MUHAMMAD AZAM KHAN, C.J.---The captioned petition for leave to appeal arises out of the judgment of the High Court dated 4th November, 2008, whereby Writ Petitions Nos.235, 239 and 240 of 2007 have been dismissed.
2. Necessary facts for the disposal of instant P.L.A. Are that the petitioners filed Writ Petitions Nos.235, 239 and 240 of 2007 in the High Court alleging therein that they were appointed on ad hoc basis as Lecturers, Librarians and D.P.Es. Vide different notifications dated 6-10-2005, 14-11-2005, 4- 3-2006, 26-9-2003, 5-9-2003, 5-5-2006 and 25-9-1999 after test and interview. The period of their ad hoc service was extended from time to time. They alleged that the Public Service Commission has advertised the same posts which were held by them. They sought direction to the Government that it shall not conduct test and interview in the light of advertisement dated 9th June, 2007, to the extent of posts held by them and it shall send recommendations to Public Service Commission for their permanent induction against the posts occupied by them. In Writ Petitions Nos.239 and 240 it was also prayed that the advertisement be declared as mala fide without lawful authority, petitioners be treated permanent employees and the respondents be directed to frame policy in line with Punjab regarding ad hoc employees and the cases of petitioners be sent to Public Service Commission to test their suitability individually. A Division Bench of the High Court dismissed all the writ petitions through impugned judgment.
3. The learned counsel for the petitioners argued that the judgment of the High Court is not maintainable. The Government of Azad Jammu and Kashmir has adopted a policy of parity with Punjab which is not denied by the non-petitioners. The petitioners relied upon the judgment of Supreme Court of Pakistan titled Dr. Navida Tufail and others v. Government of Punjab and others (2003 SCMR 291), wherein the Government was directed to confirm all the ad hoc appointees. In the light of this case it was enjoined upon the respondents to regularize the ad-hoc appointments of the petitioners and the posts held by them should not have been sent to the Public Service Commission for appointment after conducting test and interview. As the High Court failed to appreciate the judgment of the Supreme Court of Pakistan, therefore, the impugned judgment is not maintainable. The respondents in their written statements before the High Court have admitted the claim of petitioners, therefore, it was enjoined upon the High Court to accept the writ petitions and issue the requisite direction. The learned counsel vehemently argued that the petitioners filed an affidavit in support of their claim before the High Court. It was not controverted by the respondents through counter affidavit, therefore, the claim of the petitioners shall be deemed to have been admitted. This Court in a number of cases has held that if the claim is not refuted by filing counter affidavit, then its contents shall be deemed to have been admitted. The High Court has not applied correct law in the case.
4. While controverting the arguments, Meer Sharafat Hussain, the learned counsel for the respondents, argued that the judgment of the High Court is perfectly legal. This Court in a case titled Mst. Tanveer Ashraf and others v. AJ&K Government and others (Civil Appeal No,35 of 2007 delivered on 25-5-2011) has held that the ad hoc appointment is made only for six months and any extension in the same does not change its nature. All the appointments under the AJ&K Civil Servants Act, 1976 have to be made after test and interview conducted by the Public Service Commission in the light of provisions of the AJ&K Public Service Commission Act, 1986. The permanent appointment or regularization of ad-hoc appointment without test and interview will frustrate the provisions of both these Acts. The learned counsel requested for dismissal of P.L.A.
5. We have heard the learned counsel for the parties and perused the record. The case of the petitioners in all the three writ petitions, filed in the High Court, is that they are ad-hoc appointees.
They were initially appointed for six months and the period of their ad hoc appointment is being extended from time to time. We may observe that all the appointments in the civil service are made on the basis of merit determined in the open competition. Selection on merit is instrumental in creating necessary confidence and independence to perform the functions as a civil servant particularly under the Rules of Business. The purpose of appointment on the basis of merit determined in open competition is that all the civil servants appointed after open competition should carry on the administration independently. The Public Service Commission is an important organ of the State for recruitment in civil service. It is a constitutional body. This Court in a case titled Azad Jammu and Kashmir Government v. Javed Iqbal Khawaja and another 1996 PLC (C.S.)
155 observed as under:-- ''' The Public Service Commission enjoys a pivotal role in recruitment to civil services of the State. It is not an ordinary executive body constituted by the Government but owes its existence to the Constitution. It is laid down in section 48 of the Azad Jammu and Kashmir Interim Constitution Act that:-- "(1) There shall be a Public Service Commission for Azad Jammu and Kashmir which shall consist of such number of members, including a Chairman and perform such functions as may be prescribed.
(2)l ' It is requirement of section 48 that there shall be a Public Service Commission; only the functions to be performed by it have been left to be prescribed by law or rules made thereunder. In pursuance of this provision Azad Jammu and Kashmir Public Service Commission Act, 1986 has been enacted. Under section 7 of the said Act, the functions of the Commission have been laid down as follows:-- `The functions of the Commission shall be:--
(a) To conduct tests and examinations for recruitment to civil services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section 11.
