2019 PLP (C (PLC(CS))

GHULAM MUSTAFA MUGHAL, J.

The tilled petition for leave to appeal has been directed against the judgment dated 02.07.2018, passed by the Azad Jammu and Kashmir High Court in Writ Petition No.1984 of 2015.

2. The facts forming the background of the captioned petition for leave to appeal are that the respondents, herein, and another (who is not before the Court) filed a writ petition before the Azad Jammu and Kashmir High Court on 21.09.2015, claiming therein, that in response to an advertisement issued by the Azad Jammu and Kashmir Legislative Assembly (Admin Branch) on 28-01-2015, in daily 'Dunya' they applied for appointment against the post of Reporter B-16 and Computer Operator B-12. After test and interview, they were appointed upon the recommendations of the respective selection committee vide even dated orders i.e. 02.09.2015. They submitted there joining report before the concerned authority and were allowed to join. At the end of the month, they submitted their bill for payment of salary but the authority did not pay the same despited of the fact that they were performing their duties. Feeling aggrieved from the act of the authority, the respondents, herein, filed writ petition before the Azad Jammu and Kashmir High Court which was contested by the other side by filing written statement. It was pleaded in the written statement that the Finance Department has not approved the creation of these posts and until and unless the Finance Department has not endorsed the creation, salary cannot be paid to the petitioners. It was stated that a letter was written to the Finance Department for financial concurrence but the same was refused. The other facts pleaded in the writ petition were also negated. After hearing the parties, the learned Division Bench of the High Court through the impugned judgment dated 02.07.2018, has accepted the writ petition and directed the respondents, therein, to pay the emoluments to the petitioners forthwith.

3. Raja Ayyaz Ahmed Khan, the learned Assistant Advocate-General appearing for the petitioners argued that the learned High Court has based its decision on Article 30-B of the Azad Jammu and Kashmir Interim Constriction Act, 1974, which has nothing to do with the creation of the post. The learned Assistant Advocate-General further argued that even the Finance Committee of the Legislative Assembly is not vested with the jurisdiction to create the posts until and unless the same is approved by the Finance Department. The learned Assistant Advocate-General submitted that even Rule 178 of the Azad Jammu and Kashmir Legislative Assembly Rules, 1975, has been misinterpreted by the learned Division Bench of the High Court. He further submitted that until and unless creation of the posts is approved by the Finance Department, the payment of the salary is out of question and it cannot be said that the appointments of the respondents were lawful and they were legally entitled for payment of the salary. He lastly submitted that the learned High Court has ignored the well settled principle of law that a void order cannot be implemented while resorting to the Constitutional jurisdiction of the High Court.

4. Mr. Nasir Masood Mughal, the learned Advocate appearing for the respondents argued that the stand taken by the petitioners is contradictory, mala fide and is not rational. He submitted that the learned Division Bench of the High Court has rightly interpreted the relevant provisions of the Constitution as well as the Legislative Assembly Rules and the conclusion reached at is perfectly justified on both facts and law. The learned Advocate argued that it is astonishing that the posts in question were advertised by the petitioners, herein, posing the same as vacant. The test and interview was conducted in pursuance of the said advertisement and thereafter the respondents, herein, were allowed to join the duty but at the end of the month were refused to pay the salary. He added that more than three years' time has been elapsed but the Salary has not been paid to the respondents despite performance of duty with full devotion and satisfaction of the authority. The learned Advocate further argued that the respondents, herein, have nothing to do with the creation of the posts, hence, they cannot be penalized for improper action of the authority. The learned Advocate further argued that if for the sake of argument, it is assumed that the stand taken by the petitioners, herein, was correct even then they have no case because they have themselves participated in the negligence and illegal act, therefore, now they cannot come with Volta face and say that appointment made by them was not lawful. The learned Advocate further argued that a party cannot be made to suffer for an illegal act of the authority who is supposed to perform function lawfully. In support of his submissions, the learned Advocate placed reliance on the cases reported as Tanveer Fatima v. Divisional Director School and others [2016 SCR 714], Muhammad Irfan Ali Gorsi v. Azad Government and 6 others [2014 SCR 710] and Mohammad Maqsood Khan v. Raja Mohammad Naseer Khan and 4 others [2017 SCR 1302]. In all the referred cases, it was held that 'according to the celebrated principle of law, no one can be penalized for the wrongs of other'.

