M. TABASSUM AFTAB ALVI, J. --- The supra title writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and Jaw are involved in the captioned writ petitions, therefore, I propose to decide the same through this single judgment.
3. 3.The precise facts of writ petition No, 1384/2016, are that petitioner is a 1st class state subject who was appointed by the Prime Minister Azad Government of the State of Jammu and Kashmir/Chairman AJKRSP, Chief Executive Officer AJKRSP, vide order dated 11. March, 2016. As per claim of petitioner, he submitted he joining report pertaining to the aforesaid post on 14th March, 2016. The appointment of petitioner was latter on confirmed, after detailed deliberation in high level meeting of the concerned Board of Directors, vide order dated 16th March, 2016. It is maintained that a Government notification regarding Secretariat of Planning & Development Department, as Secretarial of AJKRSP, was issued by Section Officer (Regulations), Services and General Administration Department, dated 17th March, 2016, with the approval of the President, Azad Jammu & Kashmir, as against law. It is further stated that a script was issued by Section Officer, Planning & Development Department, on 18th March, 2016, to different Banks' Managers, regarding freezing of Bank Accounts of AJKRSP, as former CEO relinquished the charge of office w.e.f 11th March, 2016, till assumption of the office by new CEO of AJKRSP. The Prime Minister/Chairman Board of Directors AJKRSP, however, cancelled the said script dated 18th March, 2016, with the direction to notify the same through order dated 22nd March, 2016. Again a letter was issued to all the Banks for freezing the Bank Accounts of AJKRSP, by Secretary. Finance on 15th April, 2016, which was abrogated by the Prime Minister/Chairman, AJKRSP through order dated 19th April, 2016. It is maintained that as per judgment of this Court titled "Muhammad Farooq Bannian and others v.
AJ&K Government and others decided on 29th November, 2013, Government has no nexus with the Board of AJKRSP, therefore, craved for setting aside the impugned notification dated 17th March, 2016, alongwith scripts dated 18th March, 2016 and 15th April, 2016, as against facts, law and without lawful authority.
4. The writ petition has been resisted by respondents through written statement, wherein, it is stated that as per Section 40 of the Certificate of Incorporation of Azad Jammu & Kashmir Rural Support Program, the second Chief Executive could be appointed by the elected Board of Directors, hence, the order of the Prime Minister dated 11th March, 2016 and resolution Of Board dated 16th March, 2016, through which petitioner was appointed as Chief Executive officer AJKRSP are without lawful authority. It is further stated that in the light of Section 199 of Companies Ordinance, 1984, new Board of Directors can be constituted vide Form 29, dated 18th March, 2016, after re-election in which there are 05 Directors and 11 Members, hence, a so-called meeting was convened by previous. Board of Directors on 16th March, 2016, therefore, order of the Prime Minister/Chairman dated 11th March, 2016, and its approval are violative of Sections 157, 158, 159 of Companies Ordinance, 1984. It is maintained that the aforesaid orders are also against Section 45 of incorporation certificate of RSP, through which Chairman. Vice Chairman and 3 other Directors, may at any time, summon a meeting while on circulating agenda with 14 days' notice, hence, meeting which was convened on 16th March, 2016, without serving notice or agenda was against law. It is claimed that on the same day i,e, 16th March, 2016, a summary was submitted to the Prime Minister/Chairman for review of his order, hence, the Prime Minister vide order dated 17th March, 2016, directed to convene a meeting on 18th March, 2016, while giving the control of Rural Support Program to the Secretariat of Planning & Development alongwith direction to seize the accounts, hence, in compliance of the said direction notification dated 17th March, 2016, was issued. It is agitated that meeting was not held on the fixed date i,e, 18th March, 2016, hence, the Additional Secretary, Planning and Development Department, sought more time from the Prime Minister vide letter dated 17th March, 2016, therefore, his Excellency directed to convene meeting on 28th March, 2016, which was later on also postponed on 29th March, 2016. It is averred that as accounts of Azad Jammu & Kashmir Rural Support Program were frozen by Finance Planning & Development Departments vide orders dated 18th March, 2016 and 15th April, 2016 respectively, which were restored by the Prime Minister vide order dated 20th April, 2016, hence, a summary was submitted for its review. It is further stated that Form 29 regarding appointment of CEO was cancelled by Joint Stock Companies Registrar having power under Section 468 of Companies Ordinance, 1984, vide his order dated 21st April, 2016, hence, petitioner who filed writ for protection of his appointment order dated 16th March, 2016, on 26th April, 2016, whereas, on 21st April, 2016, his Form 29 was cancelled, so petition has became infructuous, hence, craved for, dismissal of the same.
