2003 PLP (C (PLC(CS))

I have heard the learned Advocates for the parties and perused the case law referred to and relied upon by the learned Advocates in support of their respective stands. In my opinion, the moot point m the case which needs resolution is as to whether appointments of the petitioners are legal or not. It may be observed that in view of the command of the Constitution as ordained in section 49 of the Interim Constitution Act, 1974, appointment of persons‑and the terms and conditions of service of the persons in the service of Azad Jammu and Kashmir, ace to be regulated by law. Pursuant to this command. Azad Jammu and Kashmir Civil Servants Act has been legislated. The terms and conditions of Service and manner of induction, promotion and transfer are provided through the rules made thereunder. The definition of service as given in the Constitution Act is comprehensive enough to include the employees of the State owned corporations and authonomous bodies. Their employees for all practical purposes are serving in connection with affairs of the State. Thus, it can safely be concluded that all the services in the public I sector are also to be regulated by the law. So far as the present case is concerned, the Government and the Board are empowered to frame rules or regulations for carrying out the purpose of the Act. It is admitted position between the parties that no rules or regulations have been framed by the board. All the appointments have been made subject to creation of the posts and subject to recommendation of the Board. Moreover, it was the Board which can appoint any person on ad hoc basis in its service. The Chairman L alone or Prime Minister has no authority to order the induction in absence of rules or regulations and in vacuum the general rules of the Government for selection and creation of posts would have been followed. The appointments without creation of posts and advertisement is of no legal "consequence. A reference may be made to a case titled "Azad Govt. v. Haji Mir Muhammad Naseer and 10 others "1999 PLC (C.S.) 1173). At page 117 of the report the apex Court opined as under:‑‑ "From the above it is clear that when applications were invited through advertisements mentioned above in May, 19P7 and when the interviews were held the posts under the Education Package had not yet been created. In the advertisements fifteen days' time was fixed for filing of applications which expired in the beginning of June, 1997. The question, therefore, is whether the requirement of law about advertising the posts was fulfilled or not? Rule 17 of Azad Jammu and, Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 197 7 lays down that initial appointments in posts carrying grades 1 to 15 shall be made on the basis of examination or test by inviting applications through advertisements in newspapers. Rules 17 is worded as follows:‑‑ "

17. Initial appointment to all 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." Sub‑rule (1) of rule 23 of the said rules is also relevant:‑‑ "(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. " Sub‑rule reproduced above opens with the words "when a post is required to be filled" which clearly means that a post should exist before it is advertised. Rule 17 by necessary implication also is to the same effect. These provisions show that a post or vacancy has to exist before it is advertised. These provisions do not visualize that applications may be invited without there being a vacancy or post Therefore in our view it was illegal to fill the posts created in December on the basis of the advertisement., applications and interviews already conducted before the creation of new vacancies. In the advertisements mentioned above, number of posts were not indicated. It is well‑entrenched practice prevalent in the Government that when an advertisement is published to invite applications for filling in vacancies the number of vacancies is also announced. This practice is in consonance with the provision reproduced above and fortifies our view that posts should be available before they are advertised." A perusal of Annexure "F" appended with the writ petition also reveals that the posts held by the petitioners were not in existence at the time of appointments; that is why the Board has directed to prepare a summery for creation of the posts and directed for placing the same in the next meeting of the Board on 25‑11‑2000. In view of above, it can safely be concluded that appointments have been made without creation of posts and are ab initio void. The other condition necessary for making the appointments was framing of the rules and regulation in view of sections 16 and 17 of the Neelum Valley Development Board Act, 1989. Even in case of created posts for making appointments the existence of rules is condition precedent and without rules it cannot be said that the appointments have been validly and legally made. This view lends support from Syed Sajid Hussain Shah's case (1992 SCMR 468). At page 47 of the report it has been opined that the rules eliminate to a great extent of arbitrary exercise of powers by the concerned authority in the p matter of appointment and promotion of civil servant. A post cannot be legally filled up whether by promotion or otherwise unless there exists rules. In absence of creation of posts as well as rules so called advertisement is of no consequence. Be that as it may, a perusal of notice and other documents leads to the conclusion that this is an after thought exercise for the protection of illegal appointments. Notice has not been published in the known daily newspapers nor it discloses that it has been locally served throughout in the constituency. It is also astonishing that only the petitioners have been examined by the Committee and none else has appeared pursuant to the notice, therefore, the very purpose of selection has been defeated and it cannot be said that selection has been made after a fair competition from the best available candidates. In Ch. Muhammad Fayyaz's case (PLJ 1999 SC (AJK) 89), the apex Court has explained the concept of selection relying upon a judgment of Dacca High Court (PLD 1970 Dacca 85), it has been opined that "selection" is a choice between more than one candidate and in absence of advertisement, no other candidate was asked to appear then the Selection Committee was deprived of opportunity of making the selection. Another unfortunate aspect of the matter is that Selection Committee was constituted on a retired employee of the Education Department who has no concern with the service of the Development Authority. This aspect also casts a serious doubt on the manner adopted for the selection, therefore, the contention of Kh. Farooq Ahmed that a notice is mandatory before termination of services is repelled in view of rule of law laid down in a case titled "Secretary for Prime Minister Secretariat AJ&K and others v. Muhammad Aslam and 5 others" 2000 PLC (C.S.)

