MUHAMMAD AZAM KHAN, J.---The above-captioned two appeals, by leave of the Court, arise out of the judgment of the Azad Jammu and Kashmir High Court, whereby Writ Petition No.199 of 2006 filed by Syed Naeem Gilani and others, appellants, herein, and Writ Petition No.262 of 2006 filed by Muhammad Ejaz Khan and another, appellants, herein, along with Writ Petition No.243 of 2006 were dismissed. Since a common question of law and facts is involved in both the appeals, therefore, these are being disposed of through a single judgment.
2. The facts relating to Appeal No.65 of 2008 are that Syed Naeem Gilani and others, appellants, herein, filed a writ petition in the Azad Jammu and Kashmir High Court to the effect that the petitioners were appointed as Junior Clerks in the Co-operative Department vide orders dated 22- 7-2003, 20-9-2003 and 30-10-2004 in grade B-5. Later on, the posts were advertised, which appeared in the Daily "Ausaf" on 29-3-2006. They participated in test and interview and in result they qualified the same and were placed in merit position, but the respondents instead of issuing their appointment orders abolished the posts with mala fide intention on 19-6-2006. Their case was that they were appointed on temporary basis and in the result of test and interview they were likely to be appointed because they were placed in a better position in merit. A right has been vested in them after passing the test and interview which cannot be taken away by abolishing the posts.
3. The facts of Appeal No.80 of 2008 are that Muhammad Ejaz Khan and another filed a writ petition in the High Court stating, therein, that they were appointed in the Co-operative Department as Inspector and Sub-Inspector vide orders dated 1-4-1987 and 11-3-2005 respectively. Some posts of Inspectors (BPS-11) and Sub-Inspectors (BPS-6) were advertised in the Department, they applied for the same. Call letters were issued to them and they participated in test and interview. They claimed that they have qualified the test and interview and are placed in a better position for appointment but the respondents with mala tide intention and clourable exercise of authority abolished the posts on 19-6-2006 through order bearing No. Co-operative/14/ 163-67/2006. A learned single Judge in the High Court dismissed the writ petitions, hence this appeal.
4. Messrs M. Tabassum Aftab Alvi and Kh. Farooq Ahmad, the learned Advocates for Syed Naeem Gilani and others and Sardar M. R. Khan, the learned Advocate for Muhammad Ejaz Khan and another argued that the appellants were appointed on the posts on ad hoc basis. Later on, posts were advertised and the appellants competed for the posts and in the result they obtained such position in the merit on the basis of which they were entitled for appointment. It was enjoined upon the respondents to appoint the appellants on the basis of merit position but they have abolished the posts with colourable exercise of authority and mala fide intention. They argued that action of respondent No.1, Secretary Finance, is without jurisdiction. Under the Financial Powers Rules, 1994, the Secretary Finance was not competent to abolish the posts of Inspector, Sub-Inspector and Junior Clerks. While relying upon rule 3 and entries made in columns 4 and 5 of Second Schedule of the Delegation of Financial Powers Rules, 1994 they contended that action of the Finance Secretary is without jurisdiction and liable to be quashed but the learned single Judge in the High Court has dismissed the writ petitions without any justification. After passing the test and interview a right has been vested in them which cannot be taken away by abolishing the posts. They relied upon the case titled Muhammad Imtiaz Khan v. AJK Government and 3 others 1999 PLC (C.S.) 1007.
5. While controverting the arguments Raja Gul Majeed Khan, the learned Advocate-General, argued that Delegation of Financial Powers Rules are made by the Government under section 58 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Under rule 3 and Second Schedule of the Delegation of Financial Powers Rules, respondent No.1 was competent to abolish the posts. He asserted that the Co-operative Department was facing hardships due to financial crisis, so the Government decided to abolish the posts and these were abolished correctly. He vehemently argued that under rule 48 of the Rules of Business higher authority is competent to exercise the powers of lower authority. Being Secretary of the Department the Finance Secretary was empowered to abolish the posts of grades B-5, B-6 and B-11 and he competently exercised the powers under rule 48 of the Rules of Business and rule 4 of the Delegation of Financial Powers Rules.
