2018 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB ALVI, C.J.

The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, following relief is made:

"In the circumstances enumerated above, it is humbly prayed that by accepting this constitutional petition, high Prerogative writs of mandamus, prohibition and others deemed expedient in the interest of justice, may kindly be issued directing respondents to finally settle the long standing issue of petitioner's service, by implementing and giving effect to the final orders of the competent authority/Prime Minister dated 26.10.2014, bearing No.P.M Secretariat 5821 dated 27.10.2014, and issue retrospective promotion order of petitioner, besides his reinstatement in service and superannuating retirement from service notifications w.e.f. 27.09.2009. The respondents may also be ordained and forbidden to perpetually abstain from seeking/ obtaining review or cancel, getting recalled or rescinded the ibid final orders of the competent authority/Prime Minister dated 26.10.2014/27.10.2014 in any eventuality, whatsoever. Any other relief of which the humble petitioner is found entitled to in the estimation of this Hon'ble Court in justice, law and equity is also solicited on his behalf along with costs of litigation."

2. Precise facts of the case are that petitioner was serving as Secretary to Government in BPS-20. It is averred that competent authority/Prime Minister Azad Government of the State of Jammu and Kashmir, approved promotion of petitioner as Senior Member Board of Revenue BPS-21, equivalent to post of Additional Chief Secretary General, i.e. from date of retirement of one Khalil Ahmed Qureshi, (the then SMBR), vide notification dated 02.12.1997, w.e.f. 16.05.1997. The said promotion order of petitioner was passed downwards to Chief Secretary/Secretary Services and General Administration Department, for implementation and issuance of formal notification as in those days there was no requirement or necessity of routing matter of promotion to posts of BPS-21, through Selection Board. The respondents instead of issuing formal notification, the decades back implemented and acted upon notifications of promotions of petitioner against the posts of Secretary to Government B-20, D.G. Information B-20, Director Information B-19, Deputy Director Information B-18, and Assistant Director B-17, were retrospectively recalled and ultimately he was dismissed from grade B-16, vide notification dated 01.04.1998. As all the aforesaid promotion notifications of petitioner were rescinded, who was also dismissed from service, hence, he constrained to challenge the said Government notification through Writ Petition No.215/1998, titled "Mujahid Husain Naqvi v. Azad Government and others", before this Court, which was accepted vide order dated 05.10.1999. The aforesaid order of this Court dated 05.10.1999, was challenged by respondents before the Supreme Court, in which, difference of opinion arose between two Hon'ble Judges of the Apex Court, resultantly, matter was placed before third Judge, who was at the then time, the Hon'ble Chief Justice (Mr. Justice Sardar Said Muhammad Khan). However, on application of petitioner, the learned Chief Justice, declined to hear the case, hence, the order of this Court was declared to be the judgment of the Supreme Court. It is alleged that Prime Minister of the time, granted sanction/approval for issuance of notification of reinstatement in service of petitioner in B-21, vide order dated 19.09.2009. It is further alleged that the Prime Minister also reaffirmed promotion order of petitioner in B-21, earlier passed on 02.12.1997. It is claimed that in the meantime, a bureaucratic conspiracy was hatched against petitioner by some interested persons and aforesaid order of the Prime Minister dated 19.09.2009, was recalled in so-called review, which was not competent because earlier orders were also passed upon review petition. It is contended that the learned Acting Chief Justice of the Supreme Court, as third Judge, dismissed the appeal filed by Government vide order dated 08.05.2010. Thereafter, number of orders were obtained by petitioner from the competent authority/Chief Executive of the State, for his reinstatement and retirement from service, which were revoked in sheer violation of law. It is stated that despite all obstacles petitioner was able to obtain new order from the Prime Minister on 26.10.2014, which was not implemented by respondents for mala fide reasons, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents Nos.1 to 3 through comments, wherein, it is stated that petitioner was serving as Secretary to Government B-20, who tampered orders of the Prime Minister, against which, an inquiry was conducted as per the AJ&K Civil Servants (Efficiency and Discipline) Rules, 1977. After detailed inquiry, petitioner was reverted to lower rank and finally he was dismissed from service. The petitioner approached to this Court through writ petition No.215/1998, titled "Mujahid Hussain Naqvi v. Azad Government and others", which was accepted vide order dated 05.10.1999. Against the aforesaid order respondents filed an appeal before the Apex Court, however, the order passed by this Court was maintained vide judgment dated 09.09.2009. Against the aforesaid judgment dated 09.09.2009, a review petition was filed by respondents before the Apex Court, hence, while accepting review petition, appeal of Govt. was restored vide order dated 11.05.2011. It is maintained that the Supreme Court ultimately while accepting appeal filed by Government set aside order of this Court dated 05.10.1999. It is further submitted that appointment and all promotions of petitioner were recalled as unlawful, therefore, section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976, never attracted in the given case. It is urged that earlier matter of petitioner remained under active litigation from 1998 to 2012, up to the Supreme Court and had finally been decided, hence, submitted for dismissal of writ petition in limine.

