ABDUL KABIR AWAN, FOREST PROTECTION OFFICER Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

AZHAR SALEEM BABAR, J .---The above titled case has been remanded by the Supreme Court of Azad Jammu and Kashmir vide order dated 6-6-2014 on the ground that the respondents were neither proceeded ex-parte nor written statement on their behalf has been furnished. The apex Court further noticed that defense of Government has not been closed so the Judgment has been delivered in violation of High Court Procedure Rules as well.

2. The respondents were given a notice and written statement on behalf of Forest Department has been furnished. Learned A.A.G. has relied on para-wise comments already filed. The petitioners and the official respondents including Forests Department have filed written arguments as well.

3. After going through the available record we are of the view that earlier judgment of this Court dated 19.12.2013 is in accordance with law and hardly needs any modification. It has been argued on behalf of Forests Department that the petitioners joined the service as Forest Protection Officer by accepting the terms and conditions of their service so they are barred by rule of estoppel to challenge the same by filing a constitutional writ petition. It has been objected that the writ petition is hit by principle of lathes. As regards, reply on para-wise contents of writ petition, the respondents have reiterated their earlier stance and have negated the petitioners' version by contending that the petitioners are neither entitled to 20% judicial allowance nor they are competent to claim a change in their administrative control.

4. The following points emerge out of pleadings of the parties:- i. That the petitioners are serving as Forest Protection Officers B-17 in Forest Department and the rules provide only one post of Senior Forest Protection Officer B-18 for further promotion. ii. That prior to promulgation of Act XVII of 1994 and rules framed in furtherance thereof, the functions of Forest Protection Officer were being exercised by Forests Magistrates who happened to be Sub-Judges under the discipline of High Court of Azad Jammu and Kashmir. iii. That job of the petitioners is of judicial nature, which was previously being performed by Sub-Judges, who have been placed in grade B-18 now. The petitioners claim entitlement to Grade B-18 at par with Sub-Judges who have been re-designated as Civil Judges now. Moreover, that 20% judicial allowance is being paid to employees of Azad Jammu and Kashmir Supreme Court, High Court and Services Tribunal as well as subordinate judges of the High Court. The petitioners claim title on the basis of parity as well. iv. Chief Conservator of Forests has acknowledged that nature of job of the Forest Protection Officer is identical to that of Civil Judges. A summary was moved by the Law Department for approval of judicial allowance to the Prime Minister, which was accordingly approved but a notification to that extent has not been issued so far. v. That Judgments and orders of Forest Protection Officer are appealable before the Forest Appellate Tribunal comprising District and Sessions Judges. Moreover, that, the qualification and mode of appointment of Forest Protection Officer is same as of Civil Judges. The Forest Protection Officers have been performing the functions of judicial nature, so are entitled to same perks and privileges as are paid to Civil Judges. vi. That despite being a judicial forum, the office of a Forest Protection Officer is under the administrative control of Forests Department, which is against the celebrated principle of law. vii. It has been mentioned that Chief Conservator Forest Poonch Division imposed a fine of Rs.1,500/- on one of the Forest Protection Officers. The Chief Conservator Forest being prosecutor on the one hand, has been vested with the powers of administering office of Forest Protection Officer, which is a mockery of the institution of Forest Protection Officer. It has been craved that the Forest Protection Officer be put under control of the High Court of Azad Jammu and Kashmir in the interest of justice.

5. The Forest Department, in its written statement has consented to the demands raised in the memorandum of writ petition, however, it has been contended that the department is under obligation to implement the judgment of the High Court, in this regard. The Services and General Administration Department remained indifferent as per its departmental comments. However, the Finance Department decided to combat with the situation and contended that the petitioners have no locus standi to file the instant writ petition and that the writ petition is premature, which is liable to dismissal. It has further been contended that the petitioners while working under Forests Department are entitled to same pay and privileges as are determined by rules. Furthermore, that it cannot be left upon the discretion of the petitioners to decide as to under which administrative control they should work. It has also been contended that a post of Senior Forest Protection Officers B-18 has been provided by the rules, which provides the Forest Protection Officers an opportunity of promotion. The department has further contended that judicial allowance is entitlement of employees of Azad Jammu and Kashmir Supreme Court, High Court, Service Tribunal and subordinate Courts. As the office of Forest Protection Officer has not been declared as a Court by any law, therefore, judicial allowance cannot be granted to the petitioners.

