Full Judgment Text & Judicial Ruling

2003 P L C (C

2003 P L C (C.S.) 887

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi, C.J., Khawaja Muhammad Saeed and Chaudhry Muhammad Taj, JJ

SARDAR MUHAMMAD AZIM ZIA, CUSTODIAN, EVACUEE PROPERTY, AZAD JAMMU AND KASHMIR` AT MUZAFFARABAD

Versus

NAZIR AHMED QADRI and 3 others

Civil Appeal No.71 of 2002, decided on 3rd March, 2003.

(On appeal from the judgment of the High Court dated 19-4-2002 in Writ Petition No.641 of 2001).

(a) Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992-----

----R. 11---Government was bound to safeguard the interest of serving Custodian in respect of terms and conditions of his service and if any rule or any law for the time being in force was likely to affect the terms and conditions of Custodian's service, the Government was duty bound to make appropriate orders to safeguard his Constitutional legal rights---Rule 11 of Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992, did not envisage any review or representation by an outgoing Custodian before the Government---Said rule further envisaged that Government could riot pass any adverse order against serving Custodian without notice and without following the due process of law.

Faqir Muhammad and others v. Custodian of Evacuee Property and others 1996 SCR 349; Ch. Muhammad Fayyaz, Additional Custodian, Muzaffarabad and another v. Syed Arshid Gillani, Ex-Additional Custodian, Muzaffarabad PLJ 1999 SC (AJK) 89; Syed Arshid Gillani and another v. Azad Jammu and Kashmir Government and 2 others 2000 PLC (C.S.) 66; Muhammad Latif Khan v. Sarwar Hussain and others 1995 PLC (C.S.) 182; Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government, Muzaffarabd v. Mujahid Hussain Naqvi and another PLJ 2001 SC (AJ&K) 50; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13; Allah Ditta and others v. Sher Ahmed Khan and others 1993 SCR 325; Abdul Haq Mughal v. Muhammad Naseer Usmani and 2 others 2002 SCR 146; Mehmood Akhter, Kiani v. Azad Jammu and Kashmir Government and 3 others 1998 SCR 310 and Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2002 PLC (C.S.) 785 ref.

(b) Natural justice, principles of---

----Principles of natural justice were supposed to be the part of every statute having the force of law---Natural justice demands that before condemning any person in any judicial or quasi-judicial proceedings, such person, must be heard.

Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2001 SCR 526; Abdul Rashid v. D.E.O. and another 1998 PLC (C.S) 304 and Messrs Rasab and Brothers v. Deputy Collector, Excise and and others 1993 SCR 346 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)------

----S. 44---Writ jurisdiction, exercise of---Alternate remedy---Adequate remedy and not mere absence of alternate remedy would determine the propriety of the writ---Alternate remedy must be equally convenient, beneficial and effective, only then High Court could refuse to exercise its extraordinary jurisdiction.

Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfraz and 2 others PLD 1984 SC (AJ&K) 77 ref.

(d) Pakistan Administration of Evacuee Property Act (XII of 1957)-----

----Ss. 6, 43(6) & 57---Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions) Rules, 1992, Rr. 7 & 11---Azad Jammu and Kashmir Government Rules of Business, 1985---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Custodian as civil servant, determination of---Entitlement to avail appellate jurisdiction of Service Tribunal---Contention was that as 'Additional Custodian' had been held as civil servant, 'Custodian' would also be held as a civil servant because the term 'Custodian' included "Additional Custodian" and "Assistant Custodian" and Custodian could invoke appellate jurisdiction of Service Tribunal---Contention was without any force because "Custodian" was governed by Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions) Rules, 1992 which were framed in exercise of powers available to it under S.57 of the Pakistan Administration of Evacuee Property Act, 1957 and only such person could be appointed Custodian who either was a Judge of High Court or was qualified to be appointed as Judge of High Court---Additional Custodian was governed by different Rules known as Azad Jammu and Kashmir Additional Custodians, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992 which Rules were also framed by Government in exercise of powers vested in it under S.57 of the Pakistan Administration of Evacuee Property Act, 1957---As "Custodian" and "Deputy Custodian" were governed by different laws, which contained different qualifications and mode of their appointment and different terms and conditions relating to their offices, Custodian could not be held civil servant and was not entitled to avail appellate jurisdiction of Service Tribunal.

