' This petition, under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, has been moved to challenge the validity of Notification No, MQ/5/1/90-OAD, dated December 22, 1993, whereby the petitioner was removed from the office of Additional Advocate-General.
2. Admitted facts are that petitioner, a State-Subject with academic qualification as MA.,LL.B. Was enrolled as Pleader on August 19, 1974. He practised at Poonch-Rawalakot and was enrolled in the High Court as Advocate on August 23, 1977. Later on, in November 1982 he was enrolled in the Azad Jammu and Kashmir Supreme Court as Advocate.
3. On October 8, 1990, vide Notification No, 2432-44/LD/90, the petitioner was appointed as Additional Advocate-General. This Notification was superseded by another Notification No, MO/974-80/91, dated April 14, 1991, whereby the terms of the appointment of the petitioner were fixed as five years. When Poonch-Rawalakot High Court Circuit was established in September, 1993, the petitioner was directed to assist the Court at Rawalakot Circuit. In this behalf, a Notification No, 5/1/90-OAD, dated September 27, 1993 was issued.
4. The petitioner claims that he was performing his duties and functions with due diligence, efficiently and honestly to the satisfaction of the Government, Courts and other Agencies when, vide impugned Notification No,MQ/5/1/90-OAD, dated December 22, 1993, he was removed from the office of Additional Advocate-General and instead, Sardar Sulaiman Khan, non-petitioner No, 2 was appointed as Additional Advocate-General. Through this petition, the petitioner has challenged the legality of the aforesaid Notification. The petitioner still claims himself to be the Additional Advocate-General of Azad Jammu and Kashmir.
4-A. In written statement, the maintainability of the petition has been assailed on the grounds:-
(i) That the petitioner's appointment was subject to the pleasure of the Government, as such the Government was legally competent to remove him from his office. As no right of the petitioner has been infringed, therefore, he has wrongly invoked the Constitutional jurisdiction of this Court;
(ii) That the petitioner has got an alternate remedy through civil suit, as such the petition merits no consideration.
5. On facts, while admitting that through amended Notification, the petitioner was appointed for a period of five years, it was denied that the impugned Notification of his removal was in any way, ultra vires, mala fide or without lawful authority.
6. The learned counsel for the petitioner, has argued that the petitioner was appointed as Additional Advocate-General for a term of five years. He performed his functions efficiently and.
Honestly. Government had no complaint against him. In the light of these admitted facts, there was no justification for the answering non-petitioner to remove him from the office of Additional Advocate-General abruptly without assigning any reason or imputing any allegation. According to the learned counsel, had there been any complaint against the petitioner, he would have been provided with a chance to explain his position, as before the expiry of the fixed term, the non- petitioner had no legal competence to remove him from his office. According to the learned counsel, during the period, the petitioner was functioning as Additional Advocate-General, he appeared before superior Courts on behalf of the Government in more cases than the Advocate- General and other Additional Advocate-General. The Courts had no complaint against him. In the light of the impugned Notification which has been issued without imputing any allegation, it becomes clear that the same has been issued in furtherance of ulterior motives and mala fide. The substitute of the petitioner does not possess better educational qualification and professional experience than him. He further argued that the impugned Notification has been issued without the approval of the President, as such it is bad in law which is liable to be set aside. He relied on a case titled "M.A. Hafeez v. Azad Jammu and Kashmir Government and others (PLD 1973 Azad J&K 1).
7. Controverting the arguments advanced by the learned counsel for the petitioner, the learned Assistant Advocate-General submitted that no doubt there was no complaint against the petitioner but he was holding the office of Additional Advocate-General at the pleasure of the Government. According to him, the period of appointment of the petitioner was wrongly fixed, as such the notification to that effect was bad in law. The impugned notification has not jeopardized the rights of the petitioner. According to him, when the High Court Circuit Bench was established at Poonch-Rawalakot, the Government felt advised that somebody having the confidence of the Government in power, should be appointed as Additional Advocate-General to put forward the view point of the Government before the Court, as before his appointment, the petitioner was affiliated with a political party other than Muslim Conference the party in power at present, as such the Government removed him from his office and appointed Sardar Sulaiman Khan, non-petitioner No, 3 in his place who commands the confidence of the Government.
8. I have heard the respective submissions of the learned counsel for the parties and have also gone through the entire record made available by them with the petition.
9. Let me first of all attend to the objection taken by the learned counsel for the petitioner that the impugned notification of removal of the petitioner from his office, has been issued without the approval of the President, as such in the light of the previous authority of this Court in MA. Hafeez's case, referred to above, the impugned Notification is liable to be set aside on this short ground.
