' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court, passed on 19-4-2002, whereby the writ petition filed by the respondent, herein, was accepted.
2. Admitted facts culminating into the present appeal, briefly stated, are that prior to the year 1971, the Judges of the High Court were holding the additional charge of the post of Custodian of Evacuee Property. For the first time vide Government Notification dated 13-2-1971, the Government in exercise of the powers vested in it under section 57 of the Administration of Evacuee Property Act, 1957 (hereinafter to be referred as the Act of 1957), for the management of Evacuee Property appointed the whole time Custodian and also framed the Azad Jammu and Kashmir Custodian of Evacuee Property (Terms and ,Conditions of Service) Rules, 1992 (hereinafter to be referred as the Rules of 1992) on 18-6-1992. One Raja Abdul Majeed Khan was appointed as a whole time Custodian of Evacuee Property vide Government Notification dated 12-11-1991. Subsequently he was posted as Secretary Law on deputation and against his lien the present appellant who at that time was serving as Additional Custodian was given the charge of the post of Custodian vide Notification dated 17-1-1996. After some time, Raja Abdul Majeed Khan was transferred from the post of Secretary Law and posted as Chairman Service Tribunal but through Government Notification dated 4-9-1996, he was sent back to his parent post of the Custodian of Evacuee Property. Consequently the appellant, herein, who was given charge of the post in lieu of Raja Abdul Majeed, was reverted to the post of Additional Custodian. Raja Abdul Majeed Khan breathed his last in England on 7-6-1997, where he had gone for the treatment of his serious ailment. In his place the contesting respondent was appointed as Custodian of Evacuee Property by the Government in exercise of the powers vested in it under section 6 of the Act of 1957 vide Gazette Notification dated 13-6-1997. The Government also issued a Notification on 13-8-1997, whereby the name of Raja Abdul Majeed Khali, was removed as Custodian from the fraternity of the employees of the department of Custodian of Evacuee Property.
3. The appellant, herein, alongwith other Additional Custodians, namely, Syed Arshid Gillani and Muhammad Bashir Mughal, was removed from service by the Government on 21-2-1997. They challenged the legality of their removal through a writ petition before the High Court. The High Court allowed their writ petition and declared their removal from service as Additional Custodian, as without lawful authority vide its judgment dated 20-3-1998. One Ch. Muhammad Fayyaz availed the right of appeal before this Court. The appeal of said appellant was allowed by this Court vide judgment dated 10-12-1998, and the removal of the appellant alongwith his other colleagues was held legal. The judgment of this Court was assailed before this Court in a review petition by the appellant and Syed Arshid Gillani, which was rejected by this Court vide judgment dated 16-4-1999.
4. The case of the appellant in the present round of litigation is that when (late) Raja Abdul Majeed Khan was posted .Back as Custodian of Evacuee Property, vide Government Notification dated 4-9- 1996, he filed a representation with the Prime Minister of Azad Jammu and Kashmir, wherein he challenged his reversion against the post of Additional Custodian, which he was holding prior to his appointment as Custodian in lieu of Raja Abdul Majeed Khan who was transferred and appointed as Law Secretary. According to him, he submitted a comprehensive summary to the Prime Minister on 20-2-1996, whereby he requested that he be appointed. Against the post of Custodian permanently and the privileges which are admissible to a Judge of the High Court, may also be sanctioned in his favour. The Prime Minister accorded his approval on 28-2-1996 and directed the Secretary Services and General Administration Department to issue Government Notification in this regard but the Secretary Services had not complied with the directions of the Prime Minister.
Thereafter the Media Advisor to the Prime Minister submitted another detailed note to the Prime Minister and obtained his approval on 20-3-1996. This approval was also sent to the Secretary Services but no formal Notification was issued. According to him, his representation was finally allowed by the present Prime Minister, who reinstated him to the post of Custodian on 6-12-2001 and removed the contesting respondent from the post of Custodian.
5. The private respondent through a writ petition called in question the Notification of the Government dated 6-12-2001, whereby he was removed from the post of Custodian of Evacuee Property and the present appellant was reinstated in his place as Custodian with effect from 4-9- 1996. After taking necessary proceedings the learned Chief Justice of the High Court vide his elaborated judgment dated 19-4-2002, allowed the writ petition and declared the Government Notification dated 6-12-2001, as unconstitutional, without lawful authority and void ab initio and restored the contesting respondent to the office of the Custodian of Evacuee Property from the date of his removal, with all benefits and privileges attached to the post. This judgment of the High Court has been assailed in the present appeal.
