' This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act of 1974, against the order of the Azad Jammu and Kashmir Government passed on November 25, 1990.
2. The facts as disclosed in the writ petition briefly stated are that petitioner was posted as Chief Engineer, P.W.D. Muzaffarabad when on July 26, 1990, he as relieved of his office and directed to act as Officer on Special Duty. Later on, vide order impugned in the writ petition as Annexure the petitioner was suspended and disciplinary proceedings under the Azad Jammu and Kashmir Civil Servans (Efficiency and Discipline) Rules, 1977 (hereinafter to be referred to as the Rules), were directed to be initiated against him. The Law Secretary of the Azad Government was appointed as "Authorised Officer" in the case of the petitioner. This order of the respondent (Government) has been called in question through the instant writ petition.
3. I have heard the preliminary arguments of the learned counsel for the petitioner. It has been contended by the learned counsel for the petitioner that the impugned order has been passed in bad faith and against the settled provisions of the Rules. The petitioner was posted as Officer on Special Duty which was less in status of the petitioner. Subsequently without attributing any allegation of subversion, corruption or misconduct as contemplated under Rule 6 of the Rules, he was placed under suspension and proceedings under the Rules cited above, were ordered to be taken against him. It was further argued on behalf of the petitioner that the Prime Minister of Azad Jammu and Kashmir Government was the competent authority who, after application of his independent mind, was the sole judge to decide as to whether disciplinary proceedings should have been initiated against the petitioner or not, whereas in the case of the petitioner, the decision has been made by the Cabinet which has been communicated to the petitioner in the name of the Prime Minister. It was further contended that in the case of all civil servants of Grade-20, the Chief Secretary was designated to act as "Authorised Officer" under Rule 2, clause (c) of the Rules. He submitted that all the aforesaid steps have been taken with a mala fide intention, as such the impugned order was liable to be set aside. The petitioner has also moved an application for interim relief, seeking suspension of operation of the impugned order. In this behalf, the learned counsel relied on 1985 PLC (C.S.) 349 (355), PLD 1987 AJ&K 52 and PLD 1978 AJ&K (SC) 37(C).
4. In present writ petition, no doubt as is evident from Annexure 'A' the petitioner who was posted as Chief Engineer P.W.D. Muzaffarabad, was divested of the charge of his post and was appointed as Officer on Special Duty, vide order passed on July 26, 1990.
5. In all the law-abiding countries, law is the only source of power. No doubt, in civilized states, there is no inherent power in the Executive except what has been vested in it by the law. In the year 1976, "the Azad Jammu and Kashmir Civil Servants Act of 1976" was enacted in Azad Jammu and Kashmir. Under this Act, the outlines of the powers and duties of civil servants have been given.
Under section 9 of the aforesaid Act, it has been provided that:-- "Every civil servant shall be liable to serve anywhere within or outside Azad Jammu and Kashmir in any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, a local authorty or a Corporation or a body set up or established by any such Government: ' Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
In the light of the above-stated provisions, the protection which has been provided to a civil servant is to the effect that if he is posted outside his service or cadre, the terms and conditions of his service as to his pay in new post, cannot be less favourable than those to which he was entitled in his parent post. But it is quite clear that the Government is within its competence to transfer any civil servant from one to another post and to entrust him any assignment. Any order of transfer passed by the Government, therefore, cannot be termed as order passed not in good faith.
Presumption of regularity and good faith is always attached to all official acts and the onus is entirely upon the person alleging mala fides to prove the same in order to rebut this presumption of law.
6. The order which has been challenged through the present petition has been passed by the Prime Minister. Prima facie, it cannot be said that the Prime Minister of the Azad Jammu and Kashmir Government who is the competent authority in the case under consideration, issued the order without satisfying his conscience. The order is reproduced below for convenience of reference:- {{URDU TEXT}} ' From the language used in the aforesaid order, it cannot be said with certainty that the Prime Minister has allowed this order to be issued against the petitioner without the application of his own mind. Therefore, the argument of the learned counsel for petitioner is without any substance which is hereby repelled.
