2018 PLP (C (PLC(CS)N)

Through the above titled writ petitions filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, Ordinance No. XI of 2016 dated 15.12.2016 and notification dated 15.12.2016 have been challenged for having been passed without lawful authority. The petitioners were appointed as Chairman and Members of the Public Service Commission vide notification dated 15.08.2014 for a fixed tenure of three years. Later on, respondents promulgated Ordinance No.XI of 2016 on 15.12.2016 whereby an amendment was incorporated in section 4 of the Azad Jammu and Kashmir Public Service Commission Act, 1986, and it was provided that for the reasons to be recorded in writing, the President may terminate the appointment of Members of the Public Service Commission before the expiration of their terms of office, whereas through the same amendment section 6 of the Act was also omitted. It is contended that on the same day respondent No.1 terminated the petitioners on the allegations of committing mal-practice/gross illegality in conducting test and interview. The stance of the petitioners is that before levelling allegations of mal-practice/gross illegalities and for not performing duties efficiently and in transparent mariner, it was mandatory for the respondents to issue them show-cause notice and the petitioners should have been given an opportunity of hearing. It is also stated that through amendment in the Azad Jammu and Kashmir Public Service Commission Act, 1986, vast powers have been vested in the President/Government to terminate the whole Commission without due course of law, which is against the natural justice. It is submitted that impugned Ordinance has been issued mala fidely, illegally and on political basis, hence, is liable to be set aside.

2. I have heard learned counsel for the parties and perused the available record. The petitioners were appointed as Chairman and Members of Public Service Commission in their respective capacities vide notification dated 15.08.2014 for a period of 3 years. It is the case of the petitioners that a specific procedure for removal of Chairman or Members of the Public Service Commission was in field under Act XXIV of 2014, which provides through section 6 as under:- "

6. Removal from office:- (1) A Member shall not be removed from office during the term of his office except in the manner hereinafter provided: (a) If the President is of the opinion that a Member:- (i) May have been guilty of misconduct; of (ii) May be incapable of properly performing the duties of his office by reason of physical or mental incapacity. (b) The President shall appoint a Judge of the High Court to enquire into the said matter. (2) If the Judge, after inquiring into the matter, reports to the President that he is of the opinion that the Member have been guilty of misconduct or is incapable of performing the duties of his office, the President shall remove the Member from his office."

3. Petitioners were removed from their respective jobs on 15.12.2016. It is the case of the petitioners that a person specific Ordinance No. XI of 2016 was promulgated with mala fide intentions to remove the petitioners from their respective jobs. The Government of Azad Jammu and Kashmir amended section 4 of Act XVII of 1986, by adding second proviso in the following words:- "Provided further that the President may for reasons to be recorded in writing terminate the appointment of a Member or the whole commission, as the case may be, before the expiration of his term of office."

4. It is alleged that amendment in section 4 of Act XVII of 1986, was incorporated just to remove the petitioners from their respective jobs. Learned counsel for the petitioners has further emphasized that the Government has levelled allegations of mal-practice, gross illegality and for not performing duties efficiently and not in transparent manner via notification dated 15.12.2016.

5. On the other hand, learned counsel for the respondents has argued that PSC is backbone of the State for recruitment of civil servants for running affairs of the State. He discussed the background of formulation of the PSC at some length and emphasized appointment of such persons as Chairman and Members of the PSC whose integrity and credibility is beyond any doubt. The matter of re-marking of some papers by PSC is the bone of contention whereupon a writ petition was filed in the High Court of Azad Jammu and Kashmir. The matter was finally concluded by the Hon'ble Supreme Court of Azad Jammu and Kashmir in a case titled "Abdul Basheer Tajwar v. Azad Jammu and Kashmir PSC and others" decided on 09.11.2016. Learned counsel has reproduced some extracts of judgment delivered by the High Court and the Supreme Court of Azad Jammu and Kashmir and has contended that the then PSC travelled beyond its jurisdiction by deciding re-marking of answer sheets. A perusal of whole the judgment delivered by the Hon'ble Supreme Court of Azad Jammu and Kashmir does not indicate any specific allegation of mal-practice on the part of Chairman or any Member of the PSC. It may be added here that PSC was being headed by Mr. Justice Kh. Shahad Ahmed former Chief Justice of Azad Jammu and Kashmir as Chairman and other members including bureaucrats, academicians and an advocate. Judgment of the High Court as well as the Supreme Court does not transpire that any of the members of PSC or for that matter the Chairman was found involved in any mal-practice or misconduct. Rather, judgment of the Hon'ble Supreme Court leads to the conclusion that act of PSC or for that matter Chairman and 2 members of sending answer sheets for re-marking, was declared to be unlawful. It is a matter of common practice that judgments of the Courts are challenged by way of revision, appeal or writ petition by contending that the impugned judgment is against the law and facts or is without lawful authority. I fear such allegation would have been levelled in relation to judgments of the apex Court, if the constitution had not bestowed status of finality on such orders and judgments.

