2018 PLP (C (PLC(CS)N)

AZHAR SALEEM BABAR, J.

The supra titled writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the following remedy has been prayed for:- "It is, therefore, most respectfully submitted that order dated 08.02.2016 passed by the Chief Secretary Azad Jammu and Kashmir may kindly be declared illegal, without jurisdiction, coram-non-judice and based on mala fide. The respondents may kindly be restrained from humiliating petitioner by holding inquiries time and again against him. The respondents may kindly be directed to confirm petitioner to the post of Deputy Inspector General Prison B-20 and upgrade the aforesaid post on principle of parity in similar manner to that all the posts of Azad Jammu and Kashmir Prison Department are being upgraded. Any other relief admissible under law may also be granted:" Facts of the case shortly stated are that petitioner was appointed against the post of Superintendent Jail on recommendation of Public Service Commission vide notification dated 31.03.2003. He was, later on, promoted to the post of Senior Superintendent Jail on recommendation of Selection Board vide notification dated 20.01.2014. It is averred that regarding date of birth of the petitioner in the Matriculation Certificate an inquiry was conducted by the competent authority and ultimately the matter was closed vide order dated 29.11.2013. However, again an inquiry was initiated by Anti-corruption Department and after detailed investigation the same was also consigned to record on 23.01.2015. It is averred that on the same baseless allegation a Writ Petition No.667/2013 titled "Usman Ibrahim v. Azad Government and others" was also filed against the petitioner in which comments were filed by the official respondents and claim of the petitioner pertaining to forgery was categorically negated and ultimately writ was dismissed for want of prosecution vide order dated 04.05.2015. A last inquiry was conducted by the Ehtesab Bureau which was also turned down on 22.04.2015. It is claimed that after repeated inquiries, the matter was finalized, however, again through the impugned order dated 08.02.2016, fresh inquiry has been initiated for mala fide reasons, which constrained the petitioner to file the instant writ petition. I have heard learned counsel for the parties and perused the available record. A perusal of contents of the writ petition transpires that points necessary for disposal of the instant writ petition are that:- (1) Whether fresh inquiry against the petitioner can be initiated? (2) Whether allegations against the petitioner have some substance? (3) Whether the post of Deputy Inspector General Prisons should be upgraded from BS-19 to BS-20? It has been argued that petitioner has already been inquired into under different allegations by different authorities. In this regard, Ch. Muhammad Saeed Khan, Superintendent Jail Bagh, initially filed an application before Chief Secretary/Secretary Prisons to initiate inquiry against the petitioner into the allegations regarding forgery in his date of birth. It was further alleged that in the year 2003, upper age limit for recruitment was 35 years whereas the petitioner was recruited as Superintendent Jail (BS-17) at the age of 40 years. The competent authority appointed Muhammad Fayyaz Akhtar Chaudhry, Additional Chief Secretary General, as inquiry officer who inquired into the matter and found that allegations against the petitioner herein are not proved. An order was issued from Interior Secretariat on 29.11.2013 whereby the competent authority/Secretary Interior consigned the complaint to record for having not been proved. Another verification from Deputy Director Investigation Anti-corruption annexure "PD" is on record whereby it has been verified that allegations against Liaqat Hussain Naqvi, Jail Superintendent Mirpur, regarding fake certificate and illegal appointment have been consigned to record. The question arises that whether a de-novo inquiry against the petitioner could be initiated vide the impugned order dated 08.02.2016? Learned counsel for the petitioner has emphasized that a de-novo inquiry against the petitioner could not be initiated for the same allegations. He has referred to 1995 PLC (C.S.) 549 Federal Service Tribunal and 1989 PLC (C.S.) 419 Federal Service Tribunal in support of his version. A study of the cited judgments reveals that in case of Muhammad Jahangir, the Federal Services Tribunal concluded that 2 criminal cases were registered against civil servant, but he was exonerated in both the cases not only by the Court, but also by Enquiry Officer. Despite exoneration of civil servant, he was again served with a show-cause notice after about two years of his exoneration on same charges and was dismissed from service. The Tribunal held that such de-novo proceeding against civil servant on same charges was illegal, unjustified and against canons of justice. In later judgment, the appellant was removed from service for misconduct. Removal from service was converted into compulsory retirement on departmental appeal. Such appeal would be deemed to be final because no review/revision petition against same was filed within time. The Tribunal held that facts of the case did not attract the principle of Double Jeopardy. There is no law in existence to forbid repeated inquiries against a civil servant. However, it has been held by the superior Courts that if de-novo proceedings against a civil servant are required, the competent authority has to record its reasons for so doing. In a case reported as AIR 1979 SC 1923, the Supreme Court of India has held that writ petition by Government servant against his reversion-quashing