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Petitioner: Arfan Hameed SDO, Mirpur & 42 Other VS Respondent: Secretary Education, AJ&K Govt. Civil Secretariat, Muzaffarabad & 3 Other
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Ghulam Mustafa Mughal Title:Arfan Hameed SDO, Mirpur & 42 Other vs Secretary Education, AJ&K Govt.
Civil Secretariat, Muzaffarabad & 3 Other Case No.: W.P. No. 344 of 2003 Date of Judgment:2003-10-30 Reported As: K.L.R. 2004 Labour & Services Cases 165 Result: Petition Accepted Judgment ORDER GHULAM MUSTAFA MUGHAL, J.- This writ petition is directed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 for quashment of the orders of respondents issued on 29.8.2003 and 2.9.2003 respectively. A writ of mandamus is also sought for implementation of the order of the Chief Executive issued on 17.6.1997 whereby a proposal submitted on behalf of Secretary Education for bringing the petitioners on normal budget has been approved. 2. The facts culminated into the present writ petition briefly stated are that Azad Jammu and Kashmir Government vide notification dated 10.4.1989, launched a scheme known as "Primary Education Development and Extension Scheme" with the cooperation of O.P.E.C. Admittedly the scheme was introduced as per decision of the Government of AJ&K which was notified on 24.12.1988. Some posts were created with the prior approval of the Financial Department through the said Notification. The petitioners claim to have been appointed against these posts after due process of law, on the recommendations of the respective selection committee/Board. It is alleged that the said scheme ended in 1996 but, in view of the proficiency and utility or the staff, was shifted to another scheme known as "202 Middle Schools Scheme" introduced by the Azad / Jammu and Kashmir Government for the construction of new buildings of schools at middle level.'It is claimed that this scheme is still on going and during the continuation of the same, another scheme known as "83 Middle Schools" was also introduced and the same staff was retained in view of notification dated 11.6.1 995. It is again claimed that this scheme is still in progress. Thereafter another scheme known as "Northern Education Project" (NEP) was also launched by the Azad Jammu and Kashmir
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Government on 1.7.1999 and the earlier staff was retained in view of their nominal roles annexed with the said notification. The petitioners further claimed that the scheme was introduced as a result of agreement' with the World Bank and the Government of Azad Jammu and Kashmir. It was agreed that the staff of both the schemes referred hereinabove would be gradually shifted on the normal budget, It was provided in PC I that the salary would be paid according to the agreed share between the Azad Jammu and Kashmir Government and the World Bank according to the formula agreed in PC-I of the scheme, In view of the inducement on part of the respondents, the petitioners left no stone unturned in achieving the target of the scheme and the hard work of the petitioners has been appreciated by the Chief Executive Azad Jammu and Kashmir as well as the sponsoring agency. The petitioners were to be brought on the normal budget in view of the conditions of PC-I of the NEP scheme, but at the end of phase one of the said scheme, they were terminated with the mala fide intention through arbitrary exercise of powers to accommodate the kith and kin of the respondents and this action has deprived the petitioners from livelihood, past service and their future has also been ruined, It is also claimed that earlier a proposal was submitted by the Secretary Education after concurrence with Finance Department to the Chief Executive, who approved the same on 17.6.1997 but the matter has not been finalized by the respondents. The petitioners apprehending their removal filed a writ petition before this Court on 3.9,2003 but the respondents issued a back dated order on 2.9.2003. The petitioners were relieved from their services in presence of a prohibitory order issued by this Court. Respondents have resisted 'the petition by filing parawise comments which have been treated as written statement on the request of the learned Advocate-General. 3. It is stated in the comments that the posts were created temporarily and the petitioners were appointed for the fixed period on contract basis therefore, they are estopped from filing the writ petition for enforcement of the conditions of their service contract, It is further claimed that the case was sent to the concerned department for bringing the petitioners on normal budget, but the proposal was not acceded to. Thereafter another summary was sent but proceedings are still pending with Finance Department. It is also claimed that phase II is yet to be started; therefore, the case of the petitioners is premature. The petitioners have also filed replication alongwith some documents wherein it is stated that the respondents have inducted some other persons even after termination of the services of the petitioners and their mala fide does not require any further proof, It is submitted that respondents cannot take an inconsistent stand, It is contended that stand now taken by the respondent is contrary to the proposal submitted earlier on their behalf besides being violative of high level decision taken with/sponsoring agency. 