1. ' The petitioner, through the present Constitutional petition, has impeached the vires of the order passed by respondent No,1 whereby he was removed from service.
2. The factual background leading to the issuance of the impugned Notification, as has been described in the writ petition, may briefly be summarized as follows.
3. The petitioner was inducted in service of Muzaffarabad Development Authority (hereinafter to be referred as authority), as Estate Officer, by the Chairman of the Authority, under the provisions of section 16 of the Authority's Act, 1989, subject to the approval of the Authority. The order passed by the Chairman of the Authority in compliance of the legal necessity was placed before the Authority which was duly approved, resultantly, the petitioner was permanently appointed as Estate Officer, vide order, dated December 31, 1990.
4. The case of the petitioner is that on May 12, 1991, he was deputed to purchase books to maintain library of the Authority. In compliance of the order, he was at Lahore when on the direction of the Prime Minister of the time, the Chairman removed him from service on May 15, 1991 and on the same day, respondent No,2 was appointed in place of the petitioner. This order is reproduced below for the convenience of reference:- {{URDU TEXT}} ' As petitioner was removed from service on the direction of the Prime Minister of the time, therefore, petitioner availed right of review before the Prime Minister:against his order of removal from service. He also invoked the jurisdiction of this Court. His writ petition was pending before this Court when the former Prime Minister, while accepting the review petition of the petitioner, set aside the order, dated 15th of May, 1991 from the date of its issue. {{URDU TEXT}} ' In the light of the order of Prime Minister, respondent No,1, in his capacity as Chairman MDA allowed the petitioner to join service as Director Estate Management on June 11, 1991. Later on, on the same day, respondent No,1 without assigning any reason, cancelled the order of the petitioner.
2. This order seems to be important which is reproduced below:-- {{URDU TEXT}} ' As the petitioner had no other adequate and efficacious remedy available to him as such he invoked the Constitutional jurisdiction of this Court by way of the present writ petitioner.
3. ' The learned counsel for the petitioner in support of the writ petition has raised the following points:--
(a) That order of re-instatement of the petitioner was passed by the Prime Minister therefore respondent No,1 in his capacity as Chairman of Development Authority M'abad was not competent to cancel the same as under law all subordinates are bound to act upon the order of the Prime Minister. Alternatively he argued that if respondent No,1 had any objection, he could have re- submitted the file to Prime Minister for seeking further order in the light of his objection.
(b) That under Development Authority M'abad Act, 1989 respondent No,1 is not competent to pass any order in respect of terms and conditions of service of persons serving in Grade-17 and above in the Development Authority M'abad. It is prerogative of the Government or the Board to pass any order. Therefore, the impugned order passed by respondent No,1 in his capacity as Chairman, Muzaffarabad Development Authority is bad in law and liable to be set aside.
(c) That the order of Prime Minister dated 10-6-1991 is very clear that the petitioner was re-instated in service as Estate Officer of Development Authority M'abad. But in order to accommodate respondent No,2 against the said post, the Prime Minister of Azad Jammu and Kashmir Government created a new post known as Director of Estate Management in B-18 and directed petitioner to be adjusted against the said post. The order dated 15-5-1991 was issued by respondent No,1 on the direction of Prime Minister. This order was had in law, hence it was rightly re- called by the Prime Minister. Respondent No,1 over and above his competence has passed the impugned order which, in the circumstances, cannot be sustained.
4. ' While controverting the arguments of the learned counsel for the petitioners, the learned counsel for the respondent, contended that the MDA cannot he considered to be person performing functions in connection with the affairs of the Government, or a local authority in terms of section 44 of the AJ&K Interim Constitution Act, 1974. Therefore, even if the grievances of the petitioner listed above arc considered to be correct even then as employees of MDA do not have Constitutional protection. Therefore, the writ does not lie. He in this connection relied on PLO 1985 SC
(AJK) 119, PLD 1965 SC (Pak.) 221, PLD 1962 SC (Pak.) 315, PLD 1969 SC 210, PLD 1965 SC 147. On facts he argued that petitioner wrongly invoked the review jurisdiction of the Prime Minister. According to the learned counsel for the review powers were not available to the Prime Minister. Therefore, impugned order issued by Prime Minister was nullity in the eye of law. The order giving effect to this order was passed by Chairman, MDA who after realising that he has issued orders in compliance of as illegal order of the Prime Minister, rightly cancelled the same. He further argued that the writ of the petitioner is hit by the principle of estoppel and res judicata, previously petitioner assailed the order of his removal as Estate Officer through a writ petition which was withdrawn by him on 26-10- 1991.
