2003 PLP (C (PLC(CS))

"3(3). The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time."

16. Initial appointment to the posts in Grades‑16 (to 20), except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission, shall be made on the basis of examination or test conducted by the Commission.

17. Initial appointment to all the posts in Grades‑1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government. 18 (1) A candidate for initial appointment to a most pust possess the prescribed educational qualifications and experience and also, except as provided in the rules framed for the purpose if relaxation of age limit, must be within the age limit as laid down for the post; Provided that experience, where prescribed, would include equivalent experience, to be determined by the Government in a profession or in the service of an Autonomous or Semi‑Autonomous Organization or a Private Organization. (2) (i) Where requirement is to be made on the basis of a written examination, age shall be reckoned as on the first of January of the year in which the examination is proposed to be held; and: (ii) in other cases, as on the last date fixed for submission of applications for appointment. 19(1) No person shall be appointed to a post unless he is a State Subject as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, provided that this restriction may be relaxed by Government in suitable cases. (2) No person, who has married a foreign national shall be appointed to a post; provided that this restriction may be relaxed by Government in case of person who has married a citizen of India. (3) No person shall be appointed to a post unless he makes before the appointing authority an oath in form set out in the Schedule. (20) Vacancies in various posts shall be filled from persons who are State Subjects in accordance with merit provided that some particular posts may be reserved for persons domiciled in a particular area as may be specified.

22. In view of above mentioned and legal position the appointment to a post in the service of Azad Jammu and Kashmir can be made by a competent Authority in accordance with the Rules regulating the qualification and method of recruitment on the basis of merit evaluated by holding examination or test of candidates who possess prescribed qualification and experience through Appropriate Committee or Board after advertisement of vacancies.

23. Superior Judiciary of Azad Jammu and Kashmir has touched almost every aspect of service law and no iota of doubt is left regarding manner and method of appointment in the service.

24. In the case reported as 1992 SCMR 468 (Syed Sajid v. Chaudhry Latif and others) and (State v. Chaudhry Latif), in which a dispute regarding appointment by promotion to the post of Secretary to the Government in the absence of the rules for the post of a Secretary was under discussion before the Supreme Court, the Hon'ble Court felt pleased to hold that; The learned counsel for the appellant has contended that the Tribunal has wrongly held that the post of Secretary cannot be filled up unless rules for the purpose of laying down necessary qualifications for that post are framed. The view framed by the Service Tribunal on this point is based on the Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. As is clear from the opening paragraph of these Rules, these rules have been framed under rule 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which empowers the Government to make such Rules as may appear to be necessary or expedient for carrying out the purpose of that Act. It is provided in section 4 of the Civil Servants Act that appointment to a civil service or a civil post shall be made in the prescribed manner by the Government, or by a person authorized by it in this behalf. The word 'prescribed' is defined in section 2 of the Act to mean 'prescribed by rules'. The scheme of Civil Servants Act shows that if a person is promoted to a post this is termed as an appointment by promotion. In the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred to as the Rules of 1977), rule 3(1) provides in specific terms that an appointment to a post shall be made by promotion, transfer or initial recruitment. Sub‑rule (2) of this rule reads as follows:‑‑ "(2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part II of these Rules." It may be noted that the word 'shall' has been used in this sub‑rule which signifies that the procedure laid down in Part II of the Rules has to be followed for appointment by promotion. Part II begins with rule 9 and ends with rule

15. Sub‑rule (1) of rule 9 in clear terms lays down that:‑‑ "(1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. " Rule 10 lays down that: "10: Only such person as possess the qualifications. and meet the conditions laid down for the purpose for promotion or transfer to a post shall be considered by the Selection Authority." Post is defined in the Rules of 1977 to mean a post in connection with the affairs of the Government. Rule 10 thus clearly provides that no person shall be promoted etc., unless he possesses the qualifications and meets the conditions laid down for that purpose. The rule in fact prohibits the Selection Authority from even considering the case of such a person. This rule is followed by rule 12 which is, to the following effect: "

