1997 P L C (C.S.

) 327
[Azad J&K High Court]
Before Kh. Muhammad Saeed, Actg. CJ
Col. (Retd.) MASOOD-UL-HASSAN, MANAGING DIRECTOR, (DE JURE) SMALL
INDUSTRIES CORPORATION, MUZAFFARABAD
versus
AZAD GOVERNMENT OF THE STATE OF J&K through its Chief Secretary,
Muzaffarabad and 2 others
Writ Petition No. 221 of 1996, decided on 16th January, 1997.
Azad Jammu And Kashmir Small Industries Corporation Act, 1993--
----S. 6---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Petitioner's
appointment and posting as Managing Director of Statutory Corporation on 16th July,
1994---Government had no legal competence to remove petitioner before expiry of tenure of
three years, for in case of tenure post, no change in terms and conditions of service of person
holding such post could be made by any Authority to the detriment of such person--Impugned
order issued on 20th May, 1996, directed that petitioner's service contract initially entered into
between petitioner and Government would come to an end on 8th June, 1996---Validity---When
petitioner was transferred and appointed as Managing Director of the Corporation, it was not laid
down that he would work on that post for unexpired period of his contract with
Government---Implied presumption, therefore, would be that he was given terms and conditions
as were laid down under S. 6, Azad Jammu and Kashmir Small Industries Corporation Act,
1993---Petitioner having taken charge of post of Managing Director on 16th July, 1994, was
entitled to retain charge of the post till 17th July 1997--Order of Government in terminating
petitioner's services was set aside in circumstances.
Sardar Mohy-ud-Din v. 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 1&K, Government and others,
decided on March 27,
Kh. Shahad Ahmad for Petitioner.
Atta Ullah, Addl. A.-G. for Respondents.
ORDER
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)/ 96, dated May 20, 1996.
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)/ 94, dated July 16, 1994. After
taking over as the Managing Director 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
The Honourable 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.
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. 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.
An 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.
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 whole time 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 Managing 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."
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. 1n 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.
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.
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.
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 Gazetted
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 SCMR 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.
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 incharge 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.
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.
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.
A.A./123/AJ&K Petition accepted.