6. Petitioners have been shown the door by alleging mal-practice, gross illegality, inefficiency and not performing their duties in a transparent manner. The petitioners were never provided a chance of defending themselves through any regular inquiry. The golden principle of audi-alterm-partem was, thus, bluntly violated. The impugned notification dated 15.12.2016 is, therefore, bad in law. It has been argued on behalf of the respondents that the Govt. was sufficiently empowered under Act XXIV of 2014 to remove Chairman, Members or whole the PSC without providing any chance of hearing. It has already been mentioned that Government of Azad Jammu and Kashmir introduced Ordinance XI of 2016 by omitting section 6 and by adding a proviso to section 4 of the Azad Jammu and Kashmir PSC Act, 1986, and grabbed powers to terminate the PSC before expiration of its term of office. Coincidentally date of issuance of notification of removal of the petitioners is 15.12.2016 and Ordinance XI of 2016 was also promulgated on the same date. Act of usurping the powers of removing Chairman or Members of PSC through Ordinance XI of 2016 cannot be termed as bona fide and nothing less than mala fide can be attributed to promulgation of this Ordinance. The Azad Jammu and Kashmir Civil Servants Act, 1976, and Rules made thereunder provide protection of the service of a civil servant of even the 1st grade. The highest authorities of the Govt. cannot terminate services of a grade 1 employee without undergoing the process of law and without providing him an opportunity of hearing. The Government of Azad Jammu and Kashmir has grabbed the powers of removing the Chairman and Members of PSC without providing them an opportunity of hearing. A law based on mala fides is not sustainable and has been struck down by the superior Courts of the State. The fortified view finds support from the following judgments:- 1. 2002 CLC 1130 2. 2011 SCR 175

7. At the cost of repetition, it is stated that Act XXIV of 2014 provides a specific procedure for removal of Chairman or Members of the PSC, which stipulated under section 6 that if the President is satisfied that a member of PSC has been guilty of misconduct and has become incapable of performing the duties of his office, the President shall appoint a Judge of the High Court to inquire into the matter. So, a member of PSC could be removed on the allegation of misconduct and for being incapable of performing his duties by reason of physical or mental incapacity. Independence of the State Institution like PSC needs not to be reiterated and learned counsel for the respondents has raised its significance at the very beginning. However, learned counsel could not satisfy the Court that whether act of promulgating the Ordinance XI of 2016 was bona fide? The Chairman or the Members of PSC cannot be put at the mercy of the Government; rather, such an institution of constitutional importance requires legal protection, if not constitutional. Upshot of the above discussion is that the allegations of mal-practice, inefficiency and non-transparency against the petitioners were never probed and the Supreme Court of Azad Jammu and Kashmir has not verified these allegations. It is further concluded that Ordinance XI of 2016 has been promulgated with mala fide intentions. It is a bad piece of law, which is hereby struck down, as a result whereof procedure of inquiry through a Judge of the High Court for removal of a member of PSC shall stand revived. A period of 3 years of the then Chairman and Members of the PSC has elapsed, so, petitioners cannot be restored to their respective jobs as Chairman and Members. Had the petitioners been not shown the door, they would have worked for the remaining period from 15.12.2016 to 14.08.2017. The petitioners have been removed by way of illegal means, so, they are entitled to salary for the remaining period of their contract service. In this regard, leading case of Sardar Muhammad Ibrahim Khan reported as (PLD 1990 SC AJ&K) 23 may be referred. It is, therefore, directed that petitioners shall be remunerated for remaining period of their respective jobs as mentioned herein-above. The allegations of mal-practice, gross illegality, inefficiency and non-transparency against the petitioners are expunged from the impugned notification dated 15-12-2016. The writ petitions are accepted in the manner indicated above. ZC/25/HC(AJ&K) Petitioner allowed.