Tuesday, 4 November 2014

Re-employment can be made in Public Interest

PLJ 2014 AJ&K 327
Present: Ghulam Mustafa Mughal, C.J. and Ch. Jahandad Khan, J.
KH. ABDUL HAMID, CHIEF GEOLOGIST AKMID, MUZAFFARABAD--Petitioner
versus
W.P. No. 25 of 2013, decided on 5.4.2013.
----S. 13--Re-employed as Chairman AKMIDC on contract basis--Notification--Challenge to--Legality and propriety of appointment--Re-employment can be made only in public interest--Validity--Re-employment will not be made for 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 re-employment of a civil servant in service of AJ&K 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 existing cadres--No request for grant of ex-post-facto approval to re-employment/extension in service/contract employment in any circumstances shall be entertained--Notification of re-employment when read in light of notification and decision of cabinet it becomes crystal clear that appointment of private respondent is totally violative of cabinet decision as well as statutory instructions--Post of Chairman AKMIDC is in administrative cadre whereas petitioner is serving in different cadre i.e. technical cadre--Appointment of private respondent is declared to have been made without lawful authority and is of no legal effect. [Pp. 334 & 336] A, D & E
----S. 44--AJ&K Civil Servants Act, 1976, S. 13--Re-employed as Chairman AKMIDC on contract basis--Regularization of re-employment of retired civil servants against civil post in connection with affairs of Azad Govt.--Policy for appointment on contract basis as well as re-employment--Validity--Powers generally exercised by Government or a public functionary must be backed and strictly in line with statutory law of the land--Travel beyond rules and regulations has ruined structure of bureaucracy which practice causes hard burning among 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 highly influential persons who stood retired after attaining age of superannuation.           [Pp. 334 & 335] B
----Non observance of rules brings bad name for institution as well as Govt.--Validity--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.          [P. 335] C
Kh. Atta Ullah Chak, Advocate for Petitioner.
Raja Muhammad Hanif Khan, Advocate for Respondents.
Date of hearing: 5.4.2013.
Order
Ghulam Mustafa Mughal, C.J.--Through this petition filed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 appointment of private respondent herein, has been challenged for having been made without lawful authority.
Precise facts forming the background of the instant petition are that petitioner herein was inducted in the service of Azad Jammu & Kashmir AKMIDC as Assistant Manager Geology on 15.01.1981 and at present is serving as Chief Geologist BPS-19 since 08.01.2003. It is alleged that Respondent No. 6 stood retired as Chief ConservatorForest on 05.02.2013 who has been re-employed as Chairman AKMIDC on contract basis for one year vide Govt. Notification dated 07.02.2013. The case of the petitioner is that he has a right to be considered for promotion on the post of Chairman AKMIDC but his case has not been referred to the respective selection Board for the purpose. It is further alleged that the notification dated 07.02.2013 whereby the private respondent has been appointed as Chairman AKMIDC is against the law and policy framed by the Government for re-employment vide notification dated 03.05.2010, hence, may be declared as such.
The petition has been contested by the respondents by filing written statement. Respondent No. 6 in his written statement has raised several objections regarding maintainability of the petition. It is alleged by him that petitioner is not an aggrieved person. It is further alleged that in view of Section 5(1)(a) of AKMIDC Act, the Chairman of the AKMIDC has to be appointed by the Government and the status of the person so appointed should not be less than a secretary of the Government. It is contended that Respondent No. 6 has rightly been appointed because he was serving as an officer of Grade B-20 before his appointment and was eligible to be appointed as Secretary to the Government. It is further contended that appointment of the Chairman AKMIDC has to be made in view of Section 5(2) of the AKMIDC Act and once a person is appointed as Chairman he has to hold the office for the period of 3 years and the Govt. is competent to extend the tenure. It is stated that petitioner has accepted the appointment of the private respondent hence, he is debarred from challenging the same. It is further stated that under Section 5 of AKMIDC Act read with rules made thereunder the post of Chairman AKMIDC cannot be filed in by promotion from amongst the officers of the AKMIDC, therefore, the petitioner even otherwise, has no case for consideration. It is also stated that one Muhammad Shafique Qureshi was reinstated in the service and appointed as Senior Geologist B-19 vide notification dated 13.05.2008, hence, MuhammadShafique Qureshi is senior to the petitioner and in any case he can be considered for promotion on the post of as Executive Director and the petitioner has filed this petition with mala-fide intention to stop that process. It is submitted that private respondent being Chairman AKMIDC has pointed out some grave illegalities and mal-administration committed by the petitioner in execution of an agreement dated 25.02.2011 and a request has been made to the Administrative Secretary for holding an inquiry and in order to get rid of that inquiry and internal action petitioner has filed this petition. The other paras were also refuted.
The official respondents have owned the written statement filed by the private respondent.