of reversion on technical ground-Re-instatement of Govt. servant-Second enquiry on merit-permissible. Lahore High Court, in case of Muhammad Murtaza and another (1997 PLC (C.S.) 214), has held that petitioners who were officials in Health Department had challenged through constitutional petition enquiry proceedings conducted against them on allegation of corruption. Petitioners had contended that matter having already been enquired into, initiation of second enquiry qua the same facts amounted to double jeopardy. Petitioners who were civil servants were amenable to Government Servants (Efficiency and Discipline) Rules, 1973, thus, they could not invoke extraordinary Constitutional jurisdiction of the High Court in view of Article 212 of the Constitution of Pakistan. Petitioners could raise all legal objections qua legality of enquiry against them before Enquiry Officer. In case of Muhammad Naveed (2005 PLC (C.S.) 129), Lahore High Court has further held that petitioner through constitutional petition had prayed that de-novo departmental inquiry and inquiry report be declared illegal and unlawful and proceedings be stopped. Petitioner was a civil servant and matter pertained to the terms and conditions of his service. Jurisdiction to take cognizance was barred under Article 212 of the Constitution read with Section 4 of the Service Tribunals Act. In another case (1995 PLC (C.S.) 1044), Federal Service Tribunal, has concluded that where authorized officer was not satisfied with findings of inquiry report submitted by Inquiry Officer, he could invite second inquiry by giving detailed reasons, by which he accepted inquiry report and also had recommended penalty, then to order fresh inquiry was illegal and void. Lahore High Court, in a case reported as 2001 PLC (C.S.) 144, has held that there was no bar for competent authority to order holding of de-novo inquiry against a civil servant where final inquiry report had been found to be lopsided or competent authority was of the view that inquiry officer had not conducted inquiry in accordance with law. First inquiry report could be ignored by competent authority and fresh proceedings could be initiated under germane rules against public servant. A perusal of case law cited above reveals that there is no bar on the competent authority to order for de-novo proceedings against a civil servant on the same allegations. Documents attached with the writ petition transpire that the petitioner has not attached inquiry report submitted by Muhammad Fayyaz Akhtar Chaudhry, Additional Chief Secretary General, as Inquiry Officer. In the same was, although, proceedings against the petitioner had been consigned to record by Deputy Director Investigation Anticorruption vide verification dated 23.01.2015, but detailed inquiry report by Anticorruption Department is not available on record. It has nowhere been stated that allegation of recruitment of petitioner as Superintendent Jail without getting relaxation in upper age limit was found correct. Petitioner has further failed to bring on record an inquiry report regarding his correct date of birth. Petitioner was appointed as Superintendent Jail (BS-17) on recommendations of PSC vide notification dated 31.01.2003. It has been contended that date of birth of petitioner mentioned in the matriculation certificate as 04.12.1965, is genuine. A copy of certificate issued by Board of Intermediate and Secondary Education Mirpur has been attached. Therefore, it reveals that petitioner was more than 39 years of age at the time of his recruitment as Superintendent Jail. Government of Azad Jammu and Kashmir issued a notification on 15.10.1991 whereby upper age limit for recruitment in Govt. Departments was enhanced from 28 years to 35 years. It appears that the same upper age limit remained in existence until the year 2012. A notification was issued by Services and General Administration Department of Government of Azad Jammu and Kashmir on 04.01.2012 whereby 5 years relaxation in upper age limit was granted to all the State subjects across the board for a period of 2 years. Another notification on the subject was issued on 13.08.2014 whereby upper age limit was enhanced from 35 years to 40 years for a period of 2 years with effect from 01.08.2014 to 31.07.2016. It appears that upper age limit for recruitment in Government service was 35 years in the year 2003. There is no proof on record to establish that petitioner was given relaxation in upper age limit at the time of his recruitment or that whether his ad hoc service was included for the purpose of age relaxation. A careful survey of the afore-cited case law leads to the conclusion that there is no bar on the competent authority to inquire into the allegations against a civil servant. It hardly needs to mention here that petitioner has a right to furnish his objections during inquiry proceedings. However, departmental proceedings cannot be estopped by way of filing a constitutional petition under the provisions of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. So far as upgradation of the post as Deputy Inspector General (DIG) BS-19 to BS-20 is concerned, it has been stated that Deputy Inspector General Police is subordinate to Inspector General Prisons. Post of Inspector General Prisons is occupied by Additional Secretary Services on ex-officio basis who is an officer of BS-19. In such circumstances, post of DIG Prisons cannot be upgraded to BS-20 because it would entitle DIG Prisons to hold a senior grade than the officer to whom he is subordinate. Upshot of the above discussion is that the writ petition is dismissed with no order as to the costs. ZC/56/HC(AJ&K) Petition dismissed.