6. It may be noted here that an application on behalf of one Mohammad Ghafoor Farooqi, Forest Protection Officer was filed on 22.04.2013 for impleading him as petitioner. No objection to the application has been raised by the non-petitioners as yet. In order to keep the record straight, the application is allowed and Mohammad Ghafoor Farooqi, Forest Protection Officer, Haveli is directed to be impleaded as petitioner in the case.

7. We have perused the available record in light of written arguments filed on behalf of parties. The petitioners have prayed to the Court in the following terms:-

"In view of the above it is most humbly prayed on behalf of the petitioners that this Hon'ble Court may very kindly be pleased to issue the following writs:-

(i) Respondents be directed to pay them judicial allowance at par with Civil Judges @ 20% of their basic pay from the dates it was paid to judicial officers;

(ii) Respondents be directed to upgrade the posts of Forest Protection Officer BS-17 to BS-18;

(iii) The administrative and supervisory control of posts of Forest Protection Officers be transferred to Hon'ble High Court of Azad Jammu and Kashmir;

(iv) If the petitioners are found entitled to any other or alternate relief that is also prayed for, including costs."

8. Up-gradation of the posts of Forest Protection Officers as well as judicial allowance at the rate of 20% has been claimed on the basis of parity with Civil Judges and both the grounds are interlinked. It has been claimed that nature of job of the petitioners is same as that of Civil Judges, so they are entitled to 20% judicial allowance as well and that they are also entitled to be up-graded from BS -17 to BS-18.

9. The arguments advanced by Raja Mohammad Hanif Khan Advocate learned counsel for the petitioners cannot be concurred with because nature of job of the petitioners is not same as of Civil Judges in the Judicial Department Act XVII of 1994 provides the following definition of a Forest Protection Officer:-

"Forest Protection Officer means a person appointed and empowered by the Government to hear and decide the forests cases under the Forest Department Regulation, 1930."

10. On the other hand a Civil Judge is vested with multifarious functions like a Civil Court, the Criminal Court, Deputy Custodian, Sub-Registrar, etc. The functions entrusted to a Civil Court are simultaneously governed by different laws. It may also be added here that load of work on a Civil Judge is many time heavier than that of a Forest Protection Officer. It is also worth mentioning the Section 3(3) of the amending Act XVII of 1994 provides that:-

"The rules for appointment and terms and conditions of service of Sub-Judges shall be applicable to the appointment of forest Protection Officer."

11. The words "terms and conditions" have not been defined in the Forest Regulations, 1930 or in the Civil Servants Act, 1976 or Appointment and Conditions of Service Rules, 1977. However, the words "terms and conditions" by any stretch of imagination cannot be equalized to the word "perquisites." Terms and conditions of a civil servant are obviously related to the mode of appointment etc., of civil servant, and it does not include perquisites, which means "something gained from a place or employment over and above the ordinary salary or fixed wages for services rendered." 20% judicial allowance falls within purview of perquisites attached with the office of judicial officers in the Judicial Department under the administrative control of the High Court of Azad Jammu and Kashmir. Forest Protection Officer, being a separate entity and under the control of Forests Department cannot be termed as equal to that of a Civil Judge or for that matter Tehsil Qazi in the Judicial Department. It may also be added here that nature of job of a Forest Protection Officer is different because most of the times the trial before an FPO is summary in nature. Evidence produced before the Forest Protection Officers is seldom cross-examined and the Forest Protection Officers normally rely upon the summary nature of evidence produced before them.

