2003 PLP (C (PLC(CS))

As far alleged representation filed by the respondent on 29‑91996 against the order dated 4‑9‑1996 is concerned, it never found place in the file of the department till process of removal of the petitioner was initiated. It was for the first time on 3‑12‑2001 that the Prime Minister recorded a note canceling the Notification dated 4‑9‑1996 by accepting alleged representation dated 29‑9‑1996. There is nothing on record showing representation of the respondent between 16‑10‑1999, (when the file was closed), till 3‑12‑2001 when the Prime Minister recorded the note which culminated into impugned Notification dated 6‑12‑2001 which is also reproduced as follows; Few papers appear attached to the note of the Prime Minister, which also includes an application styled as representation of the respondent, besides processing of amendment of rule 7 of Azad Jammu and Kashmir Custodian Evacuee Property (Terms and Conditions) Rules, 1992. The amendment process is initiated after removal of the petitioner from service and reinstatement of respondent, and rule 7 was ultimately repealed through Notification dated December 31, 2001. The alleged representation of the respondent was revived ostensibly on an application of the respondent dated 2‑12‑2001. The file does not, disclose as to how abruptly alleged representation and application of the respondent came into being when there was nothing in process in between the period. Be that as it may, the representation if any, vanished when review petition of the respondent was finally rejected by the Supreme Court wherefrom it is established that the respondent is held by the Supreme Court to have been holding the post of Additional Custodian illegally and his removal from the post was validated by the Supreme Court twice. The representation, if any, shall be deemed to have been rejected after the verdict of the Supreme Court. It is held in the case reported as 1999 PLC (C.S.) 1002 (Nisar Ahmed Kiani v. Azad Government and others), where, after removal of Nisar Kiani from service, the Government passed order of reinstatement of Nisar Kiani on similarly processed representation, as in the present case, the direction for implementation of which was refused by the High Court and on appeal the Supreme Court held, in para. 6 of its judgment, as follows: "When the review petition filed by the applicant was not decided within the statutory period of 90 days and he filed appeal to the Service Tribunal, his review petition would be deemed to have been rejected by fiction of law; once the appeal is preferred to the Service Tribunal by a civil servant, the departmental authority becomes functous officio to deal with an appeal, representation or review petition." The Government became functous officio to decide the representation, if, by any stretch of imagination it may be assumed to have been filed, after the case of the petitioner was finally adjudicated by the Supreme Court twice. Perhaps the Prime Minister was not appraised by the relevant agency of this factual and legal position, otherwise, I am sure, that the impugned order would never have been allowed by him as all executive and judicial authorities throughout Azad Jammu and Kashmir are bound to act in aid of the Supreme Court under subsection (4) of section 42 of the Constitution. The respondent has also relied upon two notes dated 28‑2‑1996 and 20‑3‑1996, through which the Prime Minister approved proposal of the respondent and Media Advisor respectively, whereby the respondent is directed to be appointed as Custodian Evacuee Property with the terms and conditions of Judge High Court. Both these documents are not confidence inspiring for the reasons that they have never been placed before the Supreme Court or the High Court by the respondents; these have never been acted upon and have for the first time seen the light of day when the petitioner's removal process was initiated. Notwithstanding, that these are not based on any regularly processed filed. The direction dated 28‑2‑1996 is allegedly passed on the proposal of respondent himself and the direction dated 20‑3‑1996 is passed on the proposal of Media Advisor. Both have nothing to do with the Services Department which is administrative, parent and relevant Secretariat regulating appointment and removal of Custodian under Rules of Business, 1985. Unless an order, direction or proposal is obtained on a duly processed file from the Competent Authority in accordance with the Rules of Business and that form part of record of that branch of Government office/Secretariat and finally culminates into notification of the Government it carries no weight and is of no legal validity. The alleged directions, if any died with the judgments of the Supreme Court in the case of the respondent. Any unusual paper carrying direction of the Prime Minister neither confers any right nor can takes back a right already conferred. Like all other functionaries of the State, the Prime Minister is also a creation of law, he is thus required to act in accordance with lave and Rules of Business and unless a direction of the Prime Minister finds place in a duly maintained Government file, it confers no right nor does it carry, any legal weight. The practice of obtaining directions through irregular devices by irrelevant agency or persons would encourage serious abuse of power which has, therefore, to be discarded not only, in view of Rules of Business but also on the ground of administrative expediency as well. In the case reported as PLD 1994 SC (AJ&K) 13 (Muhammad Saddique Farooqi v. Azad Jammu and Kashmir Government and others.) a direction of the Prime Minister stating stopping of compensation communicated to Accountant General through letter written by Vice- Chancellor, but not issued in the form of Government notification, the Supreme Court after discussing the scheme of rules held; "The perusal of the above provisions shows that the execution authority vests in the 'Government' which consists of the Prime Minister and the Ministers and not in the Prime Minister alone. It may be stated here that it is not the case of the respondents that the Government Order dated 16‑6‑1992 was subsequently amended or annulled by another Government Order; rather their case is that the payment of compensation was stopped in pursuance of the direction of the Prime Minister which was communicated to Accountant General by the Vice‑Chancellor. It may be noted that under section 21 of the General Clauses Act, reproduced above, not only that the authority amending, relevant act should also be taken in the like manner and subject to like conditions. It implies that the Government Order, dated 16‑6‑1992 could 6nly be amended or for that matter the payment of the compensation to the order or direction to the Prime Minister. Obviously, the order of the Prime Minister to stop the payment of compensation contained in the letter of the Vice Chancellor cannot be regarded to be in consonance with the conditions stipulated under section 21 of the General Clauses Act, reproduced above. The difference between the, Government Order and an Order issued by the Prime Minister alone is also clear and marked that I need not dilate upon the Business, 1985 exhaustively deal with the procedure to be followed in issuing a Government Order. Thus, I respectfully agree with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) that in view of the Government Order dated 16‑6‑1992, the order of the Prime Minister could not be acted upon by the Accountant‑General, respondent No.3." The contention of the learned Advocate for the respondent that no order could be issued unless the above‑referred directions of the Prime Minister were either recalled or carried into effect, is of no legal validity as they did not find place any where in the file of the Services Department nor appear to have been processed at any level except with the note of the Prime Minister. Moreover, one Syed Hussain Mazhar Kaleem Shah held the Office of Custodian in between the period besides the petitioner. The case was also decided by the Supreme Court twice, but, these directions of the Prime Minister were never placed or pleaded. Though, the respondent has not filed any petition for relief based upon above directions of the Prime Minister, but he relies on them in defence and seeks protection of impugned order on the basis of these directions, he is, therefore, precluded by his conduct to rely upon these directions when he never sought implementation of these nor relied upon these before the. High Court or the Supreme Court. The rule of acquiescence as enunciated in the case reported as 1996 MLD 355 equally applies against the respondent when he never ever pressed in service the defence now put up before the highest judicial forum when his rights were directly in dispute. Though the earlier litigation of the respondent was not with the present petitioner, but the respondent did contest the case against the Government on his removal and never made his present plea a ground of defence or attack in that litigation. He also hit by the rule of res judicata viz -a‑viz the Government, as enunciated in Explanation IV of section 11 of the Code of Civil Procedure and the Government can also not turn back from the stand taken in earlier litigation between the Government and the respondent. The respondent is also estopped by his conduct to rely upon alleged directions, which he abandoned by his conduct nor have they been made the basis of the impugned order by the Government. The contention of the learned Advocate for the respondent that the petitioner could file a review petition before the Government. Under rule 11 of Rules of 1992, and that he being a civil servant the propel forum for, him was an appeal before the Service Tribunal, is untenable. Rule 11 of the Rules does not envisage review or representation. It is general power of the Government which relates to "any person serving on the post of Custodian" not to a person who is removed from the office. The rule is reproduced as follows; "

