' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal by leave of the Court is addressed against the judgment of the High Court dated 6.1.2012, whereby while partially accepting the writ petition filed by the respondent, the notification dated 6.1.2009 has been set-aside and he has been declared entitled to salary, privileges and all other benefits as Chairman Mirpur Development Authority (hereinafter to be referred as Chairman MDA), for the remaining period of his contract.
2. The summary of facts necessary for disposal of this appeal are that the respondent was appointed as Chairman, MDA, vide notification dated 24.11.2007. It is mentioned in the notification that the terms of appointment will be settled later on. The respondent assumed the charge of said post on 28.11.2007. Later on, vide notification dated 8.5.2008, the terms and conditions of his appointment were fixed by the Government and the period of contract was determined as three years which was further extendable. Subsequently, vide another notification dated 6.1.2009, respondent was removed from the office of Chairman MDA. Feeling aggrieved, he approached the High Court through writ petition on numerous grounds. The appellants filed written statements while defending the notification dated 6.1.2009. The High Court, after necessary proceedings partially accepted the writ petition while setting aside the notification dated 6.1.2009, in the manner indicated in para 1 hereinabove.
3. Sardar M.R. Khan, the learned Additional Advocate-General, argued the case at some length and submitted that the impugned judgment is against the settled principles of law and justice, hence, not maintainable. He argued that the respondent was appointed on contract basis. He has approached the Court for fulfillment of the contractual obligations whereas no writ lies on this ground. He forcefully stressed on the point that respondent's appointment was made under the provisions of section 6 of the. Mirpur Development Authority, Ordinance, 1974, (hereinafter to be referred as MDA Ordinance, 1974), which clearly speaks that he can hold the office during the pleasure of the Government and the authority can remove him at any time. Thus, he has failed to point out any violation of law or statutory provisions. The writ petition is only competent where there is violation of law. The learned High Court has fell in error of law and facts while handing down the impugned judgment. As the respondent-petitioner was removed from the office on 6.1.2009 and writ petition has been filed on 11.11.2009 after almost 11 months period, therefore, writ petition is hit by the doctrine of laches. He referred the cases reported as Azad Government and others v. Neelum Flour Mills, [1992 SCR 381], Aurangzeb Chaudhry v. Azad Government and 4 others, [2003 SCR 463] Azad Government of the State of Jammu and Kashmir through its Chief Secretary, New Secretariat, Muzaffarabad and another [2013 SCR 156], and an unreported case titled Brig (Rtd.) Muhammad Saeed Akhter and others v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others, (Civil Appeal No,142/2011, decided on 12.6.2011) in support of his contentions. The High Court has failed to properly appreciate the legal and factual propositions involved in this case, therefore, the impugned judgment is not maintainable.
4. Conversely, Mr. Khalid Rashid Chaudhry, Advocate, the learned counsel for respondent while refuting the arguments of learned counsel for the appellants submitted that the impugned judgment of the High Court is quite in line with the spirit of law which does not suffer from any illegality or infirmity. He submitted that the appointment in the office of Chairman MDA, is regulated by the MDA Ordinance. Under the provisions of subsection (3) of section 6 of the MDA Ordinance, the Chairman or member of the authority shall hold the office during the pleasure of the Government for the period mentioned in the contract subject to statutory provisions. He submitted that according to section 3 of the Interim Constitution Act, 1974 Islam is the State Religion of the Azad Jammu and Kashmir. Under the provisions of section 31 of the Interim Constitution Act, 1974, there can be no law repugnant to the Qurran and Sunnah. The injunctions of Islam, mentioned in Verse No,91 Surah Al Nahal, and Verse No,152 Surah Alanaam, provide the fulfillment of a contract which is a sacred religious, legal and moral duty of the parties. Therefore, matter of violation of the contract is brought before the Court, it should be looked into according to the injunctions of Islam.
