MUHAMMAD HABIB ZIA, J. The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following prayer is made by petitioner:- "It is, therefore, most respectfully submitted that:- Except Rule 3(1) of the Rules namely "The Azad Jammu and Kashmir Custodian Evacuee Property (Appointment, Terms and Conditions of Service)
Rules, 2021 (Annexure "PH/3"), the aforesaid rules may kindly be declared without lawful authority, violative to the rule of law laid down by this Hon'ble Court dated 18.02.2021 and the Hon'ble Supreme Court dated 21.12.2021 and ii. The "Azad Jammu and Kashmir Custodian Evacuee Property (Terms and Conditions of Service) Rules, 1992" (Annexure "PH/1") may kindly be declared revived. iii. The Notification No. BoR/Admin/13250-80/2022 dated 03.08.2022 may kindly be modified and it may kindly be modified and it may kindly be declared that the humbly petitioner is entitled to pay, privileges and allowances with effect from the date of joining i.e. 8th of March 2022 along with the retirement benefits equal to Judge of the High Court of Azad Jammu and Kashmir. iv. The respondent may kindly be restrained from removing the petitioner from service treating him to be the holder of the post on the discretion of the Government."
2. The summary of case is that petitioner is an Advocate of Azad Jammu and Kashmir Supreme Court. It is stated that petitioner was elevated as Judge High Court of Azad Jammu and Kashmir vide Govt. Notification dated 21.05.2018 and performed his functions as a Judge till 17.07.2020. It is alleged that the Government after obtaining consultations of the Hon'ble Chief Justice of Azad Jammu and Kashmir and the Hon'ble Chief Justice High Court of Azad Jammu and Kashmir appointed petitioner as Custodian of Evacuee Property vide Govt. Notification dated 07.03.2022, wherein, it was mentioned in the appointment notification that term and conditions of service of petitioner shall be determined by the Government separately.
In compliance of the aforesaid Govt. notification, the petitioner assumed charge of the office as Custodian of Evacuee Property on 08.03.2022. After waiting some time, the petitioner submitted two representation on 11.03.2022 and 21.03.2022, pointing out therein that in compliance of the judgments of the High Court and Hon'ble Supreme Court, term and conditions of service of Custodian of Evacuee Property Azad Jammu and Kashmir may be determined. As a result, the Government vide Notification dated 03.08.2022, determined term and conditions of service of petitioner to the effect that petitioner shall be entitled to draw pay, allowance and privileges equivalent to an officer of scale B-20 of Government of Azad Jammu and Kashmir and that the term of the office of petitioner shall be on the discretion of Government. The claim of petitioner is that since the appointment was made to the post of Custodian of Evacuee Property after obtaining consultation with Hon'ble Chief Justice of Azad Jammu and Kashmir and Chief Justice High Court of Azad Jammu and Kashmir, the petitioner is holding the post of Custodian of Evacuee Property which is a judicial office. The Govt. while determining term and conditions of service of petitioner vide Notification dated 03.08.2022, has violated the judgment of this Hon'ble Court dated 18.02.2021 and the judgment of Hon'ble Supreme Court dated 21.12.2021. It is alleged that without providing an opportunity of hearing, representation of petitioner has been rejected when the Govt. determined term and conditions of service of petitioner. It is claimed that Govt. has adversely affected the term and conditions of service of petitioner, hence, the instant writ petition.
3. The writ petition has been resisted by respondent No.2, through written statement, whereby the contents of writ petition have been controverted and submitted for dismissal of writ petition.
4. The learned counsel for parties argued the case according to their respective pleadings.
5. After hearing the learned counsel for parties, we have perused the contents of writ petition and examined the appended documents with utmost care.