6. Ch. Muhammad Azam Khan, the learned counsel for the appellant, argued that the respondent availed the writ jurisdiction of the High Court without availing the alternate remedy which was available to him, therefore, his writ petition was not maintainable. He supported his argument by placing reliance upon rule 11 of the Rules of 1992 wherein, according to him, a right of representation/review was available to the contesting respondent before the Government but he without availing that remedy directly filed a writ petition in the High Court. According to the learned counsel, this objection was raised before the High Court but the same has not been decided in accordance with law. The learned counsel placed reliance upon a case titled Faqir Muhammad and others v. Custodian of Evacuee Property and others [1996 SCR 3491, wherein without availing the review jurisdiction the order of the Custodian was challenged in a writ petition before the High Court. While disapproving this practice it was held by this Court that section 43(6) provides wide powers of review to the Custodian, therefore, without availing the review jurisdiction, the, writ petition was not maintainable. He further submitted that under the provisions of the Rules of Business, the Custodian of Evacuee Property is the head of attached department, therefore, in the light of the definition of service of Azad Jammu and Kashmir contained in the Azad Jammu and Kashmir Interim Constitution Act, 1974, under the provisions of the Azad Jammu and Kashmir Service Tribunals Act, 1975 and the Azad Jammu and Kashmir Civil Servants Act, 1976, the Custodian is in the service of Azad Jammu and Kashmir, therefore, he is also a civil servant who can avail the appellate jurisdiction of the Service Tribunal in respect of infringement of any terms and conditions of his service. The writ jurisdiction was, therefore, not available to the respondent.
The learned counsel further argued that despite objection raised by the appellant, this point was not attended to properly by the High Court in the judgment under challenge, therefore, the judgment of the High Court being without jurisdictional competence is liable to be set aside. While elaborating his objection, the learned counsel further submitted, that under the provisions of the Act of 1957, the term 'Custodian' includes Additional Custodian and the Assistant Custodian.
Additional Custodian has been held by this Court as civil servant in Civil Appeal No,67 of 1998 and in Civil Review Petition No,1 of 1999, who cannot be inducted against the post of Additional Custodian without the recommendations of the Public Service Commission, therefore, the Custodian in the light of the view expressed by this Court in the aforesaid decisions is also a civil servant who can seek the redressal of his grievance by availing the appellate jurisdiction of the Service Tribunal. The writ petition filed by the respondent, therefore, was not maintainable. In support of this contention the learned counsel placed reliance upon the following authorities:-- ' In a case titled Ch. Muhammad Fayyaz Additional Custodian Muzaffarabad and another v. Syed Arshid Gillani Ex-Additional Custodian Muzaffarabad [PLJ 1999 SC (AJK) 89], the appointment of the present appellant alongwith other Additional Custodians, was involved in the light of the Rules framed under section 57 of the Act of 1957 for the post of Additional Custodian in which it was held that in the light of the Rules they are civil servants and their appointments have been made contrary to the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977. Therefore, the order of the High Court by which they were restored as Additional Custodians, was vacated. This authority is distinguishable with the case of the private respondent which shall be discussed in the later part of this judgment.
' The next authority cited by the learned counsel in support of his objection is Syed Arshid Gillani and another v. Azad Jammu and kashmir Government and 2 others 2000 PLC (C.S.)
66. The authority was given by the Court in its review jurisdiction which was availed by the appellant along with one, Syed Arshid Gillani, his Colleague Additional Custodian for reversal of the order of this Court passed in Appeal No,67 of 1999. In this case the view expressed earlier by this Court in the above referred authority, [PU 1999 SC (AJK) 89], was maintained.
' In a case titled Muhammad Latif Khan v. Sarwar Hussain and others 1995 PLC (C.S.) 182, it was held that matters relating to the terms and conditions of service of civil servants can be adjudicated upon by the Service Tribunal having exclusive jurisdiction in this regard. Therefore, the High Court cannot entertain writ petition in respect of any matter falling within the ambit of terms and conditions of service.
7. The learned counsel also referred the Rules of Business of 1985, whereby the Custodian's office has been held attached department of the Services and General Administration Department.