12. Having stated the aforementioned facts, it can be safely concluded that nature of job of the Forest Protection Officer is not at par with that of a Civil Judge and thus, they are not entitled judicial allowance at the rate of 20% on the basis of parity with Civil Judges.

13. The other remedy sought for by the petitioners is rather more important that whether the Forest Protection Officers should be brought under the administrative and supervisory control of the High Court of Azad Jammu and Kashmir. In their ground 'F' of para 4 of the writ petition, the petitioners have defined the following reasons for seeking such a remedy:-

(f) That functions and duties of Forest Protection Officer are of judicial nature, Forest Department files cases against accused persons before Forest Protection Officer. Forest Department is a party to suits, hence it is not possible for Forest Protection Officer to dispense justice, while remaining subordinate to Forest Department. It is celebrated principle of law that justice should not only be done it should appear to have been done. One Manzoor Ahmed Mughal, Forest Protection Officer Rawalakot was fined Rs.1,500/- by Conservator Forest Poonch, vide order dated 28.04.2008. When the Forest Protection Officer can be punished by a superior officer of the said department how it is possible that he will treat them a party, to suit while deciding a case filed by Forests Department. It is in the interest of justice that Forest Protection Officer be put under the control of the High Court of Azad Jammu and Kashmir".

14. It has been mentioned that a Forest Protection Officer has been fined to the tune of Rs. 1,500/- by Conservator Forests, Poonch on 28.04.2008. An order issued by the Directorate of Forests, Poonch Rawalakot dated 28.04.2008 reveals as under:-

15. This order has been issued by Conservator Poonch on 28-4-2008, which is ample proof of the fact that office of Forest Protection Officer is under the worst administrative control of Forests Department. It may also be added in this context that a notification of the Service and General Administration Department of Azad Government of the State of Jammu and Kashmir dated 06.08.1995 provides an amendment/substitution in the Azad Jammu and Kashmir Forests Department Rules, 1984. Qualifications of a Forest Protection Officer 85-17 has been prescribed as "Law Graduate with three years legal practice" and Minister Incharge has been described as appointing authority of Forests Protection Officer. It is obvious that Forest Protection Officers are appointed by the Government and their services are being controlled by the officials of Forest Department. In such a situation, fair trial of the cases before a Forests Protection Officer cannot be guaranteed at all. The office of Forest Protection Officer is of judicial nature which has been entrusted with hearing and deciding the matters relating to offences and damages to the forest property. The general public or for that matter a litigant before the Forest Protection Officer cannot have a fair trial unless the office of Forest Protection Officer is free of any sort of executive control. It is worth mentioning here that under the rules an appeal against the order/decision of the Forest Protection Officer lies before the Forest Appellate Tribunal comprising of a Sessions Judge but the Forest Protection Officers have been kept away from superintendence and control of the High Court. The office of Forest Protection Officer, being a subordinate forum of the High Court, if put under the administrative control of the executive, would tantamount to violate the provision of Section 46(1) of the Interim Constitution, 1974, which provides that :-

"The High Court shall superintend and control all other Courts that are subordinate to it."

16. As mentioned earlier, an appeal against the order of Forest Protection Officer lies before the Sessions Judge, so in principle, the office of Forest Protection Officer falls under the High Court. The mode of appointment and administrative control of the Forests Department over the office of Forest Protection Officer is, therefore, violative of Section 46(1) of the Interim Constitution, 1974.

17. The matter can be considered from another angle as well. The Constitution, 1974 provides fundamental right No.1, under Section 4 of the Interim Constitution, which lays down that:-

"No person shall be deprived of liberty save in accordance with law".

18. Likewise Fundamental Right No.15 speaks of equality of State Subject and provides that:-

"All State Subjects are equal before law and are entitled to equal protection of law."

19. In a case reported as PLD 2013 SC 501, their lordships in the Supreme Court of Pakistan have concluded that "Right of access to justice was a well recognized inviolable right enshrined in Article 9 of the Constitution and was equally found in the doctrine of "due process of law" .. Such right included the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial court and tribunal."