4. Mr. Ashfaque Hussain Kiani, the, Learned Advocate appearing for the petitioners inter alia contended that the petitioners are duly qualified for the posts on which- they have been appointed. The appointments have also been made after due process of law and some of the appointments have even been protected by the apex Court of Azad Jammu and Kashmir. The learned Advocate submitted that the questions Of appointments and qualification have been admitted by the respondents and now they cannot take any inconsistent stand. The learned Advocate strenuously argued that in view of the conditions of the PC-1 of NEP programme, the petitioners have already been shifted on the normal budget and respondents cannot terminate their services in derogation of their commitment and conditions agreed with the sponsoring agency. According to the learned Advocate, the conduct of the respondents is against the principle of promissory estoppel, therefore, is liable to be deprecated. The learned Advocate also contended that though the petitioners were originally inducted in the scheme but they have been retained by the respondents without any temptation on their part and some of the petitioners have served for
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a period of more than 14 years and now they cannot be sent home and relieved from services especially when similarly situated employees appointed in the other development schemes of the Government departments have been brought on the normal budget and keeping in view the rule of equality before law, the petitioners also deserve to be brought on the normal budget, In this regard, the learned Advocate placed reliance on notifications annexure M/1, M/2, M/3 and A-P/12. The learned Advocate further contended that conditions of the PC-I have also been admitted by the Director Education in the summary appended with the writ petition as annexure L/1 and L/2. Therefore, the petitioners are liable to be protected from deprivation of their livelihood which is sole source of their lives. The learned Advocate argued that he matter was already approved by the Chief Executive but the notification has not been issued. So the respondents have failed to perform statutory duties enjoined upon them by the Azad Jammu and Kashmir Rules of Business. Issuance of formal notification in light of the approval of the Prime Minister issued on 17.6.1997, is the requirement of law. The learned Advocate contended that admittedly the schemes in which the petitioners were firstly, inducted are still on going and shifting to NEP was in fact made for the purpose of bringing the petitioners on normal budget keeping in view the general unrest of temporary employees inducted against the schemes usually relieved from their service's after putting a considerable service. The learned Advocate also contended that 'education cell, is not abolished from concept paper has been approved for the second phase and respondents were bound to complete the project through the petitioners, It was further argued that in a high levelled meeting chaired by the Chief Secretary it was decided with World Bank to bring the petitioners on the normal budget. The Chief Secretary vide letter 31.5.2003 directed the Secretary Finance to implement the decision and despite that the Secretary Education took a contrary decision which is malicious and in fact they want to adjust their kith and kins at the cost of the petitioners. 5. Raja Ibrar Hussain, the learned Advocate- General appearing for the respondents, has submitted that the petitioners have filed this petition for protection of ill-gotten gains and contractual rights, therefore, the same is liable to be dismissed in light of the various pronouncements of the apex Court. The learned Advocate further contended that for permanent appointments a complete scheme has been provided by Azad Jammu and Kashmir Civil Servants Act, 1976, whereby appointments can be made only after following scheme visualized by the Civil Servants Act, 1976 and the rules made thereunder. The learned Advocate also contended that there is no commitment of the Government with the petitioners for bringing them on the normal budget, nor they can claim any adjustment in violation of the rules. The learned Advocate also contended that order of the Chief Executive sought to be implemented is violative of law, hence cannot be implemented through the Constitutional jurisdiction. The learned Advocate was confronted as to whether the Secretary Education is competent to terminate the service of the officers of grade 17 and above, he submitted that no formal order was required for their- termination as they were appointed on contract for a fixed period. 