5. ' Various points raised by the learned counsel for the parties could be decided only if it is held that present petition is maintainable under law.
6. ' The Development Authority, Mn7affarabad was created through an Act of the Assembly which received the assent of the President on 21st day of February 1989. In order to resolve basic controversy with regard to the maintainability of the writ petition, it seems to be proper to look into the provisions of this Act. Under section 4 of the Act, the constitution of the Authority has been provided. Under section 5 it has been laid down that the general direction and administration of the Authority and its affairs shall vest in the Board which may exercise all powers and do all acts and things which may be exercised or done by the Authority. Accorling to subsection (2) of section 5, the Board in discharging of its functions shall act on sound principles of development, town planning and housing and shall be guided on question of policy by such directions as the Government may from time to time give. Again in subsection (3) of section 5 it has been laid down that if any question arises as to whether any matter is matter of policy or not, the decision of the Government shall be final. Section 6 deals with constitution of the Board. It has been laid down in subsection (1) of section ? That Board shall consist of a Chairman and not less than three members to be appointed by the Government. The terms and conditions of Chairman and other members are to be regulated by the Government as under subsection (2) of section 6, it has laid down that the Chairman and other members shall hold office during the pleasure of the Government. Under the same section it has been further laid down that Chairman shall hold office for a period of 5 years and other members for a period of 3 years, Government can remove them before the period laid down in the Act. Again under subsection (3), the Government is competent to appoint Chairman for any length of time. Again under section 6, subsection (5), any member including Chairman may tender his resignation, but the same shall take effect, only if it is accepted by the Government. In these circumstances the authority appears to be an instrument/agency of the A Government, therefore, a Constitutional petition is maintainable against it. This view finds support from the authorities of the Lahore High Court titled Javed Iqbal and others v. FIA and others PLD 1986 Lah. 424 and Karam Hussain v. National Press Trust 1992 PLC 136 And two other authorities of the Supreme Court of India reported in AIR 1981 SC (India) 487 and AIR 1986 SC (India) 1571. In view of the above it is held that instant petition is maintainable.
7. ' I have gone through the authorities referred by the learned counsel for the respondents. These authorities are beyond controversial issues and in my opinion have nothing common with the facts of the present case, therefore, they are not being discussed in this order.
8. It is admitted fact that before removing the petitioner from his service on May 15, 1991, no show- cause notice was issued to him. Even subsequently, no fault on his part was brought to his notice or he was provided with an opportunity of being heard. Rule of natural justice is supposed to be implied in every statutes even where statutes does not provide a right of audience, unless its application is specifically excluded or statute itself provides a different mode. The order dated May 15, 1991 whereby the service of the petitioner was terminated as Estate Officer was, therefore, bad in law. Against this order the petitioner previously filed a writ petition which was pending before this Court when the Prime Minister of the time, while accepting review petition of the petitioner, re- called his order. The petitioner in the circumstances subsequently moved an application seeking withdrawal of his writ petition, which was allowed vide order dated 26-10-1991. The same being relevant is reproduced as under:-- "The learned counsel for the petitioner has moved an application seeking withdrawal of writ petition, as according to him, the order challenged through this writ petition was set aside by the Government. The writ petition, therefore, stands dismissed as withdrawn."
9. Subsequently the impugned order was issued by the Chairman, M.D,A. Whereby even fresh order of assignment of the petitioner, which was given effect by him, was again cancelled. As the previous writ petition was not decided on merits, therefore, the principle of res judicata has no application in the circumstances of the case. The previously filed writ petition was withdrawn by tie petitioner as a favourable order was issued by the Prime Minister and the dame was carried into effect by the Chairman, M.DA. In favour of the petitioner. In my opinion, even principle of stopple is not attracted in the present case. The previous writ petition was withdrawn by the petitioner in the light of the changed situation. The objection in this regard is, therefore, without any justification which stands repelled.