(e) Pakistan Administration of Evacuee Property Act (XII of 1957)-----

----S. 6---Civil service---Reversion---Custodian of Evacuee Property having been posted as Secretary Law on deputation against his lien, civil servant who at relevant time was serving as Additional Custodian, was given charge post of Custodian---Subsequently Custodian was sent back to his parent post of Custodian of Evacuee Property and civil servant was reverted to the post of Additional Custodian---On death of Custodian, opposing civil servant was appointed as Custodian by Authority in exercise of powers vested in it under S. 6 of Pakistan Administration of Evacuee Property Act, 1957---Civil servant had alleged that Authority had no jurisdictional competence to revert him to his original position as Additional Custodian--?Validity---Authority was not justified in law to transfer the Custodian and Dost him as Secretary Law because posting and transfer of civil servant could be effected by the Government, but Custodian of Evacuee Property being not civil servant, order of transfer of the Custodian, was totally illegal and bad in law---Civil servant being Additional Custodian in first round of litigation having never treated himself as Custodian, could not be allowed to take totally inconsistent plea to support order of Authority passed in illegal exercise of jurisdiction---Custodian on deputation as Secretary Law, was never appointed as Custodian, but was given the charge of said post in lieu of Custodian when he was, illegally transferred and posted as Secretary Law by Government---Civil servant who had never treated himself to be the Custodian, had never challenged his reversion from Custodian to his original post of Additional Custodian before any Court---Civil servant in circumstances was not justified in law to throw a belated challenge to opposing civil servant for the post of Custodian.

Ch. Muhammad Fayyaz v. Syed Arshid Gillani PLJ 1999 SC (AJK) 89; Syed Arshid Gillani v. Azad Government and others 2000 PLC (C.S.) 66; Muhammad Siddique Farooqi v. Azad Jammu and Kashmir. Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13 ref.

(f) Qanun-e-Shahadat (10 of 1984)-----

----Arts. 72, 73 & 74---Documentary evidence---Photostat copies could not be procured in the absence of original documents.

Ch. Muhammad Azam Khan and S.M. Suleman Khan, Advocates for Appellant.

Mujahid Hussain Naqvi, Advocate for Respondent No. 1

Raja Ibrar Hussain, A.-G. for Respondents Nos.2 to 4.

Dates of hearing: 9th, 10th and 14th January, 2003.

JUDGMENT

KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court, passed on 19-4-2002, whereby the writ petition fled by the respondent, herein, was accepted.

2. Admitted facts culminating into the present appeal, briefly stated, are that prior to the year 1971, the Judges of the High Court were holding the additional charge of the post of Custodian of Evacuee Property. For the first time vide Government Notification dated 13-2-1971, the Government in exercise of the powers vested in it under section 57 of the Administration of Evacuee Property Act, 1957 (hereinafter to be referred as the Act of 1957), for the management of Evacuee Property appointed the whole time Custodian and also framed the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992 (hereinafter to be referred as the Rules of 1992) on 18-6-1992. One Raja Abdul Majeed Khan was appointed as a whole time Custodian of Evacuee Property vide Government Notification dated 12-11-1991. Subsequently he was posted as Secretary Law on deputation and against his lien the present appellant who at that time was serving as Additional Custodian was given the charge of the post of Custodian vide Notification dated 17-1-1996. After some time, Raja Abdul Majeed Khan was transferred from the post of Secretary Law and posted as Chairman Service Tribunal but through Government Notification dated 4-9-1996, he was sent back to his parent post of the Custodian of Evacuee Property. Consequently the appellant, herein, who was given charge of the post in lieu of Raja Abdul Majeed, was reverted to the post of Additional Custodian. Raja Abdul Majeed Khan breathed his last in England on 7-6-1997. where he had gone for the treatment of his serious ailment. In his place the contesting respondent was appointed as Custodian of Evacuee Property by the Government in exercise of the powers vested in ft under section 6 of the Act of 1957 vide Gazette Notification dated 13-6-1997. The Government also issued a Notification on 13-8-1997, whereby the name of Raja Abdul Majeed Khad, was removed as Custodian from the fraternity of the employees of the department of Custodian of Evacuee Property.

