1. BASHARAT AHMAD SHAIKH, J.---A writ petition filed by respondent Abdul Karim has been accepted by the High Court, which has directed that the orders passed by the Prime Minister of Azad Jammu and Kashmir reinstating the respondent as P.A. to Advocate-General of Azad Jammu and Kashmir with all back benefits be implemented without further delay. The said respondent was compulsorily retired from service more than seven years ago on 31st December 1991. The post vacated by the said respondent presently has come to be occupied by Abdul Qadir who was granted leave to file the present appeal to challenge the judgment of the High Court. He was not a party to the writ petition.
2. The 'present appeal is culmination of second round of litigation and it is vehemently contended by the appellant that the effect of the previous round is that the Prime Minister of Azad Jammu and Kashmir was not competent to pass the order of respondent Abdul .Karim's reinstatement to service. Therefore, we have to begin by noting the facts of the previous round.
3. On 31st December, 1991 Advocate-General of Azad Jammu and Kashmir issued an order sending the respondent on compulsory retirement in the public interest. The order was as follows:-- "Mr. Abdul Karim P.A. to Advocate-General is compulsorily retired from service in the public interest with effect from 1-1-1992 under the provisions of section 3 sub-para. 1 of Government Ordinance No, 707-11.LD, dated 12-10-1989. The official will be entitled to receive pension/pension commutation under rules." (Translated) Within ten days the respondent received a sum of Rs,3,36,770 as commuted pension and also started receiving his pension. Soon after that, on 12th of January, 1992, he moved an application before the Advocate-General that his military service had not been counted which was causing loss to him and that he wanted to continue his service. He prayed that by accepting this review petition he may be reinstated with effect from the date of retirement. This application was accepted by the Advocate-General who issued an order on 14th January, 1992 reinstating him to service. However on 1st February, 1992 the Advocate-General issued another order, which is a detailed one, in which he stated that the respondent had obtained his reinstatement order by suppressing the facts that he had already received the commutation amount. It was further stated that the Advocate-General was not even otherwise authorised to entertain appeal/review against his own order. He, therefore, restored the order of retirement.
4. Thereupon, the respondent filed appeal before the Service Tribunal in which he challenged both the adverse orders passed by the Advocate-General on 31st December, 1991 and 1st February, 1992.
5. Amongst the various grounds he raised in support of his appeal, the respondent pleaded that order of his compulsory retirement had been passed in total disregard of the provisions of the Civil Servants Act and that it had been passed without any charge-sheet or opportunity of hearing. On behalf of the Advocate-General it was averred before the Service Tribunal that order of retirement was passed by the Advocate-General on the request of the said respondent who personally obtained the Advocate-General's signature on the retirement order. It was further averred that in fact it was not intended to impose any penalty on Abdul Karim but the purpose was to give him monetary benefit as requested by him and that the words "public interest" were used to give him the benefit of pension. These averments were supported by an affidavit of the learned Advocate- General. The Service Tribunal dismissed the appeal filed by the respondent on the short ground that he did not file departmental appeal against the order of his retirement before the designated appellate authority but filed appeal before an officer who was not the appellate athhority. The Service Tribunal held that since he did not avail the departmental remedy his appeal to the Service Tribunal was not maintainable. The Service Tribunal was also of the view that the reinstatement order passed by the Advocate-General was illegal because the Advocate-General had no power to review his order of 31st December, 1991 because an appeal could be filed against it. It was further observed that Abdul Karim had practised fraud upon the Advocate-General while mischievously obtaining the orders of his reinstatement. The respondent then filed appeal, by leave of the Court, to this Court but his appeal was dismissed on 20th of October, 1993. The view taken by the Service Tribunal was upheld by this Court that the respondent has filed appeal before an officer who was not the appellate authority and, therefore, he could not file appeal before the Service Tribunal.
6. While dismissing the appeal some other observations were also recorded to which we will be adverting to when the proper stage is reached.
7. The dismissal of his appeal did not deter the respondent. A few days later he moved an application before the Prime Minister of Azad Jammu and Kashmir in which he stated that he had filed his appeal in a wrong forum and due to technical reason his appeal before the Service Tribunal had been dismissed and that the Supreme Court had also upheld the judgment of the Service Tribunal.
