1996 PLP (C (PLC(CS))

3. Sardar Rafique Mahmood Khan, the learned counsel appearing on behalf of appellant, vehemently contended that after the annulment of Regularization of Ad Hoc Appointments Act by the High Court and the Supreme Court there hardly remains any justification for continuation of respondents in the service of Health Department as ad hoc appointees. The learned counsel elaborated that ad hoc appointments cannot continue under rules for more than 6 months but in violation of relevant rules the respondents are continuing as ad hoc appointees for the last more than 4 years. The learned counsel maintained that from the facts and circumstances of the case it is obvious that the appellant, with mala fide intent and purpose, even after passing the test and interview conducted by the Public Service Commission was being deprived of his right to be inducted in the service of Health Department.

4. On the other hand the learned counsel appearing on behalf of respondents submitted that the requisition was sent by the Government for making appointments in the year 1991 and that too was only for induction of 17 CMOs in the service of Health Department. The requisition list sent by the Government has already been exhausted and thus no direction could be made for the induction of appellant into service after lapse of about five years on the basis of test and interview held in 1990. The learned counsel pressed into service the submission that the appellant has no locus standi to challenge the appointment of respondents who are only ad hoc appointees and the discretion lies with the Government to make ad hoc appointments which for all legal purposes do not confer any legal right on the appellant to avail Constitutional remedy. ?

5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be pointed out that under law no direction can be issued to the Government to appoint the appellant who was approved by the Public Service Commission for the posts to be filled up in the year 1991, especially so when requisition was only for 17 CMOs to be inducted in the service o f Health Department and the list had already been exhausted. The appellant in the merit list prepared in 1991 was much lower. The High Court in our view has committed no illegality in refusing to issue the said direction to the Government for the induction of appellant in service.

6. The learned counsel for the appellant strenuously contended that the merit list prepared by the Public Service Commission in the year 1991, on the basis of test and interview should have been kept pending and the new ad hoc appointments, if at all necessary, should have been made out of those candidates who duly qualified the test and interview. To substantiate his contention he referred to Rule 13 of the Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994 (hereinafter to be referred as Procedure Rules of 1994). On careful consideration the argument has no substance. Rule 13 of Procedure Rules, 1994, postulates:‑‑ "13.‑‑(1) A person appointed on the recommendation of Commission fails to join the service or is declared medically unfit, a candidate next in the merit from the waiting list shall be recommended on the request of the department concerned, and for this purpose the Commission shall prepare a waiting list. (2)The waiting list prepared under sub‑rule (1) shall remain valid for 180 days from the date of selection of the candidate. (3)The waiting list shall not be valid in case of fresh vacancies referred to Commission just after tests and interview of the previous vacancy. " The case before us does not visualise the situation mentioned in sub‑rule (1) of Rule 13 of the Procedure Rules, 1994, referred to above. Even otherwise on the basis of merit list prepared by the Public Service Commission in the year 1991, as said earlier, posts cannot be filled up in the year 1994. In a case reported as Raja Muhammad Ayyaz Khan v. Azad Government and another (1995 SCR 281), the precise facts were that appellant, therein, in response to an advertisement published in the newspaper by the Public Service Commission appeared in a competitive examination held for filling up the posts of Assistant Commissioners and Assistant Superintendents of Police held on November 5, 1990. He duly qualified the Public Service Commission's test and interview but on the merit list he was in a lower position. He subsequently made successive applications for being appointed as Assistant Superintendent of Police. The last application submitted by him was of September 5, 1993. Ultimately the Prime Minister accorded sanction to the appointment of the appellant as Assistant Superintendent of Police but the order had not been acted upon. Instead the two existing posts of Assistant Superintendents of police had been advertised by the Public Service Commission. It was held by this court at page 283 in the following manner: "Even otherwise the appellant did not attain the necessary place in the merit list prepared on the basis of the examination conducted by the public Service Commission in 1990 and he has ‑no right to be considered for appointment on a post which fell vacant in 1992 or 1993. If an order of appointment is issued favouring the appellant it would undoubtedly be open to legal objection about its validity. Such an order cannot be enforced through writ jurisdiction."

7. We therefore, hold that on the basis of test and interview held by the Public Service Commission in the year 1990 and the posts having been exhausted in accordance with the requisition and the appellant's position being much lower in the merit list no direction could have been issued in the year 1993 by the High court to induct the appellant in the service.

8. Indeed it is correct that even ad hoc appointments are to be made in accordance with the provisions of relevant law and rules, the method for making ad hoc appointment is set out in Part IV of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Rule 23. of the aforesaid Rules is reproduced to highlight the position:‑‑ "23.‑‑(1) When a post is required to be filled, the appointing authority shall forward a requisition to the Selection Authority immediately after decision is taken to fill the post. (2)After forwarding a requisition to the Selection Authority, the Appointing Authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the Selection Authority. ?????????? Provided that‑‑ ?????????? (1)the vacancy is advertised properly in the newspapers; (2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; ?????????? (3)the selection is made on the basis of merit determined by objective criteria; (4)? the appointment order certifies that a requisition has been sent to the Selection Authority; and (5) the appointment is made subject to revocation at any time by the competent authority: Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade. " The reading of the file provides that even the ad hoc appointment is to be made in the interest of public and for a limited period of 6 months and must be made on the basis of merit and the same can only be made after requisition has been sent to the Public Service Commission. The first step to be taken in this regard is to forward a requisition to the Selection Authority and then under sub‑rule (4) the appointment order should contain a certificate that a requisition has been sent to the Selection Authority. We regret to point out that time and again despite the observations of this Court, ad hoc appointments are made in flagrant violation of law and contumacious disregard of the relevant rules. This practice is highly deplorable and has to be deprecated. In the instant case the appellant before us has not specifically challenged the method of ad hoc appointment of respondents Nos. 2 to

21. There is a general allegation that the appointments have not been made in accordance with the relevant law and, rules. Whether the ad hoc appointments were made keeping in view the provisions of Rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and whether the persons appointed were duly qualified or their selection has been made on the basis of objective criteria or that the requisition has been sent to the Selection Authority are all questions of fact which cannot be gone into while exercising the appellate jurisdiction but at the same time we want to observe that in future the Government must ensure that even the ad hoc appointments are made strictly in conformity with the relevant rules and any departure or deviation from the relevant provisions of law would tantamount to perpetuating a grave injustice to those candidates who have the requisite qualifications but unfortunately have no political backing or background. Indeed the discretion for making ad hoc appointments vests with the Government but the discretion must be exercised in accordance with the provisions of relevant rules or law and it must appear to be just and equitable. With these observations finding no force in this appeal, the same therefore, stands dismissed, with no order as to costs. A copy of this judgment shall be sent to the Chief Secretary and Secretary, Services and‑General Administration Department for compliance in future. A.A./120/S(AJ&K) ???????????????????????????????????????????????????????????????? ?????????????????????????????????????????????????? Appeal dismissed.