5. The petitioner by reiterating facts of writ petition No, 1384/2016, has also filed petition No, 1418/2016, for issuance of writ of prohibition against respondents jointly and severally from abrogating his appointment order dated 16th Match, 2016, which are not repealed here for the sake of brevity and convenience.
6. The contents of written statement are also similar as filed in writ petition No, 1384/2016, hence, the same are not reiterated for the sake of brevity.
7. Mr. Mushtaq Ahmed Janjau, the learned counsel for petitioner strenuously argued that petition appointed as Chief Executive AJKRSP, by the prime Minister/Chairman Board of Directors., AJKRSP on 11th March, 2016, which appointment was later on confirmed by Board of Directors through resolution dated 16th March, 2016. The learned counsel contended that the impugned notification dated 17th March, 2016, was issued by Government-respondent having no authority under law to issue the same. He further argued that the impugned scripts dated 18th March, 2016 and 15th April, 2016, were also issued against law by Finance, Planning & Development Departments, which are coram-non-judice, therefore, same are liable to be quashed. The learned counsel further submitted that as appointment of petitioner as Chief Executive Officer, was made after due process of law, hence, the same cannot be recalled by respondents. The learned counsel finally craved that by accepting writ petition No, 1384/2016, the impugned notification dated 17th March, 2016, and scripts dated 18th March, 2016 and 15th April, 2016, may be quashed as without lawful authority and by accepting writ petition No, 1418/2016, respondents jointly and severally be restrained through writ of prohibition from abrogating appointment order of petitioner duly approved by Board of Directors on 16th March, 2016.
8. M/s. Asghar Ali Malik and Noor Ullah Qureshi Advocates, appearing on behalf of respondents vehemently argued that as per Section 199 of Companies Ordinance, 1984, only Directors of Board were competent to appoint any person as Chief Executive Officer of AJKRSP, hence, order of appointment of petitioner dated 11th March, 2016, issued by the Prime Minister/Chairman of AJKRSP is coram-nonjudice, which cannot be protected through writ jurisdiction. The learned counsel pressed into service that as per Section 180 of Companies Ordinance, 1984, period of Directors is postulated three years and Directors Board, who signed resolution pertaining to appointment of petitioner as CEO on 16th March, 2016, were not Directors of Company whose period was ahead expired on 11th March, 2016, as they were appointed as such on 12th March, 2013, therefore, they were not competent to sign the aforesaid resolution. The learned counsel further submitted that on direction of Vice Chairman of AJKRSP, the impugned script dated 15th April, 2016, was issued by Secretary Finance as Director of Company while the second impugned script was issued by Planning and Development Department, not impleaded parties, therefore, writ petition is liable to be dismissed due non-joinder of necessary parties.
9. I have perused the contents of writ petitions examined the appended documents made available and save given my earnest thought to the points raised by the. learned counsel for parties.
10.A perusal of record reveals that petitioner was appointed as Chief Executive Officer/Secretary of AJKRSP, by the Prime Minister, Azad Government of the State of Jammu & Kashmir/Chairman, Board of Directors AJKRSP, Vide order dated 11th March, 2016. The appointment of petitioner, supra, was approved by Board of Directors of the Company through resolution dated 16th March, 2016. As per record Government respondent granted approval in terms that Secretariat of Planning and Development Department shall be the Secretariat of AJKRSP, to act as bridge between AJKRSP and the Prime Minister for proper supervision of business entrusted to the Company vide the impugned notification dated 17th March, 2016. Through the impugned script dated 18th March, 2016, Planning and Development apprised to the Manager National Bank Chatter Domail, Muzaffarabad, the Manager Habib Bank Chatter Domail, Muzaffarabad, the Manager Allied Bank Civil Secretariat Branch, Muzaffarabad, the Manager Bank of Azad Jammu & Kashmir Lower Plate Branch, Muzaffarabad, the Manager Microfinance Bank Limited, Bahawalpur and the Manage Summit Bank Limited, Muzaffarabad Branch Sangum Hotel, to freeze Bank Accounts of AJKRSP due to reason that former Chief Executive Officer AJKRSP, had relinquished charge of office. w,e,f, 11th March, 2016, while appointment of new incumbent was under process. However, the impugned script dated 15th April, 2016, was issued by Finance Department on direction of Vice Chairman AJKRSP Board of Directors, apprising to the aforesaid Banks to stop all transactions of Azad Jammu & Kashmir Rural Support Program till further order. The petitioner through Writ Petition No, 1384/2016, has challenged vires of the aforesaid impugned notification dated 17th March, 2016, and scripts dated 18th March, 2016, and 15th April, 2016, respectively, who failed to append certified copies of the same, hence, writ petition, supra, is hit by rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1981, which speaks as under:-- "32 (1) An application under Section 44 of the Constitution for a direction, order or writ in the nature of mandamus, prohibition. certiorari, quo-warranto etc., other than a writ in the nature of habeas corpus shall be filed before the Deputy Registrar. (2) The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought, and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures if any in addition to separate copy for each one of the respondents.