KhAttah Ullah Chak, the learned counsel appearing for the petitioner vehemently argued that petitioner herein was inducted in the service of AKMIDC as Assistant Manager Geologist on 15.01.1981 and at present is serving as senior most Geologist B-19 and has more than 32 years service in his credit. The learned counsel while referring to Govt. Notification dated 09.01.2003 (annexure "E") submitted that the post of Chairman AKMIDC was included in common pool cadre post vide notification dated 19.12.2003 and the employees of the attached departments have been provided a right for consideration and promotion on these posts. He further submitted that as the AKMIDC is attached department of the Industries, Commerce therefore, the petitioner being senior most Officer Serving in the AKMIDC in B-19 has a right to be considered for appointment on the post of Chairman AKMIDC. The learned counsel alleged that due to illegal appointment of the private respondent the right of promotion of the petitioner has been jeopardize. He further alleged that appointment of the private respondent is derogatory to the notification dated 03.05.2010 and cabinet decision notified vide notification dated 20.02.2012 and is also against the public interest. The learned counsel stated that the Government has not owned the written statement filed on behalf of the private respondent therefore, the stand taken by the learned counsel for the private respondent on behalf of official respondents may be ruled out from consideration. The learned counsel contended that only a person of highly competence with distinction in his or her profession/filed can be re-employed that too, when no qualified and experience person is available from the existing cadres. He added that private respondent has no such experience and he is not a fit person to be retained in Govt. service because he has entered into plea-bargain with Ehtesab Bureau and a civil servant who has availed the plea-bargaining would be deemed to have been convicted and is disqualified from holding any public office. The learned counsel placed reliance on the following case-law:--
1.         Muhammad Riaz Khan vs. Inspector General of Police and 19 others [2010 SCR 13 1];
2.         Azad Govt. & 2 others vs. M. Naseer Chaudhry and 2 others [2010 SCR 186];
3.         Azad Govt. of the State of Jammu & Kashmir through Chief Secretary and 3 others vs. Sardar Abdul Aziz Khan [2012 SCR 187];
4.         M. Younas Tahir and another vs. Shaukat Aziz and others [2012 SCR 213].
In 2010 SCR 131 & 186 it has been held that policy decision or instructions issued by the competent authority shall have equal binding force as statutory rules if these are not in contravention of rules.
In 2012 SCR 187 & 213 it was observed that if for performance of an act a specific mode or manner is prescribed then such an act should be performed according to the prescribed manner or not at all......
Conversely, Raja Muhammad Hanif Khan the learned counsel for the respondents argued that petitioner is not aggrieved and the writ petition is not maintainable because he has filed the petition with ulterior motive. The learned counsel further argued that petitioner belongs to technical cadre whereas the post of Chairman AKMIDC is of the administrative/executive cadre, therefore, the petitioner can compete in his own functional unit and cannot be considered for appointment as Chairman AKMIDC in light of the notification dated 19.12.2003. The learned counsel argued that as the appointment of the private respondent has been made by the competent authority and it is stated in the notification that his case shall be processed in accordance with notification/cabinet decision and contract policy relied upon by the learned counsel for the petitioner, therefore, appointment cannot be declared null and void until the appropriate authority consider the case of private respondent. The learned counsel submitted that move on behalf of the petitioner is not bona fide and is with ulterior motive because the private respondent in capacity as Chairman Azad Jammu & Kashmir AKMIDC has pointed out some illegalities and misconduct committed by the petitioner and has recommended for holding an inquiry to the competent authority against the petitioner, therefore, the petition has been filed to frustrate that process. The learned counsel placed reliance on 2011 PLC (CS) 152 and 2006 PLC (CS) 1319.
We have heard the learned counsel for the parties and perused the record with our utmost care.
It may be stated that for regularization of re-employment of a retired civil servants against a civil post in connection with the affairs of the Azad Govt. of the State of Jammu & Kashmir, a notification has been issued under Section 23 read with Section 13 of the Azad Jammu & Kashmir Civil Servants Act, 1976. For proper appreciation of the controversy agitated in this petition it is necessary to reproduce cabinet decision dated 20.02.2010 and notification dated 03.05.2010. The cabinet decision and notification are reproduced respectively as under:--
(i)  "GOVERNMENT OF THE STATE OF JAMMU & KASHMIR SERVICES & GENERAL ADMINISTRATION DEPARMENT Block No. 2 New Civil Secretariat Complex.
"`Muzaffarabad"
Dated 20th February, 2010
NOTIFICATION
No. S&GAD/G-5(22) 2010; Consequent upon the decision taken during the meeting of the Azad Jammu & Kashmir Cabinet held on 18.01.2010, the President Azad Jammu & Kashmir has been pleaded to accord approval to constitute the following committee to scrutinize the matters of re-employment/extension in service/ contract employment:--
1-         The Chief Secretary/Secretary Cabinet,
Govt. of AJ&K.           Chairman
2-         The Secretary, S&GAD, Govt. of AJ&K.        Member
3-         The Secretary, Finance, Govt. of AJ&K.         Member
4-         The Secretary Law, Justice,
Parliamentary Affairs & Human
Rights, Govt. 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 & KASHMIR SERVICES & GENERAL ADMINISTRATION DEPARMENT
"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 & Kashmir Civil Servants Act, 1976. The President, Azad Jammu & 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 Govt. of the State of Jammu & 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 20.02.2010 and issued under the Azad Jammu & Kashmir Cabinet decision taken in the meeting held on 8th 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)."
(Underlining 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 20.02.2010 & 03.05.2010. Under Section 13 of the Azad Jammu & 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 & 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 03.05.2010 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 03.05.2010.
The Government has regulated the service in Azad Jammu & Kashmir by enacting the Azad Jammu & 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 hard 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 & 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 vs. 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 & 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 20.02.2010 relied upon by KhAttah 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 07.02.2012 is declared to have been made without lawful authority and is of no legal effect.

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