M. Tabassum Aftab Alvi, J.--The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, through which following relief has been solicited by the petitioner:-- "It is, therefore, very humbly prayed on behalf of the petitioner that by accepting the supra titled writ petition, the following directions may kindly be given to the respondents:--
(i) Declaring the notification dated 16.08.2010 as illegal, without lawful authority, unjust, arbitrary and without any legal consequence;
(ii) Directing the respondents to do needful towards regularization of the petitioner on the post of Publicity Officer B-17 held by him for the long period in light of the judgment of the apex Court delivered in the case titled 'Muhammad Bilal Khan Vs. Azad Govt. & others." PLJ 2009 SC (AJ&K) 22; (iii)Otherwise directing the respondents to do needful towards confirmation of the petitioner on the basis of previous merit prepared by the PSC whereby the petitioner qualified the test/interview but could not be recommended on account of withholding the numerous posts by the department; (iv)Directing the respondents to deal with the case of the petitioner in judicious manner by placing the case of the petitioner in juxtaposition with the cases of other similarly situated employees in order to redress the grievance of the petitioner;
(v) That any other relief which this Honourable Court deems proper may also be given to the petitioner in vindication of the grievances afore referred"
2. Precise facts giving rise to the instant writ petition are that the petitioner being qualified as B.Sc (lions) Agriculture was inducted on ad-hoc basis in the service of Agriculture Department as a Research Officer B-17 on recommendation of the respective Selection Committee in 1989, which appointment was extended by the respondents time and again. It is claimed that the services of petitioner were terminated by the respondents in order to adjust permanent employees of the Department vide order dated 21.03.1992. It is further stated that petitioner was again appointed on ad-hoc basis, as such, vide order dated 22.03.1992, which appointment along with other ad-hoc employees was set at naught in light of judgment of the apex Court vide order dated 01.09.1992.
Against the above termination order the petitioner approached to the concerned quarters for redressal of his grievance, as a result whereof petitioner stood reinstated vide order dated 20.10.1992. It is asserted that petitioner is holding the post in question without any break continuously. It is alleged that in the year 2001, petitioner appeared before Public Service Commission and qualified the required test and interview, however, due to non-availability of post he could not be adjusted permanently. It is claimed that respondents with mala-fide intention did not send all the available posts of Agriculture Officer to Public Service Commission in the year 2001.
It is further stated that services of petitioner were terminated by leveling frivolous allegations by respondents vide impugned notification, dated 16.08.2010. The petitioner apart from quashment of the above notification has solicited confirmation against the disputed post on the basis of principle laid down by the apex Court in case titled Muhammad Bilal Khan SDO V. Azad Govt. & 4 others reported as (PLJ 2009 SC (AJ&K) 22).
3. A pre-admission notice was served upon respondents who filed parawise comments on 08.09.2010. After hearing preliminary arguments the instant writ petition was admitted for regular hearing vide order dated 25.08.2010. Respondents filed written statement pleading therein that petitioner is not an aggrieved party and under law an ad-hoc appointment confers no right for regular appointment. It is further stated that ad-hoc appointment cannot be revived through writ jurisdiction. Respondents also pleaded that petitioner has filed the instant writ petition with unclean hands, therefore, he is not entitled to the equitable relief of writ jurisdiction. It is further stated that no violation of any law, rule or fundamental rights have been committed by respondents while ousting petitioner from ad-hoc/contract service. It is also stated that writ petition merits dismissal on account of laches. Respondents further stated that petitioner appeared before Public Service Commission in the year 2001, however, according to letter of the above Commission Bearing No. PSC/2002/2457 dated 16.11.2002, could not attain merit position, therefore, he was not recommended for appointment on regular basis. Respondents also stated that despite issuing various notices (Annexures N/1 to N/10) petitioner failed to reply the same and did not bother to appear before respondents, hence, due to his unbecoming conduct, continuous absence and failing to improve his attitude was rightly ousted from ad-hoc/contract service, vide notification dated 16.08.2010.