According to the learned counsel, the appointment of respondent as Custodian vide Notification dated 13-6-1997 was illegal because at that time the representation of his client was still awaiting decision before the Prime Minister; moreover two approved summaries by the Prime Minister dated 28-2-1996 and 20-3-1996, were not set aside by the Prime Minister. He strenuously critized the observations of the High Court that the approval accorded by the Prime Minister upon the summaries on 28-2-1996 and 20-3-1996, were not available on the record or had no legal value because no formal Government Notification was issued in furtherance of these approvals. He critized the conduct of the High Court by arguing that it summoned the record on the application of respondent No,1 without notice to the appellant and pro-forma respondents. According to the learned counsel, before summoning the relevant record, it was necessary for the High Court to invite objections from the appellant and pro-forma respondents. He further argued that the appellant had produced before the High Court, the photostat copies bearing signatures of the Prime Minister of the time which should have been taken into consideration and given due importance as required by law. According to the learned counsel, the claim of his client, was owned by the Government in its written statement which is ample proof of the fact that the Government had accepted the case of the appellant that he was permanently adjusted against the post of Custodian and through the approval of a summary, he was held entitled to the terms and conditions admissible to a Judge of the High Court. In the light of these admitted facts, according to the learned counsel, the appellant could not be removed from the post of Custodian before attaining the age of .62 years.
8. The arguments of the learned counsel for the appellant, were owned by the learned Advocate- General who submitted that as there was no provision for the temporary appointment of Custodian, therefore, on the transfer of Raja Abdul Majeed Khan, the then Custodian, as Secretary Law, the appellant shall be assumed to have been appointed permanent Custodian as envisaged by the relevant law. He further argued that without availing the remedy before the Prime Minister by submitting a review petition, the respondent was not justified in law to avail the writ jurisdiction of the High Court. He strenuously criticized the findings of the High Court whereby the appellant was not given the benefit of the approvals granted by the Prime Minister to the summaries relating to his appointment as Custodian with terms and conditions which are admissible to a Judge of the High Court.
9. On the other hand, while opposing the arguments of the learned counsel for the appellant, Mr. Mujahid Hussain Naqvi, the learned counsel for the contesting respondent, argued that his client after the sad demise of the then Custodian, Raja Abdul Majeed Khan, was appointed lawfully permanent Custodian of Evacuee Property by the Government in exercise of the powers vested in it under section 6 of the Act of 1957, who on account of this reason, could only be removed from his office in accordance with the procedure provided for a Judge of the High Court as is mentioned in rule 7 of the Rules of 1992, relating to the office of Custodian of Evacuee Property. The appellant in the wisdom of the learned counsel for the contesting respondent, was not justified in law to submit any representation against his appointment nor the Government was competent to issue impugned Notification through which the respondent was removed from the office of Custodian in colorful exercise of jurisdiction. While placing reliance upon the cases titled Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government and Muzaffarabad v. Mujahid Hussain Naqvi and another (PLJ 2001 SC (AJ&K) 50] and Muhammad Siddique Farooqi v.
Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others [PLD 1994 SC (AJ&K) 13], he submitted that the respondent could be removed only by adopting the procedure which has been laid down in the Rules of 1992. He further submitted that as the procedure visualized by the relevant Rules was violated by the Government, therefore, the High Court was justified in holding the impugned order of the Government as without lawful authority and avoid ab initio. While referring the order of appointment of the appellant as Custodian in lieu of
(late) Raja Abdul Majeed Khan, who at that time was transferred and posted as Secretary Law, the learned counsel contended that the appointment order itself is clear that the appellant was appointed as Custodian for the period, the late Custodian was asked to serve as Secretary Law.
The appellant in fact was given the charge of the post in his capacity as Additional Custodian in B-
19. The lien of then Custodian was kept intact and soon when he was reverted to his position as Custodian, the appellant was sent back to his post of Additional Custodian, which in fact he joined and served till the time he was removed by the Government alongwith other Additional Custodians. He by accepting his position as Additional Custodian sought the indulgence of the High Court in its Constitutional jurisdiction against his order of removal passed by the Government as Additional Custodian. The writ petition was allowed. However, the decision was reversed by this Court on appeal filed by one Ch. Muhammad Fayyaz. The appellant alongwith Syed Arshid Gilani, his colleague, once again insisted that they were lawfully appointed as Additional Custodians, by filing their review petition in this Court but their review petition was dismissed. The relevant judgment is reported as Syed Arshid Gillani and another v. Azad Jammu and Kashmir Government and 2 others 2000 PLC (C.S.)
