1. ' SARDAR MUHAMMAD NAWAZ KHAN, C J.---These two constitutional petitions shall stand decided through this single order, as both raise identical point of law and facts.
2. ' The respondent, Public Service Commission (hereinafter shall be referred as the PSC), invited applications from eligible candidates, through advertisement dated February 5, 2003, in order to make appointment of Additional Custodian Evacuee Property. The petitioners, private respondent and some other candidates applied for appointment against the said post. The PSC, after scrutiny regarding eligibility issued call letters to the contestants. After assessment of suitability, a merit order was prepared according to which private respondent topped the position and he, being selected, was recommended for the appointment. The Government (competent authority) appointed the private respondent as Additional Custodian Evacuee Property. The petitioners challenged the recommendations by the PSC and the appointment order of the respondent through separate writ petitions before this Court. Their writ petitions were disallowed, however, on appeals, the apex Court remanded the cases to this Court to 'decide the same on merits.
3. ' The learned counsel for the petitioners, while arguing their case, raised following objections with respect to selection of private respondent and his appointment as Additional Custodian Evacuee Property:-- (1). The amendment effected by the Government in "The Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service), Rules 1992" was invalid on the ground that neither it was effected by following the rule making procedure nor published in the official Gazette, therefore, it had no enforcement at the time when appointment of private respondent was made; (2). Accepting the amendment as valid, the respondent had already crossed the upper age limit of 50 years in view of amended rules. Moreover, he was not eligible on account of his legal practice less than 10 years, as required by the rules.
4. ' Against the aforesaid arguments, the learned counsel representing the respondents, argued that the Government was competent to make rules or amend the same, if necessary. The procedure laid down for making rules, if not strictly followed by the rule making authority, does not render the rules as invalid. According to the learned counsel, the formation of Rule Committee, the process of rules through Services and General Administration Department and the vetting by Law Department is simply to assist the rule making authority and it does not mean that if a rule is made by not following this practice, it becomes invalid and looses its force. It was further submitted that publication of any law or rule in the official Gazette is not necessary in all the cases, therefore, the Government rightly amended the relevant rules and the same were holding field at the time of making selection and appointment of the private respondent. The petitioners, being in knowledge of the amendment in the rules., participated in the test before the PSC, therefore, they by their own conduct, are estopped to challenge the selection process and the appointment of the respondent.
5. Therefore, they cannot be allowed to turn round and say that the PSC and the appointing authority were legally wrong to make the selection and appointment of private respondent, the learned counsel maintained.
6. ' It was next argued by the learned counsel that even if it was accepted that appointing authority, while making the appointment of the respondent, committed some illegality, it was the fault on their behalf and the same could not be allowed to penalize the private respondent being no fault of his own. Regarding the question of quota, the learned counsel argued that there was only one post of Additional Custodian Evacuee Property and the same was advertised to be filled in on the basis of open merit. The petitioners knowingly participated in the test for a post to be filled in on the basis of open merit, therefore, it did not lie in their mouth to say that appointment was to be made in view of quota system. While replying the objection raised with respect to age limit of the respondent and his legal practice, it was argued that respondent remained in ad hoc service continuously, therefore, the period consumed during ad hoc service was excluded from upper age limit and by doing so, the age of the respondent was below 50 years on the last date of receipt of applications. The appointment was made in accordance with law and the period during ad hoc service could legally be excluded from his upper age limit. He had practice of 10 years and the PSC, after satisfaction of his eligibility, allowed him to participate in the test. The petitioners have challenged his legal practice being less than 10 years and the respondents have categorically denied the allegation, therefore, it was incumbent upon the petitioners to satisfy the Court with the evidence suggesting his legal practice less than 10 years. The onus was upon the petitioners to prove this allegation and when it stood denied categorically through written statement; they were under legal obligation to prove the same but they failed to do so, the learned counsel argued.
7. ' After hearing the learned counsel for the parties, the record made available has been examined carefully.
8. While dealing with first objection raised by the petitioners about amendment in .The rules, it may be observed that every legislation like Act, Ordinance or Rules has a commencement clause.
