2020 PLP (C (PLC(CS)N)

SADAQAT HUSSAIN RAJA, J.

Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, appointment order of the respondent No.7 has been challenged for having been issued without lawful authority. Facts of the case are that a post of Assistant Statistical Officer B-16 was advertised by Hydro Electric Board on the basis of open merit. In pursuance of advertisement, petitioner applied for his appointment. On 19.04.2009 test was conducted and only four candidates were declared to be eligible for interview but the interview was not conducted due to filing of writ petitions by private respondent along-with others before this Court. After dismissal of writ petition, instead of taking interview, the official respondents confirmed the private respondent No.7 vide order dated 07.09.2010. Another writ petition was filed by Mansoor-ul-Haq along-with others and challenged the appointment order of respondent No.9 in that petition, who is private respondent No.7, herein. This Court vide judgment dated 10.11.2012 declared the appointment of private respondent as illegal. Mr. Shahid Kazmi, respondent No.7 filed PLA against the order dated 10.11.2012 before the apex Court. Apex Court after entertaining the application for interim relief, ordered that interview process shall be completed in light of judgment of this Court but result shall not be announced. In light of direction of the apex court, interview was conducted on 21.11.2012. It is contended that private respondent failed in written test and could not be shortlisted for interview while Mr. Mansoor-ul-Haq could not succeed in interview. Both in connivance with each other entered into agreement before the apex Court for withdrawal of writ petition filed by Mansoor-ul-Haq in order to deprive of the petitioner from his fundamental right of service against which vested right has been accrued after interview under the direction of the apex Court. Official respondents instead of appointing the petitioner in light of merit list, are procrastinating the matter and sent the matter to Justice and Law Department for legal opinion, who failed to give opinion. The case of the petitioner is that as per merit list, he is at serial No.1 of the merit list but the respondents instead of appointing him, appointed a candidate, who failed in written test and was not listed in the merit list. Official respondents have contested the petition by filing written statement, wherein, it is stated that the post of Assistant Statistical Officer was advertised and test was conducted on 28.04.2009 and some candidates appeared before the Chairman Hydro Electric Board (time) and placed application to him for cancellation of interview. Mr. Shahizad Kazmi, respondent No.7, herein, filed a writ petition before this Court and took plea on the basis of similarity of other employees, he may be regularized on permanent basis. In the meantime respondent No.7 was adjusted in light of Government notification and the writ petition was consigned to record. This Court vide order dated 10.11.2012 directed the official respondents to take interview from the successful candidates in light of advertisement, who passed the written test. This order was set aside by the apex Court vide order dated 4-12-2012. Respondent No.7 has contested the petition by filing separate written statement, wherein, it is stated that judgment of the apex Court dated 04.12.2012 in the matter in hand has become past and closed transaction and the appointment of the private respondent No.7 cannot be disturbed in light of, judgment of the apex Court. It is contended that petitioner was not qualified for the post of Assistant Statistical Officer because he is not in possession the required qualification. Mirza Kamran Baig, the learned Advocate appearing for the petitioner vehemently argued that post in question was advertised and test and interview was conducted but the private respondent could not attain merit position, hence, the respondents with mala fide intention instead of appointing him, confirmed the private respondent, which is against the right of petitioner. The learned Advocate further stated that various judgments of the apex Court have been delivered, wherein, it was held that no one can be appointed without adopting due process of law. The learned Advocate further submitted that petitioner has participated in selection process but could not attain merit position, hence, his confirmation is illegal and may be set aside. The learned Advocate further stated that apex Court has not observed in his judgment that the appointment of the private respondent is legal rather the apex Court dismissed the writ petition on the basis of compromise, hence, it does not mean that procedure for appointment laid down in the relevant act has not been adopted. Lastly, craved for setting aside the appointment of private respondent and be directed the official respondents to appoint the petitioner. Messrs Asim Masood Gillani and Bilqees Rasheed Minhas, the learned Advocate appearing for the official respondents and respondent No.7 contended that the petitioner's service has been regularized on the basis of similarity as was done to other employees, hence, he has rightly been regularized. They further stated that legal opinion was obtained from the law department, wherein, it was stated that appointment of the private respondent cannot be disturbed in light of the judgment of the apex Court. The learned Advocate further stated that process of selection for the post in question has been cancelled by the Prime Minster / Chairman Hydro Electric Board, hence, petitioner does not fall within the definition of an aggrieved person. I have heard the learned counsel for parties and