3. The appellant, herein, alongwith other Additional Custodians, namely, Syed Arshid Gillani and Muhammad Bashir Mughal, was removed from service by the Government on 21-2-1997. They challenged the legality of their removal through a writ petition before the High Court. The High Court allowed their writ petition and declared their removal from service as Additional Custodian, as without lawful authority vide its judgment dated 20-3-1998. One Ch. Muhammad Fayyaz availed the right of appeal before this Court. The appeal of said appellant was allowed by this Court vide judgment dated 10-12-1998, and the removal of the appellant alongwith his other colleagues was held legal. The judgment of this Court was sailed before this Court in a review petition by the appellant and Syed Arshid Gillani, which was rejected by this Court vide judgment dated 16-4-1999.

4. The case of the appellant in the present round of litigation is that when (late) Raja Abdul, Majeed Khan was posted back as Custodian of Evacuee Property, vide Government Notification dated 4-9-1996, h6 filed a representation with the Prime Minister of Azad Jammu and Kashmir, wherein he challenged his reversion against the post of Additional Custodian, which he was holding prior to his appointment as Custodian in lieu of Raja Abdul Majeed Khan who was transferred and appointed as Law Secretary. According to him, he submitted a comprehensive summary to the Prime Minister on 20-2-1996, whereby he requested that he be appointed, against the post of Custodian permanently and the privileges which are admissible to a Judge of the High Court, may also be sanctioned in his favour. The Prime Minister accorded his approval on 28-2-1996 and directed the Secretary Services and General Administration Department to issue Government Notification in this regard but the Secretary Services had not complied with the directions of the Prime Minister. Thereafter the Media Advisor to the Prime Minister submitted another detailed note to the Prime Minister and obtained his approval on 20-3-1996. This approval was also sent to the Secretary Services but no formal Notification was issued. According to him, his representation was finally allowed by the present Prime Minister, who reinstated him to the post of Custodian on 6-12-2001 and removed the contesting respondent from the post of Custodian.

5. The private respondent through a writ petition called in question the Notification of the Government dated 6-12-2001, whereby he was removed from the post of Custodian of Evacuee Property and the present appellant was reinstated in his place as Custodian with effect from 4-9-1996. After taking necessary proceedings the learned Chief Justice of the High Court vide his elaborated judgment dated 19-4-2002, allowed the writ petition and declared the Government Notification dated 6-12-2001, as unconstitutional, without lawful authority and void ab initio and restored the contesting respondent to the office of the Custodian of Evacuee Property from the date of his removal, with all benefits and privileges attached to the post. This judgment of the High Court has been assailed in the present appeal.

