MOHAMMAD AZAM KHAN, CJ. --- The instant appeal with the leave of the Court arises out of judgment of the High Court dated 9.1.2013, whereby Writ Petition No. 2401/2012 has been dismissed in limine.
2. The appellant filed a writ petition in the High Court therein that he was appointed as District Account Officer (BPS-18) in District Mirpur. He was assigned the additional charge of Accounts Officer, Mirpur Development Authority, Mirpur, vide order dated 7.2.2012. Azad Jammu and Kashmir Council suspended him on the ground of false and fabricated charges with mala fide intention while exercising powers under Section 4 of the Azad Jammu & Kashmir Council Removal from Service (Special Powers) Act, 2000 on 15.10.2012. Respondent No. 7 was appointed as Inquiry Officer, who after inquiry exonerated him from false and fabricated charges and recommended for his reinstatement in service, Respondent No. 2 vide order dated 30.11.2012 appointed a new Inquiry Officer to conduct fresh inquiry against him. Respondent No. 2 was not a competent authority and he had no jurisdiction to order for initiating inquiry against him under Section 3 of the Azad Jammu & Kashmir Council Removal from Service (Special Powers) Act, 2000. The Controller General of Accounts, Azad Jammu and Kashmir, was empowered to exercise powers of competent authority.
A learned Single Judge in the High Court dismissed the writ petition in limine on the ground that the matter relates to terms and conditions of service of a civil servant and the same can be agitated before the Council Service Tribunal. The writ petition is not maintainable. Hence this appeal by leave of the Court.
3. Mr. Tahir Aziz Khan, the learned counsel for the appellant, argue if that the judgment of the High Court is against the law and record. He submitted that it is true that if a civil servant is aggrieved of an order which adversely effects the terms and conditions of his service and the order is final one, then he has a right to file an appeal before the Council Service Tribunal. The order passed by respondent No. 2, Secretary AJ&K Council, for initiating de novo inquiry proceedings was not a final order, therefore, the appeal was not competent before the Azad Jammu & Kashmir Council Service Tribunal. The learned counsel submitted that under Section 3 of the Azad Jammu & Kashmir Council Removal from Service (Special Powers) Act, 2000, the competent authority has power to order for inquiry against a civil servant. The Secretary, AJ&K Council was not a competent authority.
The competent authority (Chairmen AJ&K Council) delegated its powers to Controller Generl of Accounts, Azad Jammu & Kashmir. The notices issued by Secretary, AJ&K Council were illegal and without jurisdiction. The learned Single Judge in the High Court failed to consider this aspect of the case. The learned counsel further argued that Raja GuI Muhammad, the Member of AJ&K Council Service Tribunal, has been appointed as Inquiry Officer. If a member of the AJ&K Council Service Tribunal conducts inquiry against the appellant, how he can hear appeal as a Member of Council Service Tribunal. The impugned order was not maintainable on this score. Important legal questions were raised in the writ petition, therefore, the writ petition has to be admitted for regular hearing.
4. While controverting the arguments, Syed Nazir Hussain Kazmi, the learned counsel for the respondents, argued that the judgment of the High Court is perfectly legal. Under the Azad Jammu and Kashmir, Council Service Tribunals Act, 1993, a civil servant aggrieved of a final order has a right to file appeal in the Council Service Tribunal if the terms and conditions of his service are affected. When the matter relates to terms and conditions of service of a civil servant, writ petition is not competent. The learned counsel referred to cases reported as The Accountant General and others v. Zaman Hussain Khan [1993 SCR 259] and Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another [1999 SCR 204]. He further submitted that under Section 3(3) of the AJ&K Council Service Tribunals Act, 1993, the Council Service Tribunal consists of a Chairman and other Members and under clause (a) of Section 3(3) an appeal may be heard by Chairman and one Member. There are more than one Members in the Council Service Tribunal. If inquiry is conducted by one Member of the Council Service Tribunal, it will not affect the case of the appellant. He explained that Raja Gul Muhammad, has been appointed as Inquiry Officer in the matter due to reason that there was no other officer available who was expert in the field of accounts. The learned counsel produced a copy of notification dated 28th July, 2001, whereby Secretary AJ&K Council has been appointed as authorized officer in respect of posts of BPS-16 to BPS-19 under Section 2(b) of the AJ&K Council Removal from Service (Special Powers) Act, 2000. The learned counsel submitted that on the basis of referred notification the Secretary was competent authority and had jurisdiction to appoint inquiry officer.