gone through the record of the case with utmost care. The case of the petitioner is that a post of Assistant Statistical Officer was advertised, written test was conducted and later on, in light of direction of this Court as well as apex Court, interview was conducted but private respondent No.7 failed to qualify the same, hence, official respondents instead of appointing the candidate in light of merit list, confirmed the Private respondent No.7 while the claim of the private respondent No.7 is that he has been regularized into service on the basis of similarity as was done to other employees and his appointment in light of the judgment of the apex court has attained finality, which cannot be disturbed. Firstly I would like to reproduced the observation of this Court rendered in writ petition No. 564/2010 titled Mansoor-ul Haq v. Chairman Hydro Electric Board and others decided on 10.11.2012, wherein, one Mansoor-ul-Haq has challenged the appointment order of the private respondent No.9, who is privte respondent, herein, and this Court held as under:- " ....therefore, it was enjoined upon the respondents to hold interview on the basis of that test. It appears that this judgment has not been challenged before the apex Court and the same has attained finality. Vide notification dated 07.092010, Shahid Hussain kazmi has been absorbed permanently as Assistant Statistical Officer B-16. A perusal of the notification reveals that he was appointed firstly on contract basis and subsequently through the aforesaid notification the word " contract" has been deleted from his appointment order. This practice is alien to the scheme of rules. Recently the Supreme Court of the Azad Jammu & Kashmir has observed that appointment can only be made after due process of law, therefore, while accepting the petition, permanent absorption of respondent No.9 is declared to have been made without lawful authority. The respondents are directed to hold interview of the candidates who have qualified written test on the basis of advertisement dated 15.02.2009. A copy of the order shall be sent to Secretary Hydro Electric Board for compliance. The aforesaid judgment was challenged before the apex Court by private respondent through Petition for leave to appeal. The apex Court while deciding the application for interim relief, held as under:- "I have considered the arguments of the counsel for parties and perusal the record. In my opinion the prayer of the petitioner to the extent that he should not be removed from holding the post, has substance. While entertain the ad interem application, it is ordered that petitioner shall be removed from the post, he is holding till further orders of this Court, however, in the light of the direction of the high Court, the process of interview shall be completed while the result shall not be announced till further orders. The learned counsel for the caveator respondents also requests that she should be allowed to the detailed objections. She can file the detailed objections, if so felt advised, however the matter of interim injunction shall be finally resolved along with the petition for leave to appeal after its completion. The office is directed that application for interim relief shall be placed before the Court along-with the petition for leave to appeal. After petition for leave to appeal, order in Civil Appeal No.159/2012 is as under:- At the over outset, Mir Sharaft Hussain, Advocate, counsel for respondent No. 0 stated that respondent No.1 was petitioner in the High Court. His writ petition has been accepted. His client has instructed him to withdraw the writ petition from High Court as his grievance has already been redressed out of the Court. The High Court has accepted the writ petition through the impugned order dated 10.11.2012. In the light of statement of the counsel for respondent No.1, the appeal is accepted, the judgment of the High Court is set aside and writ petition No.564/2010 is dismissed as withdrawn as per statement of the counsel for Mansoor-ul-Haq, respondent No.1 . A perusal of aforesaid reproduced judgment of this Court, wherein, it was observed that interview may be conducted from the eligible candidate in light of advertisement dated 15-2-2009. This order was challenged before the apex Court through PLA, wherein, it was observed that process of interview shall be completed in light of the judgment of this Court but result shall not be announced till further orders. Later on, appeal filed before the apex Court was withdrawn by the private respondent, herein, in light of compromise out of Court and order passed by the High Court in favor of the one Mansoor-ul-Haq was set aside. The stance of the petitioner is that his service has been regularized in light of the judgment of the apex Court, which cannot be disturbed. A perusal of the aforesaid reproduction of the judgment of this Court as well as apex Court, in which, it has not been held that appointment of the private respondent is genuine and legal rather the matter has been compromised out of the Court between the parties, therein, and it has not been mentioned in the judgment of the apex Court, under what conditions, matter has been compromised. It is settled principle of law that the law takes action on its right way, hence, this argument of the learned counsel for the private respondent that his appointment cannot be disturbed in light of the judgment of the ap& Court is repelled because the stance of the respondent No.7 is not supported from the judgment of the apex Court. It is admitted fact that a post of Assistant Statistical Officer was advertised on 15.05.2009 on the basis of open merit. Petitioner along-with other candidates including private