1. ' Through this petition filed under section 44 of the Azad Jammu and Kasmir Interim Constitution Act, 1974, a prohibition is sought against the respondents to refrain from proceedings against the petitioner on the basis of Notification dated 23-3-2004 and letter/notice dated 22-6-2004.
2. ' The precie facts forming the background of the above captioned petition are that the petitioner was inducted in the service of Education Department as Junior Teachress in 1985 and was subsequently promoted as Science Teachress in 1986. Thereafter, she was appointed as Headmistress (B-17) on the recommendation of the Public Service Commission, vide Notification dated 27-9-2000. It is alleged that after her appointment, an anonymous application was sent to different departments of the Government, alleging therein that the petitioner is M.A. (3rd Division) and has illegally obtained the appointment posing as M.A. History (2nd Division). It is claimed that the Accountant General inquired into the matter and vide his order, dated 12-1-2002, rejected the complaint. The Ehtesab Bureau of the Azad Jammu and Kashmir also inquired into the matter and came to the conclusion that the complaint filed against the petitioner is baseless and false. The DPI Schools also came to the same conclusion after conducting some inquiry. It is further stated that respondent No.2 also initiated inquiry, however, the proceedings were not finalized for one reason or the other. It is alleged that vide. Notification dated 23-3-2004, issued by the Education Secretariat, the competent authority has directed for fresh inquiry against the petitioner on the basis of same allegations and for that purpose respondent No.3 has been appointed as Inquiry Officer who has issued a letter/notice on 22-6-2004 to the petitioner for further proceedings. It is claimed that the Notification dated 23-3-2004, and letter/notice dated 22-6-2004 are without lawful authority, and the proceedings initiated in furtherance thereof are also without jurisdictional competence. The case of the petitioner is that the matter has already been inquired into at A different levels and was found false, therefore, fresh investigation on an anonymous application is without lawful authority. The Notification, dated 23-3-2004 has not been published in the official Gazette,' hence, is violative of law. The proceedings againt the petitioner are also mala fide and coram non judice, in view of the circular of the Government issued on 19-8-1980 which provides that no proceedings shall be taken against any civil servant in Azad Jammu and Kashmir on any anonymous application.
3. ' The writ petition has been resisted by the respondents by filing written statement. It is stated in the written statement that for appointment as Headmistress, it is necessary that one must be M.A., M.Ed. Second class, whereas the petitioner is lacking the said qualification and has got her appointment by producing forged documents. In para. No.7 of the comments, it is also stated that as per record of the University, the claim of the petitioner is incorrect. It is further stated that the proceedings have been initiated on the direction of the Competent authority; therefore, the petition is not maintainable, at this stage.
4. ' Sardar Muhammad Habib Zia, the learned Advocate appearing for the petitioner, inter alia, contended that almost all the allegations on the basis of which the present inquiry has been initiated, have already been investigated and finalized by the different authorities, including the Ehtesab Bureau and the matter has become a past and closed transaction, therefore, on the basis of same facts and application, fresh inquiry for the same cause cannot be ordered and conducted.
5. The learned Advocate submitted that the inquiry has been initiated on the basis of an anonymous complaint without any proof in respect thereof, is violative of the Government Instructions issued on 19-8-1980, according to which cognizance cannot be taken, on the basis of such-like applications. The learned Advocate submitted that the Notification dated 23-3-2004 has not been published in the official Gazette, therefore, has no legal sanctity and is without jurisdiction. The appointment of the Inquiry Officer and assumption of jurisdiction by him on the basis of said Notification and letter/ notice issued by him, are without lawful authority, mala fide, and without jurisdictional competence. The learned Advocate contended that the Notification dated 23-3-2004 is without jurisdiction as the Prime Minister has no authority to proceed in the matter, after delegating his authority to Minister Education, vide Notification dated July 7, 2003. The learned Advocate in support of his submissions placed reliance on the following cases:--
(i) 1993 SCR 346;
(ii) NLR 1993 TD (Services) 313;
(iii) 1996 SCR 305;
(iv) PLD 1998 SC (AJK) 17;
(v) PLD 2004 SC 261;
(vi) PLD 1978 SC 190.
