Muhammad Javaid Khan Vs Govt. of KPK

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR,

JUDICIAL DEPARTMENT.

Writ Petition No. 2519-P/2014.

Muhammad Javaid Khan......VS..... Government of Khyber Pakhtunkhwa through Chief Secretary and others.

JUDGMENT

Date of hearing..........23.02.2016.....................................

Date of Announcement...23.06.2016................

Petitioner(s) by.............In person.................................... Respondent (s) by ........Mr. Abdul Latif Yousafzai, Advocate General ...

Syed Arshad Hussain Shah, DAG for Federation.

ROOH-UL-AMIN KHAN.J:- Muhammad Javaid

Khan, petitioner being professional lawyer practicing at Peshawar High Court Dar-ul-Qaza Swat was initially appointed as Deputy Advocate General vide order dated 03.11.2010 and posted at Dar-ul-Qaza Malakand Division Peshawar High Court Circuit Bench, Minogra.

Keeping in view satisfactory performance of the petitioner, the Provincial Government appointed him as Additional Advocate General at Dar-ul-Qaza Swat vide

order dated 23.8.2013 but all of sudden his services were terminated vide notification No. E&A/LD/2- 13/2013/Vol VI/15757-15807 dated 11.8.2014 and respondent No.5 was appointed against the post of Additional Advocate General, which aggravated the grievance of petitioner who approached this Court through instant constitutional petition with the following prayer:-

“that on acceptance of this writ petition, this Hon’ble Court may be pleased to issue an appropriate writ to the respondents thereby:

i. Declaring the impugned notification of the respondent No.5 vide notification No.

E&A/LD/2-13/2013/Vol VI/15688- 15746 dated 11.8.2014, thereon as illegal, without lawful atuthority and of no legal effect.

ii. Declaring the impugned notification of the respondent No.2. No. E&A /LD/2-13/ 2013/ Vol VI/15757-15807 dated 11.8.2014, through which the services of the petitioner have been terminate, thereon as illegal, without lawful authority and of no legal effect:

iii. Granting any other remedy to which the petitioner is found fit in law, justice and equity.”

2.Initialy comments of respondents were called for, which were filed accordingly, wherein the facts regarding appointment and termination of petitioner were conceded, however the order of termination was justified by stating that his appointment was terminated in accordance with terms and conditions embedded in the appointment order. It was also averred in the comments that no statutory rules having existence in Khyber Pakhtunkhwa with regard to the appointment, tenure and retention of service of Additional Advocate General and Assistant Advocate General and therefore, the question of its violation would not arise. In view of the contentious pleadings of the parties pre-admission notice was issued to the respondents.

3.Petitioner in person and worthy Advocate General representing the respondent were heard at length and available record was scanned with their valuable assistance.

4.Undisputedly the petitioner was initially appointed as Deputy Advocate General at Dar-ul- Qaza Malakand Division, Peshawar High Court Circuit Bench Minogra Swat, vide order dated 03.11.2010 on contract basis w.e.f from the date of resumption of charge on the agreed terms and conditions enumerated in the letter of appoint, some of which relevant for instant writ petition are as under:

“2. He shall be entitled to such emoluments and allowances as notified vide this Department’s Notification Nos. E&A/LD/11- 42/2005-06/5571-5641 dated 17.3.2010 and 18.3.2010.

3.He shall not be allowed private practice/legal advisorship of any kind and shall not be paid any fee for the opinion work of the Provincial Government of Khyber Pakhtunkhwa, as may from time to time be assigned to him by the Law Department.

4.His appointment is liable to be terminated at any time without assigning any reason or prior notice.”

5.Subsequently, vide order dated 23.8.2013, petitioner amongst other was appointed on contract basis against the post of Additional Advocate General Khyber Pakhtunkhwa on the terms and condition quoted above, however after some time i.e. on 11.8.2014 the Provincial Government appointed respondent No.5 alongwith others against the post of Additional Advocate General and posted him at Dar- ul-Qaza. Simultaneously the service of petitioner was terminated vide notification even dated. Admittedly, there is no statutory rules of Provincial Government for regulating the appointment, retention, termination of services of Additional Advocate General and Assistant Advocate General. All the appointments on the post of Additional Advocate General, Assistant Advocate General and Advocate on record are always made by the Provincial Government on contract basis and they hold the offices during the pleasure of the Chief Executive of the Province. The post of Advocate General, Additional Advocate General or Deputy Advocate General are neither tenure post nor confer any right on the incumbent to continue his service for indefinite period. Out of the above, only appointment of Advocate General for the