4. The petitioner appeared in person and argued that with regard to reinstatement and retirement a valid order was passed by the Prime Minister of Azad Government of the State of Jammu and Kashmir on 26.10.2014, however, same could not be acted upon by respondents for mala fide reasons. He further contended that although he was dismissed from service vide Government notification dated 09.05.1998, against which his writ petition was accepted by this Court through order dated 05.10.1999 and against the aforesaid order, respondents preferred an appeal before the Apex Court which was also dismissed. The petitioner emphasized that since 2010 to 2015, he remained almost unconscious, hence, he is not aware about any judgment of the Apex Court dated 09.10.2012. He finally craved for admission of writ petition, so that direction in the nature of mandamus may be issued against respondents jointly and severally to act upon order of the then Chief Executive dated 26.10.2014, relating to his re-instatement in service along with promotion in BPS-21 since 02.12.1997, followed by notification of retirement on reaching superannuation w.e.f. 27.09.2009. 5 Mr. Asghar Ali Malik, the learned counsel for respondents, however, submitted that petitioner was dismissed from service on the ground of misconduct, vide Government notification dated 09.05.1998, against which he filed a writ petition before this Court, which was accepted through order dated 05.10.1999, however, Government-respondent and others preferred an appeal against the aforesaid order, which was ultimately accepted by the Apex Court and his writ petition was dismissed, through judgment dated 09.10.2012. He further contended that against the aforesaid judgment, petitioner also filed a Civil Miscellaneous No.429/2014, titled "Mujahid Hussain Naqvi v. Azad Government and others" which was also dismissed by the Apex Court through order dated 05.12.2015. The learned counsel pressed into service that petitioner concealed the above mentioned judgment and order of the Supreme Court and succeeded to obtain a baseless and concocted order from the Prime Minister dated 26.10.2014, which is not only violative of law but also against the judgment and order of the Apex Court, hence, submitted for dismissal of writ petition in limine.

6. We have heard petitioner at some length as well as the learned counsel for respondents, perused the contents of writ petition and examined the appended documents made available with utmost care.

7. A contemplate perusal of record reveals that petitioner while holding the post of Secretary to Government BPS-20, was proceeded against as per the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and after thorough probe of allegations was found that he had committed misconduct, hence, was reverted grade wise to BPS-20 to BPS-16 as Information Officer and then was dismissed from service through Government notification dated 09.05.1998. Against the aforesaid notification, petitioner instead of filing an appeal in Service Tribunal being civil servant, preferred Writ Petition No.215/ 1998, titled "Mujahid Hussain Naqvi v. Azad Government and others" before this Court, which was accepted, vide order dated 05.10.1999. Against the aforesaid order Government-respondent and others filed an appeal before the Apex Court, in which difference of opinion arose between two Hon'ble Judges, as a result whereof, matter was placed before the 3rd Judge, who was at the then time, the learned Chief Justice (Mr. Justice Sardar Said Muhammad Khan, as His Lordship then was). The petitioner, however, moved an application that His Lordship should not hear the case for the reasons mentioned in the application, whereupon, the learned Chief Justice declined to hear the case, vide order dated 01.08.2001. The Apex Court, however, finally accepted appeal of respondents vide Judgment dated 09.10.2012, wherein, in paragraphs Nos.13 and 18 of the report, it was observed as under:- "