66. In the light of his own conduct, the appellant was not justified in law to develop hope for the office of Custodian.
10. The learned counsel for the contesting respondent strenuously opposed that any representation filed by the appellant was pending with the Government. According to him, assuming that any such representation had ever been filed, the same shall be deemed to have been rejected or had become redundant after the judgment of this Court against him as Additional Custodian. He controverted the objection of the learned counsel for the appellant that the respondent had remedy of review available before the Government. According to the learned counsel, under rule 11 of the Rules of 1992, no representation or review is envisaged, therefore, no such, remedy could be availed by the respondent. The learned counsel took us through the record whereby the representation alleged to had been filed by the appellant in the Prime Minister Secretariat, has not been entered in the relevant appeal register. While attaching the photostat copies of two summaries dated 28-2-1996 and 20-3-1996, he argued that these are the photostat copies, therefore, are not admissible in evidence. He strenuously criticized that these summaries were not found in the official record. The appellant has not obtained the attested copies of these summaries in accordance with the Rules, therefore, these documents are lacking the legal sanction, as such cannot be made basis for the decision of the controversy between the parties. According to him, any order obtained by the appellant or some other official having no nexus with the relevant business, is not recognized under the provisions of the Rules of Business, 1985. The approval from the Prime Minister could be obtained by the relevant official on duly processed file in accordance with the procedure contained in the Rules of Business. As the procedure contained in the Rules of Business was not adopted, therefore, these papers cannot be accepted as summaries recognized by law. The reliance was placed by the learned counsel upon the following authorities :
(1) Allah Ditta and others v. Sher Ahmed Khan and others [1993 SCR 325],
(2) Azad Government of the State of Jammu and Kashmir through Chief Secretary of Azad Government Muzaffarabad and 2 others v. Mujahid Hussain Naqvi and another (PU 2001 SC AJ&K 50]; and
(3) Abdul Haq Mughal v. Muhammad Naseer Usmani and 2 others [2002 SCR 146], ' In these authorities it is laid down that when some mode is provided in the Law for the performance of an Act then that Act must be performed according to that mode or not at all.
11. The learned counsel strongly defended the judgment of the High Court and argued that the respondent was condemned unheard by the Government. According to him, as the principle of natural justice was not specifically excluded from the Rules of 1992, therefore, the Government before passing the impugned order upon the illegal representation of the appellant was bound to provide the respondent the right of hearing. He supported his contention by placing reliance upon the following cases, titled Mehmood Akhter Kiani v. Azad Jammu and Kashmir Government and 3 others [1998 SCR 310] and Inspector General of Police and 3 others v. Aurangzeb and 4 others [2002 PLC (C.S.) 785].
12. We have considered the respective arguments of the learned counsel for the parties in the light of the relevant record and gone through the reports of the cases referred to by them. Before discussing the merits of the case it appears appropriate to resolve the preliminary objections which were raised by the learned counsel for the appellant about the maintainability of the writ petition in the High Court. The first objection was that the private respondent had alternate remedy to file a review petition before the Government under Rule '11 of the Rules of 1992. According to him, without availing that remedy his writ petition was not maintainable before the High Court. The second objection is that the term 'Custodian' includes Additional Custodian and Assistant Custodian, as this Court while deciding Civil Appeal No,68 of 1998 titled Muhammad Bashir Khan v.
Azad Jammu and Kashmir Government and 5 others, has held the Additional Custodian as civil servant, therefore, the Custodian by implication is also a civil servant who can seek the redressal of his grievance either by tiling representation before the Government or availing the appellate jurisdiction of the Service Tribunal having exclusive jurisdiction in respect of the matters relating to the terms and conditions of Service of civil servants. For the proper perception of the first objection it appears imperative to have a reference to Rule 11 of the Rules of 1992, which is couched in the following words:-- "11. Power of Government to safeguard the Rights of Custodian.---Whenever in the application of these rules, the terms and conditions of service of any persons serving on the post of Custodian, as guaranteed by these rules or by any law for the time being in force, are likely to the adversely affected, the Government shall make appropriate orders to safeguard the Constitutional and legal rights of such person."
