CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD vs AZA

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CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD VS AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad R.3(3)---azad Jammu and Kashmir administration of Evacuee Property act (XII of 1957), S.47---azad Jammu and Kashmir Interim Constitution act (VIII of 1974), art.47---Term of service, pay, allowances and privileges of Custodian of Evacuee Property---Petitioner was former Judge of the High Court and after retirement his appointment to the post of Custodian of Evacuee Property was made after consultation with Chief Justice of azad Jammu and Kashmir and Chief Justice, High Court of azad Jammu and Kashmir, which was a judicial post, vide Notification dated 07.03.2022---Claim of the petitioner was that the Government while determining the terms and conditions of service of the petitioner vide notification dated 03.08.2022 had violated the judgment of High Court dated 18.02.2021 and the judgment of Supreme Court dated 21.12.2021----Post of Custodian of Evacuee Property was created in azad Jammu and Kashmir as per the azad Jammu and Kashmir administration of Evacuee Property act, 1957, whereby the additional charge of the post remained with the Judges of High Court---Some advocates also remained appointed on the said post with the terms and conditions of a Judge of High Court---Petitioner submitted two representations for compliance of the judgments of the Supreme Court and High Court---as a result, the Government determined the terms and conditions of petitioner to the effect that the petitioner shall be entitled to draw pay, allowances and privileges equivalent to an officer of scale BS-20 and that the term of the office of petitioner shall be on the discretion of Government---azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 1992, were promulgated on 18th June 1992 and as per R.23 of the aforesaid Rules, the Government might appoint any person who was qualified to be the Judge of High Court on the post of Custodian---Thereafter, azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 2017, were promulgated, whereby, status of Custodian of Evacuee Property was downgraded, which rules were challenged and vide judgment dated 18.02.2021, the High Court set aside the Rules to the extent of R.4 which provided the method of appointment and removal of Custodian with direction to the Government to introduce a fresh amendment in the Rules keeping in view the status and job of Custodian for which eligibility criteria should not be less than a person eligible to be appointed as judge of High Court--- Said matter was sub judice before the Hon'ble Supreme Court, meanwhile the Service Rules, 2021 were promulgated on 30.11.2021, whereby Custodian was to be eligible for appointment as Judge of High Court---In the light of the previous history, Court had reached the conclusion that all the aforesaid appointments against the post of Custodian of Evacuee Property were made by the Government in which pay and other emoluments were fixed equal to the Judge of High Court---Service Rules of 1992 were also framed which were later on repealed in 2017---according to Rr.3(3) of Service Rules, 2021, term and conditions of salary, allowances etc. for appointment of Custodian were to be determined by the government at the time of appointment but the Government had determined the pay and allowances of the petitioner vide the impugned notification dated 03.08.2022, equal to an officer of scale BS-20, which were in violation of the judgment of High Court dated 18.02.2021---Writ petition was accepted, the azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service), Rules, 2021, to the extent of sub-rule (3) of R.3 was struck down along with the impugned notification dated 03.08.2022 and the Government was directed to insert the term and condition of Custodian of Evacuee Property for pay and other emoluments in Rules, 2021, as provided in Rules, 1992 and thereafter notification for term and condition of service, salary and other emoluments of the petitioner shall be issued with effect from the date of joining of the petitioner. Head NotesCase Description Citation Name: 2023 PLC(CS) 678 HIGH-COURT-AZAD-KASHMIRBookmark this Case CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD VS AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad R.3(3)---azad Jammu and Kashmir administration of Evacuee Property act (XII of 1957), S. 47---azad Jammu and Kashmir Interim Constitution act (VIII of 1974), art. 47---Term of service, pay, allowances and privileges of Custodian of Evacuee Property---Establishment of the office of Custodian of Evacuee Property was creation of Constitution as defined in art.47 of the azad Jammu and Kashmir Interim Constitution, 1974, for which terms and conditions of office of the Custodian of Evacuee Property should have been settled before the appointment of the petitioner whereas earlier predecessors-in-interest of the petitioner appeared to have drawn perks and privileges as admissible to a Judge of High Court while an additional charge of the post in question had also been held by the then Judges of the Court, hence, the Government determined terms and conditions of service of petitioner vide notification dated 03.08.2022 contrary to scheme of law whereby valuable rights relating to service of the petitioner had been jeopardized wherein two main conditions had been incorporated: (i) Incumbent will be entitled to draw pay, allowances and privileges equivalent to the officers of BPS-20 of Government of azad Jammu and Kashmir, (ii) Term of his office will be on the discretion of the Government---Terms and conditions of the post in question appeared to have not been defined in existing Rules of 2021 as the same had specifically been provided in Rules of 1992, hence, such terms and conditions should always be open for a candidate to accept or not against the particular post while this vital aspect of the matter had been ignored---It was incumbent upon the authority to determine terms and conditions of office of the Custodian in Rules promulgated in 2021 but terms and conditions of service of the petitioner were left on sweet will and discretion of the Government, which was contrary to law, equity and natural justice---Service Rules, 2021, promulgated through notification dated 30.11.2021 were set aside to the extent of sub-rule (3) of R.3 along with notification dated 03.08.2022 and Government was directed to incorporate terms and conditions of service of Custodian Evacuee Property in the Rules, 2021 as defined in Rr.4 to 9 & 11 of the azad Jammu and Kashmir Custodian of Evacuee Property (Terms and Conditions of Service) Rules, 1992, with certain modifications and amendments not contrary to the judgment of the Supreme Court (aJ&K) and a formal notification to that effect shall be issued while petitioner was declared to be entitled to receive the perks and privileges as defined in the Rules, 1992 from the date of his assuming the charge---Government was further directed to do the needful within a period of two months with compliance report to the Registrar of the Court---Writ petition was allowed. Head NotesCase Description Citation Name: 2023 PLC(CS) 678 HIGH-COURT-AZAD-KASHMIRBookmark this Case CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD VS AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad art.44---Government post---Discretion vested with authorities---Such discretion should be exercised with reasonableness and nobody can be left unbridled to tinker with the future of citizens and such authorities cannot be allowed to pay havoc with the fate of the masses especially with those who have exceptional academic record and have the ability to serve the nation in a better way---High Court has to ensure the constitutional guarantees of the citizens of the State as enshrined by the azad Jammu and Kashmir Interim Constitution, 1974, and should be least concerned about the consequences in giving right to a deserving person. Head NotesCase Description Citation Name: 2023 PLC(CS) 678 HIGH-COURT-AZAD-KASHMIRBookmark this Case CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD VS AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad art. 42(B)---Judgment of the Supreme Court (aJ&K)---Said judgment is binding on executive as well as judicial functionaries of the State by virtue of art. 42(B) of the azad Jammu and Kashmir Interim Constitution act, 1974. Head NotesCase Description

CH. KHALID YOUSAF, CUSTODIAN OF EVACUEE PROPERTY AZAD JAMMU AND KASHMIR CUSTODIAN BUILDING MUZAFFARABAD vs AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary New Civil Secretariat Muzaffarabad R — 2023 PLC(CS) 678 HIGH-COURT-AZAD-KASHMIR

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