2013 PLP (C (PLC(CS))

3. The Secretary, Finance, Government of AJ&K. Member

4. The Secretary Law, Justice, Parliamentary Affairs and Human Rights, Government of AJ&K. Member

5. Secretary of the concerned Department. Member/Secretary

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

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

(ii) "AZAD GOVERNMENT 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 the Section 23 read with section 13, of the 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 the re-employment of retired civil servant 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. (iii) The retention of the officer is in the public interest and shall not block the promotion prospects of others 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-post-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 20-2-2010 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 proposals of such cases to the scrutiny committee, in the form of summary, containing the recommendation of the Minister-in-charge, duly signed by him and shall be accompanied/supported with the following verifications, information and documents:

(a) All the proposals for re-employment shall indicate reasons for non-availability of 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 blockade for other officers. (c) A brief report on the performance of the officer, proposed for re-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)" (Underlinings are our) The legality and propriety of the appointment of the private respondent herein, therefore, is to be seen in light of the aforesaid reproduced decision of the cabinet dated 20-2-2010 and 3-5-2010. Under section 13 of the Azad Jammu and Kashmir Civil Servants Act, 1976 re-employment can be made only in public interest. A perusal of the decision of the cabinet as well as notification dated 3-5-2010 postulates that re-employment will not be made for the purpose of accommodation of retired bureaucrats rather it would be an exception and not a rule. Another condition which is necessary to be fulfilled before taking decision of the re-employment of a civil servant in the service of Azad Jammu and Kashmir is that such a person should be highly competent, with distinction in his/her profession/filed when no qualified and experienced person is available from the existing cadres. It is stated in the notification 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. The notification of re-employment when read in light of the notification dated 3-5-2010 and decision of the cabinet it becomes crystal clear that appointment of the private respondent is totally violative of the cabinet decision as well as statutory instructions issued vide notification dated 3-5-2010. The Government has regulated the service in Azad Jammu and Kashmir by enacting the Azad Jammu and Kashmir Civil Servants Act, 1976 and making rules thereunder for carrying out the purpose of the Act. The Government has also regulated the policy for appointment on contract basis as well as re-employment. The powers generally exercised by the Government or a public functionary must be backed and strictly in line with the statutory law of the land. The travel beyond the rules and regulations has ruined the structure of the bureaucracy which practice causes heart burning among the civil servants who otherwise are qualified and eligible for promotion but have been deprived of by exercising arbitrary powers or on political intervention or accommodation of the highly influential persons who stood retired after attaining the age of superannuation. For good governance strict and faithful compliance of rule of law and constitution by the rulers and the ruled is sine-qua-non, otherwise, the non-observance of the rules brings a bad name for the institution as well as Government. Law is well settled that where an Act or rules prescribe a specific mode for performance of an act then such act should be performed in that matter alone otherwise it would be deemed to have not been performed at all. In Muhammad Younis Tahir's case 2012 SCR 213 referred to herein above this view has been reiterated by the apex Court of Azad Jammu and Kashmir which has been recognized all over the world. At page 241 of the report their lordships observed 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] it was observed as under:

"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 not 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." In the present case no reasons have been shown by the respondents nor any exigency is pointed out for making the appointment in contravention of the rules, therefore, the appointment cannot be saved even on that score. The contention of Raja Muhammad Hanif Khan that petitioner is not aggrieved is devoid of any force because it is not necessary that person invoking jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 must be in possession of a right in strict juristic sense. It is sufficient that if it is claimed by him that respondents should perform the duty of their offices in accordance with the mode and manner provided in the statutory provisions. The AKMIDC has been shown an attached department of the Industries and Commerce Department Secretariat and in view of the notification dated 20-2-2010 relied upon by Kh. Attah Ullah Chak, the learned Advocate, the employees serving in B-19 of the attached department have a right to be considered is not disputed by Raja Muhammad Hanif Khan, however, his observation is that the petitioner is not entitled to be considered because he is not an officer of executive cadre rather is serving in technical cadre. It is for the competent authority to consider him for promotion if the Government decides that appointment of the Chairman AKMIDC shall be made in light of the notification dated 19-12-2003. In the notification dated 19-12-2003 a specific condition has been laid down that persons eligible for consideration should be from same cadre. The relevant portion of the notification is as follows:

The above notification when read with AKMIDC Service Rules, 2002 it becomes clear that post of Chairman AKMIDC is in administrative cadre whereas the petitioner is serving in different cadre i.e. technical cadre. The nutshell of the above discussion is that appointment of the private respondent made vide notification dated 7-2-2012 is declared to have been made without lawful authority and is of no legal effect. JJK/21/HC(AJ&K) Petition accepted