20. Hon"ble Supreme Court of Azad Jammu and Kashmir in Younas Tahir's case [PLD 2012 SC (AJ&K) 42] has held that judgment of famous Al-Jehad Trusts' case, decided by the Supreme Court of Pakistan is applicable to appointments of Judges in Azad Kashmir as well. It has been elaborated at length that a court or a tribunal ought to be free of any coercion or administrative control of the Executive.

21. Security of a person and equal protection of law have been discussed in various judgments of the apex Court of Azad Jammu and Kashmir as well as the Supreme Court of Pakistan. PLD 2012 Balochistan 57 is a case wherein amendment in the Code of Criminal Procedure was under challenge. An amendment in the Cr.P.C., provided for judicial powers to the Executive Magistrates in the Province, whereupon the High Court of Balochistan held that Constitution is based on principle of trichotomy of powers in which the Executive, Legislature and Judiciary have their own defined functions, independent of each other, Executive cannot be given judicial powers as it would encroach upon the exclusive domain of the judiciary. While relying upon PLD 1989 SC 1126, the High Court of Balochistan reproduced "that the Tribunal or Court before which his rights are adjudicated should be so constituted as to give reasonable assurance of his honesty and impartiality." Hon'ble High Court of Balochistan has further referred to many other judgments like 2011 PLC (C.S) 78, 2011 SCMR 1030 and PLD 1996 SC 229 etc.

22. As mentioned earlier, equal protection of law means that a citizen should be provided an opportunity of fair trial and obviously a fair trial can be conducted only by a judicial forum, independent of any administrative control. How can a State Subject/citizen expect a fair trial from a Forest Protection Officer who is appointed by the Executive and has been put at the mercy of officials of the Forest Department? If the Conservator of Forests feels free to impose fine in any arbitrary manner, how would the Forest Protection Officers go against the interest of Forests Department, in such a situation? The mode of appointment of the Forest Protection Officer in the State of Azad Jammu and Kashmir and administrative control of the Forests Department over their office is a flagrant violation of fundamental rights provided by the Interim Constitution, 1974.

23. There is yet another aspect of the matter that mode of appointment and executive control of the office of Forest Protection Officer is against the principle of natural justice. The concept of natural justice has been defined in a case reported as PLD 1986 SC (AJ&K)

23. It says that "natural justice requires that no person can be a judge in his own cause and that no one shall be condemned unheard."

24. The order issued by Conservator Forest Poonch Rawalakot on 28.04.2008, whereby a fine of Rs. 1500/- has been imposed on the Forest Protection Officer, is a very good example of unheard condemnation. It is astonishing to observe that without giving the concerned Forest Protection Officer, an opportunity of hearing, an official of Forest Department decided to impose fine on him. The Forest Protection Officer was further censured through the same order of the Conservator of Forests.

Nutshell of the above discussion, in light of remedies sought for by the petitioners, is that:-'

(a) The Forest Protection Officers are not entitled to judicial allowance at the rate of 20%, however, they would be entitled to such allowance, if they are entrusted with the civil work under the superintendence and control of High Court of Azad Jammu and Kashmir;

(b) Mode of appointment of Forest Protection Officers and administrative control over their office is against the provisions of the Interim Constitution, 1974. Notification No. S&GAD/R/A-4(5)/194 issued by Services and General Administration Department on 25.06.1994 and Notification No. S&GAD/R/A-4(5)1/90 dated 06.08.1995 to the extent of appointment of Senior Forest Protection Officer BS-18 and Forest Protection Officer BS-17 is held to be violative of the provisions of Interim Constitution, 1974 and have no legal effect. The aforementioned provisions of rules shall cease to exist, forthwith.

(c) It is, further recommended that the rules be amended in view of the provisions of the Constitution, so as to bring the forum of Forest Protection Officer under the superintendence control of the High Court and mode of appointment of Forest Protection Officers also be amended in the like manner as those of Civil Judges in the judicial department. The petition stands disposed off in the manner indicated above.

ZC/27/AJK(HC) Order accordingly.