' BASHARAT AHMAD SHAIKH, J.---This review petition has been filed to seek reversal of the judgment of this Court, dated 10th December, 1998 in Civil Appeal No,67 of 1998 titled Ch. Muhammad Fayyaz and another v. Syed Arshad Gillani and 2 others Civil, Appeal No,68 of 1998 titled Muhammad Bashir Khan v. Azad Jammu and Kashmir Government and 5 others and Civil Appeal No,82 of 1998 titled Azad Government and 2 others v. Muhammad Bashir Khan and 4 others.
2. Facts of the case were that petitioner No,1 Syed Arshad Gillani was appointed as Deputy Custodian (B.18) on 18th January, 1992. This order was superseded on 18th March, 1992 whereby the post of Deputy Custodian held by Syed Arshad Gillani was upgraded as Additional Custodians (B.19) with effect from 26th January, 1992. By another order, Syed Arshad) Gillani was appointed to the newly created post with retrospective effect from 21st January, 1992. The power to appoint Deputy Custodian and Additional Custodian is vested in Government under section 6 read with section 2(1) of the (Pakistan) Administration of Evacuee Property Act, 1957, as in torte in Azad Jammu and Kashmir. At the time of appointment there were no rules in respect of terms and conditions of service of the post of Additional Custodian. The rules were framed on 16th June, 1992 in exercise of powers vested in the Government under section 57 of the Administration of Evacuee Property Act, 1957 (Act of 1957 for brevity), and were known as "Azad Jammu and Kashmir Additional Custodians, Deputy Custodiars and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992" also hereinafter referred to as the Rules. In pursuance of the Rules a Selection Board was constituted. On 22nd September, 1992 a notification was issued to the effect that the President of Azad Jammu and Kashmir had confirmed Syed Arshad Gillani in light of recommendation of the Selection Board. He was transferred as Election Commissioner Local Bodies for sometime but was later on brought back as Additional Custodian. On 26th December, 1996, he was transferred as Officer on Special Duty and subsequently his services were terminated on 21st January, 1997. Likewise petitioner Sardar Muhammad Azim Zia was appointed as Additional Custodian and was confirmed in the same manner as the other petitioner. He was appointed as Election Commissioner Local Bodies for sometime and also subsequently served as Custodian Evacuee Property. He was posted as Officer on Special Duty on 26th December, 1996. His services were also terminated on 21st January, 1997. In the same way Muhammad Bashir Khan, not before the Court, was appointed as Additional Custodian on 17th April, 1993. He was also confirmed on the recommendation of the Selection Board on 8th February, 1994. He served as Project Director, Small Industries Corporation but was repatriated to his parent post. His services were also terminated on 21st January, 1997. On 26th December, 1996 Ch. Muhammad Fayyaz and Ch. Muhammad Zaman were appointed as Additional Custodians. This is the time when Syed Arshad Gillani, Muhammad Bashir Khan and Sardar Muhammad Azim Zia, were still serving as Officers on Special Duty before termination of their services. Two writ petitions were filed in the High Court to challenge the termination orders mentioned above as well as the appointments orders of Ch. Muhammad Fayyaz and Ch. Muhammad Zaman.
3. The High Court held that in light of the Rules, the writ petitioners were holding the post of Additional Custodian on regular basis and they were to continue to remain in service till they attained the age of sixty years. The High Court also held that there was no charge of misconduct against them so that their services could not be terminated before attaining the age of sixty years.
It was, therefore, held that the termination orders were without lawful authority and of no legal effect. Consequently the appointment of Ch. Muhammad Fayyaz and Ch. Muhammad Zaman was declared illegal because the posts of Additional Custodian were legally occupied by Syed Arshad Gillani and others when the new appointments were made. The petitioners filed appeals in this Court.
4. Another appeal was filed by Azad Government of the State of Jammu and Kashmir, Secretary Services and General Administration and Custodian of Evacuee Property. In their appeal it was inter alia pleaded by them that Syed Arshad Gillani and Sardar Muhammad Azim Zia had been declared civil servants under the Rules, therefore, their appointment was not valid because it was made without the recommendation of Public Service Commission. This Court accepted this plea after detailed discussion in the following words:- "Thus, it is declared that the stand taken by the Government and the Custodian of Evacuee Property in their appeal before this Court that posts of Additional Custodians, Deputy Custodians and Managers can be filled in only on the recommendation of the Public Service Commission is well-founded and we uphold it. Once we reach this conclusion, it follows as a corollary that Additional Custodians, whose services were terminated, had no right to continue in service till attaining the age of sixty years as they had not been appointed on the advice of the Public Service Commission."