11. Power of Government to safeguard the Rights of Custodian.‑‑ Whenever in the application of these Rules, the terms and conditions of service of any person serving on the post of Custodian, as guaranteed by these Rules or by any law for the time being in force, are likely to be adversely affected, the Government shall make appropriate orders to safeguard the Constitutional and legal rights of such person." As far the other contention is concerned, it is equally untenable for the reason that the petitioner's terms and conditions are governed by special law i.e., Administration of Evacuee Property Act and Rules called as Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions) Rules, 1992. The rules provide a special mechanism for removal of the incumbent and if that process is not adopted the proper forum is the High Court. Had the petitioner or for that‑matter the respondent been appointed in accordance with the rules regulating Civil' Servants, the contention could carry weight. The case referred by the learned Advocate for the respondent i.e. 1996 SCR 349 does not find place on that reporter. Similarly reliance placed by the learned Advocate for the respondent on PLJ 1999 SC (AJ&K) 89 and 1999 PLC (C.S.) 1439 is not attracted. 1999 SCR 89 (Chaudhry Muhammad Fiyaz v. Syed Arshad Gilani and others) is the case of Additional Custodians which are regulated by separate rules and the Supreme Court, in the light of those Rules, has come to the conclusion that they are Civil Servants. Moreover, the rules regulating service of Additional Custodian also attract general rules applicable to the Civil Servants, hence the Supreme Court came to the conclusion that the Additional Custodians are civil servants, while the case of the Custodian is governed by separate rules which have no nexus with the rules discussed by the authority. Similarly 1999 PLC (C.S.) 1439 is equally not attracted in this case as the rules applicable to the post in dispute are different. The contention of the learned Advocate that as rule 7 of the rules relating to the post of Custodian has been repealed and the post is now made discretionary, hence the petitioner cannot enforce the terms and conditions visualized by the rules is also untenable. For true perception, I would like to reproduce rule 7 which existed before its amendment, which is as follows;