10. ' An objection was raised by the learned counsel for the respondents to the effect that petitioner's appointment was made by the Chairman on the direction of the Prime Minister, therefore, his appointment as Estate Officer was against law hence no right had accrued to him which can be protected through the intervention of this Court. No doubt initially the appointment of the petitioner was made by the Chairman on the direction of the Prime Minister of the time but later on, his appointment was approved by the Selection Board whose competency is not under dispute. Both the orders relating to the appointment of the petitioner are self-explanatory, which are reproduced here:-- {{URDU TEXT}} Annexure (B) makes it clear that the appointment of the petitioner was approved by the Selection Board. In the light of this order, it can be said with certainty the impugned order was passed by respondent No,1 with mala fide intention, wherein he mentioned, that appointment of the petitioner was not approved by the Board. Respondent No,1 or Government was not legally competent to rescind the order of appointment of the petitioner as Estate Officer. In PLD 1980 Pesh. 126 where only a call letter was issued to the petitioner which subsequently was withdrawn by the Vice-Chancellor of the Peshawar University on account of misbehaviour of the petitioner. The matter was brought before the High Court through a writ petition. The Court after taking into ...Consideration the respective contention of the counsel for the parties, finally resolved the controversy as under-- "Viewed in the light of what has been stated above, there is left hardly any doubt that petitioner having been selected for admission in the Institute of Education and Research, University of the Punjab, Lahore and duly informed of the same, there was left no authority with the Vice-Chancellor to recall his recommendations unless it could be shown that they were secured from him by fraud, which, indeed has never been his case. The applicant for admission was forwarded by him to enable the petitioner to seek admission in the said Institute. Acting on those recommendations petitioner was called for interview and tests. He appeared and was apparently successful and was consequently selected for admission and asked to join his course there on 2nd and 3rd of January, 1980. Thus, a valuable right to claim benefit of admission in the pursuit of higher knowledge was granted to him and this, as stated above, could not have been withdrawn by respondent No,1. His order withdrawing recommendation after petitioner had been selected for admission and invited to join his studies is, therefore, set aside, being without lawful authority and of no legal effect."
11. In the present case the impugned order was carried into effect by the Chairman, M.D.A. In fact the respondent Government wanted to keep the appointment of respondent No,2 intact against the post of Estate Officer. The Prime Minister of the time, while recalling his order of termination of service of the petitioner as Estate Officer, restored his order of appointment as Estate Officer, but directed that he may be accommodated against new post namely Director Estate Management in B-18. Even otherwise the order of termination of the petitioner's service as Estate Officer was bad in law as it was issued at his back by the Prime Minister who was not legally competent to remove him from this post.
12. During the pendency of the writ petition on January 20, 1992, the Prime Minister cancelled the Order, Nos. 2060, 2061 dated 10-6-1991 of his predecessor where under he while accepting the review petition of the petitioner has set aside Order, dated May 15, 1991. Through amendment in written statement this order was brought on the file of this Court. I have already held that the order, dated May 15, 1991, whereby petitioner was removed from the post of Estate Officer was bad in law as it was issued at his back on the directions of the Prime Minister by respondent No,1. The Prime Minister on review application rightly cancelled his illegal orders and restored petitioner against the post of Estate Officer. It appears that Prime Minister and Board both wanted respondent No,2 to retain his assignment as Estate Officer of Development Authority, Muzaffarabad, therefore, Prime Minister directed Development Authority, to adjust petitioner against newly-created post of Director Estate Management in Grade-18. A person can rectify his errors or omissions. As mentioned before petitioner joined his new assignment on 11-6-1991, thereafter, the impugned order was issued by the respondent No,1 without legal competence. The order dated May 15, 1991 and impugned order, dated June 11, 1991, which were passed at the back of the petitioner have been found to be mala fide, void and without lawful authority. Therefore, while accepting this writ petition with costs, the impugned order is declared to be void and of no legal effect.