2018 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB ALVI, J.

The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioner:- "In the circumstances enumerated above, it is humbly prayed that by accepting this Constitutional petition, high prerogative writs of mandamus, prohibition and others deemed expedient in the interest of justice may kindly be issued directing the respondents to implement the order of the Prime Minister dated 26.08.2014, No. PM Secretariat 3994 dated 27.08.2014 (Annexure "PA") and forthwith issue contract appointment order of the petitioner as Chairperson Azad Jammu and Kashmir Text Book Board accordingly. As they are under bounden legal obligation to do so. As a valuable vested right of ibid appointment has accrued to the petitioner since passing of the appointment order by the worthy Prime Minister, the respondents may be forbiddingly commanded not to make the appointment of any other person on the aforesaid post in disruption and adversity of the petitioner's above rights. Any other relief to which the humble petitioner is found entitled to in the estimation of this Hon'ble Court, may also be very kindly granted favouring the petitioner."

2. The precise facts forming back ground of the instant writ petition are that petitioner is first class State Subject, who is domicile holder of District Muzaffarabad and retired, after completion of superannuation period, as Divisional Director Schools/Managing Director Azad Jammu and Kashmir Teachers Foundation B-20. It is averred that after retirement, petitioner was appointed against the post of Chairperson Azad Jammu and Kashmir Text Book Board for a period of 03 years, on contract basis, under the contract appointment policy, 2006, by the Prime Minister Azad Government of the State of Jammu and Kashmir through order dated 26.08.2014. It is claimed that despite elapsing a period of more than three months of passing Chief Executive's order, respondents due to mala fide reasons and to accommodate their favorites determined not to implement the aforesaid order without any valid justification, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioner has got no locus standi to file the instant writ petition. It is maintained that in the light of various pronouncements of the Apex Court illegal order of the Prime Minister cannot be implemented through writ jurisdiction. It is further claimed that contract appointment can only be made by the relevant authority in case of non-availability of suitable officer for the post, however, where eligible officers are available for promotion then contract appointment cannot be made to block promotion prospectus of other officers. It is alleged that post in dispute was already filled in against which one Tanveer Lateef is serving. It is further averred that petitioner filed a writ petition before this Court which was accepted, however, in the light of reported judgment of the Apex Court titled Azad Government and 3 others v. Mrs. Jamshaid Naqvi and 02 others [2014 SCR 13], she could not be appointed against the disputed post, hence, craved for dismissal of writ petition.

4. The learned counsel for respondents also moved an application on 23.11.2015, wherein it is stated that order likely to be implemented was taken back by the Prime Minister in shape of review on 16.11.2015, hence, the instant writ petition has became infructuous. The application has been resisted by petitioner through objections dated 30.11.2015, whereby contents of application have been controverted. It is stated that order of the Prime Minister was never recalled as alleged by respondents.

5. Mr. Mujahid Hussain Naqvi, the learned counsel for petitioner submitted that order of the Prime Minister Azad Government of the State of Jammu and Kashmir dated 26.08.2014, pertaining to appointment of petitioner as Chairperson Text Book Board B-20 was never recalled, therefore, necessary direction to act upon the aforesaid order is demand of law and justice. He further argued that in any case order was recalled during status quo issued by this Court on 02.12.2014, hence, the same cannot be taken into consideration as such. The learned counsel strenuously voiced that matter is pending before the concerned Selection Committee for contract appointment, respondent No.4, since 31.12.2014, therefore, direction for implementation of order of the Prime Minister within short period of a week or fortnight will serve the ends of justice. He further argued that written statement filed by respondents is against basic provisions of Order VIII, rule 5 of Civil Procedure Code, 1908, hence, submitted for issuance of solicited writ. The learned counsel in support of his contentions referred to and relied upon the following case law:- i. Mujahid Hussain Naqvi v. Chief Secretary Azad Government of the State of Jammu and Kashmir and 2 others (1996 PLC (C.S.) 770). ii. Farooq Ahmed Khan and 3 others v. Shaukat Jan Bauch and 2 others (1998 PLC (C.S) 425). iii. Ejaz Ahmed Awan and 05 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S) 1439).