In support of his contentions, he referred to the cases reported as Azad Government of the State of Jammu and Kashmir and another v. Kashmir Timber Corporation [PLD 1979 SC (AJ&K) 139], Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters and 2 others [PLD 1992 Kar. 283], Muhammad Sharif Khan v. Mirza Fazal Hussain and others [1993 SCR 88], Messrs Airport Support Services v. The Airport Manager, Quad-e-Azam international Airport, Karachi and others, [1998 SCMR 2268], Tahir Mahmood Khan and 13 others v. Azad Government and 3 others [2008 CLC 1662] and Muhammad Riaz Khan v. Inspector General of Police and 19 others [2010 SCR 131]. He further submitted that in the Azad Jammu and Kashmir, the contract appointments are made under the provisions of the statutory contract policy. The respondent filed the writ petition basically on the ground of violation of this policy and not merely for enforcement of the contractual obligations, hence, the writ petition is the only remedy available to the respondent.
5. We have heard the learned counsel for the parties and also perused the record. According to undisputed facts, respondent was appointed as Chairman MDA, under the provisions of MDA Ordinance, 1974, by the Government. According to the provisions of MDA Ordinance, as well as the pleadings of the parties the appointment was made on contract basis. Subsequent to the appointment order, the terms and conditions of respondent were determined by the Government vide notification dated 8.5.2008 in which one of the conditions was that the period of contract was specified as three years. The respondent was removed from the office before expiry of the period mentioned in the terms and condition's order. Thus, according to the facts of this case, there are only two major controversies among the parties requiring resolution. First is that whether respondent No,1 can be removed from the office before the period of contract mentioned in his terms and condition's order and; the second is that whether he is entitled to the emoluments of remaining period of his contract. Another point which has also been forcefully raised by the appellants before High Court as well as this Court is the application of the doctrine of laches. The learned single Judge of the High Court has accepted the writ petition mainly on the ground of the doctrine of Audi alteram partem. Whereas on the merits of the case, the only appointment notification and order of determination of terms and conditions has been appreciated without taking into consideration the basic controlling and governing statutory provisions of section 6 of the MDA, Ordinance. In our opinion, in the light of peculiar facts of this case and the stand taken by both the parties, for resolution of controversial legal and factual propositions, appreciation of section 6 of the MDA Ordinance, is of vital importance. Before proceeding further, it will be useful to reproduce here section 6 of the MDA Ordinance, which was operative at the relevant time, which reads as follows:- "6. Constitution of the Board.- (I) The Board shall consist of not more than four members, to be appointed by the Government.
(2) The Government shall appoint a Chairman and a Financial Advisor from amongst the members,
(3) The Chairman and other members shall hold office during the pleasure of the Government and unless sooner removed the Chairman and the Financial Advisor shall hold office for a period of five years and other members shall hold office for a period of four years.
(4) Any person, ceasing to be Chairman, Financial Advisor or-member of the Board, by reason of the expiry of the term of his office shall be eligible for re-appointment for another term or for such shorter term as the Government may decide.
(5) No act or proceedings of the Board shall be invalid merely on the ground of the existence of any vacancy in, or any defect in the constitution of the Board.
(6) The Chairman, Financial Advisor, or any' member may at any time, resign; Provided that his resignation shall not take effect until accepted by the Government." (underlining is ours)
6. Undoubtedly, respondent No,1 has accepted his appointment order which is made by appellant No,1 while deriving powers under these statutory provisions which clearly speaks that the appointed Chairman shall hold office during the pleasure of the Government. Before specifying the period of five years it is clearly mentioned "unless sooner removed". Thus, this very basic and governing clause speaks that ordinarily the period of the office of Chairman shall be five years unless he is sooner removed. A careful examination of the referred statutory provisions clearly convey the intention of legislature that the appointing authority is vested with the powers to remove the Chairman before the specified period. It is clear that respondent has accepted the appointment keeping in mind these very basic statutory provisions. According to celebrated principle of law, the notifications of terms and conditions will have to be interpreted while keeping in mind the domain and scope of the basic statutory provisions under which the appointing authority is vested with the powers of appointment. If an eventuality arises that any of the terms and conditions is violative to the basic statutory provisions, same shall be deemed ineffective and invalid to the extent of inconsistency with the statutory provision.