6. A contemplate perusal of file reveals that petitioner was appointed as Custodian of Evacuee. Property vide Government notification dated 07.03.2022 after obtaining consultations of the Hon'ble Chief Justice of Azad Jammu and Kashmir and Hon'ble Chief Justice of High Court of Azad Jammu and Kashmir. It was specifically mentioned in the appointment notification that term and conditions of service of petitioner shall be determined by the Government separately., The appointment notification of petitioner is reproduced as under:- "AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR BOARD OF REVENUE ________________________________________________________________________________________________ "Muzaffarabad, the 7th of March, 2022 NOTIFICATION: No. BoR/Admin/3199-3253/2022. In exercise of the powers conferred by subsection (1) of section 6 of the Pakistan (Administration 'of Evacuee Property) Act, 1957 (Act XII of 1957), as in force in Azad Jammu and Kashmir, read with sub-rule (1) of rule 3 of the Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021, President of Azad Jammu and Kashmir in consultation with Chief Justice, Azad Jammu and Kashmir and chief Justice, High Court of Azad Jammu and Kashmir, has been pleased to appoint "Ch. Khalid Yousaf, Advocate, as Custodian of Evacuee Property" for whole of Azad Jammu and Kashmir. i) Terms and conditions of service, as Custodian of Evacuee Property shall be determined by the Government separately. ii) This Notification shall take immediate effect.
SECRETARY Board of Revenue"
In compliance of the aforesaid Govt. notification, the petitioner assumed charge of the office as Custodian of Evacuee Property on 08th March 2022.
The petitioner submitted two separate representations on 11.03.2022 and 21.03.2022, for determination of term and conditions of his service in compliance of judgment of this Court and the Hon'ble Supreme Court. As a result of which the Govt. vide Notification dated 03.08.2022, determined terms and conditions of service of petitioner to the effect that petitioner shall be entitled to draw pay, allowance and privileges equivalent to an officer of scale B-20 of Govt. of Azad Jammu and Kashmir and while the term of the office of petitioner shall be on the discretion of the Government.
The aforesaid notification is also reproduced as under:- "AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR BOARD OF REVENUE ________________________________________________________________________________________________ "Muzaffarabad Dated: 03.08.2022 NOTIFICATION: No. BoRAdmin/13250-80/2022 in continuation of Notification No. BoR/admin/3199-3253/2022 dated 07.03.2022, the President of Azad Jammu and Kashmir in exercise of powers conferred under section 2 subsection (3) of The Azad Jammu and Kashmir Custodian of Evacuee Property (The Azad Jammu and Kashmir Civil Servants (Appointment, Terms and Conditions of Service) Rules, 2021, is pleased to accord approval for determination of following terms and conditions in favour of Ch. Khalid Yousaf, the Custodian of Evacuee Property Azad Jammu and Kashmir: i) The incumbent will be entitled to draw pay, allowances and privileges equivalent to the officers of BS-20 of GoAJ&K ii) Term of his office will be on the discretion of the Government.
2. This shall take effect immediately.
Assistant Secretary (I)
Board of Revenue"
The claim of petitioner is that since the appointment was made to the post of Custodian of Evacuee Property after obtaining consultation with Hon'ble Chief Justice of Azad Jammu and Kashmir and Chief Justice High Court of Azad Jammu and Kashmir, the petitioner is holding the post of Custodian of Evacuee Property which is a judicial office. The Govt. while determining the term and conditions of service of petitioner vide notification dated 03.08.2022, has violated the judgment of this Court dated 18.02.2021 and the judgment of Hon'ble Supreme Court dated 21.12.2021. However, the post of Custodian of Evacuee Property was created in Azad Jammu and Kashmir as per The Azad Jammu and Kashmir Administration of Evacuee Property, 1957, whereby, an additional charge of this post remained with the Hon'ble Judges of this Court till March 1986. Thereafter, Raja Muhammad Azad Khan was appointed firstly as Custodian of Evacuee Property from the strength of Advocates through Govt. notification dated 22.03.1986. The said notification is reproduced as under:- Thereafter, Muhammad Saddique Farooqi, Advocate, (late) was appointed vide Govt. notification dated 03.09.1990, as Custodian of Evacuee Property with the term and conditions of Judge High Court. The appointment notification is reproduced as under:- Then Kh. Shahad Ahmed was appointed as Custodian of Evacuee Property vide Government notification dated 02.10.1990. The notification is reproduced as under:- Thereafter, Raja Abdul Majeed Khan (late) was appointed as Custodian of Evacuee Property vide Govt. notification dated 12.11.1991. Appointment notification is reproduced as under:- After that Kh. Nazeer Ahmed Qadri Advocate, (late) was appointed to the office of Custodian with the term and conditions of a Judge High Court, who was retired on 04.09.2016. Then, vide Govt. notification dated 16.09.2016, an additional charge of the post of Custodian was assigned to Mr. Justice Azhar Saleem Babar, Hon'ble Judge of this Court, which is reproduced as under:- "AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT * ________________________________________________________________________________________________ "Muzaffarabad"
Dated: 16-09-2016 NOTIFICATION No.S&GAD/A-22(15)P-II/2016 (Gazetted-I). The President, Azad Jammu and Kashmir has been pleased to accord approval for assigning additional charge of the post of Custodian of Evacuee Property to Mr. Justice Azhar Saleem Babar, Hon'ble Judge of the High Court Azad Jammu and Kashmir till further order.