6. Ch. Shoukat Aziz, the learned Additional Advocate General, appearing on behalf of respondents while controverting arguments of the learned counsel for petitioner submitted that order likely to be implemented was recalled by the Prime Minister on the basis of summary submitted by the Minister Elementary and Secondary Education dated 16.11.2015, hence, the instant writ petition has become infructuous. The learned counsel further submitted that petitioner was retired from service who could be re-employed within two years, however, she had crossed more than the aforesaid period, hence, writ petition is not maintainable even on merits. The learned counsel for respondents relied upon the following case law:- i. AJ&K Government and 04 others v. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382] ii. Syed Mumtaz Hussain Naqvi and 09 others v. Raja Muhammad Farooq Haider Khan and 4 others [2014 SCR 43].

7. After hearing the learned counsel for parties at length, I have perused the contents of writ petition and examined the appended documents with utmost care. For regulating the matter of re-employment of retired civil servants against the civil posts in connection with affairs of State of Jammu and Kashmir a notification dated 03.05.2010, has been issued under section 23 read with section 13 of the Azad Jammu and Kashmir Civil Servants Act, 1976. Before embarking upon the controversial issue pertaining to re-appointment of petitioner against the post of Chairperson Text Book Board B-20, it seems appropriate to reproduce the policy Government notification supra which speaks as under:- "AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT. ******* "Muzaffarabad" Dated 3rd May, 2010 NOTIFICATION No. S&GAD/G-5 (22)/2010. In exercise of the powers conferred by Section 23 read with section 13, of Azad Jammu and Kashmir Civil Servants Act, 1976, the President, Azad Jammu and Kashmir has been pleased to approve the following policy for regulating the matters of re-employment of retired civil servants against the civil posts in connection with affairs of the Azad Government of the State of Jammu and Kashmir, namely:- (i) The re-employment beyond superannuation shall be an exception and not the rule. (ii) It shall be recommended only in cases where government considers that the person is highly competent, with distinction in his/her profession/field and no qualified and experienced person is available from the existing cadres. (ii) The retention of the officer is in the public interest and shall not block the promotion prospects of other officers. (iv) Re-employment beyond the age of 63 years shall not be allowed. (v) The civil servants who have been, or may be, retired by the competent authority on or after completion of 25 years of service qualifying for pension shall not be considered fit for retention in government service. (vi) A civil servant on leave preparatory to retirement and is desirous of seeking re-employment, including those seeking such re-employment within first two years of their retirement, shall seek prior permission of the concerned authority. (vii) A person, whose services have been terminated as a result of disciplinary action against him, shall not be re-employed. (viii) No request for grant of ex-port-facto approval to the re-employment/extension in service, contract employment in any circumstances shall be entertained. (ix) No officer appointed on contract or serving on re-employment shall be allowed to continue in the respective post after the expiry of the tenure and in case of overstay the financial liability shall rest upon the head of the department and the officer concerned himself/herself. (x) All the cases of re-employment, extension in service, contract employment beyond the age of superannuation shall be considered by the committee constituted vide Notification No. S&GAD/G-5(22)/2010 dated 20.02.2010 and issued under the Azad Jammu and Kashmir Cabinet decision taken in the meeting held on 18th January, 2010.

2. It has further been approved that Administrative Secretary concerned shall refer the proposal of such cases to the scrutiny committee, in the form of summary, containing the recommendation of the Minister incharge, duly signed by him and shall be accompanied/supported with the following verification, information and documents:- a. All the proposals for re-employment shall indicate reasons for non-availability substitute and steps taken to train a substitute and statement of circumstances in which no other officers could be groomed to take up the assignment. b. The proposed re-employment/extension in service of employment, contract employment of any retired civil servant shall not create promotion blockage for other officers. c. A brief report on the performance of the officer, proposed for the employment/extension in service or contract employment during his/her last 5 years of service. d. The officer proposed for re-employment/extension in service or contract employment is medically fit. e. The Administrative Secretary shall forward the proposals to the scrutiny committee at least two months before the date of superannuation or date of expiry of current period of re-employment/extension in service, contract employment as the case may be.

3. This notification shall take immediate effect. (Syed Fida Hussain Gardezi) Additional Secretary S&GAD (General Cabinet)."