7. Leaving aside whether the writ lies for enforcement of contractual obligations or not, even otherwise according to merits of this case, in our opinion, respondent has not succeeded in making out any legal ground for granting the prayed relief under the extraordinary discretionary writ jurisdiction. Writ petition is only competent where there is any violation of law or any statutory provision or celebrated principle of law and justice. As it has been hereinabove discussed that respondent according to the statutory provisions can hold the office only during pleasure of the Government and the Government is also empowered to remove him at any time Respondent, while accepting the appointment order issued by the Government deriving authority under the provisions of section 6 of MDA Ordinance has in other words accepted the terms and condition that his appointment is on the pleasure of Government and he can be removed at- any time. The learned counsel for the appellants has rightly pointed out the absence of this vital aspect of the matter in the impugned judgment which makes it incomplete and invalid. According to our conclusion drawn after appreciation of statutory provisions and record, the appointment of respondent was at the pleasure of Government and the Government is empowered to remove him at any time. Thus, the. Government, while removing the respondent from the office has not violated any provision of law, hence, removal order is valid. Almost on identical factual and legal propositions the case titled Aurangzeb Chaudhry v. Azad Government and 4 others, [2003 SCR 463j, was brought before this Court wherein the incumbent was appointed as Public Prosecutor on the pleasure of the Government for three years period as fixed in the appointment order. However, he was subsequently, before expiry of the stipulated period, removed from the office. This Court observed that a person who accepted the office depending on pleasure of the appointing authority if removed before the expiry of stipulated period, cannot be termed as an aggrieved person. Hence, This writ petition is not competent. Para-6 of the judgment is relevant which reads as under:- "6. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. In order to have a proper perception we in the earlier part of this judgment have reproduced the appointment notification of the appellant. Perusal of the said notification shows that the appointment of the appellant was at the pleasure of the Government.
Even though he was appointed for a period of three years however this period could be reduced by the Government as is apparent from para 2 of the said notification. In para 3 it was laid down that the extension in period of three years shall not be assumed even if no fresh appointment is made.
According to this clause, the appointment of the appellant as Public Prosecutor would have come to an end automatically at the expiry of three years period. The appellant accepted the terms of this notification and joined his office as Public Prosecutor at Mirpur. He, therefore, in light of the language applied in the notification of his appointment, cannot be termed as an aggrieved person.
The reliance in this regard was rightly placed upon by the learned Judge of the High Court on an authority of this Court in a case titled Maj. Shujait Ali v. Mst. Suraya Begum [PLD 1978 SC (AJ&K) 118].
The appellant in the light of his appointment notification was a temporary employee whose services could be terminated at any time by the Government. The Government removed him from his service vide the notification under challenge. The impugned notification is in conformity with the terms of the earlier notification of his appointment. Therefore, in view of above reasoning, he cannot be restored to his office. The learned Judge in the High Court has committed no error while dismissing his writ petition."
' In another full Court judgment in an unreported case titled Brig. (Reid.) Muhammad Saeed Akhter and others v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and others, (Civil Appeal No, 142/2011 decided on 12.6.2011) while dealing with almost identical points, the conclusion is drawn as follows:- "5.... They only question is; whether the appellants are entitled for the emoluments of remaining period of their fixed tenure or not. This controversy has to be judged from two angles; firstly that whether without specific prayer in the writ petition this relief can be granted and; secondly whether in the presence of the provision of subsection (1) of section 4 of the Azad Jammu and Kashmir Public Service Commission Act, 1986, the prayed relief is admissible? The statutory provision clearly speaks that although; the appointments of Chairman and Members of the Public Service Commission shall be for a specific period but at the same time the legislature has empowered the Government to terminate the services for the reasons to be recorded, even before the expiry of this period. Thus, it can be safely held that it is not a legal position that the services of Chairman or Members of Public Service Commission cannot be terminated before the expiry of their fixed tenure."