4. The learned counsel for petitioner, Syed Shahid Bahar, Advocate, while reiterating the grounds agitated in the writ petition submitted that as the petitioner has spent his youth in Agriculture Department working on ad-hoc basis since 1989, and has become overage, therefore, on the basis of one man one post principle" laid down by the apex Court in case of Muhammad Bilal Khan SDO V. Azad Govt. & 4 others, reported in (PLJ 2009 SC (AJ&K) 22), the matter for his confirmation he ordered to be sent to Public Service Commission for judging his suitability. The learned counsel further submitted that without providing an opportunity of hearing stigma, was imposed through the impugned notification dated 16.08.2010, therefore, by quashing the same, petitioner may be reinstated on his service. The learned counsel' for petitioner in support of his contention referred to and relied upon the following case law.
(I)Mrs. Anisa Rehman Vrs. P.LAC. and others (1994 SCMR 2232); (II)Nadeem Ahmed and others. Vrs. Pakistan International Airlines Corporations and others (PLJ 1998 Karachi 177) and; (III)Dr. Muhammad Ibrahim Vrs. Secretary Health etc. (PLJ 2009 Lahore 512).
5. In case of Mrs. Anisa Rehman Vrs. P.I.A.C. and others (1994 SCMR 2232) it was held that Maxim of "Audi-alteram-partem" would be applicable to judicial as well as non -judicial proceedings and it would be read into every statute and violation of the above Maxim could be equated with the violation, of a provision of law.
6. In case of Nadeem Ahmed and others Vrs. Pakistan International Airlines Corporations and others (PLJ 1998 Karachi 177) it was held that termination of service of employees of a corporation without show cause notice and without providing opportunity of hearing, as violative of law.
7. In case of Dr. Muhammad Ibrahim Vrs. Secretary Health etc. (PLJ 2009 Lahore 512) it was held that termination of service without completion of contract period when there was no complaint qua performance of duties by the concerned petitioners, on the grounds of misconduct without inquiry as without lawful authority.
8. The learned Advocate-General, while controverting arguments of the learned counsel for petitioner, submitted that services of contract, employees can be terminated without giving any show cause notice due to unsatisfactory performance. The learned Advocate General also submitted that despite issuing repeated show cause notices the petitioner failed to submit his reply and not bother to appear before the respondents. He strenuously argued that petitioner could not improve his attitude who was in habit of remaining absent from duty without leave. The learned Advocate General also maintained that petitioner while showing himself as Personal Staff Officer of Agriculture Minister, oftenly misbehaved to his seniors despite temporary employment, hence there was no option with the respondents except to terminate him from contractual service.
9. After hearing the learned counsel for the parties at length, we have perused the contents of writ petition along with appended documents in light of the arguments of the learned counsel for the parties. The service in Azad Jammu & Kashmir is regulated by an Act of the Assembly which has been promulgated on the strength of Section 49 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. Section 4 of the Azad Jammu & Kashmir Civil Servants Act, 1976 postulates that the appointment against a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorized by it in that behalf in the personal manner. Section 23 of the said Act authorizes the Government to make rules for carrying out the purpose of above mentioned Act. In exercise of these powers the Government has made rules known as The Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Part II of these rules prescribes the method and manner of appointment to the post in various grades whereas Part III of Rules 16 and 17 prescribes the manner for initial appointment to the posts in grade 16 and above. Rule 23 Part IV, of the aforementioned rules postulates the manner of making ad-hoc appointments. For proper appreciation of controversy, it would be useful to reproduce the above rule which is as under:-- (1)When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.
(2)After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the selection authority: Provided that; (1)the vacancy is advertised properly in the newspapers; (2)the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; (3)the selection is made on the basis of merit determined by objective criteria; (4)the appointment order certifies that a requisition has been sent to the selection authority; and (5)the appointment is made subject to revocation at any time by the competent authority: Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade.