' For the same reasons appointment of Ch. Muhammad Fayyaz and Ch. Muhammad Zaman were also held to be invalid. On this point it will be useful to produce the following portions of the judgment:- "The conclusion is that incumbency of both the sets of Additional Custodians was not valid and we order accordingly. We have no doubt that this order is within our ordinary powers in light of the principles discussed above, but as a matter of abundant caution we may point out that this order can be safely justified in light of the power to complete justice which is vested in this Court by the section 42-A of the Azad Jammu and Kashmir Constitution Act, 1974."
5. The review petition filed by Syed Arshad Gillani and Sardar Muhammad Azim Zia is a lengthy one but the prayer clause will highlight the main point which was ultimately argued at the preliminary hearing. The same is as follows:-- ' Hon'ble Court in Civil Appeal No,66 of 1998 may kindly be applied to the case of petitioner's appointments and it may kindly be declared that Civil Servants Act and the rules framed thereunder i,e,, Azad Jammu and Kashmir Civil Servants Appointments and Conditions of Service Rules, 1977, the Azad Jammu and Kashmir Public Service Commission Function Rules, 1978 which are general law governing the terms and conditions etc. Of the civil servants has no nexus with the appointment of the Additional Custodians made by the Government in exercise of powers conferred on it by sections 2(1) and 6 of the Administration of Evacuee Property Act, 1957 which is a special enactment. The special enactment referred above quoted the provisions of Civil Servants Act, rules framed thereunder and Public Service Commission Function Rules, 1978. The judgment of this Hon'ble Court in Civil Appeal No,67 of 1998 may kindly be brought in conformity to the judgment of this Honourable Court in Civil Appeal No,66 of 1998. The Appeal No,67 of 1998 may kindly be dismissed and the judgment of the High Court, dated 20-3-1998 may kindly be restored."
6. As is clear from the above that the grievance of the petitioners is that this Court, while pronouncing the judgment sought to be reviewed, has deviated from the judgment in Civil Appeal No,66 of 1998 and also fell in error in holding that the Civil Servants Act and the Public Service Commission Act were applicable to the posts of Additional Custodians. Civil Appeal No,66 of 1998 titled Azad Government of the State of Jammu and Kashmir through its Chief Secretary and 3 others v. Human Genuine Rights Commissions, Azad Jammu and Kashmir through Ashfaque Hussain Kiani, Advocate, Central Bar, Muzaffarabad and 7 others (1999 M LD 268) dealt with the challenge thrown to the setting up of Shariat Court, which was created by Azad Jammu and Kashmir Shariat Court Act, and appointment of the Judges of the said Court. It was argued by Raja Muhammad Hanif Khan that the appointment of the Judges of the Shariat Court was held to be valid under section 3 of the Azad Jammu and Kashmir Shariat Court Act while the appointment of the petitioners under section 6 of the Administration of Evacuee Property Act, 1957 has been held to be invalid although the two provisions are identical. It was argued by Raja Muhammad Hanif Khan that in the Genuine Rights Commission case Public Service Commission Act and the Civil Servants Act were not held to be applicable to Judges of the Shariat Court but in the judgment sought to be reviewed these Acts alongwith rules made thereunder have been held to be applicable to Additional Custodians.
7. The contentions of the learned counsel have no weight. The questions whether the petitioners were civil servants and whether the post of Additional Custodian was a civil post within the meaning of the Public Service Commission Act and the Rules were decided on the basis of the following reasoning:-- "Now the question is whether the incumbents of the post of Additional Custodian were civil servants and whether the post of Additional Custodian is a civil post within the meaning of the Public Service Commission Act and the Rules. Section 6 of the Act of 1957 is silent on this point but the Rules provide the answer. Rule 4 lays down that rules and order which are in force in respect of service of Azad Jammu and Kashmir shall be made applicable to Additional Custodian in the matter of pay, allowances, leave, medical facilities, housing facilities, pension and retirement. Rule 7 laid down that a person who is subject to the Rules shall be subject to Government Servants (Conduct) Rules, Government Servants (Efficiency and Discipline) Rules, 1977 and Government Servants Appeal Rules, 1991. Rule 8 lays down that a person who is subject to the Rules will be required to serve in any Department on any post. Rule 9 lays down that a person who is subject to the Rules shall be deemed to be a civil servant within the meaning of section 2 of the Azad Jammu and Kashmir Service Tribunals Act. Rule 10 relates to retirement and pension and may be reproduced below:-- "(10)Retirement and Pension.