6. I have heard the learned Advocates for- the parties and perused the record as well as relevant file of the department produced in light of the order of the Court. 7. Before proceeding further firstly I would like to attend the objection of the learned Advocate- General, It is contended by Raja Ibrar Hussain, the learned Advocate-General, that the petitioners have been appointed on contract basis till the finalization of the schemes, therefore, their termination is in line with the conditions of their appointment orders. Alternatively the learned Advocate General submitted that the appointments have been made in violation of the rules without conducting the test and interview as envisaged by Rule 17 of the Azad Jammu and Kashmir
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Civil Servants (Terms and Conditions of Service) Rules, 1977, henge, are void and cannot be protected in exercise of Constitutional jurisdiction by this Court. 8. The arguments of the learned Advocate General have been controverted by Mr. Ashfaque Hussain Kiani, the learned Advocate representing the petitioners, It is submitted by the learned Advocate that though the appointments were made initially against a project put after completion of the project the petitioners along with their posts are shifted to a newly launched scheme and ultimately on 1.7.1999 they were shifted to N.E.P. according to their nominal roll, hence, the Government has never treated the petitioners as temporary employees rather they have been given a hope for permanent, induction. All the appointments, according to the learned Advocate, have been made after due advertisement and on the recommendation of the respective selection committee and the Board. Some of the appointments have already been challenged and have been protected by the apex Court. In this regard the learned Advocate placed reliance on 2001 CLC 770 (in this case the appointment of petitioner No. 6 was protected by the apex Court). 9. After hearing the learned counsel representing the parties and perusing the record, I am of the view that the question as to whether the appointments have been made on permanent basis or till the finalization of the scheme is not directly involved nor need any resolution, therefore, deliberation to this extent would be only of academic interest. Even otherwise a perusal of the record reveals that all the appointments have been made on recommendation of the respective selection committees and Board except the appointment of petitioner No. 2. No order of his appointment has been placed on the record, therefore, in light of the conclusion, which I am inclined to take, to his extent,- the question is left open for decision of the departmental authorities, It appears that the orders of appointments have been made on recommendation of the selection committees and this fact has not been controverted specifically rather has been admitted. The objection has been raised at the time of arguments, therefore, contention is hereby repelled, in view of rule of. Law laid down in Muhammad Sharif Khan's case (1993 SCR 88). Even otherwise I am of the opinion that after a considerable time; the authorities now cannot take an inconstant stand to say that the appointments have not been made after due process of law. In case of Abdul Hafiz Abbasi and others (2002 SCMP 1 034), in the similar circumstances, the apex Court of Pakistan took, a serious notice of the fact that the departmental Authorities while making the appointments usually act on the directives issued to them by the persons who are at the helm of the affairs without daring to point out to them that directions are not implementable being contrary to law as well as prevalent rules and regulations but subsequently they show haste in terminating the service on the ground that same have been made in violation of the rules, It will be useful to reproduce para No. 15 of the report which is to the following effect:- "15. We have noted in number of cases that Departmental Authorities do show haste at the time of making such appointments when - directives are issued to them bv the persons who are in the helm of affairs without daring to point out to them that the directions are not implementable being contrary to law as well prevalent rules and regulations, In fact such obedience is demonstrated bv the concerned officers of the departments to please the authorities governing the country just to earn their time being pleasures but on the change of regime they do show speed in undoing illegal actions which they themselves have accomplished in the previous regime and due to their such illegal acts the employees 'who were appointed suffer badly without any fault on their part and then even nobody bothers for their future career. Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so- called illegal appointments the officers who were responsible for implementing illegal directives should also be held equally