13. We have heard the learned counsel for the appellants, perused the written arguments submitted by respondent No.1 as well as the judgment of the High Court. We propose to take up the argument of the respondents that since he had ceased to be a civil servant, he could not at the relevant time approach the Service Tribunal and the High Court had the jurisdiction to entertain, and decide the writ petition filed by him. After initiating the disciplinary proceedings against the respondent, some administrative orders were also passed by the Government, whereby the respondent was demoted from the post of Secretary to Government as a Director General and ultimately as Information Officer B-16. All orders of demotion have been set aside by the High Court. In the instant appeal, it has been contended by the appellants that the High Court had no jurisdiction to set aside the aforesaid orders of demotion of the respondent because it was the Service Tribunal which had the exclusive jurisdiction to deal with the matter. The orders of demotion of respondent from the post of Secretary to Government to the post of Director General was passed on 26.03.1998, from the post of Director General to the post of Director on 27.03.1998, from the post of Director to the post of Deputy Director on 30.03.1998 and finally from the post of Deputy Director to the post of Information Officer on 1.4.1998. The assertion of the respondent is that when the amendment was carried out on 28.2.1999, a civil servant could file an appeal before the Service Tribunal. The expression 'civil servant' has been defined in section 2 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which reads as under:

"

2. Definitions:- In this Act, unless there is anything repugnant in the subject or context; (a) (b) 'Civil Servant' means a person or holds a civil post in the service of Azad Jammu and Kashmir, employed in connection with the affairs of the State, but does not include:- (i) (ii) (iii) The final order of reversion of the respondent was passed on 1.4.1998 and he remained in service till 9.5.1998; the date when he was dismissed from service. He filed three appeals before the Service Tribunal to challenge the orders of his reversion. The appeals were pending before the Service Tribunal when he was dismissed from service. However, later on he withdrew the appeals and filed a consolidated writ petition to challenge all the orders, including the order of his dismissal from service. It is clear that cause of action arose to the respondent in respect of his reversion orders on four different dates, i.e., 26.3.1998, 27.3.1998, 30.3.1998 and 1.4.1998. When these causes of action arose his appeals before the Service Tribunal were maintainable and it was only the Service Tribunal which had the jurisdiction to decide whether the reversion orders were validly passed or not. The respondent had filed appeal before the Service Tribunal which was the competent forum. The dismissal of the respondent from service did not have the effect of taking away the jurisdiction from the Service Tribunal to decide the appeals. Therefore, the respondent wrongly withdrew the appeals from the Service Tribunal. According to section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court has no jurisdiction to entertain a dispute over which the Service Tribunal has the exclusive jurisdiction. It was the duty of the High Court to first determine the question of its jurisdiction before passing the impugned judgment. In these circumstances the writ petition filed by orders was not maintainable. Therefore, it can safely be held that the High Court had no jurisdiction to entertain a writ petition in respect of the reversion orders passed against the respondent.

18. Now we advert to the crucial question, i.e., whether the High Court has rightly set aside the finding of fact recorded by the Prime Minister being an administrative Authority. It is celebrated principle of law that finding of fact recorded by an administrative Authority performing functions under a statute is sacrosanct. It is also settled now that the High Court, while exercising writ jurisdiction cannot substitute its opinion for the opinion of the administrative Authority. The High Court has held that actually the Prime Minister had ordered the promotion of the respondent to grade B-21 and by implication, there was no forgery. The order of dismissal passed by the Prime Minister on 9.5.1998, after holding that the respondent was guilty of forgery was available before the High Court. In the aforesaid order it was stated that the competent Authority (the Prime Minister) had come to the conclusion in the light of the proceedings taken under notification dated 11.3.1998, that respondent, herein, had tampered with the order passed by the Prime Minister on 02.12.1997. It was also stated in the notification dated 11.3.1998, that the Prime Minister acting as Authority under the E&D Rules, 1977, had directed for initiation of disciplinary proceedings against the respondent on the ground that he had interpolated the order passed by the Prime Minister. After due process, the charge was held to be proved. The finding was recorded by the Prime Minister in his capacity as the Authority under rule 8 of the E&D Rules, 1977. Rule 8 of the E&D Rules, 1977 may advantageously be reproduced below:--