7. Retirement.‑‑The Custodian shall hold office until he attains the age of sixty two years, unless he sooner resigns or is removed from office in the same manner as a Judge of High Court;" While amended rule 7 which is incorporated through Notification dated December 31, 2001 is follows; Custodian Evacuee Property Secretariat Muzaffarabad. NOTIFICATION No. Custodian/4366‑98/2001. In exercise of the powers conferred by clause (a) subsection (2) of section 57 of the Administration of Evacuee Property Act, 1957, the Azad Government of the State of Jammu and Kashmir is pleased to direct that the following amendment shall be made in the Azad Jammu and Kashmir Custodian of Evacuee Property ('Terms and Conditions of Service) Rules, 1992,‑ In the said Rules, rule 7 shall be substituted as under:‑

7. Term of office.‑‑The Custodian shall hold office during pleasure of the Government' Secretary Custodian Evacuee Property"' Perusal of the substituted rule makes it clear that it is prospective not retrospective. The case of the petitioner shall be governed by the rule as it was not by the new rule. The repeal in law does not effect the right already conferred, unless the law is changed as a whole and the establishment is totally wound up. In the case reported as PLD 1982 SC (AJ&K) 112 (Referring Authority v. Sardar Sikandar Hayat Khan) in which amendment in the law was effected when a case was sub judice before the Court, the Supreme Court, after discussing ring of judicial pronouncements, held as follows; "

23. It is a time‑honoured principle that a law cannot be passed, as said earlier, to intermeddle with individual's rights and if it is enacted, so it would be declared as a void instrument. The Government, with unrestricted powers of the Legislature, is not expected to usurp any of the vested rights of a citizen or a Government servant and if it is so done, the Courts would aptly come to the help of the affected person. " "

