Ch. Muhammad Ibrahim Zia, C.J.-- The titled appeals by leave of the Court have been filed against the consolidated judgment of the High Court dated 01.07.2016, whereby separate writ petitions filed by the appellants, herein, have been dismissed.
2. The case of appellant, Zulfiqar Azam, is that he was appointed as Director General Mangla Dam Housing Authority on contract basis vide notification dated 30.05.2014. His terms and conditions were to be determined later on. The same were determined vide notification dated 30.10.2014 and his service tenure was further extended for one year. According to condition (a) of said notification his appointment was made on contract basis and regulated by the Azad Jammu and Kashmir Contract Appointment Policy, 2006, whereas, according to condition (b) the period of contract was extendable for a further period of one year. Vide notification dated 17.05.2016 his service tenure was further extended for one year. He filed writ petition No.104/2016 before the High Court for protection of order dated 17.05.2016. The learned High Court vide order dated 17.10.2016 issued the prayed interim relief and directed the respondents not to relieve him of job before expiry of contract period. However, the respondents vide notification dated 10.06.2016 terminated all the Chairmen/Director General(s) including the appellant. Feeling aggrieved, he filed writ petition No. 220/2016 while challenging the notification dated 10.06.2016.
3. The case of the appellant, Ch. Javed Iqbal, is that he was appointed as Director General Mirpur Development Authority on contract basis vide notification dated 13.11.2015. His terms and conditions were settled vide notification dated 04.03.2016 and his appointment was made for the period of three years. As per condition VI of the notification, the appointment was terminatable on one month prior notice or one month's salary without assigning any reason. He challenged the said condition by filing writ petition No.170/2016 before the High Court. During the pendency of writ petition, the respondents vide notification dated 10.06.2016 terminated all incumbent Chairmen/Director General(s) including the appellant. He challenged the said notification by filing writ petition No.2009/2016 before the High Court.
4. After necessary proceedings, the learned High Court through the impugned consolidated judgment dated 01.07.2016 dismissed all the writ petitions, hence these appeals by leave of the Court. As identical legal and factual propositions are involved in both the captioned appeals, therefore it is felt advised to dispose of these appeals through a consolidated judgment.
5. Sheikh Masood Iqbal, Advocate, counsel for the appellant, Zulfiqar Azam, submitted that the appellant was appointed as Director General Mangla Dam Housing Authority, Mirpur vide notification dated 30.5.2014. His terms and conditions of service were determined later on through notification dated 30.10.2014. Subsequently, vide notification dated 17.5.2016 his period of contract was further extended for one year with effect from 29.05.2016. He performed his duties efficiently but subsequently due to apprehension, he approached the High Court for protection of his appointment order by filing a writ petition and the High Court vide order dated 25.05.2016, prohibited the respondents from relieving the appellant of the office before expiry of contract period but the respondents in violation of the High Court's interim injunction illegally removed the appellant form the office. The order of removal from office was issued under the instructions of the Chief Election Commissioner who has got no such powers. The notification was issued in violation of the constitutionally guaranteed fundamental rights. The learned Chief Election Commissioner has got no powers under the provisions of sections 4, 92-A and 92-AA of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970. The learned counsel mostly stressed on the argument that the order has been issued on the illegal instructions of the Chief Election Commissioner, hence the same has no legal validity. The learned counsel repeatedly referred to sections 92-A and 92-AA of the Azad Jammu & Kashmir Legislative Assembly (Elections)
Ordinance, 1970 and submitted that these statutory provisions do not authorize the Chief Election Commissioner to issue such instructions. Thus, the order of removal from office is without lawful authority but regrettably this important legal proposition has not been considered by the learned High Court. He further argued that the order of removal from office has been passed in violation of the Rules of Business, 1985. These are important propositions involved in the writ petition but the High Court failed to appreciate the same. Thus, the impugned judgment is not maintainable, therefore, while accepting the appeal, the prayed relief in the writ petition may kindly be granted.