13. The bare reading of this provision makes it clear that under this rule, the Government is bound to safeguard the interest of serving Custodian in respect of terms and conditions of his service and if any rule or any law for the time being in force is likely to affect the terms and conditions of Custodian service, the Government is duty bound to make appropriate orders to safeguard the Constitutional legal rights of the serving Custodian. This rule, as rightly held by the High Court, does not envisage any review or representation by an ousted Custodian before the Government. From the perusal of this provision it also becomes clear that Government cannot pass any adverse order against the serving Custodian without notice and without following the due process of law. The High Court also has rightly held that all the superior judiciary of Subcontinent, particularly the superior judiciary of this part of the State, has held such orders void through which a duly appointed person is removed from his office without providing him right of hearing or without due process of law. It is a settled proposition of law, as has been rightly pointed out by the learned counsel for the contesting respondent, that the principle of natural justice is supposed to be the part of every statute having the force of law. So it is the demand of natural justice that before condemning any person in any judicial or quasi judicial proceedings, the concerned persons, whose interest is involved, must be heard. Our view is fortified by the following authorities of this Court:--
(1) Inspector General of Police and 3 others v. Aurangzeb and 4 others [2001 SCR 526];
(2) Abdul Rashid v. D.E.O. And another 1998 PLC (C.S.) 304.
(3) M/s. Rasab and Brothers v. Deputy Collector Excise and Taxation and others [1993 SCR 346].
14. We have reproduced ii extenso Rule 11 of the Rules of 1992. Keeping in view the language used in this rule it can be safely said that it does not envisage any review or representation before the Government by the Custodian particularly one who has been ousted from his post. The respondent, therefore, was not entitled under law to file review or representation before the Government. Even otherwise we want to make it clear that it is an adequacy and not mere absence of alternate remedy which determines the propriety of the writ. It has been repeatedly laid down that the alternate remedy must be equally convenient beneficial and effective, only then the High Court can refuse to exercise the extraordinary jurisdiction. Our view finds support from the authority of this Court in a case titled Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfraz and 2 others [PLD 1984 SC (AJ&K) 77].
Relevant observations are reproduced below:-- "14. Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its Constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternative and equally efficacious remedies are available. But then it does not mean that there is any Constitutional bar to the High Court in exercising such a jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that the High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary. Constitutional jurisdiction where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellants writ petitions by the learned High Court was a wrongful exercise of the jurisdiction invested in it under law."
' Therefore, the first objection raised by the learned counsel for the appellant about the maintainability of writ petition filed by the respondent, having no force is repelled. On the basis of above discussion it is held that appellant was not entitled to file any review/representation before the Government. The representation decided in his favour by the Prime Minister, therefore, was the result of colourful exercise of jurisdiction not vested in the Government. As noticed earlier, the objection about the maintainability of the writ petition, raised by the learned counsel for the appellant, was two fold. His other objection was that this Court has held the Additional Custodians as civil servant, therefore, the Custodian, shall also be held as a civil servant because the terms 'Custodian' includes Additional Custodian and Assistant Custodian and on account of this reason the remedy available to the contesting respondent was to invoke the appellate jurisdiction of the Service Tribunal. This objection is also without any force. The Custodian is governed by the Rules of 1992 which were framed by the Government on 18-6-1992, in exercise of the powers available to it under section 57 of the Act of 1957. Under these Rules only such persons can be appointed Custodian who either was or is a Judge of the High Court or is qualified to be appointed as Judge of the High Court. In these Rules it is laid down that the person who shall be appointed as Custodian, shall hold office until he attains the age of 62 years; unless he himself sooner resigns or is removed from office in the manner provided for a Judge of the High Court. The Additional Custodians are governed by the Rules known as the Azad Jammu and Kashmir Additional Custodian, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992, framed on 16-6-1992. These Rules were framed by the Government in exercise of the powers vested in it under section 57 of the Act of 1957. In pursuance of these Rules a Selection Board is constituted and the appointment of Additional Custodian is required to be made on the recommendations of the Selection Board. The appellant and his colleagues Additional Custodians, were appointed earlier to the rules but their services were later on regularized under these Rules in the light of the recommendations made in their favour by the Selection Board. On account of these reasons through a detailed judgment, this Court allowed the Civil Appeal No,67 of 1998 filed by one Ch. Muhammad Fayyaz and another v. Syed Arshid Gillani and 2 others, including the present appellant, and held the holders of the post of Additional Custodians, to be the civil servants. As the Custodian and the Deputy Custodian are governed by different laws, which contain different qualifications and mode of their appointment and different terms and conditions relating to their offices, therefore, on the basis of the aforementioned judgment of this Court the contesting respondent cannot be held civil servant, thus was not entitled to avail the appellate jurisdiction of the Service Tribunal.