Khalique Ahmed Khan) Section Officer"
The Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 1992 (herein after to be referred as Rules, 1992) were promulgated on 18th June 1992. As per rule 3 of the aforesaid Rules, the appointing authority and method of appointment has been declared, which is reproduced as under:- "Appointing Authority and Method of appointment: (1) The Government may appoint any person who is qualified to be the Judge of High Court on the post of Custodian.
Provided any person who was not Judge of the High Court and was qualified to be the Judge of High Court held of Custodian at any time before the publication of these rules shall be deemed to be on contract for such period."
Thereafter, The Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2017 (herein after to be referred as Rules, 2017) were promulgated, whereby, status of Custodian of Evacuee Property was downgraded. The aforesaid rules were challenged before this Court through Writ Petition No.999/2017 titled Muhammad Khalid Naqshbandi and 3 others v. Azad Jammu and Kashmir Government through Chief Secretary Muzaffarabad and 4 others, which was accepted through judgment dated 18.02.2021. The conclusion of the aforesaid judgment is reproduced as under:- "In view of what has been discussed above, the writ petition is accepted and impugned Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2017, are hereby set-aside to the extent of Rule 4 which provides the method of appointment and removal of Custodian. The Govt. is directed to introduce a fresh amendment in the rules keeping in view the status and the job of Custodian for which eligibility criteria should not be less than a person eligible to be appointed as judge of High Court "
The matter was subjudice before the Hon'ble Supreme Court, meanwhile, Rules, 2021 were promulgated on 30.11.2021. As per Rule 3, of the Rules, 2021, the method of appointment was declared, which is reproduced as under- "Method of appointment of Custodian. (1) The Custodian, shall be appointed by the Government in consultation with the Chief Justice, Azad Jammu and Kashmir and the Chief Justice of High Court of Azad Jammu and Kashmir who shall be.
(i) A State Subject of Class I; and
(ii) Eligible for appointment as Judge of High Court of Azad Jammu and Kashmir 3(2) The same has been amended vide Govt. Notification dated 10.01.2022, by the Govt. on the direction of the Apex Court as the Govt may remove a Custodian appointed under sub-rule (1) of this Rule on the ground of inefficiency, misconduct or corruption after conducting an inquiry through a Judge of the High Court if any eventuality arises.
3(3) terms and conditions of shall be determined by the Govt.
Thereafter, the appointment of petitioner was made vide Government notification dated 07.03.2022, which is reproduced as under:- "AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR BOARD OF REVENUE ______________________________________________________________________________________________________ "Muzaffarabad, the 7th of March, 2022 NOTIFICATION: No. BoR/Admin/3199-3253/2022. In exercise of the powers conferred by subsection (1) of section 6 of the Pakistan (Administration of Evacuee Property) Act, 1957 (Act XII of 1957), as in force in Azad Jammu and Kashmir, read with sub-rule (1) of rule 3 of the Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021, President of Azad Jammu and Kashmir in consultation with Chief Justice, Azad Jammu and Kashmir and Chief Justice, High Court of Azad Jammu and Kashmir, has been pleased to appoint "Ch. Khalid Yousaf, Advocate, as Custodian of Evacuee Property" for whole of Azad Jammu and Kashmir. i) Terms and conditions of service, as Custodian of Evacuee Property shall be determined by the Government separately. ii) This Notification shall take immediate effect SECRETARY.
Board of Revenue"
7. After having whole survey of this case, in the light of previous history, we have reached to the conclusion that as all the aforesaid appointments against the post of Custodian of Evacuee Property were made by the Government in which pay and other emoluments were fixed equal to the Judge High Court. In this respect Rules, 1992 were also framed which were later on repealed in 2017 and same were struck down by this Court and the matter was subjudice before the Hon'ble Supreme Court. Meanwhile, Rules, 2021 were framed and according.to Rule 3(3) of Rules, 2021, the power for term and conditions of salary, allowances etc for appointment of Custodian shall be determined by the Government at the time of appointment but the Govt. has determined the pay and allowances of the petitioner vide the impugned Notification dated 03.08.2022, equal to an officer of scale B-20; which are in violation of the judgment of this Court dated 18.02.2021.