6. Ch. Muhammad Azam Khan, the learned counsel for the appellant, argued that the respondent availed the writ jurisdiction of the High Court without availing the alternate remedy which was available to him, therefore, his writ petition was not maintainable. He supported his argument by placing reliance upon rule 11 of the Rules of 1992 wherein, according to him, a right of representation/review was available to the contesting respondent before the Government but he without availing that remedy directly filed a writ petition in the High Court. According to the learned counsel, this objection was raised before the High Court but the same has not been decided in accordance with law. The learned counsel placed reliance upon a case titled Faqir Muhammad and others v. Custodian of Evacuee Property and others [1996 SCR 349], wherein without availing the review jurisdiction the order of the Custodian was challenged in a writ petition before the High Court. While disapproving this practice it was held by this Court that section 43(6) provides wide powers of review to the Custodian, therefore, without availing the review jurisdiction, the writ petition was not maintainable. He further submitted that under the provisions of the Rules of Business, the Custodian of Evacuee Property is the head of attached department, therefore, in the light of the definition of service of Azad Jammu and Kashmir contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974, under the provisions of the Azad Jammu and Kashmir Service Tribunals Act, 1975 and the Azad Jammu and Kashmir Civil Servants Act, 1976, the Custodian is in the service of Azad Jammu and Kashmir, therefore, he is also a civil servant who can avail the appellate jurisdiction of the Service Tribunal in respect of infringement of any terms and conditions of his service. The writ jurisdiction was, therefore, not available to the respondent. The learned counsel further argued that despite objection raised by the appellant, this point was not attended to properly by the High Court in the judgment under challenge, therefore, the judgment of the High Court being without jurisdictional competence, is liable to be set aside. While elaborating his objection, the learned counsel further submitted, that under the provisions of the Act of 1957, the term 'Custodian' includes Additional Custodian and the Assistant Custodian. Additional Custodian has been held by this Court as civil servant in Civil Appeal No.67 of 1998 and in Civil Review Petition No. 1 of 1999, who cannot be inducted against the post of Additional Custodian without the recommendations of the Public Service Commission, therefore, the Custodian in the light of the view expressed by this Court in the aforesaid decisions is also a civil servant who can seek the redressal of his grievance by availing the appellate jurisdiction of the Service Tribunal. The writ petition filed by the respondent, therefore, was not maintainable. In support of this contention the learned counsel placed reliance upon the following authorities:--

In a case titled Ch. Muhammad Fayyaz Additional Custodian Muzaffarabad and another v. Syed Arshid Gillani Ex-Additional Custodian Muzaffarabad [PLJ 1999 SC (AJK) 89], the appointment of the present appellant alongwith other Additional Custodians, was involved in the light of the Rules framed under section 57 of the Act of 1957 for the post of Additional Custodian in which it was held that in the light of the Rules they are civil servants and their appointments have been made contrary to the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules. 1977. Therefore, the order of the High Court by which they were restored as Additional Custodians, was vacated. This authority is distinguishable with the case of the private respondent which shall be discussed in the later part of this judgment.

The next authority cited by the learned counsel in support of his objection is Syed Arshid Gillani anal another v. Azad Jammu and Kashmir Government and 2 others 2000 PLC (C.S.) 66. The authority was given by the Court in its review jurisdiction which was availed by the appellant along with one, Syed Arshid Gillani, his Colleague Additional Custodian for reversal of the order of this Court passed in Appeal No.67 of 1999. In this case the view expressed earlier by this Court in the above referred authority, [PLJ 1999 SC (AJK) 89], was maintained.

In a case titled Muhammad Latif Khan v. Sarwar Hussain and others 1915 PLC (C.S.) 182, it was held that matters relating to the terms and conditions of service of civil servants can be adjudicated upon by the Service Tribunal having exclusive jurisdiction in this regard: Therefore, the. High Court cannot entertain writ petition in respect of any matter falling within the ambit of terms and conditions of service.

7. The learned counsel also referred the Rules of Business of 1985, whereby the Custodian's office has been held attached department of the Services and General Administration Department. According to the learned counsel, the appointment of respondent as Custodian vide Notification dated 13-6-1997 was illegal because at that time the representation of his client was still awaiting decision before the Prime Minister; moreover two approved summaries by the Prime Minister dated 28-2-1996 and 20-3-1996, were not set aside by the Prime Minister. He strenuously critized the observations of the High Court that the approval accorded by the Prime Minister upon the summaries on 28-2-1996 and 20-3-1996, were not available on the record or had no legal value because no formal Government Notification was issued in furtherance of these approvals. He criticized the conduct of the High Court by arguing that it summoned the record on the application of respondent No. 1 without notice to the appellant and pro-forma respondents. According to the learned counsel, before summoning the relevant record, it was necessary for the High Court to invite objections from the appellant and pro-forma respondents. He further argued that the appellant had produced before the High Court, the photostat copies bearing Signatures of the Prime Minister of the time which should have been taken into consideration and given due import4nce as required by law. According to the learned counsel, the claim of his client, was owned by the Government in its written statement which is ample proof of the fact that the Government had accepted the case .of the appellant that he was permanently adjusted against the post of Custodian and through the approval of a summary, he was held entitled to the terms and conditions admissible to a Judge of the High Court. In the light of these admitted facts, according to the learned counsel, the appellant could not be removed from the post of Custodian before attaining the age of 62 years.