10. Before I proceed further, I would like to determine as to whether or not approval of the President to remove the petitioner from his office was necessary. Before enforcement of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Government Act of '1970 was enforced in Azad Kashmir which provided Presidential Form of the Government. Under this Act, for the first time, writ jurisdiction was conferred on this Court. Under the provisions of the aforesaid Act, the Advocate- General was to hold office during the pleasure of the President arid it was laid down that pleasure of the President shall be governed by the Rules and Regulation, if any. At the relevant time, the Rules regulating the conditions of service of the Advocate-General were given in Part II of Appendix XIX of K.S.R. Vol. II. So, under the Act of 1970, which provided Presidential Form of the Government, as said earlier, the approval of the President for removal of the petitioner was necessary. MA. Hafeez who was Advocate-General was retired from his office in the following circumstances:-- "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. MA. Hafeez, Advocate-General.
(2) Syed Ghulam Hussain Shah, Public Prosecutor.
(3) Malik Abdul Ghani, Secretary, Legislative Assembly."
' MA. Hafeez assailed his order of retirement before this Court through a petition. The Court came to the following conclusion:-- "We have already held that the approval of the President 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."
' The aforesaid authority, as said earlier, has been relied upon by the learned counsel for the petitioner which, in my estimation, is distinguishable on facts and law and has nothing common with the facts of the case of the present petitioner.
12. Under the provisions of Azad Jammu and Kashmir Interim Constitution Act, 1974, Parliamentary Form of the Government has been introduced in Azad Kashmir, under the provisions of which, a person qualified to be appointed as Judge of the High Court can be appointed as Advocate- General by the President who shall hold his office at the pleasure of the President.
13. In exercise of the powers conferred by section 58 of Interim Constitution Act, 1974, the Azad Jammu and Kashmir Manual relating to Law and Parliamentary Affairs were enacted in 1984.
Section 50 of the said Manual being relevant, is reproduced here for the convenience of reference:- - "50. Advocate-General.---(1) Terms and conditions of Advocate-General shall be fixed as provided in the Notification No, 431-531/SL/75, dated the 27th February, 1975, or as notified by the President from time to time.
(2) The terms and conditions of the Additional Advocate-General shall be the same as are of the Additional Advocate-General, Punjab or as may be fixed by the Government from time to time."
14. I have repeatedly gone through this section under which the terms and conditions of Additional Advocate-General can be fixed. Besides this, in Azad Jammu and Kashmir, Government has appointed now Assistant Advocate-General who has been held not entitled to get any fee in addition to the pay scale prescribed for him at the patron of Punjab. From the perusal of all these Notifications, it appears that terms and conditions of the office of Advocate-General shall be fixed in the light of the Notification, dated February 27, 1975 whereas the Assistant Advocate-General appears to be a permanent employee of the Government and the terms for Additional Advocate- General shall be fixed either in the light of the terms applicable to his counterpart in Punjab or may be fixed by the Government from time to time which in my view, means person to person.
15. In the present case, the petitioner was appointed as Additional Advocate-General for a term of five years. Therefore, the appointment of the petitioner for a fixed term of five years had got a sanctity in the eye of law. As a Judge of High Court and Shariat Court, I may observe here that the petitioner discharged his statutory responsibilities and performed his functions with rectitude, diligence and assiduity. The Courts had no complaint against him.
16. For my own satisfaction, I summoned the relevant file from concerned department. The Law Minister of the time, wrote the following note:- {{URDU TEXT}} {{URDU TEXT}} ' The Prime Minister agreed to this suggestion and thereafter, the Notification impugned through the instant petition, was issued.
17. The crux of the above discussion is that as there was nothing in the I Manual to prohibit or preclude the Government from appointing the petitioner for a fixed term of five years, as Additional Advocate-General, therefore, the impugned Notification constitutes a flagrant abuse and distortion of official authority. The Law Minister, on whose initiation, the petitioner was removed from his office, in support of his note, could not quote any instance to justify that the petitioner had ever tried to injure the cause of the Government or his negligence has caused any loss to the Government. The Government without disturbing the petitioner, had legal competence to appoint non-petitioner No,2, as Additional Advocate-General for Poonch-Rawalakot Circuit as has been done for Mirpur and Kotli Circuit Benches, where separate Additional Advocate-General has been appointed.
18. In view of the above, the impugned Notification being arbitrary, capricious, and whimsical and based on frivolous and preposterous grounds that the petitioner was appointed as Additional Advocate-General at the pleasure of the Government is, therefore, vitiated accordingly. In the circumstances, the petition stands accepted with costs and the petitioner is held entitled to receive all fringe benefits and emoluments, permissible to the post of Additional Advocate-General for the unexpired term of his office.