8. Action by the Authority,- In the case of any proceedings the record of which has been reported for (sic) or rule 7-A, the authority may pass such orders as it deems fit but before imposing a major penalty, the authority shall afford the accused an opportunity of being heard in person, either before himself or before an officer senior in rank to the accused designated for the purpose after taking into consideration the record of such personal hearing prepared by the officer so designated. The assertion of the respondent, the Prime Minister himself allegedly has passed the promotion order of respondent. If it was, so, then there was no question that the Prime Minister could have made a false statement that respondent had been guilty of tampering. The averments made in the written statement filed by the appellants, herein, before the High Court, are fully supported by the record summoned from the Services and General Administration Department but the High Court failed to give any finding on it. The record shows that two orders were passed by the Prime Minister in which he stated that the respondent had interpolated his order dated 2.12.1997. On 20.1.1998, an order was passed by the Prime Minister whereby he ordered that disciplinary action may be taken against the respondent. On 5.3.1998, a similar order was passed by the Prime Minister which is a detailed order in which he has pointed out the exact interpolation and tampering and confirmed the earlier order for initiating disciplinary proceedings against the respondent. Later on when the authorized officer submitted his report to the Prime Minister, the same was accepted and it was ordered that the respondent be dismissed from service for misconduct. The High Court failed to consider these orders properly. It may be observed that the order dated 2.12.1997 which according to the respondent, is an un-tampered is itself contradictory and shows that it had been tampered with. For better understanding the position, here we again reproduce the alleged order passed by the Prime Minister. The order reads as under:- The perusal of the above order reveals that it has two parts. In its one part, the Prime Minister has directed the Chief Secretary to hear the parties and take further proceedings in the case and in the other part, while accepting the review petition, the Prime Minister has promoted the respondent to grade B-21. In these circumstances the Prime Minister was justified to hold that the order has been tampered with. In presence of the above said material, the observation of the High Court that if the Prime Minister's order had been tampered with, he should have said so rather than withdrawing it, is merely conjectural and it is settled that conjectures cannot take the place of proof. Therefore, we have no hesitation in holding that the High Court has erred in holding that the order passed by the Prime Minister had not been tampered with which finding of the High Court is set aside accordantly." Again in paragraphs Nos.21 and 24 of the report, it was held as follows:- "

21. There is still another contention of the respondent that while passing the dismissal order against the respondent, rule 8 of the E&D Rules, 1977 has been violated because fresh notice was not issued by the Authority before passing the said order. A perusal of rule 8, reproduced in the earlier part of this judgment, shows that it does not contain that a fresh notice shall be given to the accused civil servant. However, it provides that the Authority shall afford an opportunity of being heard. As we have observed earlier that in the initial stages all efforts were made for the appearance of the respondent to show cause but on one pretext or the other he failed to appear and show-cause, therefore, it is clear that he was not interested in showing cause. It can safely be held that he had no explanation to give, therefore, there was no occasion for the Authority to provide any opportunity of hearing to the respondent. In our estimation, the opportunity of hearing under rule 8 is only to be provided to a person who has joined the proceedings and has submitted his explanation. It may be stated here that on presentation of the report by the Authorized Officer, the Prime Minister observed that since the accused exhibited non-cooperation with the Authorized Officer by firstly refusing to receive the notice and subsequently by abstaining from filing a written explanation, it was not possible to give him personal hearing. Thus, the objection raised by the respondent that no fresh notice was issued to him by the Authority has no force and is hereby repelled.