' In the light of the principle of law enunciated in these cases which are fully applicable to the case in hand, there remains hardly any necessity to discuss the other case law.
8. Now the other point which mainly prevailed with the High Court for granting writ petition is the doctrine of Audi Alteram Partem. No doubt, the doctrine of Audi Alteram Partem, is the basic golden principle of administration of justice but while applying this principle, one should be mindful to take into consideration the legal and factual proposition of each case. If according to facts of the case, and clear statutory provisions, a party has opted and accepted the conditions of appointment resting upon the pleasure of the appointing authority and the appointing authority is vested with the powers to remove him at any time, in such case if removal order is passed, the question of Audi Alteram Partem does not arise. In the case in hand, the order of removal is quite in accordance with the conditions pre-settled among the parties. Even otherwise, the apex Court of Pakistan as well as this Court has also in many cases observed that when it is established from the record that the party will take a specific stand in defence which is already known and clear, in that case, principle of Audi Alteram Partem is not attracted. In this regard one may refer to the case reported as Secretary for Prime Minister and 3 others v Muhammad Aslam and 5 others, reported as 2000 PLC (C.S.) 155, para 8 of which speaks as under:- ' We agree with the learned counsel for the appellants that the learned Judge in the High Court did not lay down a correct law that the rule of 'audi alter= partem' has universal application. It has been held by this Court in Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others, [1998 SCR 281] that if a person is not qualified to hold a post it is not necessary to hear him before rescinding his appointment. The learned judge in the High Court has himself referred in the judgment under appeal the judgment of the Supreme Court of Pakistan reported as Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad v. The General Public [PLD 1988 SC 645], wherein it is known to the extent of certainty that if and when an opportunity is afforded, a person would take a certain position already known there is no point of affording opportunity of hearing. In the present case, if the respondents had been given an opportunity of hearing their answer could have been that posts were not advertised, as has been admitted by them in their written statement. These two cases show that hearing was not necessary before termination of service of the respondents."
' Therefore, on this point, findings recorded by the learned single Judge High Court are not sustainable.
9. The next and most heated argument on behalf of respondent is that according to Constitution, Islam is the State Religion and there can be no law repugnant to the injunctions of Qur'an and Sunnah. According to clear injunctions of Holly Qur'an, mentioned in Verse No,91 Surah Alnahl, and Verse No, 152 Surah, Anaam, fulfillment of contracts and indiscriminate administration of justice is a basic mandatory requirement. Leaving aside whether such argument is available to respondent at this stage or not, but in the light of peculiar facts and circumstances of this case this argument is not available to respondent according to his own conduct. As we have hereinabove discussed in detail that in the light of statutory provisions of section 6 of the MDA Ordinance, respondent, being highly qualified conscious of law, held a very important responsible position, accepted the appointment depending purely upon the pleasure of Government with the condition of removal by the Government at any time, himself being a party is bound by these statutory conditions. The injunctions of Qur'an referred to and relied upon by counsel for the respondents are not of unilateral application only for the authority or the Government but these broader principles are also applicable with same binding force to the respondent. Therefore, the argument is totally misconceived and the principles of Qur'an and Sunnah; referred to hereinabove, in the light of peculiar facts of this case neither have been violated nor attracted. The respondent has also failed to point out any departure from the principles of Qur'an and Sunnah, therefore, the argument stands repelled.
10. As we, after due appreciation of whole material and statutory provisions dealing with the subject matter, have drawn the conclusion that on the merits respondent's writ petition has no substance, therefore, it is needless to embark upon the other ancillary matters like laches, etc.
11. The case-law referred to and relied upon by the learned counsel for the respondent having distinguishable legal and factual propositions has no application in the case in hand, therefore, need not to be discussed in detail.
For the elaborated reasons discussed hereinabove, we are constrained to accept this appeal while recalling the impugned judgment of the High Court, consequently, writ petition filed by respondent stands dismissed with no order as to costs.