Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: ABDUL QADIR VS Respondent: ABDUL KARIM
1999 P L C (C
1999 P L C (C.S.) 947
[Supreme Court (AJ&K)]
Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
ABDUL QADIR
Versus
ABDUL KARIM through Chief Secretary and 4 others
Civil Appeal No. 103 of 1998, decided on 4th February, 1999.
(On appeal from the judgment of the High Court dated 26‑6‑1998 in Writ Petition No. 264 of 1997).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44‑‑‑Constitutional petition‑‑‑ "Aggrieved person"‑‑‑Qualification‑‑‑To qualify as an "aggrieved person", it was not to be proved that one had a vested right in the strict juristic sense‑‑‑Was sufficient if an aggrieved person seeking remedy would show that he had solve tangible interest in the matter or he would gain some advantage if an illegal order was set aside.
Muhammad Islam v. Abdul Rashid and others 1993 SCR 37; Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others 1994 CLC 2339; Umar Din Kiani v. Azad Government and others 1995 SCR 166; Residents of Mirpur v. Mayor, Municipal Corporation, Mirpur and another 1995 SCR 332 and Khurshid Ahmed v. Mohtasib and 3 others 1999 CLC 972 ref.
(b) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑
‑‑‑‑S. 22‑‑‑Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, R.10‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Civil service‑‑‑Compulsory retirement ‑‑‑Re‑instatement‑‑ Power of High Court to order implementation of order passed by Authority‑‑‑Respondent who was compulsorily retired from service in public interest had received amount as commuted pension and also started receiving his pension, but later on he challenged his compulsory retirement in appeal before Service Tribunal and after dismissal of his appeal by Service Tribunal, he filed appeal before Supreme Court against judgment of Service Tribunal which also was dismissed by Supreme Court‑‑‑Respondent, thereafter, filed petition before Prime Minister for his reinstatement in service and Prime Minister considering that petition as review petition vacated orders of compulsory retirement of respondent and ordered his re‑instatement‑‑‑Said order of Prime Minister having not been implemented by Authorities, respondent filed Constitutional petition in High Court which was accepted by High Court and issued direction prayed for by respondent ‑ in his Constitutional petition‑‑‑Order passed by High Court had been challenged in appeal before, Supreme Court by appellant who was absorbed in service after compulsory retirement of respondent‑‑‑Validity‑‑‑Appeal filed by respondent against his compulsory retirement having been dismissed firstly by Service Tribunal and then by Supreme Court, order of compulsory retirement of respondent had attained finality and no Executive Authority could pass an inconsistent order because judgment of Supreme Court was binding on all judicial and executive Authorities who had to act in aid of Supreme Court‑‑ Order of reinstatement of respondent passed by Prime Minister could not be upheld and High Court in exercise of its Constitutional jurisdiction could not order implementation of said order by issuing writ of mandamus.
Abid Hussain Jafri v. Azad Government 1998 PLC (C.S.) 141; Aziz‑ur‑Rehman v. Presiding Officer, Local Council Elections 1993 SCR .177; Inayatullah Chaudhry v. Azad Jammu and Kashmir Government and 5 others 1990 PLC (C.S.) 598; Ahsanullah A. Memon v. Government of Sindh and others 1992 PLC (C.S.) 1157; Mukhtar Ahmad and 37 others v. Government of West Pakistan through the Secretary, Food and Agriculture, Civil Secretariat, Lahore and another PLD 1971 SC 846 and Sajjad Ahmad Javed Bhatti v. Secretary, Establishment Division, Islamabad and 11 others 1996 PLC (C.S.) 652 ref.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S.44‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Acquiescence and estoppel, were two recognised grounds in presence of which jurisdiction based on equity could not be exercised in favour of litigant‑‑‑Constitutional jurisdiction of High Court, being equitable in nature, no relief would be granted to a litigant if he himself was instrumental in the making of an order or if he acquiesced in it and he would not be allowed to turn round and challenge same‑‑‑Equitable jurisdiction could not be exercised in favour of a litigant with objectionable conduct.
Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92 and Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355 ref.
(d) Acquiescence‑‑‑
Acquiescence and estoppel, were two recognised grounds in presence of which jurisdiction based on equity could not be exercised in favour of litigant‑‑‑Constitutional jurisdiction of High Court, being equitable in nature, no relief would be granted to a litigant if he himself was instrumental in the making of an order or if he acquiesced in it and he would not be allowed to turn round and challenge same ‑‑‑Equitable jurisdiction could not be exercised in favour of a litigant with objectionable conduct.
Muhammad Sharif v. Muhammad Manzoor and others 1993 SCR 92 and Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355 ref.
Raja Muhammad Hanif Khan, Advocate for Appellant. Abdul Rashid Abbasi, Advocate for Respondent No. l. Kh. Atta Ullah, Additional Advocate‑General for Respondents Nos.3 to 5.
