2020 PLP (C (PLC(CS))

MUHAMMAD SHERAZ KIANI, J.

Through the above captioned writ petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner has sought the following relief: - "It is therefore, very humbly prayed that the amended writ petition may kindly be accepted and an appropriate writ in favour of petitioner against the respondents may kindly be issued whereby the respondents may kindly be directed to shift the post held by the petitioner on normal budget and the petitioner be treated as permanently appointed officer as Assistant Director B-17. Respondents further be restrained from disturbing the petitioner from his present place of posting, i.e Assistant Director, B-17, Mulbery Nursery Bagh, AJK. It is further prayed that the non-petitioners may kindly be directed to release the salary of petitioner for the period of 11 months from July, 2014 to May, 2015. Any other relief which the petitioner be deemed entitled may kindly be granted in the interest of Justice."

2. The gist of the facts, necessary for disposal of the petition are that the petitioner is a first class subject of the State of Azad Jammu and Kashmir, having domicile of District Bagh and having qualification as M.Sc. Zoology. It has been stated that the respondents launched a scheme namely, Establishment of Mulbery Nursury Bagh, to promote the Silk Industry and production, and a post of Assistant Director, B-17 was also created and after test and interview, the petitioner was appointed as Assistant Director B-17, vide order dated 25.03.2011 on the recommendation of the respective selection Committee on the ground that the candidate, appearing at the top of the merit list did not join his duty. It has been claimed that at the end of the project period, the Department recommended that the posts of Assistant Directors be shifted on normal budget in the interest of the Department and the public at large but no further action has been taken by the Government/respondent, so far. A request has been made that the respondents be directed to shift the post occupied by the petitioner on normal budget and they also be restrained from disturbing the petitioner from his present assignment. Another direction has also been sought to the respondents for release of salary of the period from July, 2014 to May, 2015.

3. The respondents , on Court notice had filed comments, wherein, besides refuting the claim of the petitioner, it has been stated that the development scheme has expired on 30.06.2014 and the process of shifting of the post on normal budget has been agitated with the Secretariat, Industries. It has been stated that until and unless, the Finance Department renders its concurrence, no process of shifting of the post to normal budget can be initiated.

4. Sardar M.R. Khan, Advocate, the learned counsel for the petitioner , while reiterating the contents of the petition, submitted that the petitioner has been appointed after due process of law, i.e advertisement of the post and test and interview and thus, a valuable right to retain his service has accrued in his favour. The learned counsel while referring a summary dated 30.06.2014 contended that in the interest of the Department and public interest, a summary has been moved for shifting of the scheme on normal budget but the Government has not taken any positive action, in this regard so far. The petitioner is serving as usual, against the impugned post, however, he has not been paid the salary from July, 2014 to May, 2015, therefore, a direction be issued to the respondents for release of the salary to the petitioner and while accepting the instant writ petition, the respondents be directed to do the needful, at the earliest, the learned counsel craved.

5. On the Contrary, the learned AAG opposed the contents of the petition and submitted that the petitioner's period of service stood expired on 30.06.2014, however, in order to retain his service, prior to the expiry of the project period, he approached this Court and obtained status quo order and showed as he was in service, without any post. The petitioner has attempted to retain his service, without any lawful order, simply under the Court shield and he has filed the instant writ petition, just to get protection of the ill-gotten gains, therefore, he is not entitled to any relief, the learned AAG submitted and also requested for dismissal of the writ petition.

6. I have heard the learned counsel for the parties, perused the record and considered the controversy, carefully.

7. A careful perusal of the file reveals that vide order dated 25.03.2011, the petitioner was appointed as Assistant Director, B-17 and the petitioner, after accepting the terms and conditions, incorporated in his appointment order, joined his duty. For proper appreciation of the point, I would like to reproduce, conditions Nos.2 and 3 of the appointment order, which read as under: The above reproduced conditions of the appointment letter, clearly postulate that at the end of the project, the appointment shall come to an end, automatically and that this appointment shall not confer any right of permanent appointment upon the incumbent.

8. The petitioner, after accepting the conditions of the order, joined his duty and served for the prescribed period and right before the expiry of the stipulated period of the project, he approached this Court, in order to get hide under the Umbrella of the Court order and also obtained status quo order much after expiry of his service. Thereafter, how long, he remained serving in the Department the file is silent in this regard, however, through the amended writ petition, the petitioner has sought a direction for release of salary from 07.2014 to 05.2015.

9. It is settled principle of law that any ad hoc/temporary/project service does not confer any right of permanent induction upon the incumbent. In the instant case, the appointment was made for a particular time period, which stood elapsed on 30th June, 2014.