24. Before parting with the judgment, it may be observed that it is a fit case in which the criminal proceedings should be ordered but keeping in view the bad health of the respondent, the dismissal of the writ petition and restoration of the order passed by the Authority will meet the ends of justice. In light of what has been discussed above while accepting this appeal and setting aside the judgment of the High Court dated 5.10.1999, the writ petition filed by the respondent is dismissed with no order as to costs."

8. The petitioner concealed the aforesaid judgment of Hon'ble Supreme Court dated 09.10.2012, and preferred an application before the Prime Minister who passed the following order:-

9. A perusal of application of petitioner reveals that petitioner has deliberately concealed the judgment of the Apex Court dated 09.10.2012, and by suppressing fact succeeded to obtain a void order of his reinstatement and promotion in BPS-21 since 02.12.1997, as well as retirement after attaining age of superannuation w.e.f. 27.09.2009, who has not invoked jurisdiction of this Court with clean hands, therefore, is not entitled to equitable relief of writ jurisdiction. A similar proposition came under consideration before the Apex Court in case titled Azad Government and 03 others v. Abdul Ghaffar Butt and 02 others [1999 PLC (C.S.) 1203], wherein, at page 1207 of the report it was held as follows:- "

9. The contention of the learned counsel for the appellants that even if the allotment in favour of the appellants is void, that should have been challenged by the respondent before the appropriate authority otherwise it cannot be ignored, does not help his case. Because it was the appellants who filed the writ petition in the High Court and it has been repeatedly held by this Court that a person who seeks relief by invoking writ jurisdiction must come with clean hands; if a person bases his claim on a void order, he is not entitled to any relief in exercise of writ jurisdiction." The same point came under consideration before the Hon'ble Supreme Court in case titled "Abid Hussain Jafri and others v. Azad Government and others", [1998 PLC (C.S.) 141]. At page 144 of the report, it was opined as follows:- " This is well settled principle of law that a person seeking redress of his grievance by resorting to the writ jurisdiction, must come with clean hands. If it is found that the person seeking relief by way of writ petition has no legal or moral case, then irrespective of the fact that the Chief Secretary or, for that matter, any other departmental authority is bound to obey the orders of the Prime Minister, the High Court may refuse to issue a writ of mandamus in exercise of its discretionary powers vested in it. As the order which was sought to be implemented by the appellants was passed in violation of the principle of 'audi-alteram-partem', the High Court could rightly refuse to issue a writ of mandamus for the implementation of the same irrespective of the fact as to whether the Secretary Works was bound to carry out the same or not. The writ jurisdiction cannot be exercised in perpetuation of an illegal order." The similar point was resolved by the Lahore High Court, in case titled "Iqtedar Hyder v . Bank of Punjab through its Chairman and another", [2001 MLD 1537]. At page 1540 of the report, it was held as follows:- "

It is also settled principle of law that he who seeks equity must come to the Court with clean hands. It is pertinent to mention here that decree was passed against petitioner on 12.09.1998 and petitioner did not agitate the same before this Court by way of appeal nor filed any objection petition before the executing Court. In this view of the matter I am not inclined to exercise my discretion in favour of petitioner".

10. The petitioner, therefore, filed the instant writ petition with unclean hands which is ex-facie frivolous, as well as, contemptuous to frustrate the judgment and order of the Apex Court of the country.