155. The rule that a void appointment can be cancelled without notice was reiterated in a subsequent judgment titled "Azad Govt. v. Ashfaque Ahmad Hashmi" (2001 PLC (C.S.) 34), wherein it has been opined that appointment of suc1J a nature which cannot be legalized even after hearing them, remand of the matter for hearing is an exercise in futility. I respectfully follow the rule of law laid down in this authority and hold that the petitioners are not entitled to hearing in view of their void appointments and mere affording a right of hearing will not make the illegal appointments as legal. All the cases referred to and relied upon by the learned Advocate for the petitioners relate to the appointments where the competency of the authority for making the appointments was not in dispute and the rules were also in existence and in the circumstances of the case it was observed that notice before the termination or reversion was a requirement of law. The cases of the Development Authority Muzaffarabad were also distinguishable for the reasons that in the Muzaffarabad Development Authority Act there is a specific provision which empowers the Chairman to appoint an employee in case of emergency and subject to confirmation of the Board. The power of creation of the post is also available to the Chairman. In exercise of that powers, the Chairman created some posts and made appointments, which were subsequently approved by the Board and it was held by this Court in various cases that such appointments cannot be termed as ab initio void, therefore, cannot be cancelled without providing an opportunity of hearing to the petitioners. Therefore, in view of aforesaid position, these authorities have no applicability. In light of the foregoing discussion, I have no hesitation in holding that the appointments are void and cannot be protected in writ jurisdiction, however, it may be observed that appointments in the State service and in State owned corporation, autonomous bodies or Board cannot be made on the basis of pick and chose or on personal liking or disliking nor could be distributed among the kith and kins of the political dignitaries. If this practice remained continued then the very purpose of creation of these autonomous bodies would be frustrated. The making of appointments in the State service is trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee so that every State subject is provided a fair chance of competition. The apex Court of AJ&K has repeatedly held that the appointments in AJ&K cannot be made without advertisement nor the merit can be ascertained without fair competition and respondents are to the same effect. The apex Court of AJ&K again approved the same view in a recent judgment titled ' Tajam‑ul‑Hassan Mirza and others v. Speaker Azad J&K Legislative Assembly and others' (Civil Appeal No.186 of 2001, decided on 17‑5‑2002). The relevant observation of the apex Court is as under: ‑‑ "

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the basic appointments of appellants were illegal and purely temporary. Therefore, in accordance with the persistent dictum of this Court, the posts are to be advertised and the respondents committed no error in advertising the posts in dispute. It is no ground that as previously the posts were not advertised, therefore, even now the same formula should be adopted. The respondents have advertised the posts to make appointments in accordance with the merit determined by the competent forum. The appellants can also apply against any one of the posts including the posts held by them and they can be appointed subject to their coming on merit in accordance with law. The assertion of the counsel of the appellants that previously the posts were not advertised has no substance in law. Any illegality committed in the past could not be made example for doing another mop illegality as rightly pointed out by the High Court." The right of trade, business and profession has also received the attention of the apex Court of Pakistan in Mushtaq Ahmed Mohal's case (1997 SCMR 1043). the relevant observation is as follows:‑‑ "It may be observed that even otherwise, the Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution which enjoins that "subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business" includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc. on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to is transparency and fairness. The above objective enshrined in our Constitution, cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation." Again at page 1053 of the report, it has been opined as under:‑‑ "We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the carne and which inter alia enjoins equality of opportunity and guarantees for creation of a egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set ups/institutions. " The Supreme Court of Pakistan in case titled "Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others" (PLD 1997 SC 342) also opined as under:‑‑ ?...We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring about an egailtarian society based on Islamic Concept to fair play and social justice. The State functionaries like Railways are expected to act fairly and justly, in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. While discharging official functions, efforts should be made to ensure than no one is denied to earn his livelihood because of the unfair or discriminatory act on the part of any State functionary. " Usually it is common practice that the political dignitaries are appointed to look after the affairs of the Local Bodies, Corporations and Development Authorities. Some of them have no previous experience. So there is every likelihood of mis‑management and in such eventuality the subordinates are bound to guide such dignitaries in a right direction. In "Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Devision, Lahore and 2 others" (PLD 1995 SC 530), the apex Court of Pakistan took notice of the prevalent circumstances and at page 533 of the report observed as under:‑‑ " ...We need not stress here that a tamed and subservient bureaucracy can neither by helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline: It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non‑compliance would have exposed the concerned Government servant to the risk of disciplinary action." Before parting with the case, I would like to reproduce an important observation of the Federal Shariat Court of Pakistan, reported in PLJ 1992‑F SC‑

412. At page 422 of the report Mr. Justice Tanzeel‑ur‑Rehman (as his lordship then was) after reproducing the Quranic Injunction and Sunnah as well as view of the eminent jurists observed as under:‑‑ "

24. The Holly Qur'an commands us to render back the trusts to those whom they are due. It further commands that when you judge between man and man it is to be judged with justice. There is a consensus among the commentators of the Holy Qur'an that the word (Amanat) (trust) used in Verse 58 of Surah Al‑Nisa is not to be given a restricted meaning and any sort of trust comes under its purview. Although the said Verse was revealed in connection with giving back the keys of Ka'ba to Bani Talha but for the generality of the word in the Verse, this commandment applies to all the trusts (Amanant) and all persons for giving them to whom they are due. " The importance of the service structure in a state need not to be dilated upon. Suffice it to refer few lines from a book by. This book is basically a collection of articles of eminent Muslim Jurists. The portion which I am going to reproduce herein below has been authored by, The learned author says. The above standard cannot be achieved without transparent selection process which is again incomplete without proper advertisement and fair The upshot of the above discussion is that finding no force in this petition it is hereby dismissed with no order as to the costs. Respondents are directed firstly to determine number of required posts for smooth functioning of the board. After formal creation and framing/adopting the rules fill in the same following, the due process of law. H.B.T./53/AJK??????????????????????????????????????????????????????????????????????????????????? Petition dismissed