Date of hearing: 27th January, 1999.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑A writ petition filed by respondent Abdul Karim has been accepted by the High Court, which has directed that the orders passed by the Prime Minister of Azad Jammu and Kashmir reinstating the respondent as P.A. to Advocate‑General of Azad Jammu and Kashmir with all back benefits be implemented without further delay. The said respondent was compulsorily retired from service more than seven years ago on 31st December 1991. The post vacated by the said respondent presently has come to be occupied by Abdul Qadir who was granted leave to file the present appeal to challenge the judgment of the. High Court. He was not a party to the writ petition.
The present appeal is culmination of second round of litigation and it is vehemently contended by the appellant that the effect of the previous round is that the Prime Minister of Azad Jammu and Kashmir was not competent to pass the order of respondent Abdul Karim's reinstatement to service. Therefore, we have to begin by noting the facts of the previous round.
On 31st December, 1991 Advocate‑General of Azad Jammu and Kashmir issued an order sending the respondent on compulsory retirement in the public interest. The order was as follows:‑‑
"Mr. Abdul Karim P.A. to Advocate‑General is compulsorily retired from service in the public interest with effect from 1‑1‑1992 under the provisions of section 3 sub‑para. 1 of Government Ordinance No. 707‑11.LD, dated 12‑10‑1989. The official will be entitled to receive pension/pension commutation under rules." (Translated)
Within ten days the respondent received a sum of Rs.3,36,770 as commuted pension and also started receiving his pension. Soon after that, on 12th of January, 1992, he moved an application before the Advocate‑General
that his military service had not been counted which was causing loss to him and that he wanted to continue his service. He prayed that by accepting this review petition he may be reinstated with effect from the date of retirement. This application was accepted by the Advocate‑General who issued an order on 14th January, 1992 reinstating him to service. However on 1st February, 1992 the Advocate‑General issued another order, which is a detailed one, in which he stated that the respondent had obtained his reinstatement order by suppressing the facts that he had already received the commutation amount. It was further stated that the Advocate‑General was not even otherwise authorised to entertain appeal/review against his own order. He, therefore, restored the order of retirement.
Thereupon, the respondent filed appeal before the Service Tribunal in which he challenged both the adverse orders passed by the Advocate General on 31st December, 1991 and 1st February, 1992. Amongst the various grounds he raised in support of his appeal, the respondent pleaded that order of his compulsory retirement had been passed in total disregard of the provisions of the Civil Servants Act and that it had been passed without any charge‑sheet or opportunity of hearing. On behalf of the Advocate General it was averred before the Service Tribunal that order of retirement was passed by the Advocate‑General on the request of the said respondent who personally obtained the Advocate‑General's signature on the retirement order. It was further averred that in fact it was not intended to impose any penalty on Abdul Karim but the purpose was to give him monetary benefit as requested by him and that the words "public interest" were used to give him the benefit of pension. These averments were supported by an affidavit of the learned Advocate‑General. The Service Tribunal dismissed the appeal filed by the respondent on the short ground that he did not file departmental appeal against the order of his retirement before the designated appellate authority but filed appeal before an officer who was not the appellate authority. The Service Tribunal held that since he did not avail the departmental remedy his appeal to the Service Tribunal was not maintainable. The Service Tribunal was also of the view that the reinstatement order passed by the Advocate‑General was illegal because the Advocate‑General had no power to review his order of 31st December, 1991 because an appeal could be filed against it. It was further observed that Abdul Karim had practised fraud upon the Advocate‑General while mischievously obtaining the orders of his reinstatement. The respondent then filed appeal, by leave of the Court, to this Court but his appeal was dismissed on 20th of October, 1993. The view taken by the Service Tribunal was upheld by this Court that the respondent has filed appeal before an officer who was not the appellate authority and, therefore, he could not file appeal before the Service Tribunal. While dismissing the appeal some other observations were also recorded to which we will be adverting to when the proper stage is reached.
The dismissal of his appeal did not deter the respondent. A few days later he moved an application before the Prime Minister of Azad Jammu and Kashmir in which he stated that he had filed his appeal in a wrong forum and due to technical reason his appeal before the Service Tribunal had been dismissed and that the Supreme Court had also upheld the judgment of the Service Tribunal. He prayed that delay may be condoned so that he could file a fresh appeal before the appellate authority. On 20th November, 1993 the Prime Minister was pleased to record on the application that: "Appeal may be filed". From some documents forming part of the High Court file it appears that thereafter the Prime Minister Secretariat processed the case of the respondent. The record shows that comments of the Advocate‑General were invited and subsequently some queries 'were made in the first half of year 1995' but there is nothing on the record to show that any further progress was made.