6. Mr. Masood A. Sheikh, Advocate counsel for the appellant, Ch. Javed Iqbal while agreeing with the arguments advanced by Sh. Masood Iqbal, Advocate, counsel for the appellant Zulfiqar Azam, further added that his client, Ch. Javed Iqbal was appointed as Director General Mirpur Development Authority, Mirpur on contact basis vide notification dated 13.11.2015, whereas the terms and conditions of his service were determined latter on through notification dated 04.03.2016 and as per one of the conditions, the tenure was fixed as three years. The Chief Election Commissioner of Azad Jammu & Kashmir announced the schedule of the General Elections of the Azad Jammu & Kashmir Legislative Assembly and in pursuance of the directions of the Chief Elections Commissioner, the appellant was illegally removed from the office vide notification dated 10.6.2016.
The order of removal from office is unconstitutional, against law and the Chief Election Commissioner on whose directions the order has been passed, has got no legal authority to direct for removal of the Director General Mirpur Development Authority, Mirpur from the office. According to law, the Government is the appointing authority and only the Government is competent to remove or terminate the services of the appellant. The notification has been issued on misconception of law in pursuance of the directions of the Chief Election Commissioner. He argued that under the statutory provisions of sections 4, 92-A and 92-AA of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, no power for removal from the office of the Director General Mirpur Development Authority, Mirpur is conferred upon the Chief Election Commissioner. Thus, the notification is totally illegal. The order has also been issued in violation of the Rules of Business, 1985. The learned High Court has failed to properly appreciate the legal propositions involved in the writ petitions. Furthermore, the order was issued without approval of the authority i.e. the Chief Executive/Prime Minister. Thus, the removal from the office is totally illegally and without lawful authority but regrettably the learned High Court has not properly considered the proposition of law on the subject which resulted into miscarriage of justice. Hence, while accepting the appeal, setting aside the impugned judgment of the High Court the relief as prayed for by the appellant may kindly be granted.
7. Conversely, Mr. Raza Ali Khan, Advocate-General and Raja Inamullah, Advocate, counsel for the respondents seriously defended the impugned judgment while opposing both the appeals on the ground that the appellants have got no locus standi and legal cause of action to file the writ petitions as the whole case and the relief prayed for is based upon their appointment orders.
Amazingly, the appellants have claimed the relief on the basis of the appointment orders to the extent of one condition while negating the other conditions mentioned in the same orders. No doubt, both the appellants were appointed on contract basis and admittedly their terms and conditions of service were determined by the competent authority. In the notification the terms and conditions of service of both the appellants to some extent are identical. Their appointments were made on contact basis for a period as claimed in the writ petitions but this period was mentioned as one of the conditions, whereas in the same notification another important condition i.e. the termination of appointment during the period of contract has also expressly been mentioned. The appellant, Zulfiqar Azam himself relied upon the notification dated 30.10.2014 which contained an express condition of termination of service on 30 days prior notice or payment of one month's pay. Same like, the same condition in the notification dated 4.3.2016 in the case of appellant, Ch. Javed Iqbal, is expressly mentioned. The appellants accepted these terms and conditions as a whole and none have objected to the condition of termination of service, therefore, leaving aside all other aspects, they are estopped by their conduct and have got no locus dtandi to question the validity of the orders of removal from service. They further argued that the main argument relating to the issuance of the orders on the directions of the Chief Election Commissioner appears to be misconceived as admittedly both the appellants affiliated to the political parties and their participation in the process of election was not required. Thus, according to the agreed code of conduct by all the political parties, the Chief Election Commissioner for conducting free, fair and transparent elections issued instructions for removal of the persons affiliated to any of the political parties and appointed in the public offices. Under the provisions of section 4, of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, all the authorities including the Government, are bound to render the assistance to the Chief Election Commissioner in discharge of his function. Under the provisions of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, the Chief Election Commissioner is vested with vast powers, thus, no illegality has been committed by the Chief Election Commissioner while issuing the directions. However, all these points are mere of an academic nature as according to the appellants own averments and relied documents, they have got no legal cause of action and locus standi to file the writ petitions, hence the same merited dismissal.