6. ' In Muhammad Tariq Khan's case (PLD 1998 SC(AJK) 17), it was opined that law, which creates rights and obligations, must be made known to public at large. It was further opined that it must at least be published in the official Gazette. In PLD 2004 SC 261, section 20/A of the General Clauses Act, 1897 was considered by the apex Court of Pakistan and it was opined that publication of rules, orders, regulations and circulars, is a condition precedent. Earlier the same view was taken by the apex Court of Pakistan in PLD 1978 SC 190. In 1996 SCR 305, it was opined that after delegation of powers, both the delegator and delegatee cannot exercise the jurisdiction simultaneously or successively.
7. ' Raja Mumtaz Hussain Kiani, the learned Additional Advocate-General, controverted the arguments advanced on behalf of the petitioner. It is submitted by the learned counsel that initiation of inquiry on account of misconduct, the view of the provisions of the AJ&K Civil Servants Removal from Service (Special Powers) Act, 2001, is the prerogative of the authority. The other agencies could exercise this power only as a delegatee of the authority and in absence of any express delegation, the inquiries conducted of their own have no relevancy nor such ex parte decisions could prevent the authority from initiating the proceedings for the alleged misconduct.
8. The learned counsel further submitted that no doubt the authority was delegated to the appointing authority under section 2-A of the AJ&K Civil Servants Removal from Service (Special Powers) Act, 2001, but the fact remains that the "authority" is not denuded from its power after delegation and the Notification under challenge cannot be set at naught, simply for this reason. The learned counsel further submitted that it is also not correct that the petitioner is being proceeded on an anonymous application. It is not the requirement of law to move the authority, through some application and it can proceed whenever it comes to its notice that an inquiry against any civil servant for any alleged misconduct is necessary. The learned counsel argued that the matter is still at' the initial stage, therefore the petition is not maintainable and in case of final order, the petitioner has a right of appeal and in presence of this adequate remedy, this petition is not maintainable.
9. ' I have considered the respective arguments of the learned Advocates representing the parties and perused the record with utmost care.
10. ' So far as the first contention of Sardar Muhammad Habib Zia, the learned Advocate for the petitioner, that all the allegations against the petitioner have been inquired into by different agencies and she stood exonerated of all the charges, therefore, fresh inquiry on the same cause is violative of law, is concerned, i.e. Devoid of any force. In the case in hand, though the inquires have been conducted by some officers, as has been stated in the petition but those authorities cannot be taken at par with the authority envisaged by the Azad Jammu and Kashmir Civil Servants Removal from Service (Special Powers) Act, 2001. Under section 3 of the said Act, the power vests in the competent authority to determine whether a civil servant is liable to be dismissed, removed, or compulsorily retired on the charges listed in clauses 'A to F' of the said section. Until the powers for an inquiry and final order under the said section are delegated to any authority, .The same can neither be exercised nor the findings returned by such authority can bind the competent authority on the principle of double jeopardy nor the initiation of fresh proceedings could be held violative of law. As per written statement the competent authority is still of the view that the petitioner has got the appointment by producing forged and fictitious certificate, therefore, the authority cannot be debarred from performing its statutory duty. The contention of the learned Advocate that the Notification dated 23-3-2004 has not been published in the official Gazette, therefore has no legal sanctity, is also without any substance. This Notification has been issued by the competent authority in the light of the procedure contained in the Azad Jammu and Kashmir Rules of Business, 1985 which requires that a Government Notification shall be authenticated by an officer authorized in this behalf. The publication of this Notification was not necessary. ID The authorities referred to and relied upon by the learned Advocate for the petitioner deal with altogether a different situation. Moreover, this Notification does not fall within the purview of policy as is contemplated under section 20-A of the General Clauses Act Only those rules, orders, regulations and circulars which have the force of law are required to be published in official Gazette. The contention of the learned Advocate that the Notification dated 23-3-2004, is without lawful authority as the Prime Minister has already delegated his authority to the appointing authority (Minister Education) vide Notification dated 7-5-2004, is also devoid of any force. The argument that after delegation of power, the Prime Minister cannot proceed against the petitioner is also without any substance. By now it is well-settled law that a delegator by delegating his powers does not get denuded of those powers. Nor the delegation implies F a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. This view finds support from Haji Muhammad Ismail's case (1987 MLD 2457), wherein it was opined as under:-- "As I understand the scope of delegation, it is one of the basic principles that the delegators by delegating their powers do not get denuded of those powers. In the present cases, the powers vest in the Provincial Government and if the delegatee is not conducting himself to the liking of the Government, it can itself exercise those powers. The powers vested in a delegator by a statute can always by exercised by it unless on being already exercised by the delegatee they stand exhausted."