12. Until the Rules laying down the qualifications and other conditions for the purpose of promotion are made no person shall be promoted to a post in a higher grade on regular basis unless he has passed such test as may be specified by the Appointing Authority to be conducted by the Selection Authority: Provided that the Government may dispense with the requirement of passing the test in relation to such posts as may be specified. Rule 12 gives a temporary relaxation that till the framing of the rules laying down the qualifications and other conditions postulated by rule 10 promotion of a civil servant may be ordered but only as a result of a test which may be specified by the Appointing Authority. The Rules of 1977 are in the nature of fundamental rules which are applicable to all civil servants as is clear from sub‑rule (3) of rule 1 and whenever a post is to be filled by appointment by promotion, transfer or deputation or an ad hoc appointment has to be made these Rules have been made applicable. These Rules eliminate to a great extent arbitrary exercise of powers by the concerned authority in the matter of appointment and promotion of civil servants. The wording in which the Rules referred to above have been couched show, in unmistakable words that these Rules are mandatory. Therefore, the conclusion is that the post of Secretary cannot be legally filled up whether by promotion or otherwise unless there exist rules conforming to the requirement of rule 10 mentioned above. We, therefore, uphold the view of the Service Tribunal in this aspect'. " (Underlining is mine)

25. Though appointment by promotion is after induction in service but the procedure and standard laid down for appointment by promotion is also dependant upon prescribed qualification and condition. 'This standard is equally applicable to initial appointments, rather more strength adherence to the rules is required for initial appointment as against appointment by promotion.

26. In 5 consolidated appeals reported as 1994 CLC 2339, first of which is (Azad Jammu and Kashmir Government v. Muhammad Younus Tahir and others) where the dispute before the Supreme Court was with respect to an Act called as Azad Jammu and Kashmir Civil Servants (Regulation of Adhoc Appointments) Act, 1992, whereunder person holding posts on adhoc basis as well as the persons holding discretionary posts were treated to have been appointed regularly without reference to Public Service Commission. The Act was struck down by the High Court and on appeal, after discussing the Constitutional and legal position, the Supreme Court of Azad Jammu and Kashmir felt pleased to observe as follows: "In accordance with the scheme laid down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the Rules made under them, if a citizen wants to enter the civil service of Azad Jammu and Kashmir in Grade‑16 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission holds written and oral tests and on the basis of merit recommendations are formulated. For every post there are hundreds of applicants although they are less in posts of specialized nature. It means that a person stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliance and hard-work prove themselves to be the best amongst the contestants. This is the plain requirement of the laws which apply to all state subjects but the Regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by operation of law by depriving people like Javed Iqbal Khawaja who is unemployed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existing laws but has been taken away."

27. In the case reported as 1999 PLC (C.S.) 1248 (Rasheed Hussain v. Gul Afsar and 3 others) discussing the essence of the rules it is held as under: "It is mandatory requirement of rule 17 of the Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977 that all posts in grades one and above have to be advertised in the newspapers before making appointments. Since the post was not advertised, the appointment of Gul Afsar was illegal. (9) It is well‑settled principle of law that an illegal appointment cannot be restored in exercise of writ jurisdiction because one who comes to the Court to seek equity must come with clean hands In a number of cases this Court declined to restore to office persons who were wrongly removed from service but their own appointments were illegal. (Underlining is mine). The recent judgment on this point was delivered in Civil Appeal No.36 of 1999 titled Raja Abdul Rezzaq v. Dil Khurram Abbasi and others decided on 7‑4‑1999. We may reproduce the relevant portion below:‑ 'Consequently, we have reached the conclusion that appointments of the appellant as well as that of the respondent were made, without the recommendations of the Selection Committee and without complying the other requirements of the rules on the subject. Thus, we are of the opinion that the judgment of the High Court, so far as the same pertains to the restoration of the service of the respondents is concerned, that is not sustainable. Therefore, the appeal is partly accepted and it is directed that the vacancy in question contested by the appellant and the respondent, Dil Khuram, would be deemed vacant and shall be filled in afresh by the concerned authority after complying with the requirements of the relevant rules".