8. We have heard the learned counsel for the parties and perused the record made available.
Although from both sides some important propositions have been raised in the arguments, however, the nucleus proposition is; whether, the appellants according to their own stated facts have got any legal cause of action to file the writ petitions and claim the prayed relief. The appellant, Zulfiqar Azam, in his writ petition has categorically relied upon the notification dated 30.10.2014, through which the terms and conditions of his service were determined. The said notification is available on the file of the High Court as annexure "c" which reads as follow:- "AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR SERVICES & GENERAL ADMINISTRATION DEPARTMENT Muzaffarabad Dated 30.10.2014.
NOTIFICATION: No.S&GAD/w-10(14)2009: In continuation of Notification No.S&GAD/MG-2(1)2011(Gazetted-I): the President, Azad Jammu & Kashmir has been pleased to accord approval of following terms and conditions regarding contract appointment in favour of Mr. Zulfiqar Azam Director General (BS-20), Mangla Dam Housing Authority, Mirpur.
(a) the appointment will be on contract basis & be regulated by AJ&K Contract Appointment Policy 2006.
(b) The period of contract shall be for two years, extendable for another one year.
(c) The service rendered under this contact shall not qualify for pension & gratuity.
(d) No contribution towards GP fund shall be required.
(e) The appointment during period of contract shall be liable to termination on 30 days prior notices on either side or payment of one month pay in lieu thereof without assigning any reason.
(f) In case of disciplinary action the contract shall be terminated without prior notice.
(g) Entitlement of leaves shall be admissible as per AJ&K Contract Policy, Rules.
(Kashif Niaz)
Section Officer (Gazetted-II)"
"Underlining is ours"
No doubt, according to condition "b' two years' period of contract is mentioned which is extendable for further one year but the same notification also contains condition "e" which clearly speaks that the appointment during the contract shall be liable to termination on 30 days prior notices on either side or payment of one month pay in lieu thereof without assigning any reason. This condition of the notification has not been objected to by the appellant rather while accepting this condition the appellant, Zulfiqar Azam, assumed the charge of the office. Thus, it is clear that he accepted the condition that his service can be terminated without assigning any reason, either on 30 days prior notice or payment of one month's salary.
9. Same like, the appellant, Ch. Javed Iqbal has also in his writ petition clearly admitted that his terms and conditions of service were determined vide notification dated 4.3.2016, which is attached as annexure "P/2" with the writ petition. While accepting the terms and conditions, he assumed the charge of the office. Although, subsequently he filed writ petition to challenge the condition of termination but before the termination of the validity of the condition, he was removed from the office. In this state of affairs, the argument of the counsel for the respondents in the light of the record and the facts has substance that both the appellants while accepting the terms and conditions determined by the authority assumed the charge of the offices which include the condition of termination of service without assigning any reason on 30 days prior notice or payment of one month's salary. Thus, the appellants by their conduct are estopped to challenge their termination orders. This Court in a number of cases has enunciated the principle of law that a person who while accepting the conditions of the notification assumed the charge of the office subsequently, cannot turn around and claimed relief in negation of such conditions. In this context the full Court judgment of this Court, reported as Azad Government & others vs. Dr. Muhammad Amin 2014 SCR 258], can be referred wherein on identical factual and legal proposition this Court observed in para 7 of the report as under:- "7. Leaving aside whether the writ lies for enforcement of contractual obligation 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 conditions 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 on 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 Chaudhary vs. Azad Govt. and 4 others, [2003 SCR 463], 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, his 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 the 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. (Rtd.) Muhammad Saeed Akhter & others vs. Azad Jammu & Kashmir Govt. through Chief Secretary, Muzaffarabad and others, (Civil Appeal No.142/2011 decided on 12.06.2011) while dealing with almost identical points the conclusion is as follows:- "5. The 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 & 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."
Thus, the principle of law laid down in the referred judgment is fully applicable and in this context, the impugned judgment of the High Court does not suffer from any illegality or infirmity. The learned High Court has rightly granted the relief of one month salary to the appellants which according to the terms of the contract, they are entitled.
8. Although, on the sole ground of estoppel, the appeals are liable to be disposed of but as both the counsel for the appellants regarding the powers of the Chief Election Commissioner have seriously argued that the Chief Election Commissioner is not empowered to issue direction and in pursuance of the directions of the Chief Election Commissioner, no person can be removed from the office.