8. He prayed that delay may be condoned so that .he could file a fresh appeal before the appellate authority. On 20th November, 1993 the Prime Minister was pleased to record on the application that: "Appeal may be filed". From some documents forming part of the High Court file it appears that thereafter the Prime Minister Secretariat processed the case of the respondent. The record shows that comments of the Advocate-General were invited and subsequently some queries were made in the first half of year 1995 but there is nothing on the record to show that any further progress was made.
9. About two years later, another application was moved before the Prime Minister of Azad Jammu and Kashmir by the respondent. In the application previous history was narrated and a new point was raised that the provision under which his retirement had been ordered was no longer on the statute book because the Ordinance promulgated in 1989 was neither repeated nor was followed by an Act of the Assembly. He, therefore, pleaded that there was no provision under which he could have been retired after putting in eighteen years of service. He prayed that by accepting the application/review the orders of his compulsory retirement may be set aside and he may be reinstated to service with all back benefits. The application was purportedly written on 4th September, 1996' but it was not duly filed in any office and clearly seems to have been directly presented to the Prime Minister who was pleased to write the following order on 31st December, 1996 on the margin of the same paper:-- "The review/application of the applicant is accepted and by vacating the orders of compulsory retirement the official is reinstated to service from the date of termination with full back benefits."
10. (Translated).
11. The order was sent to the Chief Secretary who sent it to Secretary Law to process it. A few days later, the respondent moved another application before the Prime Minister of Azad Jammu and Kashmir in which he drew the attention of the Prime Minister to his earlier order of 31st December, 1996 and agitated the point that the order had not been implemented. The Prime Minister passed an order on the same application on 14th May, 1997 in which he directed the Law Secretary to implement his earlier order at once and also to report compliance.
12. The respondent then filed a writ petition in the High Court on 29th May, 1997 in which he, after stating the previous history, submitted that instead of implementing the orders of reinstatement passed by the Prime Minister; the Law Secretary had initiated a case requesting the Prime Minister to withdraw his orders. He raised the point that the Law Secretary had no authority to do so. He requested that the respondents may be ordered to implement the orders of the Prime Minister passed on 31st December, 1996 and 14th May, 1997 and also requested that the respondents be restrained from taking any proceedings for getting the aforesaid orders cancelled. The High Court admitted the writ petition and issued a status quo order. Ultimately the writ petition was accepted and the direction prayed for was issued.
13. As already stated, this appeal has been filed by leave of the Court by Abdul Qadir who had meanwhile been appointed as Stenographer against the post previously held by the respondent Abdul Karim. The respondents before the High Court had not filed appeal in this Court but, being arrayed as pro forma-respondents in this appeal, fully supported the arguments raised by the learned counsel for the appellant. It may be pointed out that Azad Government of the State of Jammu and Kashmir was one of the respondents before the High Court and resisted the writ petition.
14. We have heard lengthy arguments from the learned counsel for the appellant, Raja Muhammad Hanif Khan and Mr. Abdul Rashid Abbasi, the learned counsel for the respondent. Mr. Abdul Rashid Abbasi vehemently contended that the appellant has no locus standi to challenge the order passed by the High Court. He submitted that Abdul Karim had challenged the order of his compulsory retirement which was illegal and by acceptance of the writ petition no vested right of Abdul Qadir had been taken away. He further submitted that the appellant was appointed as Stenographer in the Advocate-General's Office without inviting applications and without recommendations of the Selection Board which were two essential requirements of filling a post under the Government. He, therefore, contended that the appellant's incumbency was in the nature of ad hoc appointment which creates no right. The argument is met by Raja Muhammad Hanif Khan by drawing our attention to the fact that the appellant was appointed on probation for one year on 27th February 1992 but was subsequently confirmed as Senior Scale Stenographer on permanent basis after successful completion of his probation period vide order issued on 17th October, 1994 which forms part of the paper book as Exh.PO/2. The learned counsel further contended that by the acceptance of the writ petition the appellant has been virtually dismissed from service. The learned counsel submitted that aggrieved person is not one who has a vested right in the strict juristic sense and that to qualify as an aggrieved person all that a person has to show is that he will gain some advantage if an illegal order is set aside.
