1. ' Through this Constitutional petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner has impeached the Order of the Government under No. Admin.A1(6)/ {{URDU TEXT}}, dated May 20, 1996.
2. ' The facts necessary for the disposal of this petition briefly stated are that the petitioner was re- employed on June 30, 1992 by the respondent-Government, after his retirement from the Pakistan Army, on contract basis for a period of four years. He was given various assignments by the respondents before his appointment as Managing Director of the Azad Kashmir Small Industries Corporation vide Notification No. Admin. A-1(6)/{{URDU TEXT}}94, dated July 16, 1994. After taking over as the Managing Direc or of the Corporation, the petitioner conceived and piloted different projects of great economical and commercial importance for the creation of job opportunities in Azad Kashmir. The role played by the petitioner was appreciated by the Additional Chief Secretary Development and the Secretary, Industries of the respondent-Government who recommended extension in the contract period of the petitioner.
3. ' The Honorable Prime Minister of the time accepted the above-referred recommendations and directed to notify the extension of the contract period of the petitioner. However, respondent No. 2 slept over the matter. In the meantime the impugned order was issued on May 20, 1996 which being relevant is reproduced in this order for the convenience of reference. {{URDU TEXT}} ' Kh. Shahad Ahmad, learned counsel for the petitioner argued that admittedly the petitioner was re-employed by the respondents on contract basis for a period of four years on June 30, 1992. He was appointed and posted as Managing Director of the Corporation on July 16, 1994. The Government had no legal competence to remove him from this post before the expiry of the tenure of three years, because in a case of tenure post no change in the terms and conditions of a service of a person holding such post can be made by any authority to the detriment of such person. In support of his contention, the learned counsel relied on section 6 of the Azad Jammu And Kashmir Small Industries Corporation Act, 1993 and on two unreported cases titled Sardar Mohy-ud-Din v.
4. Government of N.-W.F.P. Through its Chief Secretary and others decided on August 6, 1976 and Dr. Syed Nazir Hussain Shah v. Azad J&K, Government and others, decided on March 27, 1982.
5. ' On the other hand, the learned Additional Advocate-General argued that the petitioner was re- employed by the Government on contract basis for a period of four years. He had admitted this fact in the written statement and also admitted during the course of his arguments that the extension in the contract period was allowed by the Prime Minister but, according to him, no Notification in this regard was issued in accordance with the relevant law. According to him, without proper Notification, the extension in the contract period of the petitioner cannot be presumed. According to him, the assumption of the charge of Chairman of the Corporation by the petitioner has not automatically extended his tenure of ' four years which was initially settled by him and the Government on June 30, 1992.
6. ' I have heard the learned counsel- for the parties and have gone through the entire record made available with the writ petition by them. For proper perception of the point involved, it appears imperative to have a reference of the relevant provisions in the light of the language in which it is couched. Section 6 of the Azad Jammu and Kashmir Small industries Corporation Act, 1993 reads as under: "6. Managing Director.---(1) Government shall appoint Managing Director of the Corporation who shall be its Chief Executive.
(2) The Managing Director shall--
(a) be a wholesome officer of the Corporation;
(b) perform such duties as may be specified or as the Board may assign to him;
(c) subject to the provisions of sections 8, 9 and 10, hold office as Managirfg Director for a term of three years; and subject as aforesaid--
(i) shall remain in office as Managing Director thereafter until his successor in that office is appointed; and
(ii) may be appointed to hold that office for such further term as Government may, in appointing thereto.
(d) receive such salary and allowance as Government may determine; and
(e) divest himself of any directorship of, or other interest held by him in any other Corporation, company or concern: ' Provided that nothing in this clause shall prevent the Managing. Director from holding shares in any public company acquired by him before his appointment as Managing Director or acquiring during his term of office as Managing Director shares in any public company which is not a borrower: ' Provided further that Government, may, in exceptional circumstances, where it considers necessary to do so in the public interest, exempt by a special order, any person who has been appointed or is about to be appointed as Managing Director from the application of this clause."
7. ' From the perusal of the above-referred provision it becomes crystal clear that the post of the Managing Director of the Corporation is a statutory post having a fixed tenure of three years subject to the provisions of sections 8, 9 and 10 of the Act. It shows that the statutory period can be curtailed by the Government on account of the reasons specified in sections 8, 9, or the Managing Director can tender his resignation under section 10. In the present case no such occasion has arisen, therefore, sections 8, 9 and 10 have got no application. For this reason the Government had no right to curtail the statutory period of posting of the petitioner as Managing Director of the Corporation.
8. ' There is another aspect which cannot be ignored; that at the time when the petitioner was appointed as Managing Director of the Corporation, it was not laid down in the posting order by the Government that he shall remain incharge of the post for his unexpired period of contract.
9. Therefore, the only conclusion which can be drawn is that the petitioner was appointed as Managing Director of the Corporation on the terms and conditions as laid down in section 6 of the Azad Kashmir Small Industries Corporation Act, 1993. The Government, therefore, was not legally competent to remove the petitioner from the post before expiry of three years' time limit. This view finds support from two authorities which were cited by the learned counsel for the petitioner.
10. ' The facts of the first authority in case titled "Dr. Syed Nazir Hussain Shah v. Azad J&K Government and others", are that petitioner Dr. , Nazir Hussain Shah was serving in the Gazette cadre of the Education Department, since long. He was appointed as Chairman of the Board of Intermediate and Secondary Education, Mirpur on May 3, 1978. He worked as such up to January 16, 1977 when he was transferred and appointed as Director, Public Instructions of Azad Jammu and Kashmir. Later on, on October 23, 1977, the petitioner was appointed as O.S.D. In the Civil Secretariat. The petitioner challenged his transfer from the Chairmanship of the Board of Intermediate and Secondary Education, Mirpur on the ground that the said post was a tenure post for four years. The Government had no legal competence to remove him from the tenure post before the expiry of the period of four years. In his case the reliance was placed on another case reported as 1975 SCM R 457 and it was held that the petitioner was entitled to continue as the Chairman of the Board of Intermediate and Secondary Education, Mirpur for a period of four years.
11. ' In the like way in other unreported case titled Sardar Mohy-ud-Din v. Government of N.-W.F.P. And others cited by the learned counsel for the petitioner, the facts were that the petitioner in that case was holding the office of the Director of Education, N.-W.F.P. In the year 1973 when he was transferred and posted as the Chairman of the Board of Intermediate and Secondary Education, Peshawar. The petitioner assumed the charge of the post. The Government, issued another Notification whereby the terms and conditions of the new assignment of the petitioner in that case were laid down. One of the condition related to the tenure of the office. It was laid down that the petitioner shall remain in charge of the post up to July 12, 1974, the date on which he was to attain the age of 58 years. The legality of this Notification was challenged in the High Court. The learned Court finally resolved that the petitioner was entitled to remain as Chairman of the Board for a statutory period of four years and that his terms of office cannot be reduced.
12. In this case, as said earlier, at the time when petitioner was transferred and appointed as Managing Director of the Corporation, it was not laid down that he will work on this post for the unexpired period of his contract with the Government. Therefore, impliedly it shall be assumed that he was given terms and conditions as were laid down under section -6, Azad Jammu and Kashmir Small Industries Corporation Act, 1993. The petitioner in view of the above is entitled to retain the charge of the post till July 17, 1997.
13. ' In view of the above the impugned Order issued under No.Admin.A-1(6)/Dept. 5th/96, dated May 20, 1996 is without lawful authority as such is set aside. The petition filed by the petitioner is accordingly accepted with costs.