About two years later, another application was moved before the Prime Minister of Azad Jammu and Kashmir by the respondent. In the application previous history was narrated and a new point was raised that the provision under which his retirement had been ordered was no longer on the statute book because the Ordinance promulgated in 1989 was neither repeated nor was followed by an Act of the Assembly. He, therefore, pleaded that there was no provision under which he could have been retired after putting in eighteen years of service. He prayed that by accepting the application/review the orders of his compulsory retirement may be set aside and he may be reinstated to service with all back benefits. The application was purportedly written on 4th September, 1998 but it was not duly filed in any office and clearly seems to have been directly presented to the Prime Minister who was pleased to write the following order on 31st December. 1996 on the margin of the same paper:‑‑
"The review/application of the applicant is accepted and by vacating the orders of compulsory retirement the official is reinstated to service from the date of termination with full back benefits." (Translated).
The order was sent to the Chief Secretary who sent it to Secretary Law to process it. A few days later, the respondent moved another application before the Prime Minister of Azad Jammu and Kashmir in which he drew the attention of the Prime Minister to his earlier order of 31st December, 1996 and agitated the point that the order had not been implemented. The Prime Minister passed an order on the same application on 14th May, 1997 in which he directed the Law Secretary to implement his earlier order at once and also to report compliance.
The respondent then filed a writ petition in the High Court on 29th May, 1997 in which he, after stating the previous history, submitted that instead of implementing the orders of reinstatement passed by the Prime Minister; the Law Secretary had initiated a case requesting the Prime Minister to withdraw his orders. He raised the point that the Law Secretary had no authority to do so. He requested that the respondents may be ordered to implement the orders of the Prime Minister passed on 31st December, 1996 and 14th May, 1997 and also requested that the respondents be restrained from taking any proceedings for getting the aforesaid orders cancelled. The High Court admitted the writ petition and issued a status quo order. Ultimately the writ petition was accepted and the direction prayed for was issued.
As already stated, this appeal has been filed by leave of the Court by Abdul Qadir who had meanwhile been appointed as Stenographer against the post previously held by the respondent Abdul Karim. The respondents before the High Court had not filed appeal in this Court but, being arrayed as pro forma‑respondents in this appeal, fully supported the arguments raised by the learned counsel for the appellant It may be pointed out that Azad Government of the State of Jammu and Kashmir was one of the respondents before the High Court and resisted the writ petition.
We have heard lengthy arguments from the learned counsel for the Rellant, Raja Muhammad Hanif Khan and Mr. Abdul Rashid Abbasi, the learned counsel for the respondent. Mr. Abdul Rashid Abbasi vehemently contended that the appellant has no locus standi to challenge the order passed by the High Court. He submitted that Abdul Karim had challenged the order of his compulsory retirement, which was illegal, and by acceptance of the writ petition no vested right of Abdul Qadir had been taken away. He further submitted that the appellant was appointed as Stenographer in the Advocate-General's Office without inviting applications and without recommendations of the Selection Board which were two essential requirements of filling a post under the Government. He, therefore, contended that the appellant's incumbency was in the nature of ad hoc appointment which creates no right. The argument is met by Raja Muhammad Hanif Khan .by drawing our attention to the fact that the appellant was appointed on probation for one year on 27th February 1992 but was subsequently confirmed as Senior Scale Stenographer on permanent basis after successful completion of his probation: period vide order issued on 17th October, 1994 which forms part of the paper book as Exh.PO/2. The learned counsel further contended that by the acceptance of the writ petition the appellant has been virtually dismissed from service. The learned counsel submitted that aggrieved person is not one who has a vested right in the strict juristic sense and that to qualify as an aggrieved person all that a person has to show 'is that he will gain some advantage if an illegal order is set aside.
It is well‑settled that to qualify as an aggrieved person it is not to be proved that one has a vested right in the strict juristic sense. It is sufficient if an aggrieved person seeking remedy shows that he has some tangible interest in the matter or he will gain some advantage if an illegal order is set aside. On this point we may refer to the cases titled Muhammad Islam v. Abdul Rashid and others (1993 SCR 37), Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others (1994 CLC 2339), Umar Din Kiano v. Azad Government and others (1995 SCR 166), Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another (1995 SCR 332) and Khurshid Ahmed v. Mohtasib and 3 others (1999 CLC 972). In light of this principle the facts that the appellant stands permanently absorbed in service upon his confirmation and that he has been virtually displaced from service as a result of the judgment of the High Court gives him locus standi to challenge the judgment of the High Court. The allegations that the appellant has been appointed without advertising the post and has been recruited without recommendation of the Selection Board, even if true, are not material because he is no longer working on ad hoc basis but has been confirmed in service and has, thus, earned the right to continue his incumbency till, if so, his appointment is declared illegal through appropriate proceedings. The objection is, therefore, repelled.