They repeatedly referred to section 4, 92-A and 92-AA of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 and submitted that under the provisions of section 92-A no such powers is conferred upon the Chief Election Commissioner. For proper appreciation of the proposition the relevant statutory provisions of sections 4, 92-A and 92-AA are reproduced as under:- "4. (1) All authorities of the Government shall render such assistance to the Commissioner in the discharge of his functions as may be required of them by the Commissioner.
(2) Notwithstanding anything contained in any other law or order for the time being in force, the Commissioner may, for reasons to be recorded in-writing, suspend any such person in the service of Government, corporation controlled by the Government or local Authority if he refuses to perform such functions or render such assistance and shall refer the matter to the appropriate authority for taking disciplinary action against such person."
"92-A Any thing required to be done for carrying out the purposes of this Ordinance, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commissioner may direct."
"92-AA Code of Conduct.- (1) Without prejudice to sub-section (2), all political parties and candidates shall strictly adhere to the following code of conduct._
(i) The parties and candidates shall abide by all the laws, rules, regulations and directions issued by the Commissioner, from time to time, relating to smooth conduct of elections and the maintenance of public order;
(ii) Incitements to violence or show of arms, resort to violence during meetings, procession or during polling hours shall be strictly avoided by contesting candidates and their supporters:
(iii) Contesting candidates shall dissuade their workers or sympathizers from destroying any ballot paper or any official mark on the ballot paper or any other material used for election process;
(iv) Wall chalking as part of an election campaign shall be prohibited in all forms;
(v) No person or a political party shall affix posters, hoardings or banners, if any, larger than the size determined by the Commissioner.
(vi) Contesting candidates and their supporters shall refrain from speeches calculated to arouse parochial and sectarian feelings and controversy of conflicts between genders, sects, communities and linguistic groups;
(vii) The political parties and contesting candidates and their supporters shall refrain from deliberate dissimilation of false and malicious information and shall not in indulge in forgeries or dis-information to defame other political parties/leaders. The use of abusive language against the leaders and the candidates shall be avoided at all cost;
(viii) The political parties and candidates shall firmly refrain their workers from exerting undue pressure against the print and electronic media, including newspaper offices and printing press and resorting to violence of any kind against the media; and
(ix) The political parties shall endeavor to take necessary steps to ensure discipline within the party, its candidates, employees and supporters and guide them to follow this code, comply with laws and regulation, commit no election irregularities.
(2) In addition to code of conduct mentioned in sub-section (1), the Commissioner may issue before an elections as additional code of conduct as may be deemed necessary for him to for free, fair and transparent election and to ensure law and order situation in consultation with representatives of all the political parties.
(3) The code of conduct issued under sub-section (1) and (2), shall be binding on all concerned.
(4) The returning officer and District Magistrate shall be responsible for implementation of Code of Conduct issued under this Section.
(5) Whoever contravenes the provision of the Code of Conduct issued under this Section shall be liable to punishment with imprisonment which may extend to one year or with fine which may extend or Rs. one lac or with both."
The juxtapose appreciation of the statutory provisions clearly conveys that all the authorities of the Government are bound to render the assistance to the Chief Election Commissioner in discharge of his functions. Under sub-section (1) of section 92-AA of the Ordinance, the code of conduct is provided for the political parties and the candidates and sub section (2) of section 92-AA confers vast powers upon the Chief Election Commissioner for issuance of additional code of conduct as may be deemed necessary for holding free, fair and transparent elections. The Chief Election Commissioner in pursuance of the statutory provisions issued the instructions on 6th June, 2016.