9. Sometimes the said clause provides enforcement of a law with immediate effect, whereas in some cases the legislation takes effect when it is published in official Gazette. However, in both the cases it is always made clear through an expressed provision as to what would be the date of enforcement. When the commencement clause provides validity of a law after publication in the official Gazette, any action taken or any act done in view of the said law before its publication in official Gazette shall be invalid. But, when the commencement clause expressly provides the enforcement of a law with immediate effect, it has nothing to do with its publication in the official Gazette. There is yet another eventuality; it is when a law does not have commencement Clause, when it is so, the law is deemed to take effect immediately. Reference may be had to PLD 1983 SC
(AJK) 20.
10. ' The instant case when seen in view of above observation, suggested to hold that the rules known as "The Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service), Rules 1992" came into force immediately when they were framed, as rule 2 of the said rules provides it expressly.
11. ' No doubt, section 57 of Administration of Evacuee Property Act, 1957 provides that the Government may, by publication in the official Gazette, make rules for the purposes enumerated thereunder.
12. However, the validity of these rules is not qualified with their publication in the official Gazette. The publication is intended to for information of general public. It has nothing to do with enforcement or validity of rules as there is an expressed provision in the rules showing their validity with immediate effect. The publication in the official Gazette becomes relevant for the purpose of validity of a law when it is expressly provided that the law shall come into force after its publication in the Gazette. The amendment in the rules though does not provide commencement clause yet, as stated earlier, it shall be presumed to be valid with immediate effect in absence of any expressed provision contrary to the said presumption. It is so especially when the amendment is read with the enforcement clause available in the original rules known as "The Azad Jammu and Kashmir Additional Custodian, Deputy Custodian and Manager of Evacuee Property (Terms and Conditions of Service), Rules 1992".
13. ' It is correct that the rules were not proposed by the Rules Committee nor processed by the Services and General Administration Department or vetted by the Law Department, but the fact remains that non-following of this procedure does not render the rules as invalid. The C provision like Rule 16(4) of the Rules of Business is not mandatory in its nature; for its consequences are not provided. It is simply a provision directory in nature. Its non-observance does not affect the validity of rules adversely. Reference may be had to PLD 1974 SC 134.
14. ' There is yet another aspect of the case. Both the petitioners are members of legal fraternity. They have legal practice of at least 10 years. It cannot be said that they did not have knowledge about the rules or amendment therein. The knowledge, participation in the selection process and, after their failure in appointment in view of merit order shows that they have turned round. This volte face cannot be allowed. Had any of them succeeded in appointment, he would not have raised such objection.
15. The conclusion, therefore, is that the rules, under which the appointment under question is made, were holding the field at the time when appointment was made.
16. ' Remaining two objections are about the eligibility of the private respondent for appointment as Additional Custodian Evacuee Property. It is correct that his, age on the last date of receipt of applications, was more than 50 years. It is also correct that he remained in ad hoc service continuously till his permanent appointment. Sub-rule (5) of Rule 4 of "The AJK Service Recruitment (Relaxation of Age Limit) Rules, 1997" allow the period consumed during ad hoc service to be excluded from the upper age limit and, by doing so, private respondent's age comes within 50 years. The appointment on ad hoc basis is found to have been made by relaxing the requirement of rule 23 of ""The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which the Government could do under rule 24 of the said Rules. As regards legal practice of the respondent, it may be observed that the allegation of practice less than 10 years is found to have been denied categorically. The petitioners were legally obliged to discharge the initial burden so as to shift the same to the other side, but, they failed to do so.
17. ' Coming to transparency of selection process, the objection when seen in the light of the entire record becomes immaterial. No doubt there, is some overwriting, but the petitioners could not point out as to how this overwriting affected them adversely. Marks were awarded by the Chairman and members of the PSC. They are found to have given marks to different candidates. This Court cannot sit on their wisdom. The overwriting etc. Is found while awarding marks to different contestants for academic qualifications. How did it affect the final award, was a question to be answered by the petitioners, but they failed to do so.
18. Thus, in view of what has been stated above, I find no substance in the above titled petitions which stand disallowed.