He further argued that under rules it is not only the Government which is competent to abolish the posts but those official who have been delegated the powers by the Government are also competent to abolish the posts. He relied upon the reported cases titled Mehboob-ur-Rehman v.
AJ&K University and 2 others 2003 PLC (C.S.)783, Muhammad Sabir v. Director Public Instructions Schools (Secondary) and 4 others 2007 SCR 243 and Mujahid Hussain Naqvi v. Azad Government and 4 others 1999 PLC (C.S.)237. He further argued that the posts for which the test and interview were conducted have been abolished before finalization of the selection process, as such, there accrued no vested right to the appellants. The appellants have failed to bring on record any evidence to prove that they have qualified the test and interview and stand in merit position. He requested for dismissal of the appeals with costs.
6. We have heard the learned counsel for the parties and gone through the record carefully. The contention of the learned counsel for the appellants is that the posts of grades B-5, B-6 and B-11 are non--gazetted posts and under Second Schedule of the Delegation of Financial Powers Rules, powers in respect of abolition of non-gazetted posts are vested in officer falling in category-II. The Finance Secretary who is the Secretary of the Department is not competent to abolish the non- gazetted posts as such the notification dated 19-6-2006 through which the posts were abolished is against the rules. The power of creation and abolition of posts solely vests in Government. The Government can delegate its powers to any authority. This Court in the case titled Mujahid Hussain Naqvi v. Azad Government and 4 others 1999 PLC (C.S.)237 has held that:- "3. After due consideration I am of the view that by holding that the Government has the sole prerogative of creating or abolishing of posts under the Government the High, Court has stated the correct law. The creation or abolition of posts under the Government is an essential ingredient of State power, also known as executive authority, which is exercised to run the affairs of the State.
This power is neither controlled nor abridged by any legal or constitutional provision. Therefore the Courts cannot arrogate to themselves the function of deciding as to what posts under the Government should be retained and what posts should be abolished. While exercising writ jurisdiction the High Court can quash an order passed by the Government only if it is without lawful authority and of no legal effect, but the petitioner has not pleaded that any law has been violated in abolishing the disputed post. Even the allegation that the abolition of the post is mala fide and discriminatory has been made in vacuum without any specific allegation and I have no hesitation in rejecting it."
The same view has been reiterated by this Court in the case titled Muhammad Sabir v. Director Public Instructions Schools (Secondary) and 4 others 2007 SCR 243 which reads:- "6. We have heard the learned counsel for the appellant and examined the record carefully. The contention of the learned counsel for the appellant that respondent No.1, DPI Schools, cannot shift a post from one institution to another or from one District to another, keeping in view the over all legal position, particularly the rules of business, has a force. In a case involving identical points decided by this Court and reported as Mujahid Hussain Naqvi v. Azad Government and 4 others 1999 PLC (C.S.)237, this Court categorically held that creation or abolition of a post is a sole prerogative of the Government as creation or abolition of the post under the Government is an essential ingredient of the State powers also known as the executive authority of the State which is exercised to run the affair of the State. This power is neither controlled nor abridged by any legal or constitutional provision. We also own the finding of the Supreme Court and hold that it is only the Government and nobody else who has the power to transfer, create or abolish a post which stems from the executive authority of the State ------------"
7. The question whether the Secretary of the Department is competent to abolish the non-gazetted posts which according to Entry No.1 in Second Schedule of the Delegation of Financial Powers Rules is in the competence of officer falling in category-II. Law relevant for the purpose is the Delegation of Financial Powers Rules, 1994. Rule 3 of these rules postulates that the powers specified in Column 2 of the Second Schedule to these rules to the extent mentioned in Column 4 can be exercised by the authorities specified in Column 3, and rule 4 provides that these powers can be exercised by the higher authority. It will be useful to reproduce rule 3 and Entry No.1 of Second Schedule of these rules, which reads:- "3. Delegation of powers:--The powers specified in column 2 of the Second Schedule to these rules shall, to the extent mentioned in Column 4 thereof, be exercised by the authorities specified against such powers in column 3 of the said schedule.