10. A perusal of the above rules makes it clear that even ad-hoc appointment cannot be made in an arbitrary manner. The first condition for making an ad-hoc appointment is that the same shall be made in the public interest. The second one is that before making such appointment the appointing authority shall forward requisition to the selection authority. The appointment is subject to further conditions listed in sub-rules (1) to (5) of Rule 23 reproduced hereinabove. These conditions are mandatory and cannot be ignored at the time of making ad-hoc appointment. The proviso to the rule has an ordinarily effect which commands that ad-hoc appointment shall not confer any right to the persons so appointed in the matter of regular appointment for the same post nor the service will be counted towards seniority in the grade. The case titled Azad Jammu & Kashmir Government and others V. Muhammad Younas Tahir & others (1994 SCR 341), is the leading authority on the point wherein Regularization of Ad-hoc Appointment Act, 1992 was declared by the apex Court as unconstitutional and all the appointments made on the basis of that Act, were declared as ad-hoc. The appointments were ordered to be made through the process of the Public Service Commission Rule 23 of The Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 received the attention of the apex Court of Azad Jammu & Kashmir. At Page 375 of the report it was observed as under: "The reading of the rule leaves a distinct impression that ad hoc appointment is not a bounty but is made in public interest for a limited period of six months and is made on the basis of open merit. It is clearly spelt out that ad hoc appointment can only be made after a requisition has been sent to the Public Service Commission. The emphasis is made more prominent by providing in sub-rule (1) that the first step to be taken for ad hoc appointment is to forward a requisition to the selection authority and then by requiring in sub-rule (4) that appointment order should contain a certificate that a requisition has been sent to the selection authority. A large number of orders of ad hoc appointments have been placed on the record but, I regret to note, these orders do not contain any such certificate which means requisitions were not sent to the Public Service Commission in violation of Rule 23. These orders also do not show that any selection was made on the basis of merit. The conclusions necessarily by follow: Firstly the ad hoc appointments are not made on the basis of merit. Secondly that requisition is not sent to the Public Service Commission when the appointments are made".
11.Similarly in a case titled Sheikh Manzoor Ahmed V. Azad Govt. & others (1994 SCR 297), the same view was reiterated by the Hon'ble Supreme Court.
12.In the case in hand, petitioner herein, was firstly appointed as ad-hoc Research Officer in 1989 in violation of the conditions mentioned in Rule 23 ibid. The ad-hoc appointment has been extended by the respondents time and again by violating the above mentioned statutory law. The relief in the instant case has been claimed by the petitioner on the strength of the authority of Muhammad Bilal Khan's case (PLJ 2009 SC (AJ&K) 22). The precedent case came under consideration before the apex Court in Civil Appeal No. 35/2007, titled Mst. Tanweer Ashraf and 25 others V. AJ&K Govt. & 2 others decided on 30.05.2011, wherein in Para 6 of the above unreported case, it was observed as under:-- "It is amazing that the perusal of the most of the appointment orders of the ad-hoc appointees reveals that the orders have been issued in violation of above reproduced rule. Be that as it may, however, even if the ad-hoc appointment is made in strict compliance of Rule 23 of Rules 1977, such appointment couldn't create any right, for permanent or regular appointment as has been categorically mentioned in the appointment orders and also in the Rules. In Azad Jammu & Kashmir, appointments in the service are regularized by the law known as the Azad Jammu & Kashmir Civil Servants Act, 1976 and the Rules made thereunder. The spirit of law is that the appointment should be made on the basis of merit determined by the concerned selection authorities. The Interim Constitution of Azad Jammu & Kashmir has guaranteed the right of equality-before law and equal treatment of law; thus, this right can only be enforced by following the prescribed mode of appointment by advertising the vacancies and determination of the merit of the eligible candidates through transparent selection process. Law doesn't admit any such tactics that any person, who has been appointed on ad-hoc basis and thereafter for one reason or the other continued such for an indefinite period and then becomes entitled for the permanent induction. Such induction through back door, in fact, amounts to violation of constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment. If such practice is allowed, it will encourage the influential and clever persons to manoeuver for occupation of the civil post and deprive the qualified candidates to compete on the basis of merit. Such practice is not only violation of law and fundamental rights but also at the end of the day may result into inefficiency, maladministration and also be a main cause of generating the corruption. In Azad Jammu & Kashmir, even an Act called AJ&K Civil Servants (Regularization of Ad-hoc Appointment) Act, 1992 passed by the Assembly, when challenged, was struck down by the High Court and ultimately by this Court in a case reported as 1994 SCR 341 wherein it has been observed:-- "It seems necessary to first advert to the argument of Mr. S.M. Zafar that Right No. 15 (equality before law) is not applicable to entry into Government Service and that the only fundamental right applicable is Right No. 17. This argument has no force and must be repelled. The Constitution has to be treated, in accordance with all pronouncements of superior Courts, as one organic whole and must be harmoniously construed. In this connection I may refer to Azad Government of the State of AJ&K V. Kashmir Timber Corporation [PLD 1978 S.C. (AJ&K) 42] in which it was observed that: Besides these he has also referred to Maxwell and Crawford which support the broad principle of interpretation. From these authorities the following principles of interpretation of statutes emerge:- -
1. that a Constitutional instrument should be read as a whole and its provisions construed harmoniously; (2)XX XXX XXX (3)XX XXX XXX
(4) XX XXX XXX Even otherwise the established rule is that in case of apparent inconsistency between two provisions of law, attempt should be made to harmonise them as there is presumption against inconsistency. In fact there is no inconsistency between the two Rights under consideration.