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responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. This Court-in an identical case declined to grant leave to appeal in the case of Secretary to Government of N.W.F.P. (1996 SCM R 413) and observed that it is disturbing to note that in this case petitioner No. 2 had himself been aguilt of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around and terminated his service due to irregularity and violation of Rule 10(2) {ibid). The premise, to sav the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rule for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointments." Similarly, this Court in another unreported judgment passed in Civil Petition for Leave to Appeal No. 1062 of .1998 observed, that "The petitioner/PIAC is estopped bv conduct to urge that the appointment of the respondent against the rules and due to extraneous consideration and bv manoeuvring the said appointment he blocked the career advancement of more experienced employees already working in PIAC. If they had any grievance in this behalf they would have challenged the appointment of .The respondent soon after his appointment, but admittedly no. One did so, nor did the PIAC have any complaint against the work and conduct of the respondent. According, to the petitioner, this exercise had been taken on the directive dated 4.3.1997, of the Federal Government, requiring review of all cases of irregular and out of turn appointments in the PIAC. The respondent's appointment was made by the special Selection Board and he possessed the requisite educational qualifications. The PIAC had no cause of grievance against him and his services were terminated on the basis of the circular issued by the Prime Minister Secretariat dated 4.3.1997 directing that all irregular appointments during the PPP Government be terminated. (Underlining is mine) 10. The afore-reproduced observation is sufficient answer of the objections raised on behalf of the respondents. After considering the arguments, record and over all circumstances of the case, I am of the opinion that the precise question which falls for determination in .The case is as to whether the petitioners can claim any right on the basis of the rule of promissory estoppel, in view of notification issued on 1.7.1999, and as per conditions of the PC-1 scheme or as per decision dates 30.5.2003. Before proceeding further it is necessary to explain the rule of promissory estoppel. The rule of promissory estoppel is that where one party has, by his word or conduct, made to the other party, a clear promise which is intended to create a legal relationship or effect a legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom promise is made and it is, in fact so acted upon by the other party: that promise would be binding on the party making it and he is not entitled to resile from it. A perusal of the record reveals that the Notification dated 1.7.1999 has been issued with the prior concurrence of the Finance Department and all the incumbents who were serving against the previous projects were shifted to newly launched scheme, It is admitted that the scheme/project in which the petitioners previously inducted, are still on going. Viewing the controversy from this aspect it can easily be said that the Government itself has waived the conditions as regard to time from the appointments of the petitioners which is a clear cut intention on its part to absorb them permanently. At page 57 of the PC-1, under the heading of "Incremental Salary", a provision has been incorporated in the following manner:- "Increment Salary.
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1..................................... 2..................................... 3. The increment salaries given in the project have been worked out on declining basis. It means that the share of the Government will increase by the passage of time on yearly basis and ultimately the - entire expenditure will he borne out by the Government #tbs 200I #the #tbs /u L&S.C. Key Law Reports #the #tbs Incremental Salary #the #tbs Northern Education Project AJ&K Financial Phasing #the #tbs Talbe-38 #the #tbs s. No Particulars Grade Position Base Cost/ Year Rs. 97/98 98/99 99/00 00.01 01/02 Total 1. Physical Planner/ Engineer B-18 1 111456 0.112 0.1 12 0.1 l2 0.112 0.112 0.56C 2. Subject Specialists B-17. 6 540072 0.540 0.540 0.540 0.540 0.540 2.70C 3. Assistant Ed-Officer B-16 26 1663272. 1.663 1.663 1.663 1.663 1 1.663 ! 8.315 j 4. Computer Operator , B-16 1 63972 0.064 0.064 0.064 ' 0.064 1 0.064 ; 0.320 . I I t 5. Data Entry Operator B-12 9 406620 0.407 / 0.407 0.407 0.407 0.407 | 2.035 k #the #tbs .XXIII Arfan Hameed V. Secy Edu., AJ&K Govt. L&S.C. 1 79 (Ghulam Mustafa Mughal, J.l #the #tbs Total annual salary at the end of the project Rs. 4.763 million