24. In the present case, we are of the view that the amendment is not meant to advance the purpose of the Ordinance; rather it purports to destroy the object in depriving the parties of their vested right of appeal against the order by a Disqualification Tribunal. We are, therefore, of the view that the amendment has no relation to the object to the legislation; and the repeal or amendment can neither be made to take away the vested right of the parties nor such an amendment can be allowed to destroy the object of the Ordinance." Viewing from another angle, the effected amendment in the rules is not just, reasonable and not compatible with other provisions of the rules in which it is incorporated. Rule 5 which relates to pay and allowances, rule 6 which relates to pension and rule 9 which relates to benevolent fund remain there, which implies that rule 5 is repealed, so as to oust the petitioner only. Had the rules been amended in a way that the post of the Custodian is abolished for austerity purpose, institutional/reorganization, good governance or economy drive which should be the moto of the State, alongwith the corresponding laws and rules which allow unfettered discretion to the Government to appoint persons of their choice with Terms and Conditions of Judge High Court in different forums without any purpose and process, so as to bring homogeny in the service and abolish privileged class of service and authority which is unknown to the rest of the country, the Court could believe the reasonableness of law and law making authority that it is done for public purpose so as to streamline the system. But a single case is chosen from the entire service structure and the petitioner is made victim of it which implies that it is an unreasonable exercise which amounts to pick and choose. It is the duty of the Court to look into reasonableness of law and any amendment therein. As stated hereinbefore, had it been done with the purpose and policy other than personal loss to the petitioner and gain for the respondent, the case could have been looked from the angle. The Supreme Court of Azad Jammu and Kashmir in the above referred case of Sardar Sikandar Hayat Khan has also held as follows; "It is within judicial power to examine both as to the reasonableness of the law itself as well as the reasonableness of the mode of application of the restriction. Of course, no hard and fast rule can be laid down as to what matters are relevant or irrelevant for the purpose of determination of the reasonableness of an Act or restriction. The reasonableness is itself a relative term. What is unreasonable in one given set of circumstances may well be reasonable in another set of circumstances. Reasonableness would be dependent upon the circumstances which necessitate the taking of such drastic action. If the circumstances do not demand such action or the action is disproportionate to the mischief to be prevented the restriction is beyond the reason. Reasonableness has to be judged with reference to the prevailing circumstances when a particular evil is sought to be remedied. In this case, we do hot find any reasonableness justifying the amendment." The post of Custodian under section 6 of the Administration for Evacuee Property Act, 1957, is statutory post of fiduciary character holding in trust the evacuee property worth billions of rupees, besides confidence of those State Subjects whose future is yet to be decided, that is why that the post is notified as a whole time post on 13‑12‑1971. It can, therefore, not be entrusted to a person who can be appointed and removed as discretion. Even the Administration of Evacuee Property Act, 1957, does not authorise to make it a discretionary post. Section 6 of the Act stipulates the post of Custodian which implies a permanent office be it the ex‑officio appointment or whole time, but not discretionary. The impugned amendment is, therefore, unreasonable. The contention of the learned Advocate for the respondent that law cannot be challenged on the ground of mala fide, is now a celebrated principle under judicia, precedents, but it stricto senso does not apply to the rules, which cannot be said having same sanctity as law, be it Ordinance or Act of the Assembly, as the law making authority stands at high pedestal than rule making authority. The rule‑making authority is subordinate to law making authority and the rules are akin to Government notification, arid if a Government Notification can be declared to be mala fide, the authenticity of the rules is also equally open to challenge on the ground of mala fide, however, this point is left to be decided when it so directly arises in any other case as the amendment in the rules, in present case, is otherwise declared to be without lawful authority for being unreasonable and contrary to the parent Act. The case‑law referred by the learned Advocate for the respondent on the point does not apply at all. 2000 SCR 380 does not find place in the book and 2000 PLC (C. S.) 93 and 2000 PLC (C. S.) 155 are not applicable to present case as they related to mode of appointment of a person in the service of the Government under rules regulating their appointment, while Act and rules regulating appointment to the post of Custodian are different 2001 SCR 17, the other authority cited by the learned Advocate for the respondents, is equally not applicable. This takes me back to the contention of the learned Advocate for the petitioner that the petitioner was holding office of the Custodian under the Government Notification issued on 13‑6‑1997 section 6 of the Administration of Evacuee Property Act, 1957, read with rules called as Azad Jammu and Kashmir Evacuee Property (Terms and Conditions) Rules, 1992. The post of the Custodian was for the first time created as a whole time post under the Government Notification dated February 13, 1971. The petitioner was appointed after demise of late Raja Abdul Majeed Khan against vacant post. Under Rules regulating Terms and Conditions of Custodian, the Custodian could be removed in accordance with the procedure provided therein, while, the petitioner has been removed without notice, without hearing and without following due process of law. The Courts have never accepted an order valid and legal by which a person who is occupying office is deprived of that office without notice, without hearing or without following due process of law, unless of course the law as a whole is changed as discussed above. This natural and fundamental right of a person to be heard before any order adverse to him is passed. Having power of appointment and removal of a person from a post does not mean unfettered, unchecked and unlimited powers. The powers have to be exercised with due care and caution, not only in accordance with law, but in accordance with rules of natural justice and fair play. The discretion is not to be exercised in any manner and at any time the authority likes. Justice is function of every person and authority which is vested with dominant powers, be it administrative head, private person or judicial authority and that has to be dispensed according to rules of natural justice. There is no dearth of legal precedents on the point, however, I would like to refer here only a few. The Supreme Court of Pakistan in the case reported as 'University of Punjab v. Mrs. Roohi Farzana (1996 SCMR 263) has held as under; "