15. Now after dealing with the preliminary objection raised by the learned counsel for the appellant, we would like to attend the merits of the case. The pivotal point which remained under heated debate and discussion between the learned counsel for the contesting parties at the bar, is whether the appellant was appointed as Custodian by the Government vide its Notification dated 17-1-1996? The main thrust of arguments of the appellant's claim is that he was appointed as Custodian when (late) Raja Abdul Majeed Khan, the whole time Custodian, was transferred and posted as Secretary Law, therefore, the Government had no jurisdictional competence to revert him to his original position as Additional Custodian. The order is dated 17-1-1996, which is reproduced below for the convenience of reference:-- {{URDU TEXT}} (Underlining is ours)
16. This order is very clear. The appellant, who was functioning as Additional Custodian, was given the charge of the post of Custodian in the lieu of late Raja Abdul Majeed Khan who was transferred and posted as Secretary Law by the Government. In our opinion, the Government was not justified in law to transfer the Custodian and post him as Secretary Law. The posting and transfer of civil servant can be effected by the Government but the Custodian of Evacuee Property is not a civil servant, therefore, the said order of transfer, whereby Raja Abdul Majeed Khan was transferred and posted as Secretary Law, was totally illegal and bad in law. Later on when Raja Abdul Majeed Khan was transferred and again posted as Custodian, the appellant was reverted back to the post of Additional Custodian vide Government Notification dated 4-9-1996, which reads as follows:-- {{URDU TEXT}}
17. The appellant considered himself as Additional Custodian because when on 21-2-1997, he was removed from his service alongwith Syed Arshid Gillani and Muhammad Bashir Khan, Additional Custodians, he filed a writ petition in the High Court whereby alongwith his colleagues Additional Custodians, he challenged the order of his removal from the post of Additional Custodian. The decision was given in favour of the appellant and his colleagues by the High Court on March, 20 1998 but on appeal the judgment was reversed by this Court. The judgment of this Court is reported as Ch. Muhammad Fayyaz v. Syed Arshid Gillani (PU 1989 SC AJK 89). The appellant, thereafter, filed a review petition against the said judgment which was rejected by this Court. This judgment is also reported as Syed Arshid Gillani v. Azad Government and others (2000 PLC (C.S.) 66). The appellant in the first round of litigation never treated himself as Custodian. Now he cannot be allowed to take totally inconsistent plea to support the order of Government passed in illegal exercise of jurisdiction.
18. In order to challenge the appointment of the contesting respondent, the appellant has brought on record the Government Notification dated 13-8-1997; whereby Raja Abdul Majeed Khan's name was struck off, from the establishment of the Custodian Department. By this Notification the appellant himself admitted that Raja Abdul Majeed Khan was appointed as Custodian till his death or retirement. Unfortunately he died on 7-6-1997, as such his name was struck off from the establishment of the Custodian Department. In the life time of the said Custodian, no person could be appointed as Custodian. The respondent was admittedly appointed after the death of the said Custodian by the Government, therefore, in the light of the above discussion and keeping in view the past conduct of the appellant himself which culminated into two judgments of this Court recorded as Ch. Muhammad Fayyaz, Additional Custodian, Muzaffarabad and another v. Syed Arshid Gillani Ex-Additional Custodian, Muzaffarabad (PU 1999 SC (AJK) 89) and Syed Arshid Gillani and another v. Azad Jammu and Kashmir Government and 2 others [2000 PLC (C.S.) 66], the appellant was never appointed as Custodian. He was just given the charge of the post in lieu of late Raja Abdul Majeed Khan, on 17-1-1996, when he was illegally transferred and posted as Secretary Law by the Government.