15. It is well-settled that to qualify as an aggrieved person it is not to be proved that one has a vested right in the strict juristic sense. It is sufficient if an aggrieved person seeking remedy shows that he has some tangible interest in the matter or he will gain some advantage if an illegal order is set aside. LA On this point we may refer to the cases titled Muhammad Islam v. Abdul Rashid and others (1993 SCR 37), Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others (1994 CLC 2339), Umar Din Kiano v. Azad Government and others (1995 SCR 166), Residents of Mirpur v. Mayor Municipal Corporation Mirpur and another (1995 SCR 332) and Khurshid Ahmed v. Mohtasib and 3 others (1999 CLC 972). In light of this principle the facts that the appellant stands permanently absorbed in service upon his confirmation and that he has been virtually displaced frcim service as a result of the judgment of the High Court gives him locus standi to challenge the judgment of the High Court. The allegations that the appellant has been appointed without advertising the post and has been recuited without recommendation of the Selection Board, even if true, are not material because he is no longer working on ad hoc basis but has been confirmed in service and has, thus, earned the right to continue his incumbency till, if so, his appointment is declared illegalthrough appropriate proceedings. The objection is, therefore, repelled.
16. On behalf of the appellant reliance has been placed on the settled principle of law that in exercise of writ jurisdiction the High Court cannot direct implementation of an order which is not lawful. It is the grievance of the appellant that the orders passed by the Prime Minister were unlawful and their implementation could not legally be ordered by the High Court. One of the grounds urged on behalf of the appellant by Raja Muhammad Hanif Khan is that the compulsory retirement of the respondent attained finality when the appeal filed by the respondent in this Court was dismissed and no executive authority could pass an inconsistent order because a judgment of this Court is binding on all judicial and executive authorities who have to act in aid of the Supreme Court. The other point raised by the learned counsel is that even under the service laws the retirement of the respondent had attained finality and the Prime Minister had no power to reopen the matter particularly when a period of more than four years had elapsed.
17. The learned counsel for the respondent, Mr. Abdul Rashid Abbasi, met these arguments by contending that, as held by the High Court, section 22 of the Civil Servants Act and rule 10 of the Civil Servants (Appeals) Rules, 1991 gave ample powers to the Prime Minister to pass the orders of reinstatement. Section 22 of the Civil Servants Act runs as follows: -- "Saving.--Nothing in this Act or in any rules shall be construed to limit or abridge the power of the Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable; Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
18. It was rightly contended by Raja Muhammad Hanif Khan that section 22 gives the powers to the Government to deal with the case of any civil servant in a just and equitable manner but the respondent was not a civil servant when the Prime Minister passed the orders under reference in favour of the respondent. The definition of civil servant in the Azad Jammu and Kashmir Civil Servants Act only includes in its ambit a person who is in service and excludes a person who has ceased to hold a civil post. Therefore, in our,view section 22 has no application to the present case and the order of reinstatement passed by the Prime Minister cannot be upheld with reference to the above section.
19. It was also contended by the learned counsel for the appellant that even if section 22 was to be applied to the present case the order passed by the Prime Minister was not equitable or just because the compulsory retirement of the respondent had been upheld by the Supreme Court, and the Prime Minister was bound to act in aid of this Court rather than passing an order inconsistent with the judgment of this Court. In order to assess the merit of this submission we may reproduce the following portion of the previous judgment of this Court in the appeal filed by the respondent:-- "The learned counsel for the respondents have vehemently argued that a civil servant who himself seeks retirement and gets the pension and other benefits cannot subsequently turn round and challenge the order of his retirement; he cannot be given any relief because his claim would be hit by the principle of estoppel. The learned counsel for the respondents has referred two cases of this Court reported as Abid Hussain Jafri v. Azad Government (1993 SCR 105) and Aziz-ur-Rehman v.
