1. KHAWAJA MUHAMMAD SHARIF, C. J.---Mr. M. A. Hafeez was serving as Advocate-General in the Azad Government of the State of Jammu & Kashmir. The Additional Chief Secretary in pursuance of Government Order No. Admin/379-429/CS/72 dated 11-1-1972 issued Order No. S&GAD/588- 92/CS/72 dated 15-1-1972 to the Law Secretary saying that he had been directed to convey the sanction to the retirement of the following Government servants of the Judicial Department and the Legislative Assembly with effect from 15-1-1972 :-
(1) Mr. M. A. Hafeez, Advocate-General.
(2) Sayed Ghulam Hussain Shah, Public Prosecutor.
(3) Malik Abdul Ghani, Secretary, Legislative Assembly.
2. The Law Secretary vide his No. 123-25/SL/72, dated 15-1-1972 forwarded a copy of the above order of the Additional Chief Secretary to Mr. M. A. Hafeez, Advocate-General. Mr. M. A. Hafeez challenged the correctness of the order of his retirement on the ground that in his case the President was the competent authority to appoint and remove him from service and that the order of his retirement was not issued by the competent authority. He attacked the order of his 'retirement' on the grounds that :-
(1) he is not an officer of the Judicial Department
(2) he is not a whole-time Government servant and therefore cannot be 'retired' since his post is not pensionable ;
(3) he having been appointed for a term of 3 years, his services cannot be terminated before the expiry of the contractual period and that the order not having been issued by the competent authority was ultra vires, incompetent, mala fide and ineffective against him.
3. The learned Additional Advocate-General filed his written statement on 16-2-1972 wherein it was admitted that the President was the competent authority but it was denied that the order of retirement of the petitioner dated 15-1-1972 was in any way ultra vires, mala fide or passed by incompetent authority. It was also contended in the written statement that under the Government Act, 1971 the Advocate-General can only serve at the pleasure of Mr. President.
4. The petitioner in his writ petition alleged that the sanction mentioned in the impugned order which is of course dated 15-1-1972 was no sanction in the eye of law. This averment was made in para. 20 of the writ petition. In para. 20 of the written statement, it is put down in reply to para. 20 of the writ petition that it is wrong to say that 'sanction' mentioned in the impugned order was no sanction in the eye of law because under section 10 of the Government Act all orders of the Government shall be expressed to be made by the President. The written statement though verified was not supported by an affidavit. In para. 19 of the written statement it was not specifically mentioned whether the sanction of Mr. President had been obtained for the removal of Mr. M. A. Hafeez peti-- tioner, we therefore made an order on 16-2-1972 in the presence and within the hearing of Kh. Amir- ud-Din calling upon him to place before the Court the personal file of Mr. M. A. Hafeez as well as any other file that contained the approval of the President for removal of the petitioner. We also directed him to obtain necessary instructions so as to enable him to make a statement before the Court as to whether the petitioner had been removed from service with the approval of the President.
5. Yesterday the learned Additional Advocate-General appeared and stated verbally that he was not given the files and had been directed to ask the Court to write a letter for the production of the above-mentioned files. When called upon to make a statement whether the approval of the President had been obtained for the removal of the petitioner, he replied that he could not contact Mr. President who was away.
6. Arguments were addressed by the petitioner and the learned Additional Advocate-General. The petitioner argued that he was not a Government servant in the sense in which Government servants should be taken who were made to retire from service. He referred to the Civil Service Pension Rules of the Azad Government of the State of Jammu & Kashmir in which it is written on page 2 under Note 1.5 that these rules shall not apply to :-- "(vi) any person whose whole-time is not retained for public service but is merely paid for work done such as Public Prosecutors and Advocate-General not debarred from private practice."
7. He also referred to K. S. R., Vol. 1, Chapter IV; Note 2 to Article 46 which recites :- "Public Prosecutors, Advocates-General, and Praja Sabha under Secretaries are not whole-time servants and are subject to separate rules sanctioned by the Government vide Appendix XIX)."