On behalf of the appellant reliance has been placed on the settled principle of law that in exercise of writ jurisdiction the High Court cannot direct implementation of an order, which is not lawful. It is the grievance of the appellant that the orders passed by the Prime Minister were unlawful and their implementation could not legally be ordered by the High Court. One of the grounds urged on behalf of the appellant by Raja Muhammad Hanif Khan is that the compulsory retirement of the respondent attained finality when the appeal filed by the respondent in this Court was dismissed and no executive authority could pass an inconsistent order because a judgment of this Court is binding on all judicial and executive authorities who have to act in aid of the Supreme Court. The other point raised by the learned counsel is that even under the service laws the retirement of the respondent had attained finality and the Prime Minister had no power to reopen the matter particularly when a period of more than four years had elapsed.
The learned counsel for the respondent, Mr. Abdul Rashid Abbasi, met these arguments by contending that, as held by the High Court, section 22 of the Civil Servants Act and rule t0 of the Civil Servants (Appeals) Rules, 1991 gave ample powers to the prime Minister to pass the orders of reinstatement. Section '2 of the Civil Servants Act runs as follows:‑
"Saving.‑‑Nothing in this Act :,r in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner, as may appear to it to be just and equitable;
Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule. "
It was rightly contended by Raja Muhammad Hanif Khan that section 22 gives the powers to the Government to deal with the case of any civil servant in a just and equitable manner but the respondent was not a civil servant when the Prime Minister passed the orders under reference in favour of the respondent. The definition of civil servant in the Azad Jammu and Kashmir Civil Servants Act only includes in its ambit a person who is in service and excludes a person who has ceased to hold a civil post. Therefore, in our view section 22 has no application to the present case and the order of reinstatement passed by the Prime Minister cannot be upheld with reference to the above section.
It was also contended by the learned counsel for the appellant that even if section 22 was to be applied to the present case the order passed by the Prime Minister was not equitable or just because the compulsory retirement of the respondent had been upheld by the Supreme Court, and the Prime Minister was bound to act in aid of this Court rather than passing an order inconsistent with the judgment of this Court. In order to assess the merit of this submission we may reproduce the following portion of the previous judgment of this Court in the appeal filed by the respondent:‑‑
"The learned counsel for the respondents have vehemently argued that a civil servant who himself seeks retirement and gets the pension and other benefits cannot subsequently turn round and challenge the order of his retirement; he cannot be given any relief because his claim would be hit by the principle of estoppel. The learned counsel for the respondents has referred two cases of this Court reported as Abid Hussain Jafri v. Azad Government (1993 SCR 105) and Aziz‑ur‑Rehman v. Presiding Officer Local Council Elections (1993 SCR 177) and have maintained that if an averment is made and is supported by an affidavit, such an averment would be deemed to be true unless it is rebutted by a counter‑affidavit. It may be also pointed out that the review petition on which the appellant was reinstated does not contain any averment to the effect that he was retired as a result of a 'punishment' awarded to him. The most important aspect of the case is that the appellant was retired on 31‑12‑1991 and got his pension and other benefits on 9‑1‑1992, after a week or so. In fact the appellant received a substantial amount of more than three lacs rupees as pension and other benefits; the fact tips been admitted by the learned counsel for the appellant. But it is strange that he did not disclose these facts in the review petition. This obviously reflects on the conduct of the appellant and is also supportive of the fact that the appellant manoeuvred his retirement to get pension and other benefits and after that he turned round and wanted his reinstatement in the service." '
It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in respect of his retirement. It was also dearly laid down that having himself requested for retirement and having received a substantial amount of pensionary benefits he could not be allowed to turn round to demand reinstatement. These findings show that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the ground that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estoppel are two recognised grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct. 1f any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92] and the case titled Ghulam Mustafa v. Azad Government and 2 others
We may now turn to test the order of the Prime Minister on the touchstone of rule 10 of the Azad Jammu and Kashmir Civil Servants (Appeal) 1991. The rule may be profitably reproduced first:‑‑
"Revision. (1) The Government may call for and examine the record of any proceedings before any authority for the purpose of satisfying as to the .correctness, legality or propriety of any finding, penalty or order recorded or passed and as to the regularity of any proceedings of such authority.
Provided that a revision petition preferred after the lapse of a period of three months from the date of the communication of the order to the concerned civil servant shall not be entertained.
(2) On examining any record under this rule, the Government may pass such orders as it may deem fit;
Provided that any order under this rule made prejudicial to the accused shall not be passed unless he has been given an opportunity to show cause against the proposed act;
Provided further that an order is imposing penalty shall not be revised suo motu or otherwise after the lapse of a period of three months from the date of its communication to the accused if no appeal is preferred. "
The power of revision conferred by the Government by rule 10 lays downs that a revision petition filed after a period of three months shall not be entertained but in the present case the petition filed by the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.