed), till 3-12-2001 when the Prime Minister recorded the note which culminated into impugned Notification dated 6-12-2001 which is also reproduced as follows; {{URDU TEXT}} ' Few papers appear attached to the note of the Prime Minister, which also includes an application styled as representation of the respondent, besides processing of amendment of rule 7 of Azad Jammu and Kashmir Custodian Evacuee Property (Terms and Conditions) Rules, 1992. The amendment process is initiated after removal of the petitioner from service and reinstatement of respondent, and rule 7 was ultimately repealed through Notification dated December 31, 2001. The alleged representation of the respondent was revived ostensibly on an application of the respondent dated 2-12-2001. The file does not disclose as to how abruptly alleged representation and application of the respondent came into being when there was nothing in process in between the period. ' Be that as it may, the representation if any, vanished when review petition of the respondent was finally rejected by the Supreme Court wherefrom it is established that the respondent is held by the Supreme Court to have been holding the post of Additional Custodian illegally and his removal from the post was validated by the Supreme Court twice. The representation, if any, shall be deemed to have been rejected after the verdict of the Supreme Court. It is held in the case reported as 1999 PLC (C.S.) 1002 (Nisar Ahmed Kiani v. Azad Government and others), where, after removal of Nisar Kiani from service, the Government passed order of reinstatement of Nisar Kiani on similarly processed representation, as in the present case, the direction for implementation of which was refused by the High Court and on appeal the Supreme Court held, in para. 6 of its judgment, as follows: "When the review petition filed by the applicant was not decided within the statutory period of 90 days and he filed appeal to the Service Tribunal, his review petition would be deemed to have been rejected by fiction of law; once the appeal is preferred to the Service Tribunal by a civil servant, the departmental authority becomes functous officio to deal with an appeal, representation or review petition." ' The Government became functous officio to decide the representation, if, by any stretch of imagination it may be assumed to have been filed, after the case of the petitioner was finally adjudicated by the Supreme Court twice. Perhaps the Prime Minister was not appraised by the relevant agency of this factual and legal position, otherwise, I am sure, that the impugned order would never have been allowed by him as all executive and judicial authorities throughout Azad Jammu and Kashmir are bound to act in aid of the Supreme Court under subsection (4) of section 42 of the Constitution. ' The respondent has also relied upon two notes dated 28-2-1996 and 20-3-1996, through which the Prime Minister approved proposal of the respondent and Media Advisor respectively, whereby the respondent is directed to be appointed as Custodian Evacuee Property with the terms and conditions of Judge High Court. Both these documents are not confidence inspiring for the reasons that they have never been placed before the Supreme Court or the High Court by the respondents; these have never been acted upon and have for the first time seen the light of day when the petitioner's removal process was initiated. Notwithstanding, that these are not based on any regularly processed filed. The direction dated 28-2-1996 is allegedly passed on the proposal of respondent himself and the direction dated 20-3-1996 is passed on the proposal of Media Advisor.
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Both have nothing to do with the Services Department which is administrative, parent and relevant Secretariat regulating appointment and removal of Custodian under Rules of Business, 1985. Unless an order, direction or proposal is obtained on a duly processed file from the Competent Authority in accordance with the Rules of Business and that form part of record of that branch of Government office/Secretariat and finally culminates into notification of the Government, it carries no weight and is of no legal validity. The alleged directions, if any, died with the judgments of the Supreme Court in the case of the respondent. Any unusual paper carrying direction of the Prime Minister neither confers any right nor can takes back a right already conferred. Like all other functionaries of the State, the Prime Minister is also a creation of law, he is thus required to act in accordance with law and Rules of Business and unless a direction of the Prime Minister finds place in a duly maintained Government file, it confers no right nor does it carry any legal weight. The practice of obtaining directions through irregular devices by irrelevant agency or persons would encourage serious abuse of power which has, therefore, to be discarded not only, in view of Rules of Business but also on the ground of administrative expediency as well. ' In the case reported as PLD 1994 SC (AJ&K) 13 (Muhammad Saddique Farooqi v. Azad Janimu and Kashmir Government and others.) a direction of the Prime Minister stating stopping of compensation communicated to Accountant General through letter written by Vice-Chancellor, but not issued in the form of Government notification, the Supreme Court after discussing the scheme of rules held; "The perusal of the above provisions shows that the execution authority vests in the 'Government' which consists of the Prime Minister and the Ministers and not in the Prime Minister alone. It may be stated here that it is not the case of the respondents that the Government Order dated 16-6-1992 was subsequently amended or annulled by another Government Order; rather their case is that the payment of compensation was stopped in pursuance of the direction of the Prime Minister which was communicated to Accountant General by the Vice-Chancellor. It may be noted that under section 21 of the General Clauses Act, reproduced above, not only that the authority amending, relevant act should also be taken in the like manner and subject to like conditions. It implies that the Government Order, dated 16-6-1992 could only be amended or for that matter the payment of the compensation to the order or direction to the Prime Minister. Obviously, the order of the Prime Minister to stop the payment of compensation contained in the letter of the Vice Chancellor cannot be regarded to be in consonance with the conditions stipulated under section 21 of the General Clauses Act, reproduced above. The difference between the Government Order and an Order issued by the Prime Minister alone is also clear and marked that I need not dilate upon. The Business, 1985 exhaustively deal with the procedure to be followed in issuing a Government Order. Thus, I respectfully agree with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) that in view of the Government Order dated 16-6-1992, the order of the Prime Minister could not be acted upon by the Accountant-General, respondent No,3." ' The contention of the learned Advocate for the respondent that no order could be issued unless the above-referred directions of the Prime Minister were either recalled or carried into effect, is of no legal validity as they did not find place any where in the file of the Services Department nor appear to have been processed at any level except with the note of the Prime Minister. Moreover, one Syed Hussain Mazhar Kaleem Shah held the Office of Custodian in between the period besides the petitioner. The case was also decided by the Supreme Court twice, but, these directions of the Prime Minister were never placed or pleaded. Though, the respondent has not filed any petition for relief based upon above directions of the Prime Minister, but he relies on them in defence and seeks protection of impugned order on the basis of these directions, he is, therefore, precluded by his conduct to rely upon these directions when he never sought implementation of these nor relied upon these before the High Court or the Supreme Court. The rule of acquiescence as enunciated in
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the case reported as 1996 MLD 355 equally applies against the respondent when he never ever pressed in service the defence now put up before the highest judicial forum when his rights were directly in dispute.. Though the earlier litigation of the respondent was not with the present petitioner, but the respondent did contest the case against the Government on his removal and never made his present plea a ground of defence or attack in that litigation. He also hit by the rule of res judicata viz-a-viz the Government, as enunciated in Explanation IV of section 11 of the Code of Civil Procedure and the Government can also not turn back from the stand taken in earlier litigation between the. Government and the respondent. The respondent is also estopped by his conduct to rely upon alleged directions, which he abandoned by his conduct nor have they been made the basis of the impugned order by the Government. The contention of the learned Advocate for the respondent that the petitioner could file a reyiew petition before' the Government. Under rule 11 of Rules of 1992, and that he being a civil servant the proper forum for him was an appeal before the Service Tribunal, is untenable. Rule 11 of the Rules does not envisage review or representation. It is general power of the Government which relates to "any person serving on the post of Custodian" not to a person who is removed from the office. The rule is reproduced as follows; "11. Power of Government to…
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