(b) to advise the President on matters relating to qualifications for and method of recruitment to, the services and posts referred to in clause (a); and
(c) Any other matter which the President may refer to the Commission."
' It was further observed in para. 25 of the aforesaid case as under:- ' It is well established system that members of the civil services are appointed solely on the basis of merit determined in open competition so that they could carry on administration independently because selection on merit is instrumental in creating the necessary confidence and independence to perform the functions as a civil servant, particularly those quoted above from the Rules of Business."
Under the AJ&K Public Service Commission (Functions) Rules, 1978 all the posts in grade B-16 and above fall within the purview of Public Service Commission, which is empowered to conduct tests and interviews for recruitments of civil servants. In a case titled Azad Govt. And others v.
Muhammad Younus Tahir and others 1994 CLC 2339 it was observed as under:-- "As has been seen the functions prescribed are preferable to section 48 of the Interim Constitution Act. In my view when such a provision is made by the Constitution the functions prescribed by the Act of the Assembly have the same force as functions prescribed by the Constitution itself. It follows that it is in pursuance of the command of the Constitution that Public Service Commission performs the functions assigned to it. It is true that by an Act of the Assembly the functions of the Public Service Commission may be changed or enlarged but once they have been entrusted they are to function under the Constitution. A similar example can be found in section 47 of the Interim Constitution Act under which the Service Tribunal has been set up. Section 47, inter alia, prescribes that Administrative Tribunals may be set up in respect of matters relating to the terms and conditions of the persons who are or have been in service including the disciplinary matters. The Constitution itself does not lay down that if and when a Tribunal is set up, what terms and conditions of service should be given in the jurisdiction of that Tribunal. This has been left for the Legislative Assembly to decide but once it is done, subsection (2) of section 47 takes effect. It lays down that "notwithstanding anything hereinbefore contained where any administrative Court or Tribunal is established under subsection (1) no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends.
' What matter has to be , brought within the purview of the Administrative Court or Tribunal is not specified in the Constitution and is left to the legislature. But once that has been done all other Courts have been forbidden to entertain any proceeding in respect thereof. This bar extends to even the High Court which has been set up by Constitution itself and has been given additional and wide powers under section 44. From a long chain of judgments it has now become settled that once a matter has been given in the jurisdiction of such a Tribunal, the jurisdiction even of the High Court is barred. To take an example, the law made by the Assembly may provide that appeal would lie to the Service Tribunal only against major penalties. When this law is made the High Court will be competent to entertain a writ petition in respect of minor penalties. After sometime the law is amended and appeal against minor penalties is also provided before the Service Tribunal. The amendment in law would oust the jurisdiction of the High Court without amending section 44.
Similar is the case of Public Service Commission Act made in pursuance of section 48."
6. In Mst. Tanveer Ashraf's case, referred to above, the petitioners filed a writ petition in the AJ&K High Court, with the similar prayer that they are acting as Lecturers on ad hoc basis and the period of ad hoc appointment is being extended from time to time. A direction may be issued for their permanent induction in the service or alternatively their cases may be referred to Public Service Commission on the basis of "one man one post". The writ petition was dismissed. This Court while relying upon the case titled Azad Govt. And others v. Muhammad Younus Tahir and others 1994 CLC 2339 dismissed the appeal filed by the appellants therein.
7. We have already considered Dr. Navida Tufail's case while delivering the judgment in Mst.
Tanveer Ashraf's case, wherein it was observed by this Court as under:- "The first and foremost requirement of proper procedure is the advertisement of vacancy and selection made on the basis of merit determined by the objective criteria, as has been specifically laid down in sub-clauses (1) to (4) of sub-rule (2) of Rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. The perusal of record shows that the appellants have not placed on record any advertisement to prove that the vacancies for ad hoc appointment have been advertised nor they placed on record any merit list prepared in compliance of sub-clause (3) of sub-rule (2) of Rule 23 of Rules 1977 rather the authority in its comments has categorically stated that all the appointments have been made in violation of rules governing the ad hoc appointment. Thus, in our opinion, the judgment of the Supreme Court of Pakistan having peculiar facts is distinguishable and is not helpful to the appellants. In the same judgment the Supreme Court of Pakistan has categorically laid down that the ad-hoc appointment doesn't confer any right for permanent induction. It has also been held that the appointment in public sector is a trust in the hands of public authorities and it is their legal and moral duty to discharge their functions as trustee with complete transparency as per requirement of law so that no person who is eligible to hold such post, is excluded from process of selection and is deprived of his right of induction in service. It has also been observed in this case that making of recruitment on ad hoc basis with or without advertisement amounts to curtailment of the rights of deserving person to be appointed on regular basis. The ad hoc appointment against the post in public sector is a stopgap arrangement which is not a permanent character of the civil servant. It is not proper and in the public interest to fill a post required to be filled in through the method prescribed by law, by making ad-hoc appointment and regularize it without taking any step necessary for its regularization/ confirmation."
8. the result of above discussion is that no legal question is D involved in the P.L.A. It is hereby dismissed with no order as to costs. The stay order issued by this Court on 5-12-2008 is hereby recalled.