2018 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB ALVI, C.J.

The captioned writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, a writ in the nature of quo-warranto is solicited against appointment of private respondent No.5, pertaining to post of Director Armed Services Board. B-19, made through Government notification dated 09.09.2014, followed by notification dated 14.09.2017.

2. The summary of case is that petitioner is 1st class State Subject, hails from District Hattian Bala, who was retired from Army as Lt. Col. vide order dated 24.05.2013. It is claimed that Azad Government of the State of Jammu and Kashmir as per section 6(ii) of the revised Constitution of AJ&K Armed Services Board, 1979, postulated that post of Director Armed Services Board B-19, shall be filled in through Public Service Commission. Thereafter, Government-respondent framed Armed Services Board Development Service Rules, 1983, which provides that the post of Director Armed Services Board B-19, shall be filled in either through (i) initial recruitment, or (ii) by promotion on the basis of selection on merit-cum-seniority and fitness. It is maintained that Contract Policy dated 29.07.2006, has been framed for the purpose of posts liable to be filled in on contract basis, which does not attract for making an appointment liable to be made under Statutory Rules. It is claimed that as per section 3 (iii) of the Constitution of Armed Service Board, employees of organization shall be deemed to be the employees of AJK Government and Civil Servants Act, 1976, is fully applicable in recruitment process for the purpose of filling in vacant posts of Armed Service Board. However, private respondent No.5, by relaxing Contract Policy 2006, was illegally appointed by Government as Director Armed Services Board B-19, for a period of 03 years without advertisement of post, merit and recommendation of Selection Authority vide Government notification dated 09.09.2014, which was expired on 09.09.2017. It is averred that during pendency of writ petition private respondent No.5, after expiry of 03 years period, was again appointed against the disputed post for further period of 01 year through the impugned Government notification dated 14.09.2017, against law, hence, the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein, it is pleaded that appointment of private respondent No.5, was made on temporary basis so that work of Board may not be suffered, however, Government vide notification dated 10.07.2014, constituted committee consisting of Senior Bureaucrats to review the Constitution and the Service Rules of Armed Service Board and in this regard, terms of amendment in Constitution and Rules are also enumerated in the said notification. It is claimed that Government has not travelled beyond its jurisdiction while appointing private respondent which was made clearly on temporary basis till recommendation of respective Selection Board and appointment on permanent basis shall be made as per statutory Rules and Constitution of the Board, hence, submitted for dismissal of writ petition.

4. Mr. Asghar Ali Malik, the learned counsel for petitioner strenuously argued that the disputed post was liable to be filled in through Selection Board, however, official respondents Nos.1 to 4, in collusion with each other appointed private respondent No.5, without advertisement of post, merit and recommendation of the Selection Board, therefore, the same may be quashed with direction to the aforesaid official respondents to fill in the post under dispute as per law. He in support of his contention referred to and relied upon a case titled Major Muhammad Aftab Ahmed (Retired) v. Azad Jammu and Kashmir Government (1992 SCR 301).

5. Mr. Jahandad Khan Mughal, the learned counsel for respondents Nos.1 to 4, has filed written arguments, wherein, it is submitted that petitioner has no cause of action to file the instant writ petition because petitioner does not fall in definition of an aggrieved person. It is maintained that petitioner failed to implead Director General Armed Services Board as party in the line of respondents, therefore, due to non-joinder of necessary party, writ is not maintainable. It is further submitted that documents appended with writ petition are not certified copies, hence, writ petition is hit by rule 32(2) of the High Court Procedure Rules, 1984. He further contended that petitioner wants selection through Public Service commission after advertisement of the disputed post, while, according to Statutory Rules appointment shall be made through Selection Board. It is also maintained that according to script dated 17.08.2017, the aforesaid post is relating to promotion quota, hence, craved for dismissal of writ petition.