7. Under Rule 2(c) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules the term "Authorised Office' has been defined in the following words:- " 'Authorised Officer' means an officer authorised or designated by the Government to perform the functions of an Authorised Officer under these Rules: ' Provided that where in the case of a civil servant no Authorised Officer has been so authorised or designated, the authority shall have power to appoint an officer to act as Authorised Officer in that case: ' Provided further that in relation to a civil servant, the authority may be authorised to act as Authorised Officer;"
No doubt, from the Notification issued under the said Rules on August 31, 1981, for civil servants of Grade-20, the Chief Secretary has been designated as "Authorised Officer". But the Government in some special cases, can appoint any person to act as an "Authorised Officer". In the instant case, Secretary Law has been appointed to act as an "Authorised Officer" in the case of the petitioner. As the power to appoint any person as "Authorised Officer" was available with the Government, the order passed by the Government was within its jurisdictional competence. The mere fact that Government has appointed some other person than one designated to act as an "Authorised Officer" is not sufficient to hold that Government has mala fide intention against the petitioner. This objection too, is without any force which also stands repelled.
8. The learned counsel for the petitioner placed reliance on a case reported in 1985 PLC (C.S.) 349 (355). In this case, one Hussain Muhammad Islahi was transferred from Muzaffarabad to Mirpur as District Horticulture Officer in October 1978. He occupied a house for his office and residence both.
Subsequently, the Azad Government purchased a building known as "Kalyal Building" from Cooperative Societies and after taking its possession, directed all the departments to shift therein from private rented buildings. The petitioner (therein) did not obey the orders. He made a representation to the Government for exempting his office from shifting to the aforesaid building.
But the petitioner (therein) was directed to shift his office in the said building immediately. He then started making efforts to get accommodation for his office in the said building. Finally he succeeded in getting the accommodation on June 30, 1982. The Government issued orders on July 17, 1983, whereby he was held liable for payment of the amount from November 1, 1981 to June 30, 1982 which was paid as rent for a private building. It was further ordered (therein) that Rs,600 per month shall be deducted from his monthly salary towards the recovery of the said amount. That order was assailed through writ petition before the High Court. The petition was accepted as the impugned order was passed without providing an opportunity of being heard to the petitioner. The facts reported in that case are absolutely distinguishable from the facts of the case in hand.
9. The learned counsel for the petitioner has also cited another case reported in PLD 1987 AJ&K 52.
In this case the order was passed in derogation to the provisions of the Civil Servants (Efficiency and Discipline) Rules, 1977. As Advisor to the Chief Executive was not legally competent to pass the order which was called in question through the writ petition before the High Court. Even the facts of this case are quite different from the one under consideration.
10. Next, the learned counsel for the petitioner referred to a case reported in PLD 1978 SC (AJ&K) 37 wherein it has been held that if some act is required to be performed in a particular manner, that act should be performed in that way alone or not at all. Here, in the present case, in my estimation, all the acts have been performed in the light of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, even though it has not been mentioned in the impugned order that the petitioner is an accused of subversion, corruption or misconduct. As the order of suspension can be passed under Rule 6 of the Rules, it can be presumed that out of the material which was available before the authority, the blame of any of the given accusations in the relevant rules was available with the Government. There are various authorities of Pakistan jurisdiction wherein it has been observed that order of suspension cannot be challenged by invoking writ jurisdiction of the High Court. In "Muhammad Sadiq Khokhar v. Engineer in Chief' 1985 SCMR 63, this view was expressed first of all by the Supreme Court of Pakistan and the said authority was later on followed in a case reported in 1984 PLC (C.S.) 168 and subsequently, similar view was expressed by the Lahore High Court in a case reported in PLD 1975 Lah.
92.
11. The petitioner has got all the doors open against the proceedings initiated against him under the aforesaid Rules. Due to misconception, he has challenged the validity of the impugned order before this Court. It must be remembered that every executive order is not amendable to writ jurisdiction of the High Court. Through writ jurisdiction the High Court has not been clothed with the powers to act as an appellate authority to correct the errors appearing in the executive orders passed by the Government in routine. The High Court is primarily concerned to find out as to whether the order under challenge has been made in exercise of the powers lawfully vested in the authority concerned or not. Where an order is not found without jurisdiction, the High Court, in its writ jurisdiction, is not legally competent to disturb the same.
12. The ultimate result of the above discussion is that the writ petition merits no consideration which is hereby dismissed in limine.