10. Through the instant writ petition, the petitioner has prayed shifting of the post, occupied by him on normal budget on the pretext that his presence/induction in the Department was useful and beneficial for the Department. It is to be observed here that to launch the schemes/projects, eliminate the same is the sole prerogative of the Government and the Courts are not supposed to interfere in the domain of the Executive in such matters unless mala fide, arbitrariness or violation of any law is shown. There is also a summary on the file, whereby, it has been recommended that the scheme be shifted on normal budget but there is no correspondence, in pursuance thereof, neither any financial concurrence has been given under the Azad Jammu and Kashmir Rules of Business, 1985 (Rule 15) however, as observed above, the Government is fully empowered to launch or eliminate or shift any scheme on normal budget but no direction can be issued on the wishes of a person or persons having some vested interest not recognizable by law and the Government is the better judge, to analyze the interest and betterment of the Department or the public. The wish and desire of an individual cannot be given preference upon the collective interest of the people and the Government.

11. As far the question regarding payment of salary is concerned , it is to be observed that the order 'to maintain status quo' means that the status/situation prevailing at the moment, when the order is passed, shall not be disturbed, changed or eliminated . The file of the case shows that the petitioner's appointment order and the period of the project expired on 30.06.2014, hence, at the time of issuance of status quo order on 02.10.2014 , he was not in service and any service rendered thereafter, did not have any legal backing rather the same has been performed by misinterpretation of the Court order and the petitioner wants to receive the salary of the period, he was not in service under any legal order and this Court is not inclined to protect the ill-gotten gains or acts. Mere presence of a person at any office without existence of any job order by competent authority and without existence of the post cannot be termed as service for remuneration. If the petitioner performed any job with the collusion of any officer of the respondent -Department, both are guilty of misconduct, as this Court never passed an order that the petitioner would remain in the relevant service, even after the expiry of the contract period. So, the performance of any duty after 30.06.2014, by the petitioner is illegal and an illegal act or gain cannot be protected by the Court of law. There is plethora of judgments on the point. The proposition came under the consideration of the Hon'ble apex Court of Azad Jammu and Kashmir, in case titled Sardar Muhammad Razzaq v. Chairman Ehtesab Bureau and 4 others, (2 appeals), reported as [2015 SCR 1156], wherein, a larger bench of the apex Court, in para 13 of the report, has pleased to observe as under: "13. . . . . . . . . . . . . . . . The law is well settled on the point since long that writ cannot be issued for retention of the ill-gotten gains. This Court in the case reported as Azad Jammu and Kashmir Government and 4 others v. Mohi ud Din Islamic University and 2 others, [2014 SCR 382], while relying upon the cases reported as Nawab Syed Raunnaq Ali and others v. Chief Settlement Commissioner and others, [PLD 1973 SC 236], Bashir Ahmed Khan v. Custodian and another [199 SCR 149] and Custodian of Evacuee Property and 7 others v. Tariq Mehmood Butt [2001 YLR 3139] observed as under: - '

14. Now we advert to the argument advanced by the learned counsel for the appellants that the writ jurisdiction cannot be invoked to protect ill-gotten gain. As we have observed in the preceding para that MOU/agreement dated 14.09.2006 was not executed in accordance with law, therefore, the benefits derived by the respondents under this agreement cannot be termed as ill-gotten gains. It is now settled that the writ jurisdiction of the High Court cannot be invoked to protect the ill-gotten gains."

12. In another case, titled Muhammad Sadiq v. Azad Jammu and Kashmir Government and others, [2016 SCR 709], the same proposition has been resolved in the following words: "8. . The relief by way of writ petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, is an equitable relief. The writ cannot be issued for retention of the ill-gotten gains. Our this view is fortified from a number of judgments of this Court reported as Bashir Ahmed Khan v. Custodian and others [1992 SCR 149], Fazal Hussain v. Walidad Khan and 22 others, [1996 CLC 1907], Abdul Shakoor v. Chairman MDA and 9 others [2000 MLD 1150], Custodian of Evacuee Property and 7 others v. Tariq Mehmood [2001 YLR 3139] and Azad Government and others v. Mohi ud Din Islamic University and others [2014 SCR 382]."

13. It is to be observed here that this Court is meant to protect and enforce the constitutional and statutory rights of the people, if denied by any functionary/ authority of the State. This forum cannot be used perpetuate an illegal act. Neither the Court can create a new right which was not in existence under any law, Custom or usage, having the force of law at the time of institution of the case. So, rendering of any work by the petitioner with the collusion or on unauthorized instruction of any officer of the Department does not entitle him for salary of the period, when, he was not holding any post in such Department.

14. The nutshell of the above detailed discussion is that the instant writ petition, being without substance stands dismissed. ZC/73/HC(AJK) Petition dismissed.