11. The contention of petitioner that he remained almost unconscious from 2010 to 2015, seems to be falsified. A perusal of judgment of the Apex Court dated 09.10.2012, makes it abundantly clear that he himself argued his case and pleaded each and every point pertaining to prove his dismissal order as unlawful and each point was authoritatively resolved by the Apex Court of the country. He later on also moved an application for recalling judgment dated 09.10.2012, which too was argued by him. The application was turned down by the Hon'ble Court through order dated 05.12.2015, which proved that his assertion about unconsciousness since 2010 to 2015, is falsified. Even otherwise, the aforesaid point has not been raised by petitioner in memorandum of his writ petition. It is well settled principle of law that a party cannot be allowed to argue its case vis- -vis to pleadings. The aforesaid point was considered by the Apex Court in case titled "Azad Government and others v. Qamar-uz-Zaman Khan Niazi" (1993 SCR 9). At page 13 of the report, it was held as follows:- "Before going into the merits of case we would like to dispose of this application. The application has been filed under rule 6 of Order IX read with Order XLIII of the Supreme Court Rules and is basically aimed at seeking permission of the Court to file affidavits of the Additional Chief Secretary (General) and the counsel for the appellants. However, a closer look at the contents of the application as well as affidavit shows that practically the appellants are seeking to set up a new case which is entirely inconsistent with the case before the Service Tribunal. As has already been noted, before the Service Tribunal the application which was claimed to have been filed by Qamar-uz-Zaman Niazi containing the conditions of thirty years pension and move-over to grade 19 had been accepted as genuine. In fact it had been clearly stated in the written statement that the Government acted in accordance with law by acceding to the request for retirement as it was authorized by law to pass an order of retirement but did not accept the conditions imposed by Qamar-uz-Zaman Niazi because the same were illegal and could not have been legally accepted. Now before us the Government wants us to hold that the application submitted by Qamar-uz-Zaman Niazi imposing the conditions mentioned above had been returned and another application claimed to have been filed by Qamar-uz-Zarnan Niazi was subsequently processed and in this application Qamar-uz-Zaman Niazi had asked for retirement on completion of 25 years of service. It is well settled that no party can be allowed to set up a case different from a case which had been set up in the pleadings. Apart from that the point at issue is a pure question of fact which can only be decided after taking of fresh evidence. It is equally well settled that a question of fact cannot be raised for the first time in this Court. Without commenting on genuineness or otherwise of the application claimed by the Government to have been filed subsequently by Qamar-uz-Zaman Niazi, we may point out that the copy placed on the record of this Court is a photo copy and is not attested by any officer of the Government. It is only attested by counsel for the appellants. In law a copy can only be issued and certified by a person who has custody of the original document. Admittedly the learned counsel for the appellants is not such a person. Even in the Government file the original, if any, is not available. It cannot, therefore, be positively proved that this application was in fact filed" The same view was reiterated by the apex Court in case titled "Muhammad Hussain v. Abdul Majid and others" (1993 SCR 319), wherein at page 321 of the report, it was opined as under:- "It may be stated that this is well settled principle of law that the parties cannot depart from the case as set up in their pleadings and vary the same subsequently at the appellate stage. The parties are bound by their pleadings and even if evidence is led in support of a plea which was not set up in the pleadings, such evidence cannot be looked into. Thus, the High Court has not committed any error in holding that the appellant cannot be permitted to put up altogether a different case from the one which he had set up in the plaint. It may be stated that according to the plaint, each of the share, i.e., 1/3 each, and the mutation was also attested in the year 1958 in accordance to the terms of the decree of the Deputy Custodian. Thus, it does not lie in the mouth of the appellant at the appellate stage to change his stand and argue that he was entitled to more than 1/3 share which he had according to the decree of the Deputy Custodian on the basis of which mutation was also attested." The aforesaid view was again highlighted by August Supreme Court in case titled "Sheikh Javed Iqbal v. Muhammad Bashir and 5 others" (2010 PLC (C.S.) 1264). At page 1268 of the report, it was observed as follows:- "It is celebrated principle of law that no party can travel beyond its pleadings. Respondent No.1 has categorically taken a stand in para 9 of memo. of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18.09.2009. This factual assertion of the respondent has not been denied by the present appellant and pro forma respondents."

12. The epitome of above discussion is that, finding no substance in the instant writ petition, the same is hereby dismissed in limine with special costs of Rs.50,000/- to be deposited with the "Nazir" of this Court, within fortnight period. ZC/29/HC(AJ&K) Petition dismissed.