6. Even in administrative matters it is not the sole discretion of the authority to pass orders in any manner it likes. It must follow the rules and principles of justice and equity so that even the person against whom order has been passed should not stamp it as mala fide and a result of bias or malice. Orders cannot always be in favour of the complainant, it may go against him but if malice is imputed for procuring the order which from circumstances seems to be prima facie possible then unless it is explained or rebutted it becomes difficult to justify it." In the case reported as 'Inspector‑General, Police and 3 others v. Aurangzeb and others' (2001 SCR 526), where police officials were removed without hearing and without notice, the High Court set aside their removal order and the Supreme Court of Azad Jammu and Kashmir on appeal held as follows; "

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that it is an admitted fact that before terminating the services of respondents by the Deputy Inspector -General of Police on the basis of order of Inspector‑General of Police, the authorities did not provide the respondents an opportunity of hearing. Thus the principle of audi alterm partem was violated by passing the order of termination of respondents. The respondents after their appointment had been rendering their services for a pretty long time and had been receiving the emoluments from the concerned department but all of a sudden they were terminated without affording them an opportunity of hearing thereby violating the principle of audi alterm partem which is almost a principle of universal application. In a case reported as Azad Jammu and Kashmir. Government v. Muhammad Siddique Haidri (2000 PLC (C.S.) 714) it was observed by this Court at page 176 of the report in a following manner;‑ 'In our view the High Court has rightly quashed the order by which services of the respondent have been terminated ..It is well‑settled that such a finding cannot be given behind the back of a person who is accused of such an act. Thus the respondent was condemned unheard which is not permissible in law. Therefore, his termination order has been rightly quashed by the High Court.' In an unreported case titled Azad Government and others v. Muhammad Munsaf and others (Civil P.L.A. No.65, of 1998) decided on 15‑5‑1998) it was observed by this Court as follows:‑ 'I have given due consideration to the matter. It may be observed that irrespective of the fact as to the validity of the aforesaid notification on which the learned counsel for the petitioner relies, the services of the respondents could not be terminated without serving notice upon them: It is well‑settled principle of law that if there is a provision in the, relevant law that the services of civil servant can be terminated without serving any notice upon him, `then such notice can be dispensed with and not otherwise; where a law is silent with regard to the service of notice, it cannot be dispensed with. Therefore, the High Court has rightly held that the order of removal of the respondents being violative of rule of audi alterm partem is not sustainable." The principle enunciated in the above cited authorities of this Court clearly postulates but before passing an adverse order against a person or imposing a penalty upon him, it is essential to give him a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that the services of civil servant can be terminated without serving any notice upon him. " I may also place on record following cases in this behalf i.e. Malik Zaffar Ali v. Inspector‑General Police (1995 SCR 234), Karachi Port Trust v. Altaf Hussain (1996 SCMR 1205), Hussain Ahmed Islahi v. Azad Government end others (1992 SCR 370). Assuming any representation of the respondent as referred in the impugned order having ever been validly filed, it was within the knowledge of the competent Authority that the petitioner is holding the office and the office is regulated by the Rules of 1992, it was the duty of the authority to leave heard the petitioner before taking the drastic action of his removal from the office. The service matters are not only to be decided in accordance with law and rules but the principle of natural justice i.e. nobody can be condemned unheard, have to be strictly observed. Following a few cases may also be referred in support of the principle; 1987 SCMR 1189, 1998 PLC 14 SC (AJ&K) PLD 1988 SC (AJ&K) 52 and AIR 1990 SC

150. In view of above, accepting the petition with costs, notification dated 6‑12‑2001 issued under No. 2001/ﻩﺪﻳﺮﺟ ﻪﺑﻌﺷ(15)21-17 ﻪﻳﻤﺎﻅﺗﻧﺍ and notification dated 31‑12‑2001 issued under No.Custodian/4366‑98/2001, are declared unconstitutional, without lawful authority and void ab initio. The petitioner is consequently restored to the office .of Custodian of Evacuee Property from the date of his removal with all the privileges and benefits. The order passed action taken and benefit received by respondent No.4 during his tenure shall not be rendered invalid. H.B.T./34/(Azad J&K) Petition accepted.