8. Similarly Government notification dated 20.02.2010, whereby upon the decision of Cabinet, a Committee has been constituted to scrutinize the matters of re-employment/extension and contract employment, which also goes to the root of the case is reproduced as follows:- "GOVT. OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT. Block No.2 New Civil Secretariat Complex. ********* "Muzaffarabad" Dated 20th February, 2010" Notification No.S&GAD/G-5 (22)/2010; Consequent upon the decision taken during the meeting of Azad Jammu and Kashmir Cabinet held on 18.01.2010, the President Azad Jammu and Kashmir has been pleased to accord approval to constitute the following committee to scrutinize the matters of re-employment/extension in service/contract employment:-

1. The Chief Secretary/Secretary Cabinet, Government of Azad Jammu and Kashmir. Chairman

2. The Secretary, S&GAD, Government of Azad Jammu and Kashmir. Member

3. The Secretary, Finance, Government of Azad Jammu and Kashmir. Member

4. The Secretary Law, Justice, Parliamentary Affairs and Human Rights, Government of Azad Jammu and Kashmir. Member

5. Secretary of the concerned Department. Member/Secretary

2. All the cases of re-employment/extension in service/contract employment will be referred to the said committee with the due recommendation of the concerned Minister.

3. The committee, after due scrutiny and recommendation, will submit the cases to Prime Minister for order. Mazhar Farooq Janjua Section Officer (General) S&GAD 05822-921974"

9. A bare reading of policy notification dated 03.05.2010, reveals that re-employment beyond superannuation shall be an exception and not the rule, which shall be recommended only in cases where Government considers that the person is highly competent, with distinction in his/her profession/field and no qualified experienced person is available from the existing cadres. It is also postulated that retention of the officer is in the public interest and shall not block the promotion prospects of other officers. It is further inserted that no request for grant of ex-post-facto approval to the re-employment, extension in service, contract employment in any circumstances shall be entertained. According to para. 2 of notification supra, the Administrative Secretary concerned shall refer the proposal of such case to the Scrutiny Committee in the form of summary, containing the recommendation of the Minister incharge. A perusal of order of the Prime Minister dated 26.08.2014, reveals that all the paras contained in Government policy notification supra were not taken into consideration at the time of passing the said order.

10. The Government-respondent, consequent upon the decision taken during meeting of Azad Jammu and Kashmir Cabinet held on 18.01.2010, also constituted a Committee to scrutinize the matters of re-employment, extension in service and contract employment vide notification dated 20.02.2010. A reading of the same reveals that Chief Secretary/Secretary Cabinet is Chairman of the committee. The Secretary Services and General Administration Department, Secretary Finance, Secretary Law, Justice, Parliamentary Affairs and Human Rights Departments are members, while Secretary of the concerned Department is Member/Secretary of the Committee. According to para. 2 of the notification ibid all the cases of re-employment, extension in service and contract employment will be referred to the said Committee with due recommendation of the concerned Minister. According to para.3 of the said notification the Committee, after due scrutiny and recommendation, will submit the cases to the Prime Minister for orders. The matter with regard to re-employment of petitioner was neither referred to the aforesaid Committee, nor recommended by it, therefore, the same is also violative of the above mentioned notification.

11. The Government has regulated the services in Azad Jammu and Kashmir by enacting the Azad Jammu and Kashmir Civil Servants Act, 1976 and by framing rules thereunder, for carrying out the purpose of the Act. According to Section 13 of the Azad Jammu and Kashmir Civil Servants Act, 1976, re-employment can be made only in public interest. The Government has also regulated the policy for appointment on contract basis as well as re-employment in the notifications discussed herein above. The powers generally exercised by the Government or a public functionary must be backed and strictly in line with the law of the land. For good governance strict and faithful compliance of the rule of law and constitution by the rulers is sine-qua-non, otherwise, the non-observance of rules ruined the structure of the institutions as well as Government. It is well settled principle of law that where an Act, or rule prescribe a specific mode for performance of an act, then such act should be performed in that manner, otherwise, it would be deemed to have not been performed at all. In case titled Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad and others PLD 2012 SC (AJ&K) 42 at page 63 of the report, it was held by the Hon'ble Supreme Court as under:- "It is celebrated principle of law that when a particular method for performance of an act is prescribed under an Act or rules, then such act must be performed according to that particular method or not at all