20. Presiding Officer Local Council Elections (1993 SCR 177) and have maintained that if an averment is made and is supported by an affidavit, such an averment would be deemed to be true unless it is rebutted by a counter-affidavit. It may be also pointed out that the review petition on which the appellant was reinstated does not contain any averment to the effect that he was retired as a rest* of a 'punishment' awarded to him. The most important aspect of the case is that the appellant was retired on 31-12-1991 and got his pension and other benefits on 9-1-1992, after a week or so. In fact the appellant received a substantial amount of more than three lacs rupees as pension and other benefits; the fact fins been admitted by the learned counsel for the appellant. But it is strange that he did not disclose these facts in the review petition. This obviously reflects on the conduct of the appellant and is also supportive of the fact that the appellant maneuvered his retirement to get pension and other benefits and after that he turned round and wanted his reinstatement in the service."
21. It was laid down by this Court that the conduct of the appellant was such that he could not be given any relief in resect of his retirement. It was also clearly laid down that having himself requested for retirement and having received a substantial amount of pensioner benefits he could not be allowed to turn round to demand reinstatement. These findings show, that equity and justice were against the respondent. Clearly the order of reinstatement passed by the Prime Minister cannot be defended on the ground that it was just and equitable, when a contrary finding had been recorded by this Court. We may add that acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the making of an order or if he acquiesces in it. He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favor of a litigant with objectionable conduct. If any authority is needed on this point we may refer to the judgment of this Court reported as Muhammad Sharif v. Muhammad Manzoor and others [1993 SCR 92] and the case titled Ghulam Mustafa v. Azad Government and 2 others [1996 SCR 7].
22. We may now turn to test the order of. the Prime Minister on the touchstone of rule 10 of the Azad Jammu and Kashmir Civil Servants (Appeal) 1991. The rule may be profitably reproduced first:-- "Revision. (1) The Government may call for and examine the record of any proceedings before any authority for the purpose of satisfying as to the correctness, legality or propriety. of any finding, penalty or order recorded or passed and as to the regularity of any proceedings of such authority.
23. Provided that a revision petition preferred after the lapse of a period of three months from the date of the communication of the order to the concerned civil servant shall not be entertained.
(2) On examining any record under this rule, the Government may pass such orders as it may deem fit; Provided that any order under this rule made prejudicial to the accused shall not be passed unless he has been given an opportunity to show cause against the proposed act; Provided further that an order is imposing penalty shall not be revised suo motu or otherwise after the lapse of a period of three months from the date of its communication to the accused if no appeal is preferred."
24. The power of revision conferred by. the Government by rule 10 lays downs that a revision petition filed after a period of three months shall not be entertained but in the present case the petition filed by the respondent before the Prime Minister of Azad Jammu and Kashmir was filed after four years and was therefore, hopelessly time-barred and was hit by the above prohibition. Thus, it is clear that the order was passed not in furtherance of rule 10 but was one which was prohibited by the said rule. It is also provided in the rule that if a penalty has been imposed the Government will not be competent to revise it, suo mote or otherwise, if no appeal is preferred. In the previous litigation it has been authoritatively laid down that the appeal filed by the respondent in wrong forum was not an appeal in the eye, of law. It follows that the respondent had not filed an appeal against the order of compulsory retirement if the order is to be treated as an order of penalty. This is also an invalidity.
25. It is also a requirement of rule 10 that Government has to examine the record and then pass an order after considering the legality or propriety cf th, c,-der which is sought to be vacated, but the Prime Minister did not summon the record and only passed an order on the application moved before him. This is also a clear violation of rule 10. Thus, the conclusion is that the reinstatement orders passed by the Prime Minister violated rule 10.
26. The learned counsel for the respondent, Mr. Abdul Rashid Abbasi, submitted that if a matter has been finalized by Courts of law still an order can be passed by executive authorities in service matters. He cited some authorities in support of his submissions but, we find that they do not athance the case of the respondent. In Inayatullah Chaudhry v. Azad Jammu and Kashmir Government and 5 others (1990 PLC (C.S.) 598), a civil servant, Sardar Muhammad Ashraf Khan was found to be junior most among the five contesting civil servants but it was observed by this Court that the Government had the power to make any just and equitable order in case of any civil servant, therefore, irrespective of the result of the appeal the Government, if so advised, may make any appropriate order in the case of Sardar Muhammad Ashraf Khan. In Ahsanullah A. Memon v.