28. In the case reported as PLJ 2000 SC 16 (Secretary for the Prime Minister Secretariat v. Muhammad Aslant and others), it is held as follows; "In our view, therefore, the condition of advertising a post contained in rule 17 above being of fundamental importance, must be held to be mandatory in nature with the result that if a post has not been advertised the appointment made against the post, even if based on the recommendation of a Selection Board, shall be void. In the light of the above enunciation of law it is our view that the appointment order of the respondents did not create any right in them. " "

9. Equally important aspect of the case has been ignored by the learned Judge in the High Court that writ jurisdiction cannot be exercised to protect ill‑gotten gain. This is a settled principle of law which has been consistently followed by this Court. Still if an authority is needed, then we may refer to Bashir Ahmed Khan v. Custodian and another (1992 SCR 149) and Ch. Muhammad Fayyaz's case referred above." (The underlining is mine).

29. In this case services of Telephone Operators were terminated and the order was set aside by the High Court on the ground that the order is passed without show‑cause notice while Hon'ble Supreme Court observed as above in view of initial induction in service being illegal.

30. Similarly in the case reported as 2001 PLC (C.S.) 50 (Manzoor Ahmed v. Muhammad Sabir and 2 others), essence and effect of the above referred rules is discussed as follows; "The law on initial recruitment to posts carrying B‑1 to B‑15 is contained in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. In short the requirements are that when it is intended to fill in a vacant post the vacancy has to be advertised in the newspapers and then appointments have to be made on the basis of examination or test to be held by the appropriate Committee or the Board (rule 17). It is on record that the post of Assistant Warden Fisheries was not advertised. This fact was also impliedly admitted by respondent Muhammad Sabir when he appeared as a witness before the Service Tribunal and stated that he did not know whether the post of Assistant Warden Fisheries was advertised 'or not. This stands settled in along chain of pronouncements of this' Court that advertising a post is a mandatory requirement and if it is not complied with any proceedings taken by the Selection Board are void. The procedure laid down in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 ensures that people will be appointed to Government Service on the basis of merit and open competition. The legal position, which we reiterate with emphasis, is coram non judice. As held in Muhammad Fayyaz v. Arshad Gilani (1999 PC 567), selection is the concept of choice between more than one candidate. Therefore, the proceedings taken by Selection Board for confirming the respondent were flagrant abuse of power and cannot be accepted by a Court granting relief to the respondent on the basis of this sham transaction."

31. Juxta‑position reading of principle of law laid down in the above referred authorities is that no appointment can be made unless rules are made for the post and its requirements are fulfilled, if any appointment is made contrary to the rules, it is without lawful authority and no notice is required if such appointment is withdrawn, recalled or cancelled and the Court also cannot grant any relief to retain ill‑gotten gain i.e. appointments.

32. In the case in hand as observed, appointments of the petitioners were made when the rules were suspended/kept in abeyance which means that their appointments were made, when no rules were in operation or in force, and if deemed to be in existence, not acted upon, while. Constitutional and legal position is that no appointment can be made unless rule regulating qualification are prescribed arid the appointment is made strictly in accordance therewith. The appointments of the petitioners if made in the above stated circumstances, is therefore, without lawful authority.

33. Be that as it may, the action of the authority keeping the rules in abeyance without any justifiable cause and then making the appointments without rules, appears as a mala fide exercise so as to shower benefits upon the selected few or favourites and keep away the others, be they qualified according to rules or placed similarly as petitioners. No provision of law authorizes the Government to keep .the regularly framed rules under suspension for making appointments at its discretion and then reviving the rules when the task is achieved. This is simply Sikha Shahi and making mockery of the Constitution, legal system and precedents of the superior judiciary. The Notification dated 14‑6‑1994 keeping the Rules of 1994 in abeyance being without lawful authority was, of no legal effect, and Rules of 1994 legally held the field throughout:

34. The flux of the notifications speaks of irresponsible, irrational and unguided mind of relevant authorities to cover up the mess created by appointments made after keeping in abeyance the rules. Thousands of young-men were appointed as primary teachers who are still holding offices. Some of them are admitted by the respondents to be PTC while hundreds others are not so. It is also not clear from the record as to how many of their were Matric 2nd Division if not PTC and how many of thorn have qualified PTC till date.