. Again in case titled Muhammad Idrees v. Collector of Customs and others [PLD 2002 Karachi 60], at page 71 of the report it was observed as follows:- "A perusal of the provisions contained in section 201 of the Customs Act, and in the rules shows that everything has been clearly and meticulously prescribed under the statute law and the rules framed thereunder. There is no indication of any procedure of post auction private offers or receiving of any higher bid as provided in the two Standing orders. It is thus abundantly clear that the Collector of Customs has exceeded his jurisdiction in making provision for post auction bids, thereby contravening the provisions contained in Section 201 of the Customs Act and in the rules framed by the C.B.R. It is established principle of law that the things should be done as they are required to be done or not at all. Nobody can be allowed to contravene, flout or violate the statutes or the rules framed thereunder in the name of national interest or any other so-called high or sublime idea or ideal. The rule of law requires that every person in execution of law should follow strictly the law as laid down and should not exceed the limit of law for any reasons whatsoever."

12. The point with regard to re-employment, extension of service and contract employment came under consideration before the Apex Court in Civil Miscellaneous No.80/2013 titled Ch. Muhammad Aslam v. Azad Government and others decided on 11.04.2013. It was held in paragraphs 7 and 8 of the Order as follows:- "

7. A perusal of notification dated 20th February, 2010 reveals that the notification has been issued in the light of the Cabinet decision dated 18th January, 2010 for the purpose of re-employment. The notification postulates that the Committee consisting of Chief Secretary/Secretary Cabinet, Secretary, S&GAD, Secretary Finance, Secretary Law, Justice Parliamentary Affairs and Human Rights, and Secretary of the concerned Department, has been constituted to Scrutinized the cases of three categories referred to above. All the cases of re-employment, extension in service of employment and contract employment will be referred to the said Committee with due recommendations of the concerned Minister. The Committee, after due scrutiny and recommendations, will submit the cases to the Prime Minister for orders. The record reveals that the said Scrutiny Committee has not recommended the case of the petitioner to the Prime Minister for orders but the order appears to be issued clearly in violation of the notification. The provisions of the notification are for smooth functioning of the Government. Any order issued against the said notification is not sustainable.

8. The notification dated 3rd May, 2010, postulates that a person shall be recommended only in cases where the Government considers that the person is highly competent, with distinction in his/her profession/field and no qualified and experienced person is available from the existing cadres. There is nothing on the record to form the opinion that the petitioner is highly competent and is a person having such distinctive qualities and no qualified and experienced person of such qualities is available in the department particularly when the petitioner has been retired as Chief Conservator of Forests while he has been appointed as Chairman AKMIDC which is not his relevant field. Therefore, he cannot be termed to be a person of such high qualities

. The controversial issue was considered by a Division Bench of this Court in Writ Petition No.25/13 titled Kh. Abdul Hamid v. Azad Jammu and Kashmir Government and 5 others decided on 05.04.2013. This Court after deep deliberation on the basis of Government instructions declared appointment of Ch. Muhammad Aslam as Chairman AKMIDC, on contract basis, as unlawful which was upheld by the apex Court in the supra case.

13. The petitioner has filed the instant writ petition for implementation of order dated 26.08.2014, passed by the Prime Minister Azad Government of the State of Jammu and Kashmir, however, the same was recalled upon summary of Minister, Elementary and Secondary Education dated 16.11.2015, therefore, writ petition filed by petitioner for implementation of the aforesaid order, as per my humble view, has become infructuous. I am alive that summary dated 16.11.2015 and review order of the Prime Minister dated 17.11.2015, were passed during status-quo order issued by this Court on 02.12.2014. I might have directed to the concerned respondents to place the case of petitioner before the respective Selection Committee, however, as order of the Prime Minister dated 26.08.2014, is unlawful and against Government policy notifications dated 20.02.2010 and 03.05.2010 respectively. Therefore, in view of rule of law laid down by the Apex Court in cases titled "Major Muhammad Aftab Ahmad (Retired) v. Azad Jammu and Kashmir Government" [1902 SCR 307], "Razeem Sheikh and 6 others v. Azad Government and 3 others" [2010 SCR 264] and "Muhammad Rehman and another v. Azad Government and 8 others" [2014 SCR 298], the aforesaid order cannot be commanded to be acted upon through writ jurisdiction.

14. The crux of above discussion is that finding no substance in the instant writ petition, therefore, the same is hereby dismissed with no order as to the costs. ZC/4/HC(AJ&K) Petition dismissed.