The annexure accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed.
(Underlining is mine)
The petitioner failed to point out any reason whatsoever that why he did not append certified copies of the impugned notification and scripts. Even in his respect, no any application for dispensation has been moved, therefore, writ petition filed by petitioner, according to my humble view, merits dismissal on that short score. As per law photostat copies are not admissible. The aforesaid point came under consideration before the apex Court in case titled "Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others" [2003 SCR 260], wherein, at page 263 it was opined as under:--- Under the High Court Procedure Rules 1984, the appellants were bound to furnish, the attested copies of the record upon which the reliance was placed by them with their writ petition, whereas photostat copies were provided by them in the High Court, therefore, their writ petition was not maintainable. However, this aspect of the case remained unattended. Before this Court the appellants again appended with the petitioner for leave to appeal the photostat copies which have been attested by one Amir Hussain Shah, Headmaster Government High School Devi Gali.
These copies have not been obtained in accordance with law nor any explanation has been furnished that where original documents have been left after preparing the photostat copies; because photostat copies, as we all know, are prepared through mechanical process, therefore, without the original record, the same cannot be relied in evidence particularly when these have not been obtained from the person who is supposed to be in possession of the original record....."
A similar view was reiterated in case titled "Sajida Maqsood v. Deputy Commissioner/Collector District Muzaffarabad & others" [PLJ 2013 AJ&K 148], wherein, at page 162 of the report, it was held as under:-- As the Photostat copies are not admissible under law, therefore, no relief can be granted to petitioner on the basis of so-called orders of the Prime Minister."
11.A perusal of record reveals that impugned script dated 18th March, 2016, was issued by Planning 8, Development Department, Azad Government of the State of Jammu & Kashmir, whereas, other impugned script dated 15th April, 2016, was issued by Finance Department on direction of Vice Chairman, AJKRSP, Board of Directors. However, neither Planning & Development Department nor Vice-Chairman, AJKRSP. have been impleaded parties in the line of respondents, hence, the aforesaid writ petition merits, dismissal due to non-joinder of necessary parties. The same point came under consideration before the apex Court in case titled Mirza Lal Hussain v. Custodian of Evacuee Property and others [1992 SCR 214], wherein, at page 223 of the report, it was opined as follows:-- "14. This point was not raised before the High Court and has not been raised in concise statement filed in this Court, but once it has been brought to our notice the question is whether we should pass an order behind the back of a Government functionary without hearing him. I am quite clear in my mind the answer to this question has to be in the negative. If a necessary party is absent there can be no adjudication. The situation in the afore-mentioned case was also the same and in fact this point was noticed by the Court itself. Therefore, the writ petition filed by Mirza Lal Hussain can be dismissed on that score alone."
The aforesaid view was reiterated by the Hon'ble Supreme Court in case titled "Kh. Ghulam Qadir & 5 others v. Divisional Forest Officer Demarcation and 3 others [1996 SCR 161]. At pages 164 and 165 of the report, it was held as under:--- "6.We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. Member Board of Revenue was however, arrayed as one of the respondents in the writ petition. In our view the writ petition filed before the High Court by the appellants was not competent on account of non-joinder of necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir [PLO 1985 SC (AJ&K) 102] and an un-reported case of this Court titled Syed Muhammad Akram Shah v. Chairman Allotment Committee (Civil Appeal No, 7 of 1995, decided on 24-07-1995). In the latter referred case it was observed that the Allotment Committee had the powers to make allotments under the relevant law, the same was a legal person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It was observed that as the Committee was not impleaded as a party the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side, it was also observed that such an objection can be gone into by the Court suo mote without any objection from the opposite party."
