' The supra titled writ petition is addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. The brief facts giving rise to the instant writ petition, as disclosed in it, are that the petitioner is a Class 1st Class State Subject of Azad Jammu and Kashmir and hails from Village Mohri Ravan Tehsil Hattian District Muzaffarabd. He believes in the supremacy of Law and Justice. For induction into the service of Azad Jammu and Kashmir in any department, the Azad Jammu and Kashmir Government has enacted the law and framed the rules. Similarly for induction into the service of the Audit Department Azad Jammu and Kashmir Local Funds \(Audit Department) Rules have been framed. Under these rules, the post of Director Local Audit Funds was to be filled in by the method prescribed as under:-
(i) By promotion on the basis of seniority-cum-fitness. From amongst. The persons holding the post of Deputy/Divisional Director (B-18) with 12 years service4n grade B-17 and above;
(ii) By deputation/transfer of Additional Accountant General (B-19) from the Audit Department; and
(iii) By transfer from Additional Secretary Finance with S.A.S. Qualification.
3. The Azad Jammu and Kashmir Government (non-petitioner No,1) issued a Notification on January 8th, 2004 that after the retirement of non-petitioner No,4, he shall be appointed as Director Local Audit Funds on March 1st, 2004. Now, this order has been challenged through the instant writ petition.
5. This writ petition was admitted for regular hearing. Notices were issued to the non-petitioners, who have filed their respective written statements etc. Arguments have been heard.
6. Sardar Rafique Mehmood Khan, the learned counsel for the petitioner, contended that the impugned order was passed on January 8th, 2004, when the post in question was not available as it was not vacant. He submitted that no appointment could be made unless and until the post is vacant. He referred 2001 PLC (C.S.) 256 and an unreported judgment of the Supreme Court of Azad Jammu and Kashmir in support of his contention. It was further contended by him, that non- petitioner No,4, did not fulfill the requisite qualification. Only a person holding the office of Additional Accountant General could be appointed on this post, while the non-petitioner No,4 was officiating Additional Accountant General, therefore, he does not fulfill the requisite qualification. It was next contended by him, that appointment to the said post could only be made by deputation or transfer while the appointment of non-petitioner No,4 was made effective from the date of his retirement, therefore, the order of appointment is not lawful. He referred PLD 1978 SC (AJK) 37 in support of his contention.
7. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioners contended that no doubt, non-petitioner No,4, was appointed on officiating basis, but his period of probation was two years which has been completed by the non. Petitioner No,4, therefore, he was confirmed on the post and did not remain on officiating basis. It was next contended by him, that the Rules have been framed for direct recruitment to the post in question.
Non-petitioner No,4 was inducted into the service on the basis of policy framed by the Azad Jammu and Kashmir Government. He submitted. That he was not a civil servant, because he was appointed on the basis of contract. Any person inducted into service as such, is excluded from the definition of civil servant. He referred Section 2 (b) of the Azad Jammu and Kashmir Civil Servants Act, 1976 and Section 2(b) of the PSC Act, 1986. It was further contended by him, that under Section 13 of the aforesaid Rules and Act, the Government is competent and authorized to induct into service any such person. It was further argued by him, that the circular issued by the S&GAD Department regarding the service on contract basis is in derogation to the policy of the Government, as such it has no legal sanctity in the eye of law.
8. I have heard the learned counsel for the parties, perused the record and have given my utmost muse to the respective arguments, advanced by the learned counsel for the parties.
9. This writ of quo warranto has been filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. It can be filed by any person against a person holding or purporting to hold the public office in connection with the affairs of AJ&K Government, to show under what authority of law he claimed to hold that office. In the writ of quo warranto, it is entirely the responsibility of the person holding the office to show that under what authority of law, he is holding the office. It is not the responsibility of the petitioner to show that he is not holding the office under the authority of law, but once information regarding the usurpation of the office is furnished to the Court, then onus shifts upon the non-petitioner, holding the office to show that under what authority of law, he is holding the office. It is pertinent to note that in a writ of quo warranto the holder of the office is called upon to show that under what authority of law, he is holding the office and he has to answer and show that under such and such law, he is holding the office and order of his appointment was made by a competent authority. It was quite in accordance with law. It is entirely the responsibility of non-petitioner to show cause. When once it is brought to the notice of the Court, that a person has usurped any office, then it is the duty of the non-petitioner to explain and prove that he is holding the office under law. It is also pertinent to note that when once it has been brought into the notice of the Court that a person has usurped an office then it is also the duty of the Court to ensure that office should not be usurped by any person and the Court has to decide the matter irrespective of the fact that the parties have compromised with each other. This view finds support from PLD 1992 Lah. 322 and PLD 1993 AJK 12.