8. In the light of what has been stated above, by accepting writ petition, the Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service), Rules, 2021 promulgated through Govt. notification dated 30.11.2021, to the extent of sub-rule (3) of Rule 3 are hereby struck down along with the impugned notification dated 03.08.2022. The Government-respondent is directed to insert the term and conditions of Custodian of Evacuee Property for pay and other emoluments in the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 2021 as provided in the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 1992 and thereafter notification for term and conditions of service, salary and other emoluments of petitioner shall be issued with effect from the date of joining i.e. 8th March, 2022.
Muzaffarabad 19-1-2023(I)
Sd/- Muhammad Habib Zia
9. Sardar Muhammad Ejaz Khan, J.---As the reasons assigned by my learned brother Mr. Justice Sardar Muhammad Habib Zia, J. one of the members of the bench are quite in right direction, however, I will write my own reasons through additional. paragraphs. The main thrust of petitioner is that he has been appointed as Custodian of Evacuee Property in consultation with the Hon'ble Chief Justice of Azad Jammu and Kashmir and the Hon'ble Chief Justice of the High Court vide Notification dated 07.03.2022 wherein terms and conditions were held to be determined by the Government separately and in this regard two separate representations before competent authority were filed, which were answered in negative without providing an opportunity of hearing through the impugned notification dated 03.08.2022, which is contrary to law, equity and natural justice rather the petitioner was held entitled to draw perks and privileges as admissible to an officer of BPS-20 of Azad Jammu and Kashmir instead of a Judge of the High Court, hence, while declaring The Azad Jammu and Kashmir Custodian Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021 contrary to law except Rule 3(1), The Azad Jammu and Kashmir Custodian Evacuee Property (Terms and Conditions of Service)
Rules, 1992 may be revived/restored.
10. It is evident from the record that the Azad Jammu and Kashmir adapted the Pakistan (Administration of Evacuee Property) Act, 1957 through the Azad Jammu and Kashmir Adaptation of Laws Act, 1959 known as The Azad Jammu and Kashmir Administration of Evacuee Property, 1957 whereby the Government is empowered to appoint Custodian of Evacuee Property and in this regard rules were framed called as the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992 and thereafter, the Govt. promulgated The Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2017, which were challenged by filing Writ Petition No.999 of 2017 on 09.06.2017 while the same was accepted by setting-aside Rules, 2017 vide judgment dated 18.02.2021. The same was appealed before the Hon'ble Supreme Court on 19.04.2021. During lis rules were framed called as The Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021, which were amended to the extent of sub rule (2) of Rule 3 of the Rules, supra, vide notification dated 10.01.2022 on directive of the Honble Supreme Court. As the impugned rules of 2021, Ibid, sought to be annulled by the petitioner except rule 3(i) of the aforesaid rules cannot be declared as illegal particularly when Notification dated 10.01.2022 was issued on the direction of the Hon'ble Supreme Court whereby an amendment in sub- rule (2) of Rule 3 of The Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021 has been made by substituting sub-rule (2) of Rule 3, hence, judgment of the Hon'ble Supreme Court is binding on executive as well as judicial functionaries of the State by virtue of Article 42(B) of the Azad Jammu and Kashmir Interim Constitution, 1974. Reliance can be place on cases reported as Syeda Maria Gillani v. Nomination Board of Azad Jammu and Kashmir through Secretary, Muzaffarabad and 7 others [2008 CLC (HC AJ&K) 1061] and Abdul Latif Khan and 7 others v. Naziran Begum and 5 others [2015 YLR (SC AJ&K) 427].