5. We have heard the learned counsel for the parties and perused the record. The appellant is appointed as District Accounts Officer (BPS-18) in District Mirpur. It is admitted position that he was assigned additional charge of Accounts Officer, Mirpur Development Authority, Mirpur. An inquiry was conducted against him under Section 4 of the Azad Jammu & Kashmir Council Removal from Service (Special Powers) Act, 2000 in the light of order dated 15.10.2012. The Inquiry Officer after inquiry exonerated him from charge and recommended for his reinstatement in service. The record reveals that respondent No. 2, Secretary AJ&K Council, on 30.11.2012 ordered for de-novo inquiry proceedings into the matter and appointed Raja Gul Muhammad, Member of AJ&K Council Service Tribunal as inquiry officer in the capacity of competent authority. It will be useful to reproduce the order of appointment of inquiry officer dated 30.11.2012 which is as under:- "Whereas in exercise of powers conferred under Section 5 of the AJ&K Council Removal from Service (Special Powers) Act, 2000, the competent authority i.e. The Secretary, AJ&K Council Secretariat, appointed Mr. Shafqat Rasool, DG (Audit), AJ&K Council as the "Inquiry Officer" to conduct formal inquiry proceeding into the following charges against Mr. Abdul Aziz Mughal, DAO, Mirpur suspended):---
(i) Illegal payment of mobilization advance to the tune of Rs. 300,901,727/- to contractor by violating PEC Rules and without checking the admin approval of the project and verification of mobilization advance insurance guarantee and;
(ii) Additional loss of Rs. 4.00 million due to early encashment of investment of Rs. 100.00 million with Habib Bank, Mirpur.
2. Whereas, the inquiry Officer submitted his report and perusal of the report revealed that the inquiry report is defective as the inquiry officer has not conducted the inquiry strictly in accordance with AJK Council Removal from Service (Special Powers) Act, 2000. He has neither followed the stipulated procedure as laid down in the law nor recorded/examined the oral and written evidence to substantiate his findings.
3. Now, therefore, the competent authority, in exercise of the powers conferred under Section 8 read with Section 5 of AJ&K Council Removal from Service (Special Powers) Act, 2000 has been pleased to order for a de-novo inquiry in the matter and appoint Raja GuI Muhammad, Member AJ&K Council Service Tribunal as "Inquiry Officer" to conduct inquiry proceeding into the above- mentioned charge against Mr. Abdul Aziz Mughal, DAQ, Mirpur (suspended) strictly in accordance with law.
4. The relevant case material is enclosed.
Encl: As Above.
(KAMRAN ALI QURESHI)
SECRETARY/ COMPETENT AUTHORITY)"
A perusal of the above order reveals that the Secretary AJ&K Council ordered inquiry against the appellant in the capacity of competent authority while exercising powers vested in it under Sections 5 and 8 of the Azad Jammu & Kashmir (Special Powers) Act, 2000. Section 5 of the said Act postulates that the competent authority may constitute one or more committees to scrutinize the conduct of a person in the Council service who is alleged to have committed any of the acts or omissions specified in Section 3. Under Section 8 of the aforesaid Act, the findings recorded by Inquiry Officer under Section 5, shall, with the recommendations provided for in that section, be submitted to the competent authority who may pass such order thereupon as it may deem proper in accordance with the provisions of the aforesaid Act. The competent authority has power to make any order after receipt of inquiry which includes de-novo inquiry but the case of appellant is that the Secretary, AJ&K Council is not the competent authority. The Secretary, AJ&K Council was appointed as Authorised Officer and competent authority in respect of officers of BPS-16 to BPS-19 vide Notification No. L-1/3/2000-AJKC issued by the Council Secretariat on 28th July, 2001. The relevant portion of the notification dated 28th July, 2001 is as under:- "No. L-1/3/2000-AJKC.-- In exercise of the powers conferred by clause (b) of Section 2 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 (Act V of 2000), read with Section 4 thereof, Chairman Azad Jammu and Kashmir Council is pleased to authorize the officers specified in column (3) of the following tables to exercise the powers of the competent authority under Sections 3, 4 and 5 of the said Act in respect of classes of persons shown in column
(2) thereof:--- For persons employed in Azad Jammu and Kashmir Council Secretariat and subordinate offices under its control. {{TABLE}} Sr. No. Class of persons Officer authorized to exercise the powers of competent Authority
(1) (2) (3)
Holders of posts in BS 20 and above . Chairman, Azad Jammu and Kashmir Council Holders of posts in BS 16-19 Secretary, Azad Jammu and Kashmir Council Secretariat Holders of posts in BS 1-15 An officer not below the appointing authority to be notified by the Secretary Azad Jammu and Kashmir Council Secretariat.