' Any person who is subject to these rules, shall retire from service on completion of 60 years of age and shall be entitled to pension as admissible to him under Azad Jammu and Kashmir Civil Service Pension Rules, 1971."
(Emphasis provided).
' When we turn to the Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1971, only a civil servant is entitled to get pension and. There is no concept of payment of pension to officials who are not civil servants as will be clear from the scheme of the said Rules. It will be useful to reproduce rules 1.2 and 1.3:- "(1.2) Commencement.---These rules shall have effect from 8-3-1969 in respect of Non-Gazetted Government servants and from 1-7-1970 in respect of Gazetted Officers.
1.3 Extent of application.---Unless in any case it be otherwise expressly provided, the rules shall apply to--
(i) All Non-Gazetted Government servants under the rule making control of Azad Government of the State of Jammu and Kashmir who entered Government service on or after 18-3-1969.
(ii) All Gazetted Government servants under the rule making control of Azad Government of the State of Jammu and Kashmir who entered Government service on or after 1-7-1970.
(iii) All Non-Gazetted Government servants who were in service on or before 18-3-1969 and all Gazetted Government servants who were in service on or before 1-7-1970, unless they opt to continue to be governed by the existing rules applicable to them;
(iv) All pensioners who retired from Government service after 18-3-1969 (in case of Non-Gazetted Government servants) or after 1-7-1970 (in case of Gazetted Government servants), but before the date of publication of these rules, if they opt to be governed by these rules.'
' In rule 1.5 it is clearly laid down that 'These rules shall not apply to- ' Government servants engaged on contract and conditions of service special provision is made by or under any law for the time being in force;
(ii) any person for whose appointment and conditions of service special provision is made by or under any law for the time being in force;
(iii) ............................................
(iv) ............................................
(v) ............................................
(vi) any person who is not paid from the Azad Kashmir Government revenues but is paid from a fund held by Government as a Trustee, or from a local fund, or its remunerated by fees for the grant of a tenure of land or any other source of revenue or of a right to collect money.'
' It is provided in rule 2.1 that a Government servant qualifies for pension'only if the service is under the Government and the service is paid by the Government from its revenues. These provisions of the Pension Rules notwithstanding, Rule 10 of the Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service) Rules, 1992 lays down that a person subject to these rules shall be entitled to pension as admissible to him under Azad Jammu and Kashmir Civil Servants Pension Rules, 1971.' Rule 10 also provides for the retirement from service' on completion of sixty years of age while retirement from service is a concept incorporated in section 12 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which is reserved for civil servants. Thus, it is clear that the stand taken by the Government and the Custodian of Evacuee Property in their appeal before this Court that posts of Additional Custodians, Deputy Custodians and Managers can be filled in only on the recommendations of the Public Service Commission is well-founded and we uphold it. Once we reach this conclusion, it follows as a corollary that Additional Custodians whose services were terminated had no right to continue in service till attaining the age of sixty years as they had not been appointed on the advice of the Public Service Commission."
8. From the foregoing it is clear that in the judgment sought to be reviewed, Additional Custodians were found to be civil servants in light of the provisions made in the Azad Jammu and Kashmir Additional Custodians, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992 and Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1979 which had the accumulative effect of declaring Additional Custodians as civil servants. The aforesaid Rules are not applicable to the Judges of the Shariat Court. Interpretation of an enactment A is only applicable to another enactment if both the enactments are para materia. As seen above, the situation is to the contrary and the petitioners have tried to apply the judgment in Genuine Rights Commission case to the present case without an iota of justification.
9. We may also point out that even if two judgments of this Court, which is a Court of ultimate jurisdiction, differ on a law point, no principle of law has been brought to our notice by Raja Muhammad Hand Khan that the later judgment is to be reviewed so that it conforms to the earlier judgment.
' The result is that we find no merit in this petition and order its dismissal in limine.
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