respondent appeared in the written test. After conducting the test, four candidates were declared to be eligible for interview i.e. Mansoor ul Haq, Ch. Naveed ul Hasin, Mariam Nisar and M. Ali. A perusal of record reveals that private respondent was appointed as Assistant Statistical Officer B-16 against vacant post on the contract basis subject to conditions that his appointment shall be contractual in nature and this appointment shall not create any right for permanent induction. Private respondent, herein, filed a writ petition No.886/2009 before this Court for regularization of his service against the post of Assistant Statistical Officer and obtained status quo order, due to which selection process was stopped and ultimately vide judgment and order dated 26.12.2009, this Court, dismissed the petition filed by him. Through another notification dated 07.09.2010, service of the petitioner was regularized by deleting the word "contract basis" and condition imposed at the time of contractual appointment. After issuance of aforesaid notification, one Mansoor-ul-Haq, candidate participated in selection process, challenged the appointment order of the private respondent through writ petition before this Court on 11.06.2010, which was accepted vide judgment dated 10.1 1.2012 and declared the appointment of private respondent as illegal and also directed to take interview in light of advertisement dated 15.02.2009. This order was challenged before the apex Court through PLA. Apex court allowed the respondents to complete process of interview in light of judgment of the High Court but result shall not be announced till further orders. Finally the matter was disposed of through compromise in appeal before the apex Court. In view of the aforesaid circumstances and discussion, I am of the view that the appointment notification dated 19.01.2006, whereby, the private respondent has been appointed on purely contract basis subject to condition that his appointment shall be contractual and he can be removed at any time without notice and also his appointments shall not create any right for permanent induction and the conditions were accepted at the time of joining his service in light of appointment order dated 19.01.2006. Appointment order dated 19.01.2006, is hereby reproduced as under:- URDU Later on, vide order dated 07.09.2010, service of the petitioner was regularized without following due process of law by expunging the word "contract and conditions imposed in the first appointment order, supra, hence, this confirmation notification of the private respondent is illegal because the same has been made without lawful authority. It is settled law that any person appointed on contract basis cannot claim as of right permanent induction. My this view finds supports from case titled Maj. (Rtd) Majid Husain, Director Estate Mirpur, University of Sciences and Technology (MUST) Mirpur and 52 others v. Vice Chancellor Mirpur University of Sciences and Technology (MUST), Mirpur and 49 others reported as 2017 PLC (C.S.) 878, wherein, it was held that any person who is appointed on contract cannot be regularized without following due process of law. Relevant observation is as under:-- "In view of above detailed reasons and referred case law, it is clear that in the Azad Jammu and Kashmir, it is settled law that the permanent appointments or regularization as permanent against the public offices or in Civil Services or Statutory bodies can only be made on the basis of selection on merit, For determination of merit, advertisement of vacancy is preconditioned. Thus in view of the settled principle of law, any person who has been appointed purely on contract basis, cannot as of right claim regularization on permanent basis. Similar view has been expressed by apex Court in case tilted Mst. Tanveer Ashraf and 25 others v. Azad Government and 2 others reported as: wherein, it was observed that ad-hoc appointment cannot be regularized without taking necessary steps for its regularization under law. Relevant observation is as under:- "The first and foremost requirement of proper procedure is the advertisement of vacancy and selection made on the basis of merit determined by the objective criteria, as has been specifically laid down in the sub clause 1 to 4 of sub-rule 2 of rule 23 of the Azad Jammu and Kashmir Civil Servants( Appointment and condition of service) Rules, 1977. The perusal of record shows that the appellants have not placed on record any advertisement to prove that the vacancies for ad-hoc appointments have been advertised nor they placed on record any merit list prepared in compliance of sub-clause 3 of sub rule 2 of Rule 23 of Rule 1977 rather the authority in its comments has categorically stated that all the appointments have been made in violation of rules governing the ad hoc appointment. Thus, in our opinion, the judgment of the Supreme Court of Pakistan having peculiar fact is distinguishable and not helpful to the appellants. In the same judgment the Supreme Court of Pakistan has categorically laid down that the adhoc appointment does not confer any right for permanent induction. It has also been held that the appointment in public sector is a trust in the hands of public authorities and if their legal and moral duty to discharge their functions as trusty with compete transparency as per requirement of law S/o that no person who is eligible to hold such post, is excluded from process of selection and is deprived of his right induction in service. It has also been observed in this case that making of recruitment on amounts on adhoc basis with or without advertisement amounts to curtailments of the right of deserving person to be appointed on regular