Table II For persons employed in an attached Department of Azad Jammu and Kashmir Council Secretariat.
Sr. No. Class of persons Officer authorized to exercise the powers of competent Authority
(1) (2) (3)
1. Holders of posts in Chairman, Azad Jammu and Kashmir BS 20 and above ouncil Holders of posts in BS 17-19 Secretary, Azad Jammu and Kashmir Council Secretariat except the posts of Audit and Accounts, Department.
Holders of posts in BS 16 Head of Department.
Holder of Posts in BS 1-15 Another not below the appointing authority to be authorized by the Head of the Department. {{TABLE}} Through subsequent Notification No. F1-1/4/2000-AJKC issued by the AJ&K Council Secretariat on 18th January, 2011 the Controller General of Accounts, Azad Jammu & Kashmir, has been appointed as Competent authority in respect of officers in BPS-17 to BPS-19. The notification dated 18th January, 2011 is as under:- "No. F1-1/4/2000-AJKC.-- In partial modification of AJ&K Council Secretariat's Notification of even number dated the 26th April, 2001 and in exercise of powers conferred by clause (b) of Section 2 of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000 (Act V of 2000), the Chairman, Azad Jammu and Kashmir Council (i.e. Prime Minister of Pakistan) is pleased to authorize the Controller General of Accounts of Azad Jammu and Kashmir to exercise the powers of competent authority under Section 3 of the said Act, in respect of the officers in BS-17 BS- 19 of Accounts Department of AJ&K Council."
6. Under the Notification dated 18th January, 2011, the Chairman, AJ&K Council has delegated his powers to Controller General of Accounts, Azad Jammu and Kashmir, to exercise powers of competent authority under Section 3 of the aforesaid Act in respect of officers in BPS-17 to BPS-19 of the Accounts Department of AJ&K Council. The law is settled on the point that later law shall prevail in presence of earlier. The issuance of notification dated 18th January, 2011 itself is indicative of the intention of delegating authority that the later notification shall prevail. It is a law point which has to be first resolved by the High Court.
7. A perusal of Notification dated 18th January, 2011 shows that the Chairman AJ&K Council (Prime Minister of Pakistan) the competent Authority under clause (b) of Section 2 of the Azad Jammu & Kashmir Council Removal from Service (Special Powers) Act, 2000, delegated his powers to Controller General of Accounts, Azad Jammu & Kashmir, to exercise powers of competent Authority under Section 3 of the aforesaid Act in respect of officers in BPS-17 to BPS-19 of the Accounts Department of AJ&K Council. After issuance of notification under the provisions of the Azad Jammu and Kashmir Council Removal from Service (Special Powers) Act, 2000, whether the Controller General of Accounts, Azad Jammu and Kashmir, or the Secretary of the AJ&K Council is competent authority is to be determined. Only the competent authority has power to appoint an Inquiry Officer in respect of officers of BPS-17 to BPS-19. The order of appointment of inquiry officer issued by the Secretary, AJ&K Council prima facie appears to be violative of law. If the order of appointment of inquiry officer is violative of law, it can be validly challenged by way of writ petition in the High Court. This point merits detailed examination.
8. The other point that Raja GuI Muhammad should not have been appointed as inquiry officer as he is a Member of AJ&K Council Service Tribunal has also not been resolved by the High Court.
9. We respectfully agree with the rule of law laid down by this Court in the cases, referred to by the learned counsel for the respondents, that where the terms and conditions of service of a civil servant are involved, it is only the Service Tribunal which has jurisdiction to entertain the matter.
The writ petition in such, circumstances is not competent. The learned Single Judge in the High Court dismissed the writ petition in limine on the ground that the matter relates to terms and conditions of service of the appellant, therefore, the writ petition is not competent. We may observe that an appeal before the Service Tribunal is competent only when a final order has been passed against a civil servant, adversely affecting the terms and conditions of service. So far no final order has been passed by the competent authority against the appellant. Only an inquiry officer has been appointed. Prima facie it appears from the notification dated 18th January, 2011 that the Secretary, AJ&K Council, was not competent authority. The above-mentioned important legal questions were raised in the writ petition on the basis of which the writ petition merits admission for regular hearing.
10. In view of above the appeal is accepted. The impugned judgment of the High Court dated 9.1.2013 is set aside. The writ petition is admitted for regular hearing on the points reflected above.
The case is remanded to the High Court for decision on merits according to law.