8. The petitioner showed that those separate Rules were given in K. S. R., Vol. II, Appendix XIX, Part II entitled "Rules relating to conditions of service of the Advocate-General." The learned Additional Advocate-General accepted the position that the petitioner is not a whole-time servant and does not hold a pensionable post. He, however, contended that the Rules governing the petitioner were given in Part. I, Appendix XIX which provided that:-- "The engagement of Government Advocate or a Public Prosecutor may, without assigning any cause, be terminated upon the expiry of three months' notice in writing given under the authority of the Government of their intention so to do."
9. He further argued that even this provision in Part I of Appen--dix XIX did not apply to the petitioner because the same had been superseded by section 35 of the Government Act which provides that :- "The provisions of this Act shall override and have effect notwithstanding, the provision of any law for the time being in force or which might come into force at any time subsequent to the promulgation of this Act."
10. He also referred to section 32, subsection (6) which provides that :- "This Ministers and the Advocate-General shall hold office during the pleasure of the President and may resign office by writing under his hand addressed to the President."
11. The petitioner and the learned Additional Advocate-General both referred to section 10 of the Government Act, 1970 which provides that :- "The superintendence, direction and control of the Government shall be vested in the President, acting with the aid and advice of his Council of Ministers."
12. Subsection (2) provides that :- "All orders of the Government shall be expressed to be made by the President."
13. The petitioner also referred to the Rules of Business, Schedule III, Part A, clause (5) and argued that the President had promulgated these Rules of Business under the powers possessed by him under the Constitution and that it was compulsory to follow the procedure laid down in these Rules of Business. Schedule III, Part A lays down the list of cases which require to be submitted to the President for his approval before issue of orders. Clause (5) is reproduced below :- "5. Advocate-General: Appointment, removal, duties and terms and conditions of service".
14. The impugned order may have wrongly designated the Advo--cate-General and the Public Prosecutor as Judicial Officers though in fact they should have been designated as Law Officers but that would make no difference to the petitioner's case. It is correct that the Advocate-General does not hold a pensionable post and strictly speaking he may not be `retired' from service but 'retire--ment' is a politer term than 'removal' which is used in clause (5), Schedule III, Part A of the Rules of Business. The pivotal question in deciding this writ petition is whether the petitioner had been removed by the competent authority who is undis--putedly the President? The petitioner averred in his writ petition that he was not removed by the competent authority. His averment was supported by an affidavit. On behalf of the non-petitioners it was averred in the written statement that it was wrong to say that the petitioner had not been removed by the competent authority. This averment was not supported by an affidavit It was because of this that we called upon the learned Additional Advocate-General to produce the personal file of Mr. M. A. Hafeez or any other file which contained the order of his removal and also called upon him to obtain necessary instructions so as to enable him to make a statement before the Court that the approval of the President had been obtained for the removal of the petitioner. The learned Additional Advocate-General neither produced the files nor did he make a statement. For the non-production of the files his excuse was that no letter had been received from the Court requiring the production of the files. The Government Is a party before us just as the petitioner is a party to the writ petition. The files are in the possession of the non--petitioners. When we called upon the Additional Advocate General to produce the files, we called upon the non-petitioners, parties to the writ petition, to produce the files. It was not proper on the part of the non-petitioners to withhold the files. They have failed to produce the files and we proceed to draw the inference that there is no file containing the approval of the President for the removal of the petitioner. As regards failure of the Additional Advocate- General to make a statement before the Court whether the approval of the President had been obtained for the removal of the petitioner, tape excuse is equally inexcusable. He need not have contacted the President personally for making such a statement. The Secretaries to the Government can tell the Additional Advocate--General whether the approval of the President had been obtained or not. With regard to the files, if the non-petitioners had any objection to their production to the Court, the proper course was to give the files to the Additional Advocate--- General and instruct him to claim any privilege with regard to their non-production, if they had any.