SECOND SCHEDULE See Rule (3)
Sr.No.Name of powersTo Whom delegatedExtent
1. 2. 3. 4 PART-I POWERS COMMON TO ALL DEPARTMENT 1.Abolition of Posts(i) Administrative DepartmentFull Powers
(ii) Officers in Category IFull powers in respect of allposts other than class-I post.
(iii) Officers in Category-IIFull powers in respect of a non-gazetted post.
NOTE: All orders regarding abolition of posts passed by Administrative Department or Officers in categories-I and II should be communicated to audit and copies endorsed to the Finance Department.
A bare reading of the rules reveals that rule 3 empowers the authority mentioned in column 3 of Second Schedule to exercise the powers in respect of entry in Column 2 to the extent mentioned in Column 4. While going through Entry No.1, it transpires that it relates to the abolition of the posts.
Officer falling in category-II has been delegated full powers for abolition of the non-gazetted posts.
The question how the powers vested in the officer falling in category-II can be exercised by the Secretary of the Department. At this juncture rule 4 of the Delegation of Financial Powers Rules comes into operation. It will be useful to reproduce rule 4 of these rules, which reads:-- "4. Notwithstanding anything contained in rule 3, the higher authority in a Department shall have the same powers as have been delegated to an authority subordinate to it under rule 3. The powers conferred by this rule on a higher authority shall not be in derogation of but in addition to the powers of subordinate authority."
A perusal of the rule reveals that in the light of rule 3 the entries mentioned in Second Schedule and all powers which are delegated to officer mentioned in Column 3 of the Schedule can be exercised by the higher authority or officer superior to those mentioned in column 3. Officer category-II is shown competent to abolish the non-gazetted posts. The Secretary of the Department under the rules is competent to exercise the powers of abolition of non-gazetted posts. The powers conferred upon the higher authority in rule 4 are not unique in the Delegation of Financial Powers Rules, 1994.
Similar provision exists in Rule 48 of the Rules of Business made under the Constitution. Rule 48 of the Rules of business postulates that the power vested in an authority or officer in the schedule can be exercised by the authority or officer superior to those officers or authorities. It will be useful to reproduce rule 48 of the Rules of Business, which reads:- "48. The powers vesting in an authority or officer in the Schedules may be exercised by the authority or officer superior to those officers authorities."
A bare reading of rule 48 reveals teat power vested in lower authority can be exercised by the higher authority. Rule 48 clearly reveals that a superior officer in the Department is competent to exercise the powers vested in lower authority or officer. Keeping in view the above provisions, no other interpretation can be assigned to rule 4 that powers vested in officer of category-II for abolishing the post cannot be exercised by the Secretary of the Department. The power has been correctly exercised and the notification dated 19-6-2006 has validly been issued. There is no substance in the argument of the learned counsel for the appellants that the Secretary of the Department is not competent to abolish the posts.
8. The argument of the learned counsel for the appellants in Civil Appeal 44.65 of 2008 that the respondents in the High Court have not filed the written statement, therefore, their assertion in the writ petition to the effect that the petitioners, therein, have passed the test and interview and have come on merit shall be admitted as correct, the learned Judge in the High Court has correctly held that no evidence in respect of result of test and interview or merit list was produced in the High Court nor any attempt has been made to summon the record from the relevant authorities, therefore, is not tenable. The authority relied upon by the learned counsel for the appellants in Muhammad Imtiaz Khan v. AJK Government and 3 others 1999 PLC (C.S.)1007 is not applicable to the case because in that case after advertisement of the posts the test and interviews were postponed. The requisition was not withdrawn nor was the post abolished, in those circumstances the Supreme Court accepted the appeal and directed the Punjab Service Commission to conduct the test and interview.
The upshot of the above discussion is that these appeals are dismissed with no order as to the costs.