19. The last claim of the appellant is that on 28-2-1996 and 20-3-1996, the Prime Minister of the time approved two summaries whereby Secretary Services and General Administration Department was directed to issue a notification appointing the appellant as Custodian of Evacuee Property, with terms and conditions which are admissible to a Judge of the High Court. The High Court turned down this objection by making the following observations:-- ".......... .......................................... .................. Both these documents are not confidence inspiring for the reasons that they have never been placed before the Supreme Court or the High Court by the respondents; these have never been acted upon and have for the first time seen the light of day when the petitioner's removal process was initiated. Notwithstanding, that these are not based on any regularly processed file. The direction dated 28-2-1996 is allegedly passed on the proposal of respondent himself and the direction dated 20-3-1996 is passed on the proposal of Media Advisor.
Both have nothing to do with the Service Department which is administrative,........... Parent and relevant Secretariat regulating appointment and removal of Custodian under rules of Business, 1985... "
' This finding of the High Court is approved as it reflects correct position of law.
20. The photostat copies of summaries purportedly carrying approvals of the Prime Minister of the time have been placed on record. The 'original documents have not been made available on record nor the appellant has furnished any explanation that in the absence of the original documents, how photostat copies of the same have been obtained by him which he furnished with his written statement in the High Court. The photostat copies are obtained through mechanical process. In absence of the original documents the photostat copies cannot be procured. Even otherwise approvals alleged to have been given by the Prime Minister of the time have no legal value. As rightly pointed out by the High Court the approval dated 28-2-1996, was obtained by the appellant on his own proposal whereas the other approval dated 20-3-1996, was obtained on the proposal of the Media Advisor to the Prime Minister. The appellant has failed to prove that any approval was accorded by the Prime Minister of the time on a duly processed file from the competent authority in accordance with the procedure laid down under the Rules of Business. Such approvals obtained through illegal process, confer no right to the appellant nor does it carry any legal weight; particularly when in furtherance of these approvals no Government Notification, as visualized by law, was issued. The High Court rightly placed reliance upon the judgment of this Court titled Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government and others [PLD 1994 SC (AJ&K) 13], wherein without issuing the formal Government Notification the direction of the Prime Minister was communicated to the Accountant General through a letter by the Vice Chancellor seeking stoppage of compensation of acquired, land to Muhammad Siddique Farooqi, a retired Judge of the High Court. This Court on appeal tiled by Muhammad Siddique Farooqi held such directions of .No legal effect by making following observations:-- "The perusal of the above provisions shows that the executive authority vests in the 'government' which consists of the Prime Minister and the Ministers and not in the Prime Minister alone. It may be stated here that it is not the case of the respondents that the Government Order dated 16-6-1992 was subsequently amended or annulled by another Government Order; 'rather their case is that the payment of compensation was stopped in pursuance of the direction of the Prime Minister which was communicated to the Accountant General by the Vice-Chancellor. It may be noted that under section 21 of the General Clauses Act, reproduced above, not only that the authority amending, withdrawing, rescinding or modifying an order must be the same but the relevant act should also be taken in the like manner and subject to like conditions. It implies that the Government Order dated 16-6-1992 could only be amended or for that matter the payment of the compensation to the appellant could only be stopped by another Government Order and not on the order or direction of the Prime Minister. Obviously, the order of the Prime Minister to stop the payment of compensation contained in the letter of the Vice-Chancellor cannot be regarded to be in consonance with the conditions stipulated under section 21 of the General Clauses Act, reproduced above. The difference between the Government Order and an Order issued by the Prime Minister alone is so clear and marked that, I need not dilate upon the question anymore.
Suffice it to say that rules 24 to 30 of the Rules of Business, 1985, exhaustively deal with the procedure to be followed in issuing a Government Order. Thus, I respectfully agree with the view taken by my learned brother Mr. Justice Sardar Muhammad Ashraf Khan (as he then was) that in view of the Government Order dated 16-6-1992, the order of the Prime Minister could not be acted upon by the Accountant-General, respondent No,3."
21. The appellant never treated himself to be the Custodian. He never challenged his reversion from Custodian to the post of Additional Custodian before any Court of law. Twice he contested his appointment as Additional Custodian before this Court, therefore, in the light of these facts, he was not justified in law to throw a belated challenge to the respondent for the post of Custodian when he himself alongwith his colleagues had worked with him as Additional Custodian in the establishment of the Custodian Department.
22. No other point was pressed in the arguments by the learned counsel for the appellant, therefore, in view of above discussion, finding no force in this appeal, the same stands dismissed with costs.