27. Government of Sindh and others (1992 PLC (C.S.) 1157), relying on the case titled Mukhtar Ahmad and 37 others v. Government of West Pakistan through The Secretary Food and Agriculture, Civil Secretariat, Lahore and another (PLD 1971 SC 846), it was observed that notwithstanding any rule or legal provision the Government or rule making authority should not be helpless in dealing with any case in just and equitable manner. In both these cases it was observed that relief could be given if it was just and equitable but in the present case, as, already seen, equity and justice are against the respondent. In Sajjad Ahmad Javed Bhatti v. Secretary, Establishment Division Islamabad and 11 others (1996 PLC (C.S.) 652) it was .observed by the Supreme Court of Pakistan that dismissal of the petition for leave to appeal will not come in the way of the petitioner if the Central Selection Board had realized its earlier mistake and wanted to rectify it. This case is clearly distinguishable because the Supreme Court itself declared that Central Selection Board had committed a mistake and it is for this reason that the said Board was allowed to rectify it. In the present case there is no mistake which can be rectified.
28. There is another aspect of the case which needs to be adverted to. In the writ petition filed by the respondent he submitted that instead of implementing the orders of reinstatement passed by the Prime Minister the Law Secretary had initiated a case requesting the Prime Minister to withdraw his orders. A stay application was also moved by the respondent. We would like to reproduce two relevant paragraphs of the petition as well as the prayer clause:-- "(1) ........................
(2) That the non-petitioners have initiated proceedings to get the orders of Prime Minister, dated 31-12-1996 and 14-5-1997 reviewed.
(3) That in case the stay order is not issued, the petitioner shall suffer irreparable loss and petition shall become meaningless.
29. It is, therefore, very humbly prayed that the stay order against the non-petitioner may kindly be issued till the decision of the writ petition."
30. An ex parte order was passed on this application in which it was ordered that status quo shall be maintained. It means that the High Court prohibited the functionaries of the Government from resubmitting the case to the Prime Minister for reconsideration of his orders which had not yet been implemented. In paragraphs 8 and 9 of the written statement filed in the case on behalf of the Azad Government, Chief Secretary, Secretary Law and Advocate-General it was averred that:-- "(8) That against contents of para. 8'of writ petition it is submitted that subordinate authorities could not implement a fake and baseless order which was obtained by the petitioner while keeping the Prime Minister in darkness about the judgments of Courts of law. Even no Notification has been issued by the Government and words written upon the petitioner's application do not cover an order which are merely covering in the definition of note and that too unlawful.
(9) That contents of para. No,9 are correct. Non-petitioner No,3 could initiate proceedings for review of orders of Prime Minister as the same were illegal and unlawful which were issued on petitioner's miscellaneous application as no such application was maintainable. The Prime Minister could not be in a position to examine the vires of his own order."
31. These averments as well as the averment made in the writ petition itself show that the case was being resubmitted to the Prime Minister and that it was being brought to the notice of the Prime Minister that his orders were not lawful. This was being done in pursuance of sub-rule (4) of Rule 7 of the Rules of Business of the Government. The sub-rule is as follows:-- "(4) If an order contravenes any law, rule or policy decision, it shall be the duty of the officer next below the officer making such order to point it out to the officer making the order and the latter shall refer the case to the next higher authority."
32. We fail to see the logic adopted by the High Court to circumvent the provision of the Rules of Business reproduced above. It may be emphasized that power of the High Court to issue a writ of mandamus is available to the High Court to make a direction to public functionary to do that which is required by law to do. The High Court cannot order a public functionary not to perform a function which he is duty bound to perform.
33. Apart from the provision in Rules of Business, independent power to withdraw the order passed by the Prime Minister was available to him under section 21 of the General Clauses Act.
34. We have, therefore, reached the conclusion that the High Court fell in error in ordering the implementation of the orders of reinstatement passed by the Prime Minister of Azad Jammu and Kashmir. The judgment of the High Court is, therefore, vacated and the writ is recalled. However, there will be no order as to costs.