2023 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, C.J.

Both the titled petitions have been filed against the common judgment of the High Court dated 07.02.2021, whereby the writ petition filed by the petitioners, herein, was dismissed in limine. As the controversy involved in both; the petitions is common, therefore, the same are being decided through the proposed consolidated judgment/order.

2. The facts necessary for disposal of the instant petitions are that the petitioners, herein, were appointed on contract basis against different posts of a project launched by the Government named as "Unified Integrated automated System for High Courts and Lower Courts of Azad Jammu and Kashmir". Later on, the posts occupied by the petitioners were shifted on the normal budget of the High Court, consequently the posts were advertised. Feeling aggrieved the petitioners, herein, filed a writ petition before the High Court seeking a direction for their permanent induction and further challenged the qualification prescribed in the Azad Jammu and Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2020, in respect of the posts in question. The learned High Court through impugned judgment/order dismissed the writ petition in limine, hence, instant petitions.

3. Raja Shujjat Ali Khan and Ch. Amjid Ali, Advocates, the learned counsel for the petitioners argued that the impugned judgment is against law and the facts of the case. They contended that the crucial point forcefully agitated in the memo. of writ petition as well as during the course of arguments before the High Court was that the qualification prescribed for the posts in question in the Azad Jammu and Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2020, is not in accordance with the requirement of the disputed posts, moreover, the same is also quite different from the qualification sought at the time of temporary induction of the petitioners, but the learned High Court has not considered and resolved this point. They further contended that the mode of appointments through National Testing Service (NTS) has already been disapproved by the Islamabad High Court in a judgment and this fact was also brought into the notice of the High Court at the time of hearing of the case but the learned High Court even did not bother to consider the same. In this regard, they drew the attention of the Court towards a previous advertisement and the relevant rules of the High Court Establishment.

4. On the other hand, Mr. Sajid Hussain Abbasi, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the petitioners. He submitted that the impugned judgment is perfectly legal which is not open for interference by this Court. He contended that the petitioners were appointed on contract basis and they have got no locus standi to claim permanent induction on the basis of the temporary appointment. He forcefully contended that the posts in question were advertised and the selection process is pending due to the present litigation. The petitioners want amendment in the rules according to their wishes, whereas, under law the rules cannot be framed at the sweet will of any person of party. In this regard, he referred to and relied upon the case reported as Syed Rasheed Hussain Shah v. Azad Government and others [2014 SCR 883]. He lastly submitted that no question of law of public importance is involved, hence, these petitions are liable to be dismissed.

5. We have given our anxious thought to the arguments advanced at bar and also perused the record made available and considered the case law referred to by the learned counsel for the respondents. The perusal of the record shows that the petitioners were appointed on contract basis against different posts relating to Information Technology, created on temporary basis for a program launched by the Government known as "Unified Integrated automated System for High Courts and Lower Courts of Azad Jammu and Kashmir". Admittedly, the said program was winded up and the posts were shifted on the normal budget of the High Court. In the writ petition the petitioners have sought a direction, coupled with other, for regularization of their temporary appointments; however, during the course of arguments when a query was made to the learned counsel for the petitioners that how the appointments made purely on contract basis can be regularized without adopting the due course of law, they did not press this plea, therefore, there is no need to record any findings in this regard. The main contention of the learned counsel for the petitioners is that the qualification prescribed in the Azad Jammu and Kashmir High Court Establishment (Appointment and Conditions of Employment) Rules, 2020, for the disputed posts is unlawful and quite different from the qualification sought in the previous advertisement in the result of which the petitioners were appointed on contract basis. This contention is not of worth consideration as the posts have been shifted on the normal budget of the High Court and the learned High Court was not bound to insert the same qualification in the rules as was mentioned in any previous advertisement issued by the Information Technology Board rather the concerned authority is fully empowered to introduce the qualification according to the requirement of the posts. It is settled principle of law that rules cannot be framed, amended or altered at the sweet will of any person or a party, it is the prerogative of the authority concerned to frame, amend or alter the rules keeping in view the mandate for doing the same; moreover, the rules cannot be declared illegal until and unless it is proved that the same are in conflict with the provisions of parent Act or the Constitution. In this regard, the learned counsel for the respondents has rightly relied upon the case reported as Syed Rasheed Hussain Shah v. Azad Government and others [2014 SCR 883] wherein, it has been held by this Court that: - "

9. It may be observed that the departments of Fisheries and Wildlife were merged by amending Rules of Business by the Authority while exercising powers under section 58 of the Interim Constitution Act, 1974 and thereafter relevant Rules were amended accordingly. The vires of the Rules have not been challenged at the relevant time. Moreover, the Rules making Authority is fully competent to amend the same and the act of the Authority cannot be declared illegal until the same is in conflict with the powers of parent Act or the Constitution. The learned counsel for the appellant failed to substantiate his claim that the amendment incorporated in the Rules is inconsistent with the provisions of the Act or Constitution, therefore, in absence of that the same cannot be declared ultra vires. Even otherwise, Rules cannot be framed/ amended at the sweet-will of a party and it is the sole prerogative of the Authority concerned to frame or amend the same, therefore, the argument of the learned counsel for the appellant in this regard has no substance, hence the same is hereby repelled." In the matter in hand, it is not case of the petitioners that qualification prescribed in the rules is ultra vires the Constitution; therefore; mere on the will and whims of the petitioners, the rules cannot be declared illegal. It appears that the petitioners want insertion of such qualification in the rules which they are possessing, whereas, under law such relief cannot be extended to them. During the course of arguments, the learned counsel for the petitioners submitted that the learned High Court has not attended to this point, whereas, in paragraph 14 of the impugned judgment the learned High Court has duly attended to and resolved this point in the light of the principle of law discussed in the referred report. As the petitioners failed to point out the eventualities; discussed in the referred judgment, which require for declaring the rules illegal; hence, the contention of the learned Advocates representing the petitioners being devoid of any force is hereby repelled.

6. This Court time and again has held that any post can only be filled in on regular basis after due course of law and no one can claim the permanent induction on the basis of any temporary appointment made on contract basis or otherwise. In this regard, the learned High Court has rightly relied upon the judgment of this Court reported as Waqas Latif and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 6 others (2013 PLC (C.S.) 887). In the recent past an Act, i.e., Azad Jammu and Kashmir Regulation of the Services of Certain Categories of Contractual, Ad-hoc or Temporary Government Employment (Terms and Conditions) Act, 2021, was introduced, whereby the Ad-hoc/temporary appointments were regularized, however, through subsequent Ordinance, promulgated on 29.10.2021, the said Act has been repealed from the date of its enforcement; therefore, the principle of law discussed hereinabove is very much holding the field and the judgment of the High Court in this regard is quite in accordance with law.

7. During the course of arguments one of the learned counsel for the petitioners has also raised an objection regarding the mode of appointments through NTS. It may be observed here that the posts are laying vacant in the High Court and the concerned authority may adopt any mode, provided under law, for appointment against vacant posts as it deems appropriate to achieve the betterment and transparency in the institution. At this stage, we do not intend to impose any restriction in this regard as the same will amount to unnecessary interfere in the lawful domain of the concerned authority, and against the settled norms of justice. As for grant of leave the availability of question of law of public importance in the case is prerequisite which is missing in the instant case; hence, leave stands refused. The titled petitions having no merit are hereby dismissed with no order as to costs. SA/33/SC (AJ&K) Petitions dismissed.