Fundamental Right No. 15 refers to all state subjects without exception. It does not lay down that State subjects who are in service of Azad Jammu & Kashmir or those who want to join service will not be entitled to equal protection of law.
In my view the guarantee of equality before law is more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations become meaningless without Right No. 15. The first fundamental right guarantees that no person shall be deprived of liberty save in accordance with law. Can a "law" contemplated by this right be discriminatory? The answer to this question must be in the negative because it cannot be visualized that, for instance, persons belonging to a particular ideology or political creed may be deprived of liberty under a harsher law than the others. Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc. If Right No. 17 is alone applicable then discrimination on the basis of place of birth, parentage and may other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu & Kashmir will be reserved for sons of serving or retired judges or that persons in Police, service shall only be recruited from a particular Tehsil or that only those who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If. we test these laws against the touchstone of Right No. 17 the said laws will have to be declared valid. However, if Right No. 15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zafar is without substance.
The Interim Constitution Act, through Right No. 15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meanings are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularization in the phraseology these guarantees cover all laws dealing with state subjects whether they relate to life, honour, property, freedom, employment and all rights and liabilities. These lofty pronouncements have, however, been rationalized were experienced in literally implementing these guarantees. There difficulties are real and substantial. Therefore, reasonable classification was recognized.
Supposing a law is to be enacted to regulate grant of driving licences. Going by the plain phraseology of Right No. 15 every citizen must be allowed to have a driving licence but a problem may be faced that it would mean that minors, blind persons and physically unfit citizens would also be entitled to obtain a driving licence. If a law makes no distinction such a driver would put to risk the lives of citizens, including his own. Thus law may be made to meet this situation and citizens falling in a well-defined class may be treated differently for grant of driving licences. Such a law may be covered by the class legislation rule. However, if it is provided in the statute that women will not be allowed to drive any vehicle there might be a valid challenge that it violates the equality clause. Although women may be a class by themselves but it may be said that the classification is not "reasonable".
Finally this Court passed the order:-- "The Azad Jammu & Kashmir Civil Servants (Regularization of ad-hoc appointment) Act, 1992 is found to be void as it was violative of Fundamental Rights No. 15."
13.Therefore, the precedent referred to and relied upon by the learned Advocate for petitioner is a judgment in personam and accepting the same as a judgment in ram, will frustrate the Civil Servants Act, 1976, rules made thereunder as well the Azad Jammu & Kashmir Public Service Commission Act, 1986. It may be stated that the said case has been reviewed by the apex Court, therefore, no relief can be extended to the petitioner on the basis of rule of law laid down in that case.
14.The contention of the learned counsel for petitioner that the impugned notification dated 16.08.2010, has been issued by imposing stigma on the petitioner without hearing is also not acceptable. A glance perusal of notices appended with the written statement/comments "Annexures" "N/1" to "N/10" makes it crystal clear that the petitioner failed to appear before respondents in response to the notices issued to him by them. The above notices have not been controverted by the petitioner through replica, therefore, we are not inclined to set-at-naught the impugned notification on the basis of stigma.
15.The contention of the learned counsel that the petitioner appeared before Public Service Commission in the year 2001 and qualified test and interview, therefore, respondents should be directed to appoint him on regular basis is also not acceptable for the reasons that through letter of Public Service Commission Bearing No. PSC/2002/ 2457 dated 16.11.2002, the petitioner was intimated that he was not on merit, therefore, could not be recommended for appointment on regular basis. Even otherwise, on the basis of principle of laches the above relief pertaining to year 2001 cannot be extended to the petitioner after passing about a decade.
16.In view of above, finding no force in this writ petition, the same is hereby dismissed with no order as to costs.