10. Now, the question emerges that in the instant case, it was entirely the responsibility of the non- petitioner to show that he was holding the office under such and such law and his appointment was made according to law, by the competent authority.
11. In the instant case, the appointment order of non-petitioner was issued on January 8th, 2004 "that he shall be appointed on the basis of contract for a period of two years on the post of Director Local Audit Fund (B-19)". On the date, when his order was passed, this post was not vacant. It was, rather occupied by some one other. The non-petitioner was also occupying the office and he was to retire on March 1st 2004. Before two months of his retirement, the order of his appointment was passed, while the post in question was not available.
12. Now, the question emerges that when the post was not available, then how the appointment of non-petitioner No,4 could be made. It is well settled principle of law, that even no post could be advertised if it is not vacant. When the post could be advertised, then at the same time, how the post could be filled in, when it is not available. This view finds support from 2002 CLC 1653. In the instant case, the day, on'which the order of the appointment of the non-petitioner was made, the post was not vacant. The leaned counsel for the non-petitioner was confronted to explain that how the order could be passed, when the post in question was not vacant, but he could not afford any reasonable explanation. Thus, the appointment order of the non-petitioner No,4 is not sustainable on this ground.
13. The qualification and mode for appointment on the post of Director Local Audit Fund (B-19) is provided in Rules known as "The Azad Jammu and Kashmir Local Audit Fund Finance Department Service Rules, 2000" (hereinafter to be referred as Rules 2000). The mode for recruitment on the aforesaid post is provided as under:--
(i) By promotion on the basis of seniority-cum-fitness from amongst the persons holding the post of Deputy/Divisional Director (B18) with 12 years service in grade B-17 and above;
(ii) By deputation/transfer of Additional Accountant General B-19) from the Audit Department; and;
(iii) By transfer from Additional Secretary Finance with S.A.S. Qualification.
14. According to the aforesaid Rules, a person can be appointed as Director Local Audit Fund (i) By promotion on the basis of senioritycum-fitness from amongst the persons holding the post of Deputy/Divisional Director (B-18) with 12 years' service in grade B-17 and above; (ii) By deputation or by transfer. A person can only be appointed Director Local Audit Fund by promotion, deputation or by transfer. The non-petitioner No,4 was neither appointed on the basis of promotion or by deputation, or through transfer. He was appointed on the post after his retirement on the basis of contract. According to the learned counsel for the non-petitioners he was appointed on the basis of contract policy.
10. Now, the question emerges that when the Rules did not contain that any person can be appointed on the basis of contract, then how he can be appointed on contract? The mode of appointment has been provided in the Rules and mode of appointment did not contain that a person can be appointed on the basis of .Contract. When the mode of appointment did not contain as such, then how the non-petitioner was appointed on the basis of contract. According to the learned counsel for the non-petitioners, he was appointed on the basis of policy of contract. It is to be noted that no policy contrary to the rules can be made or adopted. The non-petitioner No,4 could not be appointed on the basis of contract, because the Rules did not recognize such appointments.
16. It would not be out of place to mention here, that section 13 of the AJ&K Civil Servants Act, 1976 contained that no retired civil servant shall be re-employed under the Government unless such re- employment is necessary in the public interest.
17. Under the said Rules, normally the civil servant could not be reemployed under the Government but an exception to it is that if the re-employment of civil servant is necessary for the public interest, then he can be re-employed. Now, the question arises whether the reemployment of non- petitioner No,4 was necessary for the public interest and keeping in view the public interest, he was re-employed by the non-petitioners. I have gone through the appointment order of the non- petitioner No,4. It nowhere contained that his re-employment was in public interest, therefore, he was re-employed. As stated earlier, that in a writ of quo warranto, it is entirely the responsibility of the person holding the office to show that under what authority of law, he was holding the office, therefore, in this case, it was entirely the responsibility of non-petitioner No,4 to show that he was holding the office in the public interest and he was appointed for the interest of public at large. As stated above, that the order of appointment did not contain as such, and there is nothing on the record, on the basis of which, it could be said that the non-petitioner No,4 was re-employed while keeping in view the interest of public at large, therefore, the non-petitioner No,4 has failed to prove and establish as such. He has failed to prove the exception to section 13 of the AJ &K Civil Servants Act, 1976.
18. As the contention of the learned counsel for the petitioner is concerned that the non-petitioner No,4 did not fulfill the requisite qualification, as he was officiating as Additional Accountant General.
It has no substance. No doubt that initially he was appointed on officiating basis with a probation period of one year and he has completed the said period. When he has completed the probation period, then he was confirmed as Additional Accountant General (B-19), therefore, it could not be said that he did not fulfill the .Requisite qualification.
' The Nib of the above discussion is that, this writ petition is accepted and the Notification regarding the appointment of non-petitioner No,4 dated 8-1-2004 is hereby declared to be without lawful authority.