The instructions have been placed by Zulfiqar Azam, appellant, on the file of the High Court as annexure "K" which reads as under:- {{URDU TEXT}}
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in his opinion be necessary for ensuring that the election is conducted honestly, justly and fairly, and in accordance with the provisions of this Ordinance. {{URDU TEXT}} A careful examination of the instructions clearly reveals that neither the Chief Election Commissioner has directed for removal from the office, nor he has issued any order. Thus, the argument of both the counsel for the appellants that the Chief Election Commissioner has got no power to remove the appellants, thus, the order has been issued without lawful authority, has no substance, as the Chief Election Commissioner has only issued the instructions for conducting free fair and transparent elections. Under the statutory provisions the authorities of the Government are bound to render the assistance to the Chief Election Commissioner for achieving the purpose of conducting free fair and transparent elections and in this regard not only the appellants but all the persons who were appointed in the public offices of the Development Authorities on the basis of political affiliation have been relieved of the public offices of the Azad Jammu & Kashmir, according to the spirit of section 4 of the Azad Jammu & Kashmir Legislative Assembly (Elections)
Ordinance, 1970. Thus the argument appears to be misconceived and against facts, which stands repelled.
9. So for the other argument of the counsel for the appellants that the notification of removal from the office has been issued without lawful authority and approval of the Prime Minister is concerned, no doubt, according to the constitutional provisions the Prime Minister is the Authority of the Azad Jammu & Kashmir to exercise all the powers of the Chief Executive. As in the case of the appellant, Javed Iqbal, the Prime Minister has also been arrayed as respondent and in both the appeals the impugned notification is one and the same. On behalf of the respondent, Prime Minister, the written statement has been filed in the High Court in which it is clearly mentioned that the notification has validly been issued. In the written statement filed on behalf of the Prime Minister it has not been mentioned that the notification has been issued without his approval or without lawful authority.
The concise statement filed in this Court on behalf of the Prime Minister also does not speak that any objection has been raised by the Prime Minister regarding the impugned notification that it has been issued without lawful authority and incompetently. Thus, when the authority i.e. Prime Minister/Chief Executive itself accepted and admitted the notification as valid and legally issued, the argument advanced on behalf of the appellants that the notification has been issued without approval or consent of the Prime Minister, has no substance. In the para-wise comments filed in the High Court which have been treated as written statement on behalf of the respondents including the Prime Minister, the preliminary objections read as follows.
"PRELIMINARY OBJECTIONS:- I. The schedule for General Elections of the Azad Jammu & Kashmir Legislative Assembly has been announced by the Chief Election Commissioner. The Chief Election Commissioner has issued specific directions under section 92(c) of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970 for removal of all Chairman/Heads of Development Authorities, who were political appointees, in order to avoid any kind of influence on the ongoing Election campaign and to ensure free, fair and transparent elections as envisaged by law. Section 92(c) is reproduced as under:- "92 (c) issue such instructions and exercise such powers, and make such consequential orders, as may in his opinion be necessary for ensuring that the election is conducted honestly, justly and fairly, and in accordance with the provisions of this Ordinance."
II. The directions of the Chief Election Commissioner in terms of Section 92(c) as envisaged by Section 4 read with Section 92-A ibid were notified forthwith (Annex-"A"). Section 4 and 92-A ibid being relevant are reproduced as under: "4. (1) All authorities of the Government shall render such assistance to the Commissioner in the discharge of his functions as may be required of them by the Commissioner.
(2) Notwithstanding anything contained in any other law or order for the time being in force, the Commissioner may, for reasons to be recorded in-writing, suspend any such person in the service of Government, corporation controlled by the Government or local Authority if he refuses to perform such functions or render such assistance and shall refer the matter to the appropriate authority for taking disciplinary action against such person."
"92-A Any thing required to be done for carrying out the purposes of this Ordinance, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commissioner may direct."
III. Since the impugned action has been taken in good faith and in pursuance of the directions of the Chief Election Commissioner, therefore, the action done is protected under Section 94 ibid which is reproduced as under:- "94. No suit prosecution or other legal proceedings shall lie against the Commissioner or any officer or other person in respect of anything which is in good faith done or intended to be done under or in pursuance of this Ordinance or of any rule or order made or any direction given there under."
IV. No status quo received by the respondents from the honorable Court. So, the writ petition is baseless, unlawful, against the facts and record, hence, liable to be dismissed on an early hearing."
10. Thus, the Courts have to decide the cases according to the pleadings of the parties and the argument on behalf of the appellant in this context has no substance, hence stands repelled.
In view of the above stated reasons finding no force both the appeals are dismissed with no order as to costs.