35. Perusal of the files reveals that most of the petitioners are F.A. or B.A. and some are. Matric. In Petition No.220 of 2000, the petitioners, Shabnam Pervaiz, Nuzhat, Zaheera Bibi, Safia Javed, Shirren Aslam, Saeeda Sagheer‑un‑Nisa are stated to be F.A. or Matric PTC or C.T. While Ghazala Shabnam and Khudeeja Reaz who were impleaded as party on their application allege themselves to be F.A. with P.T.C. and F.A. and C.T. Similarly in Petition No.232 of 2000, Mumtaz Shaheen, Shazia Maqsood, Sadia Abbas, Farkhanda Yasmeen, Jameela Azeem alleged themselves to be B.A., C.T., F.A. P.T.C., M.A. C.T., FA‑PTC and Matric with PTC respectively, while Rahat Afzal, Raeeit Perveen, Najam‑un‑Nissa have placed their marks sheets of being B.Ed in the Court on 31‑10‑2001. In file 251 of 2000, Ghulam Abbas, Shabeena Karanl, Ejaz Khan, Rafeeza Begum allege themselves to be F.A.‑PTC, F.A‑C.T, and Matric PTC respectively. Perusal of the file No.629 of 2000 reveals that 28 teachers have been appointed on one day i.e. 24‑1‑1998 and their appointment orders refer to different authorities. Some are stated to be appointed on recommendation of Selection Committee and some under the direction of Authority MAJAZ; some are appointed in the absence of regular teacher or in lieu of promotion etc. Raeeit Perveen and Najam‑un‑Nisa have placed their B.Ed. Certificate alongwith application for being arrayed as party.

36. Perusal of appointment orders placed on file of the Court in all the petitions reveals that some of the petitioners are stated in their appointment orders as B.A. or F.A., C.T. or P.T.C. and some are Matric with P.T.C. or C.T. Whether they are so or not, is a question to be inquired into in view of suspicious conduct of appointing authority and the manner of appointment. These questions require detailed inquiry into matter, hence it cannot be said in view of circumstances of the case that which of the petitioner, or petitioners, are entitled to writ of prohibition. If any or some of them are not qualified according to rules, their appointment ipso facto does not confer any right, upon them to retain it and no writ can be issued to perpetuate illegal order or unlawful. However, the petitions at the same time cannot be dismissed for the reason that some of the petitioners have not placed on record substantive proof of their being qualified. Moreover, the petitioners are appointed under the orders issued by the Government Agency, whether competent or not but they are holding office since 1, 1995 or 1998 64, date under the impression of being validly appointed; it would, therefore, be unjust to kick out' the petitioners in an un-ceremonial manner.

37. As the Court has reached to the conclusion in the preceding paras. that the Rules of 1994, remained in force, notwithstanding the abeyance notification and the said notification itself is held to be without lawful authority, consequently the appointments .which are made in contravention of Rules of 1994 are without lawful authority. However, to determine as to which of the candidate or candidates lacked or still lack required qualification till today, shall be examined by Secretary Education who is directed to hold inquiry in each case in the light of directive of the Government dated November 4, 2000 issued under No. 2000 (13)/7ﮓﻧﺭﻴﻧﺎﻤ/ﻪﻳﻣﺎﻅﺗﻧﺍ/ﺖﺲ). To meet the ends of justice, it is directed that the candidates who have completed the required qualification till the date of this order, shall not be removed from service and a confirmation order shall be issued to them within one month of this order; the rest of the posts are declared vacant, appointment against which shall be made in accordance with the Rules of 1994 after advertising the same within three months of the order. The period stipulated above shall commence from the date the order is received by the Education Secretary. If any of the candidates qualified in accordance with Rules of 1994 holding office as such till the date of this order feels that he has been arbitrary dealt with by the Secretary Education in not confirming, he can file miscellaneous application before the Court alongwith required testimonials.

38. The writ petitions stand disposed off in the above stated manner. A copy of the order shall be sent to Secretary Education for compliance.

39. The valuable assistance rendered by Mr. Masood Qadir representative of the Education. Department in making, the record and notifications available is appreciated. H.B.T./31/AJ&K Order accordingly.