11. ' The same view has been approved by the apex Court of Pakistan in PLD 1971 SC 393 and Azad Jammu and Kashmir in a case titled "Azad Govt. And others v. Mujahid Hussain Naqvi" (1996 SCR 305). Thus, in view of above precedents it is concluded that the delegator and delegatee simultaneously or successively cannot exercise the power, however, it cannot be accepted that after delegations of powers, the delegator is deprived to exercise such power which otherwise vests in him under law, however, the authority once competently exercised by a delegatee it gets exhausted and there is left no power with the delegator to exercise the same in the same cause.
12. This view lends support from the following cases:--
(i) Tanweer Ahmed Khan's case (1992 MLD 2146);
(ii) (1982 SCMR 212),
(iii) "Scientific Adviser to the Ministry of Defence and others v. S. Daniel and others (Civil Appeals Nos.1210 to 1217 of 1980, etc. Decided on 10-4-1990, Service Law Reporters 1990 (2) 724.
13. ' The writ petition is also not maintainable for being filed against a show-cause notice. A notice can be challenged in writ jurisdiction when it is shown that the same has been issued without jurisdictional competence and in that eventuality a notice can be termed as "act done" or "proceedings taken" with the meaning of sub-clause (ii) of Clause (a) of subsection (2) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Where the absence of jurisdiction is not shown, the declaration that the notice has been issued without lawful authority cannot be given. A reference can be made to Shaheen Asad's case (2000 SCR 308). At page 317 of the report, the apex Court observed as under:-- "15. In our view a show-cause notice can be challenged in a writ petition only "if it has been issued without lawful authority but it cannot be so challenged if it has been issued by a competent authority. Through a show-cause notice adverse material is brought to the notice of the concerned person without previously determining the finality of that material and the person likely to be adversely affected is, given an opportunity to explain his position. The writ jurisdiction conferred on the High Court is' supervisory in nature under which the High Court can issue a declaration that an act done or proceedings taken is without lawful authority and of no legal effect. The High Court is also authorized to issue a writ of prohibition 'to stop a person from performing an act that person is not allowed by law to do. The High Court has no jurisdiction to transfer the proceedings pending before an executive or judicial officer and decide it itself. While exercising writ jurisdiction the High Court cannot substitute its own opinion for the opinion of an administrative officer.
14. ' It was further opined in para No.16 as under:--
16. We may also quote from Justice Muhammad Munir's commentary on Constitution of Islamic Republic of Pakistan 1996 Edition. The learned author observed as follows:-- "Doctrine of exhaustion of statutory remedy:--It has been an established rule of practice with the High Courts that where a right or liability is created by a statute which itself prescribes the procedure for enforcing that right or liability, resort must be had to that particular procedure before invoking the discretionary jurisdiction to, the High Court under the present Article. The High Court, in the absence of exceptional circumstances, will decline to exercise its discretionary jurisdiction under the Article until all the statutory remedies are exhausted including administrative appeals or representation and more so when the controversy involves disputed questions of fact or appreciation of evidence. This doctrine is applied even where that statutory remedy is a reference to High Court itself on a question of law."
15. ' In view of What has been stated above, finding no force in this I/ petition it is hereby dismissed with no order as to costs.