basis. The adhoc appointment against a post in public sector, is a stopgap arrangement which is not of a permanent character of the civil servant. It is not proper and in the public interest to fill a post required to be filled in through the method prescribed by law, by making adhoc appointment and regularize it without taking any step necessary for its regularization / confirmation. The same proposition has also come into consideration before Division Bench of High Court Baluchistan in case titled Haji Zahir Ali and others v. Government of Pakistan Revenue Division, Federal Board of Revenue, Islamabad and another reported as 2010 PLC (C.S.) 293, wherein, it was held that adhoc appointment does not create any right for their regularization. Relevant observation is as under:- "We have considered the arguments advanced by the learned counsel for the parties and perused the record. From the perusal the record, it is crystal clear that the petitioners were appointed on adhoc basis and had undergone various examinations and courses, and thereafter, there employment was kept on extending till 31st March, 2008. An adhoc appointment is always made without adopting due process of law of selection as has been held by Superior Court and is virtually a stop-gap-arrangement by the Government. The stop-gap arrangement is a deviation from the normal course of selection. It was duty of the concerned officials to have referred the said posts for selection to the competent authority, who should have advertised the same immediately. Adhoc employees do not carry any vested legal right to be confirmed" It is also admitted that the impugned appointment notification of the private respondent has been issued in continuity of the order dated 19.01.2006 and no advertisement or test and interview has been conducted by the official respondents before issuance of confirmation order of the private respondent No.7 which is also liable to be cancelled being violation of rule and law. It is settled principle of law that illegal appointment order cannot be protected through writ jurisdiction. My this view finds support from case titled Zareen Kousar v. Divisional Director Schools and 3 others reported as 2017 SCR 878, wherein, it was held that an illegal order cannot be protected on the ground that the same has been implemented. Rule 16 and 17 of the Azad Jammu and Kashmir Civil Servants Act, (Appointments and conditions of Service) Rules, 1977 deal with the procedure for appointment through initial appointment against any post. For proper appreciation, the same are hereby reproduced as under:- "

16. Initial appointment to the posts in grade 16[to20] except those which under Azad Jammu & Kashmir Public Service Commission (Functions Rules, do not fall within the purview of the Commissioner or which are specified to be filled without reference to the Commissioner, shall be made on the basis of exemption or test conducted by the commission.

17. Initial appointment to all post in B.S 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 the newspapers, or in the manner to be determined by the Government. A bare reading of the aforesaid reproduced rules, reveals that no appointment can be made without adopting due process of law or without advertising and conducting the test and interview, hence, the in instant case, before issuing confirmation order of the private respondent, no advertisement or process has been completed rather post in question was advertised and the candidates qualified against the post in question, were deprived of form their right of appointment after completion of selection process. It is settled law that the act has to be done in a particular manner, otherwise it has no sanctity in the eye of law. Apex Court in his case tilted Muhammad Younas Tahir and others v. Shaukat Aziz, Advocate, Muzaffarabad reported as PLD 2012 SC (AJ&K) 42 held that when a specific method has been predicated for act under law them such act must be performed to particular method. Relevant observation is as under:- "

26. It is celebrated principle of law that when a particular method for performance of an act is prescribed under an act or rules, then such act must be performed according to that particular method or not at all." The similar proposition also came under consideration before Lahore High Court in case titled Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others reported as 2012 PLC (C.S.) 772, wherein, it was held as under:- " There is well known latin legal requires a thing to be done in a particular manner, it has be done in that way, otherwise, it has no sanctity in the eyes of law. Non participation of a specific member in the selection committee for recruitment proceedings would be quoram non judice and void and thus the appointment have been made in violation of relevant instruction, thus cannot be said to have been made in accordance with law As stated above, in pursuance of advertisement dated 15.02.2009, selection process after conducting the test and interview stood completed and as per merit list Annex (PE/1), Muhammad Ali / petitioner, by obtaining number 66/100 is at serial No.01 and is liable to be appointed as Assistant Statistical Officer B-16 and the appointment of private respondent is liable to be declared quoram-non-judice, void and contrary to law. In view of above, the instant writ petition is accepted and the appointment notification dated 7-9-2010 of the private respondent is set aside being contrary to law. Resultantly, respondents are jointly and severely directed to appoint the petitioner as Assistant Statistical Officer B-16 forthwith. A copy of judgment shall be sent to the official respondents for compliance. ZC/41/AJK(HC) Petition allowed.