As petitioner failed to implead necessary parties, hence, there can be no adjudication on merits in absence of the aforesaid necessary parties.
12. The petitioner has also solicited writ of prohibition against respondents jointly and severally from abrogating his appointment order as Chief Executive Officer, approved by Board of Directors through resolution dated 16th March, 2016. As per record ten members of Board of /rectors of AJKRSP, were nominated in the meeting held on 12th March, 2013, hence, their period of three years was expired on 11th March, 2016. As per Article 180 of companies Ordinance, 1984, term of office of Directors is postulated as three years, which speaks as under:-- "180. Term of office of directors.--- (1) A director elected under Section 178 holding office for a period of three years unless he earlier resigns, becomes disqualified from being a director or otherwise ceases to hold office.
(2)
13.As term of office of Directors was already completed, hence, the resolution regarding approval of appointment of petitioner as CEO passed by the Board of Directors on 16th March, 2016, is against the aforesaid codel provisions.
14.According to sub-section (1) of Section 199 of Companies Ordinance, 1984, Chief Executive could be appointed by Directors of a Company which is reproduced as follows:--- "199. Appointment of subsequent chief executive.- -- (1) Within fourteen days from the date of election of directors under Section 178 or the office of the chief executive falling vacant, as the case may be the directors of a company shall appoint any person, including an elected director, to he the chief executive, but such appointment shall not be for a period exceeding three years from the date of appointment.
(2)
(3)
A leading of provision of law, supra, makes it crystal clear that Chief Executive could be appointed by the Directors of a Company. The learned counsel for petitioner failed to cite any law that the Prime Minister/Chairman AJKRSP could appoint petitioner against the post in question, hence, his basic appointment order dated 11th March, 2016, is contrary to Section 199(1) ibid. It is settled principle of law that an unlawful order neither can be enforced not protected through writ jurisdiction. The aforesaid proposition came under consideration before the Hon'ble Supreme Court in case titled "Major Muhammad Aftab Ahmed (Rtd.) v. Azad Jammu & Kashmir Government"(1993 SCR 307) and at page 312 of the report it was observed as under:-- "(iii) Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still ii cannot be given effect to or enforced by way of issuing writ directing the respondents to issue the order of his appointment to the said post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even though it is competent authority to pass such an order in a lawful manner. Since, as said earlier, the appointment of the appellant could not be made to the post of Superintendent of Police under the rules the orders of the Prime Minister claimed by the appellant to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do no justify and call for to do so."
An identical view was expressed by the apex Court in case titled "Zareena Kausar v. Divisional Director Schools & 3 others [2014 SCR 878], wherein, at page 882, it was held as under:-- "The arguments of the learned counsel for the appellant that order was implemented with letter and spirits in pursuance of the impugned. order, appellant assumed the charge while submitting her joining report, therefore, there was no justification to cancel the same after a short span of time, is ill-founded as an illegal order cannot be protected on the ground that the same has been implemented."
The same view was expressed by the Lahore High Court, Lahore in case titled "Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others" [2012 PLC (C.S.) 772], wherein, at page 784 of the report, it was opined as follows:-- "15. Next comes the objection of learned counsel representing the private respondents/newly' appointed Class-IV employees that their appointment are protected by the principle of locus poenitentiae and that omissions made by the departmental authorities cannot be made basis to upset their appointments. I am afraid the principle of locus poenitentiae cannot be pressed into service to protect the ill-gotten gains. If some benefit has been obtained in sheer disregard to settled procedure and it also has been done by tarnishing the rights of other eligible persons, then such a benefit cannot be maintained perpetually and as discussed above, in the case in hand, neither a valid Recruitment Committee was ever constituted nor the recommendations can be said to have been validly made by the competent authority, as such, the entire recruitment process being defective, the above argument of learned counsel is not sustainable under any law."
As appointment of petitioner is against codel provisions of Sections 180 and 199 of Companies Ordinance, 1984, therefore, respondents through writ of prohibition cannot be restrained under law from abrogating his unlawful appointment order. 15.The upshot of above discussion is that finding no substance in the instant writ petitions, therefore, the same are hereby dismissed. However, before parting it is liable to be observed that Board of Directors should establish independent Secretariat of AJKRSP Company to maintain its autonomy. A copy of the instant judgment shall be appended with the other connected file. No order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.