6. After hearing the learned counsel for petitioner, I have perused written arguments filed on behalf of contesting respondents, examined the contents of writ petition, as well as the appended documents made available with utmost care and have given my earnest thought to the points raised by the learned counsel for parties. The dispute relates to appointment against the post of Director Armed Services Board (BS-19). As per notification dated 18.04.1979, in suppression of previous orders issued under No.H&P/SS/1746/65 dated 17.05.1965, Government was pleaded to accord sanction to the revised constitution of Azad Jammu and Kashmir Armed Services Board. According to section 6(ii) of the Constitution a retired officer of the rank of Lt. Col/Major or equivalent was liable to be appointed as Director Armed Services Board NPS-19, selected by the Public Service Commission. After long time Government-respondent while exercising its powers as visualized under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, promulgated rules known as the Armed Services Board Rules, 1983. As per column '8' of the aforesaid Statutory Rules, the post of Director NPS-19, was liable to be filled in as follows:- "SEHEDULE ISSUED VIDE NOTIFICATION NO.S&GAD/ OSD/15/432-45/83 DATED THE 14TH, NOVEMBER. AZAD JAMMU AND KASHMIR ARMED SERVICES BOARD DEPARTMENT SERVICE RULES, 1983. (1) S.No Name of the Department Functional Unit Name of the Post with grade Appointing Authority 1 2 3 4 5

1. Armed Services Board Administration Director NPS-19 Government (2) Minimum qualification for appointment by Method of recruitment Age for initial recruitment Examination/ training other condition required Initial recruitment or transfer Promotion 6 7 8 9 10 11 A retired officer of the rank of Lt. Col. or above from Army or equivalent rank from Navy/Air force As per Col.8 i). By initial recruitment as per col.6. ii). By promotion on the basis of selection on merit-cum-seniority and fitness from amongst officer in NPS-18 in the Department with 13 years of services in NPS-17 and above. Sd/xxxxxxxxxxxxx (Raja Abdul Khaliq Khan) Secretary Services"

7. As per Rules supra a retired officer of the rank of Lt. Col. or above from Army or equivalent rank from Navy/Air Force, was liable to be appointed through initial recruitment as may be selected by the Public Service Commission. However, by violating the aforesaid Departmental Statutory Rules, private respondent No.5, was appointed against the post of Director Armed Services Board B-19, by relaxing paras (i)(ii) and (iii) of Contract Policy, 2006, for a period of three years vide Government notification dated 09.09.2014. It appears that at the time of making appointment against the post under dispute the aforesaid Statutory Rules were brushed aside by the official respondents. The appointment against the said post was liable to be made on the basis of the Armed Services Board Department Service Rules, 1983. The Contract Policy, 2006, was not applicable for making appointment against the disputed post. However, during pendency of the instant writ petition as per para 1 of Government notification dated 06.02.2015, the posts of Armed Services Board have been excluded from the preview of the Public Service Commission and now respective Selection Board is empowered to make selection after advertisement of posts as per Departmental Statutory Rules. aforesaid Government notification speaks as follows:- As per para No.5, of the Government notification supra the following Selection Board No.1, is constituted for the posts of B-19 and B-20:- "(i) Chief Secretary, Chairman; (ii). Secretary Services, Member; (iii). Director General Pakistan Armed Services Board, Member; (iv) Additional Secretary Home, Member/Secretary."

8. However, after repealing the Armed Services Board Department Service Rules, 1983. Government respondent promulgated the Azad Jammu and Kashmir Armed Services Board Department Service Rules, 2015, vide notification dated 20.02.2015. According to Rules supra, the post of Director BS-19, is liable to be filled in as follow:-- "Notification No.S&GAD/R/A-4(15)/2008, P-II, DATED 20.02.2015. S. No. Name of the Department Functional Unit Name of the Post with grade Appointing Authority 1 2 3 4 5