8. The arguments of the learned counsel for the appellant, were owned by the learned Advocate-General who submitted that as there was no provision for the temporary. appointment of Custodian, therefore, on the transfer of Raja Abdul Majeed Khan, the then Custodian, as Secretary Law, the appellant shall be assumed to have been appointed permanent Custodian as envisaged by the relevant law. He further argued that without availing the remedy before the Prime Minister by submitting a review petition, the respondent was not justified in law to avail the writ jurisdiction of the High Court. He strenuously criticized the findings of the High Court whereby the appellant was not given the benefit of the approvals granted by the Prime Minister to the summaries relating to his appointment as Custodian with terms and conditions which are admissible to a Judge of the High Court.

9. On the other hand, while opposing the arguments of the learned counsel for the appellant, Mr. Mujahid Hussain Naqvi, the learned counsel for the contesting respondent, argued that his client after the sad demise of the then Custodian, Raja Abdul Majeed Khan, was appointed lawfully permanent Custodian of Evacuee Property by the Government in exercise of the powers vested in it under section 6 of the Act of 1957, who on account of this reason, could only be removed from his office in accordance with the procedure provided for a Judge of the High Court as is mentioned in rule 7 of the Rules of 1992, relating to the office of Custodian of Evacuee Property. The appellant in the wisdom of the learned counsel for the contesting respondent, was not justified in law to submit any representation against his appointment nor the Government was competent to issue impugned Notification through which the respondent was removed from the office of Custodian in colorful exercise of jurisdiction. ' While placing reliance upon the cases titled Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government and Muzaffarabad v. Mujahid Hussain Naqvi and another (PLJ 2001 SC (AJ&K) 50] and Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others [PLD 1994 SC (AJ&K) 13], he submitted that the respondent could be removed, only by adopting the procedure which has been laid down in the Rules of 1992. He further submitted that as the procedure visualized by the relevant Rules was violated by the Government, therefore, the High Court was justified in holding the impugned order of the Government as without lawful authority and avoid ab initio. While referring the order of appointment of the appellant as Custodian in lieu of (late) Raja Abdul Majeed Khan, who at that time was transferred and posted as Secretary Law, the learned counsel contended that the appointment order itself is clear that the appellant was appointed as Custodian for the period, the late Custodian was asked to serve as Secretary Law. The appellant in fact was given the charge of the post in his capacity as Additional Custodian in B-19. The lien of then Custodian was kept intact and soon when he was reverted to his position as Custodian, the appellant was sent back to his post of Additional Custodian, which in fact he joined and served till the time he was removed by the Government alongwith other Additional Custodians. He by accepting his position as Additional Custodian sought the indulgence of the High Court in its Constitutional jurisdiction against his order of removal passed by the Government as Additional Custodian. The writ petition was ,allowed. However, the decision was reversed by this Court on appeal filed by one Ch. Muhammad Fayyaz. The appellant alongwith Syed Arshid Gilani, his colleague, once again insisted that they were lawfully appointed as Additional Custodians, by filing their review petition in this Court but their review petition was dismissed. The relevant judgment is reported as Syed Arshid Gillani and another v. Azad Jammu and Kashmir Government and 2 others 2000 PLC (C.S.) 66. In the light of his own conduct, the appellant was not justified in law to develop hope for the office of Custodian.

10. The learned counsel for the contesting respondent strenuously opposed that any representation filed by the appellant was pending with the Government. According to him, assuming that any such representation had ever been filed, the same shall be deemed to have been rejected or had become redundant after the judgment of this Court against him as Additional Custodian. He controverted the objection of the learned counsel for the appellant that. the respondent had remedy of review available before the Government. According to the learned counsel, under rule 11 of the Rules of 1992, no representation or review is envisaged, therefore, no such remedy could be availed by the respondent. The learned counsel took us through the record whereby the representation alleged to had been…

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