province is governed by Article 140 of the Constitution of Islamic Republic of Pakistan, 1973, according to which the Advocate General is to be appointed by the Governor on the advice of the Chief Minister amongst the persons who have qualification to be appointed as Judge of the High Court. As principal law officer of the province, the Advocate General under Article 140 (2) of the Constitution, shall has the responsibilities to give advise to the Provincial Government upon such legal matter and to perform such other duties of legal character as may be referred or assigned to him by the Provincial Government. However under Article 140(3) of the Constition, the Advocate General too shall hold office during pleasure of Governor and cannot claim permanent stay against the post. The Advocate General is assisted by a team comprised of Additional Advocate General, Deputy Advocate General and Advocate-on-Record who are appointed by the Provincial Government for representating, defending and protecting the interest of Provincial Government by conducting the cases on behalf of Provincial Government before the Provincial Service Tribunal, Federal Shariat Court of Pakistan, High Court of the

province and Supreme Court of Pakistan. Their appointment are totally owing to pleasure of Provincial Government which does not confer any right on the incumbent for retention of service on permanent basis. The service of Additional and Assistant Advocate General are synanomous to engagement of counsel of one own choice for litigatioin by a private party who can be substituted by another counsel or may be presented by his client from conducting the case on his/her behalf.

6.The petitioner contended that his sudden removal from office of Additional Advocate General would cast undue aspersion and stigma on professional standing and conduct which would be injurious for his professional carrier and irreparable in future. We are not in agreement with the above contention of learned counsel for petitioner, because it is obviously misconceived, firstly, becase the service of petitioner is not protected by any statutory rules, thus his appointment on contract basis and termination of the contract would not create any embarrassing position for him in the society or community. Similarly, he is neither dismissed nor

removed from service, thus the question of stigmatizing would not arise. Secondly, the serivces of petitioner were hired by the Provincial Government on the basis of appointment order dated 23.8.2013 which postulates that his service is liable to termination at any time without assigning any reason.

Such contract would not create any vested right in favour of the petitioner so as to make him entitle to be served with a notice or to be proceeded departmentally before termination of service. There is no concept of reinstatement of contract employee whose service was terminated in accordance with the terms and condition of offer of appointment. No doubt, the petitioner was appointed as Deputy Advocate General and then Additional Advocate General to conduct cases and safeguard the interest of Provincial Government, but such appointment of the petitioner does not confer any right to continuous appointment upon petitioner. The case law referred by the learned counsel for petitioner with regard to termination of contract employee is not applicable because in the cited cases the service of petitioner were terminated on basis of certain allegation wich was symbol of disgrace and infamy stain on them as

stigma in future service, but in instant case the petitioner like others was released from service without stigmatizing him. His dedication towards the profession was honoured by Provincial Government by giving a very safe and plausible exit from service without leveling any allegation against him. We deem it appropriate to observe here that there is mark difference between simple termination in accordance with terms and conditions of appointment and termination of service on basis of certain allegation. In former type of termination if the statutory rules do not provide any provision of issuance notice to the employee then the employer would not be compelled to serve the employee with a notice prior to termination but in the latter position, the employee shall be entitled to be provided a fair opportunity to rebut the accusation which becoming stigma for his future. In the case in hand the service of petitioner have been terminated strictly in accordance with condition laid down in the appaointment order without denunciating his status.

7.Much emphasis was placed by the

petitioner that while terminating the services of

petitioner, the respondents have not observed the mandatory provision of Khyber Pakhtunkhwa Government Rules of Busines 1985, therefore, during hearing of the case, on Court the worthy Advocate General produced the relevant record containing exhaustive summary moved by Law, Parliamentary Affairs and Human Rights Department to the Chief Minister for approval of appointment of the Law Officers including Additional and Assistant Advocate General. Rading of the above said summary would sufficiently prove that the respondents have observed all the legal and codal formalities in appointment and termination of the Law Officer.

8.In wake of the above, the instant petition being bereft of merit stands dismissed with no order as to cost.

JUDGE

JUDGE

Announced on;

Dated. 23.06.2016.