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#the #tbs Financial Phasing Incremental Salary on declining basis #the #tbs Table-39 #the #tbs d Rs. 23.815 million #the #tbs < o #the #tbs Year 97/98 98/99 99/00 00/01 01/02 Total Salary 4.763 4.763 4.763 > 4.763 4.763 % AJK IDA AJK IDA AJK IDA AJK IDA AJK IDA AJK Share - 100% 80% 20% 60% 40% 40%' I 60% 20% 80% Amount 4.763 - 3.810 0.953 2.858 1.905 1.905 2.858 0.953 3.810 #the #tbs 6. Junior Clerk B-5 26 849264 0.849 0.849 0.849 0.849 0.849 T 4.246 7 Driver B-4 15 31224 0.468 0.468 0.468 0.468 0.468 2.34C 8. Peon B-1 26 660816 0.660 0.660 0.660 0.660 0.660 3.300 Total - 4.763 4.763 4.763 4.763 4.763 23.8f^ #the {{TABLE MISARANGED}} 11. A perusal of above table reveals that it was agreed with the sponsoring agency that the salary to the employees shifted vide notification dated 1.7.1999 would be paid mutually by the Government and the sponsoring agency (World Bank). Initially the share of the Government was 0%, however, in the year 98/99 started from 20% and at the end of the scheme it came to 80%, therefore, the petitioners are right in claiming that at the end of the scheme they would be deemed automatically shifted on the normal budget .And the Government' now cannot take an inconsistent position by terminating their services after a such pretty long period. The action is mala fide even from another angle that the schemes in which the petitioners were serving before issuance of the Notification dated 1.7.1999, are still on going and the second development scheme is still to be launched, In this perspective of the matter, the action of the department is arbitrary, capricious and perverse, besides being inconsistent with their own recommendation submitted to the Finance Department. In a summary moved on behalf of Additional Secretary Education which is placed at page 81 of the file, the afore-stated position has been admitted, It is pertinent to reproduce relevant para of the summary which is as follows:- {{URDU PARA MISS}} Again at the end of the summary on page 84 it is observed as under:-
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{{URDU PARA MISS}} 12. The Secretary Education has also endorsed in his summary under the heading of Engineering Cell Northern Education Project in the following words:- {{URDU PARA MISS}} Again the Secretary Education on 30.5.2003 referred a proposal to Finance Secretary in the following words:- {{URDU PARA MISS}} It further transpired from the record that in high level meeting chaired by the Chief Secretary it was also agreed that these employees of the Engineering Cell would be brought on the normal budget, in pursuance of which direction was also issued from the office of the Chief Secretary, which is as under:- {{URDU PARA MISS}} 13. Thus, in view of conditions of the PC-1, prepared for NEP Scheme and conduct of the Government and the summary submitted on behalf of Additional Secretary as well as Secretary Education, reproduced hereinabove, and in light of the decision taken in the meeting chaired by the Chief Secretary on 30.5.2003, it is held that the rule of promissory estoppel is attracted in the case and the respondents cannot resile from their commitment and the assurance which has been given to the petitioners by their conduct as well as through the written recommendations and now they are estopped even otherwise. 11. It is next argued by Mr. Ashfaque Hussain Kiani, the learned Advocate appearing for the petitioners, that similarly situated and appointed employees in the other projects under the Government have been shifted on normal budget despite the fact that the schemes/projects were started after the present schemes. The petitioners, according to the learned Advocate, are entitled to the same treatment and refusal on the part of the Government is direct invasion on the fundamental right No. 4 (15 and 17) of the Azad Jammu and Kashmir Interim Constitution Act, 1 974, which postulates that all the State subjects are equal before law and are entitled to equal protection of law. Similarly clause 17 of Section 4 provides a safeguard against the discrimination in service. The scope of equality of citizen and "equal .Protection of law" has received the attention of the superior judiciary of the sub-Continent. The consensus is that "Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities, that a citizen's rights as a human being are not affected by reason of his decent, religion, social or official status, economic condition or place of birth or residence; and further that all citizens are equally subject to the general law of the land. This clause permits classification. The scope of which is not relevant here for the purpose of the decision…
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