15. The Additional Advocate-General's failure in making a statement as to whether the approval of the President had been obtained for the removal of the petitioner, confirms the inference that approval of the President had not been obtained for the removal of the petitioner. Their averment in the written statement that the sanction of the proper authority had been obtained is not supported by an affidavit. The writ petitions are decided on averments and counter-averments supported by affidavits and rarely parties are put to proof.
16. The Additional Advocate-General relied on the Government Order No. Admin. 379/429/CS/70 dated 11-1-1972 which recites that all Government servants whose age exceeds 55 years shall be relieved with effect from 15th January 1972, and argued that this order covered the case of the petitioner also and it should be presumed that the sanction of the President had been obtained because it was a policy matter. We do not agree with the learned Additional Advocate-General when he says that this general order would cover the case of the Advocate-General also. There is a specific provision dealing with the Advocate-General in the Constitution Act, 1970 which provides that Ministers and Advocate-General hold office during the pleasure of the President. Even the Order No. Admin. 379-429/CS/72 dated 11-1-1972 has not been expressed to be made by the President as was required by Sub-Rule (2) of Rule 10 of the Government Act, 1967, Schedule III, Part A also treats the Advocate-General as a class different from the other Government servants wherein clause (5) requires that if It is desired to remove the Advocate-General from his appointment, his case should be submitted to the President for his approval before the order is issued. The President may have approved the general order requiring all Government servants who bad exceeded the age of 55 years but it cannot be implied that the President had also approved the removal of the Advocate- General. The Rules given in Part II of Appendix XIX, K. S. R., Vol. II do not lay down any age limit for the Advocate-General. Any gentleman of whatever age, may be appointed as the Advocate-General.
17. The petitioner when he was appointed as Advocate-General had already passed the age of 55 years, it is clear from contents of para. 20 of the written statement of the non-petitioners. It is put down there that the petitioner who is already 60 years is fully covered by this order.
18. The Advocate-General as provided in the Government Act, 1970 holds office during the pleasure of the President. The pleasure of the President is governed by the rules and regulations, if any. The rules regulating the conditions and service of the Advocate-General are given in Part 11 of Appendix XIX, K. S. R., Vol. II while the Rules governing the conditions of service of Government Advocates and Public Prosecutors are given in Part I of this Appendix which do not apply to the Advocate-General.
19. Rule II, Clause (b) given in Part I of Appendix XIX provides that :- "The engagement of Government Advocate or a Public Prosecutor may, without assigning any cause, be terminated upon the expiry of three months' notice in writing given under the authority of the Government of their intention so to do."
20. But there is no corresponding rules in the Rules regulating the conditions of service of the Advocate-General. Even the Government admitted that the Advocate-General 4s governed by the rules given in Part II of this appendix when the Law Secretary In his letter No. 24/Steno/71 dated October 20, 1971 addressed to the Advocate-General wrote "Under K. S. R. You are only entitled to 15 days' privilege leave and 15 days' Medical Leave". This provision of 15 days' privilege leave and 15 days' leave on medical certificate has been made in the Rule contained in Part II of Appendix XIX which are the Rules regulating the conditions of service of the Advocate-General. The rule of leave governing the Government Advocate given in Part I is different and provides one month's leave in favour of the Government Advocate. The pleasure of the President mentioned in section 32, subsection (6) would not be unfettered pleasure but would be governed by the rules and regulations, if any. In the present case before us the rules are silent as to how the Advocate- General should be removed. The rules governing the Government Advocate provided that his service can be terminated, without assigning any case, on the expiry of 3 months' notice. There is no corresponding provision in the rules regulating the conditions of the service of the Advocate- General, therefore, it is held that the pleasure of the President in removing the Advocate-General is unfettered.
21. We have already held above that the approval of the Pre--sident was not obtained for the removal of the petitioner, therefore, it shall be said that it was not the pleasure of the President to remove the Advocate-General, the petitioner. The impugned order of the 'retirement' of the petitioner being contrary to law is, therefore, held to be ineffective against his rights.