11. It is apparent on the face of record that the petitioner has been appointed as Custodian of Evacuee Property after due process of law rather the establishment of the office of Custodian of Evacuee Property is creation of Constitution as defined in Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974 for which terms and conditions of office of the Custodian of Evacuee Property should have been settled before the appointment of the petitioner whereas earlier predecessors-in-interest of the petitioner appear to have drawn perks and privileges as admissible to a Judge of High Court while an additional charge of the post in question has also been held by the then Hon'ble Judges of this Court, hence, the Govt. determined terms and conditions of service at petitioner vide notification dated 03.08.2022 contrary to scheme of law whereby valuable rights relating to service of the petitioner have been jeopardized wherein two main conditions have been incorporated:-
(i) The incumbent will be entitled to, draw pay, allowances and privileges equivalent to the officers of BPS-20 of Govt. AJ&K.
(II) Term of his office will be on the discretion of the Government"
12. Apart from discussing the points already mentioned above, it is relevant to narrate here that terms and conditions of the post in question appear to have not been defined in existing Rules of 2021 as the same have specifically been provided in Rules of 1992, hence, such terms and conditions should always open for a candidate to accept or not against the particular post while this vital aspect of the matter has been ignored, which the Government-respondents would know better that what was their intention.
13. It is obvious from the record that while framing/promulgating rules, it was incumbent upon the authority to determine terms and conditions of office of the Custodian in Rules promulgated in 2021 but terms and conditions of service of the petitioner were left on sweet will and discretion of the Government and the petitioner was held entitled to draw perks and privileges as admissible to an officer BPS-20 of Azad Jammu and Kashmir, which is contrary to law, equity and natural justice, hence, the discretion vested with authorities should be exercised with reasonableness and nobody can be left unbridled to tinker with the future of the citizens and such authorizes cannot be allowed to play havoc with the fate of the masses especially with those who have exceptional academic record and have the ability to serve the nation in a better way. This Court has to ensure the constitutional guarantees of the citizens of the State as enshrined by the Azad Jammu and Kashmir Interim Constitution, 1974 and has least concern about the consequences in a case deserving person is given his right. By this view finds support from a case reported as Fazal Abbas v. Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad and 2 others [2011 PLC (C.S.) 778] wherein it has been opined as under:- "It has been held time and again that discretionary powers can be exercised by the competent authority but with due care and within four corners of the relevant rules and laws. In no case fundamental rights can be violated on the basis of discretionary powers. The rules no doubt can be relaxed by the Government, but not in an arbitrary manner which cause inconvenience to the people who enjoy the protection of law. It is also clear that the procedures are to be followed strictly in accordance with law and the gross irregularities always subject to correction by the Courts under Article 199 of the Constitution, because in any case the courts are the guardians for the protection of the rights of the common man and under obligation to provide justice and equity to the aggrieved persons. If such illegalities are ignored on the basis of technicalities and relaxation or discretion the purpose of Article 199 would be frustrated."
Similar proposition has been resolved in a case reported as Abid Hassan and others v. P.I.A.C. and others (2005 SCMR 251) wherein it has been held that:- "The seven instruments that are most useful in the structuring of discretionary power are open plan, open policy statement, open findings open reasons open precedents and fair informal procedure. (Emphasis provided). Somehow, in our context the wide-worded conferment of discretionary powers or reservation of discretion without framing rules to regulate its exercise, has been taken to be an enchantment of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents the Courts have to intervene more often than is necessary apart from the exercise of such power appearing arbitrary and capricious at times.
16. The judicial consensus seems to be that the functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet-will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly."
Underlinings are mine from line 4 to 24 from top to bottom.
14. In view of above, by accepting the writ petition, the Azad Jammu and Kashmir Custodian of Evacuee Property (Appointment, Terms and Conditions of Service) Rules, 2021 promulgated through Notification dated 30.11.2021 are hereby set-aside to the extent of sub-rule (3) of Rule 3 of Rules, Ibid, along with notification dated 03.08.2022, hence, the Government-respondents are directed to incorporate terms and conditions of service of Custodian Evacuee Property in the existing Rules, 2021 as defined in rules 4 to 9 and 11 of the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992 with certain modifications and amendments, which deem necessary in the present scenario not contrary to scheme and wisdom of the judgment of the Hon'ble Supreme Court and after doing the needful a formal notification to that effect shall be issued while the petitioner is entitled to receive the perks and privileges as defined in the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992 from the date of assuming charge of his assignment as Custodian of Evacuee Property, Azad Jammu and Kashmir. The respondents are further directed to do the needful within a period of two months from the date of receipt of this judgment positively and in this regard a compliance report shall be submitted to Registrar of this Court.