4. I have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that some posts were advertised by the Azad Jammu and Kashmir Legislative Assembly (Admin. Branch) through an advertisement published in daily 'Dunya' dated 28.01.2015, including 2 posts of Reporter B-16 and 4 posts of Computer Operator B-12. The respondents, herein, being eligible applied for appointment against the said posts and participated in the test and interview. They were selected on the posts of Reporter B-16 and Computer Operator B-12, on the recommendations of the respective selection committee vide even dated order passed on 09.02.2015. They were allowed to join by the petitioners, herein, but later on they were refused to pay the salary on the ground that their posts have not been approved by the Finance Department. The respondents, herein, filed a writ petition before the Azad Jammu and Kashmir High Court on 21 09.2015 which was heard by the learned Division Bench. After a period of 3 years, their writ petition has been accepted through the impugned judgment dated 02.07.2018. It appears that the respondents, herein, remained performing their functions without payment of the salary for the aforesaid period and up-till now. It is unfortunate and very disturbing. It is also astonishing that the posts were advertised by the Azad Jammu and Kashmir Legislative Assembly, the respondents, herein, were selected and thereafter were allowed to join but their salary was as not paid on the ground that the posts were not created by the Finance Department. After advertisement of the posts and selecting the candidates, this argument was not available to the petitioners, herein, and the learned High Court has rightly not accepted the same. The posts have been created by the Finance Committee of the Azad Jammu and Kashmir Legislative Assembly and appointments have been made on merit which would be deemed to have been made after following the due process of creation of posts, therefore, withholding of salary is not justified at all. Law is well settled that a party cannot be made to suffer for the fault/committed by the authority. In a case titled Ahmed Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education Lahore and another [PLD 1994 Lahore 3], in para 7 of the report, it was held as under:- "

7. It is an established proposition of law that no one can suffer on account of act of authority, who has to pass an order or who has taken some action. In the case in hand, it stands established that it is the respondents who are at fault .." Similarly, in a case titled Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan [1996 SCMR 413], at page 415 of the report, the Apex Court of Pakistan has observed as under:- "

6. It is disturbing to note that in this case petitioner No.2 had himself been guilty of making irregular appointment on what has been described 'purely temporary basis'. The petitioners have now turned around and terminated his services due to irregularity and violation of rule 10(2) ibid. The premise, to say the least, is utterly untenable. The use of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them. Now they cannot be allowed to take benefit of their lapses in order to terminate the services of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re-instating the respondent." The principle of law laid down in the above cited case was again reiterated in a case titled Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation Karachi and others [2002 SCMR 1034], wherein, at page 1051, it was observed as under:- " .Therefore, examining from any angle no conclusion can be formed except that according to the circumstances of the case it was incumbent upon the PIAC Authorities to have issued show-cause notices to the appellant employees before terminating their services. Not conceding but for sake of arguments if it is presumed that the appointments of the employees i.e. Abdul Hafeez Abbasi and others were made in violation of the Rules and Regulation and not on merits but still they had acquired a right after serving the Corporation from 1995 to onwards during course whereof they were confirmed which would mean that they had attained status of permanent employees enjoying to remain in service until it is proved against them that their appointment was contrary to Regulations of PIAC.

15. We have noted in number of cases that Departmental Authorities do show haste at the time of making such appointments when directives are issued to them by the persons who are in the helm of affairs without daring to point out to them that the directions are not implementable being contrary to law as well prevalent Rules and regulations. In fact, such obedience is demonstrated by the concerned officers of the departments to please the authorities governing the country just to earn their time being pleasures but on the change of regime they do show speed in undoing illegal actions which they themselves have accomplished in the previous regime and due their such illegal acts the employees who are appointed suffer badly without any fault on their part and then even nobody bothers for their future career. Therefore, we are of the opinion that in such situation besides proceedings against the beneficiaries of so-called illegal appointments the officers who are responsible for implementing illegal directives should also be held equally responsible and severe action should be taken against them so in future it may serve as a deterrent for other like-minded persons. In light of the above stated position of law, this petition has no merit. There is another aspect of the case that the writ petition before the High Court was filed Mian Muhammad Shafique, Sudheer Khan and Awais Ali and the judgment was given in their favour. In the instant petition, one of the party namely Awais Ali has not been impleaded, therefore, the same is liable to be dismissed on this sole ground, hence, in absence of the necessary party, this PLA cannot proceed.

5. In view of above, finding no force in this petition as well as application for interim relief, the same stand dismissed. No order as to costs. Before parting with the case, it may be stated that the PLA was pending in the Registry Office of this Court which with the consent of both the learned counsel for the parties has been taken up along with the miscellaneous application and is disposed of the manner indicated above. ZC/59/SC(AJK) Petition dismissed.