1. Armed Services Board Administration Director (BS-19) Government Minimum qualification for appointment by Method of recruitment Age for initial recruitment Examination/training/ other condition required for confirmation Initial recruitment or transfer Promotion Min Max 6 7 8 9 10 11 Retired Col/ Lt Col/ equivalent of Navy/Air Force holding substantive or temp rank of Col/Lt col/ equivalent if held for one year at the time of retirement from the Armed Forces. As per Col 8 (i) 50% by initial recruitment/ re-employment of retired Armed Forces Officers on contract basis as per column No.6. (ii) 50% by promotion on the basis of selection on merit cum-seniority and fitness from amongst regular officers in the Department in BS-18 having 12 years service in BS-17 and above of 7 years serviced in BS-18. 50 Section Officer (Regulations) According to column No.8, of the Rules ibid, 50% quota is reserved for initial recruitment/re-employment of retired Armed Forces Officers on contract basis as per column No.6, i.e. retired Col./Lt. Col./equivalent of Navy/Air Force. However, 50% quota is allocated for promotion on the basis of selection on merit-cum-seniority and fitness from amongst regular officers in the Department in BS-18 having 12 years service in BS-17 and above or 7 years service in BS-18.

9. At the cost of repetition it is reiterated that appointment of private respondent No.5, Lt. Col. (R) Mazhar Mehmood, through the impugned notification dated 09.09.2014, was made for three years period as Director Armed Services Board BS-19, without advertisement of post merit and recommendation of selection authority which period was expired on 08.09.2017. However; during pendency of writ petition he was again appointed by violating Statutory Rules on contract basis for further period of one year or till appointment of regular incumbent vide the impugned Government notification dated 14.09.2017, which unlawful appointment cannot be allowed to remain in field.

10. The contention of the learned counsel for contesting respondents that petitioner is not an aggrieved party, hence, writ petition merits dismissal is misconceived. The petitioner filed the instant petition for issuance of writ of quo-warranto, which can be filed by any person as per sub-clause (ii) clause (b) of subsection (2) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The petitioner never solicited any relief for himself who craved to ask from the private respondent to show under what authority of law claims to hold office of Director Armed Services Board B-19, hence, contention is overruled.

11. The next contention of the learned counsel for official respondents that Director General Armed Services Board, has not been impleaded party, hence, writ petition is bad in law due to non-joinder of necessary party is frivolous. The grievance of petitioner is against Government notifications dated 09.09.2014, and 14.09.2017, respectively. Both the aforesaid notifications were issued by Government-respondent, hence, Director General Armed Services Board has nothing to do with the said Govt. notifications, hence, contention is baseless.

12. The contention of the learned counsel for contesting respondents that certified copies of the impugned notifications have not been appended, hence, writ petition is hit by rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, is also frivolous. The impugned Govt. notifications, supra, are admitted documents. A perusal of file reveals that the impugned notifications are duly attested by the concerned Department, hence, objection is turned down.

13. The last assertion of the learned counsel for official respondents that the disputed post relates to 50% promotion quota as quota of 50% of initial recruitment has already been overflowed has not been taken in written statement. A perusal of script dated 17.08.2017, appended along with written arguments, however, reveals that Col. (R) Muhammad Hassan Khan, was granted an additional charge of the post since 17.05.1965 to 05.11.1965. However, Major (R) Muhammad Saleem Khan, Lt. Col. (R) Muhammad Iqbal and Lt. Col. Mazhar Mehmood (respondent No.5), have been appointed through initial recruitment. However, Lt. Col. (R) Ameer Alam, was appointed by transfer against the said post, whereas Caption (R) Raja Muhammad Saleem Khan, was promoted from departmental quota. As the aforesaid point has not been raised by respondents in written statement and it is settled principle of law that a party cannot be allowed to argue its case vis-a-vis to pleadings, therefore, this Court is not obliged to resolve the aforesaid point.

14. The crux of above discussion is that the impugned Government notification dated 14.09.2017, whereby private respondent No.5, Lt. Col. (R) Mazhar Mehmood, was appointed as Director Armed Services Board B-19, for one year period is hereby quashed as without lawful authority and office of the aforesaid post is held as vacant. The official respondents are hereby directed to determine that whether disputed post of Director Armed Service Board B-19, pertains to initial recruitment or promotion quota. After determination of quota in case the post pertains to initial recruitment, the same shall be advertised through daily news and fill in the same on merit and recommendation of respective Selection Board. However, in case same relates to promotion quota then matter of promotion of concerned eligible officers shall be placed before the respective Board. The writ petition is accepted in the manner as indicated herein above. The costs shall follow the eventuality. ZC/1-HC(AJ&K) Petition Allowed.