' CH. MUHAMMAD IBRAHIM ZIA, J.--- The captioned appeal, with the leave of the Court is addressed against the judgment of the High Court dated 29-12-2006, whereby the writ petition filed by the present appellants, has been dismissed in limine.
2. The precise summary of facts giving rise to this appeal is that the appellants have been appointed on ad-hoc basis as Lecturers in different disciplines on different dates. Among the appellants, the longest ad-hoc appointment was made in the year 1990, thereafter the ad hoc appointment orders have been extended or fresh ad hoc appointment orders, from time to time, have been issued. All of the appellants have served as an ad hoc appointee for the period of more than five years. The appellants, on 17-10-2006, filed a writ petition with the following prayer:--- "Therefore, it is most respectfully prayed that the petition may be accepted with costs and the non- petitioners Nos.1 and 2 may kindly be directed to send the cases of the petitioners to the P.S.C., non- petitioner No,3 for judging their suitability and fitness of the petitioners individually without tagging them with other candidates."
' The learned High Court dismissed the writ petition in limine through the impugned order dated 29- 12-2006, which is now assailed in this appeal.
3. Sardar Abdul Sammie Khan, the learned counsel for the appellants, stated brief case history and forcefully argued that the appellants have been appointed on ad hoc basis by the respondents and all of them have served for a period of more than five years. Even some of them have crossed the upper age limit fixed for induction into Government service, therefore, they deserve to be permanently inducted into the service after determination of their suitability by the Public Service Commission on the principle of "one post one man", as is held in 2009 SCR 493. He further argued that in the like cases, in Pakistan, the Provincial Government has laid down a policy for the regularization of ad hoc appointees, which has been ultimately finalized in a case reported as 2003 SCM R 291. He also placed on record a copy of minutes of the Cabinet meeting that a policy should be made for regularization of ad hoc appointees, who have served more than a period of five years. On factual side, he admitted that although the posts of ad hoc appointees, as occupied by the appellants, in different disciplines, have been advertised on different occasions, but none of them appeared and qualified.
4. Abdul Waheed Durrani, the learned counsel for the respondents, at very outset stated that although the respondents have appointed him as a counsel but no record has been made available, therefore, the case should be 'decided on merit in the light of the record lying with the Court.
5. We have given due consideration to the arguments advanced at bar and also gone through the record made available. The perusal of record reveals that the learned Judge High Court called for preadmission comments from the respondents. The para 2 of the comments filed by the Secretary Education appears to be most relevant, which is reproduced as under:--- {{ URDU TEXT }} ' The admitted position is that all the appellants have claimed to have been appointed on ad hoc basis. The mode of ad hoc appointment as prescribed under Rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules 1977, (hereinafter referred as Rules, 1977) speaks as following:--- "23. (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 candidates 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." (Underlining is ours)
6. 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 and Kashmir, A appointments in the service are regularized by the law known as the Azad Jammu and 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 and 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 manoeuvre for occupation of 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 and 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 CLC 2339 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 SC (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 many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu and 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 protections 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. These 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 and Kashmir Civil Servants (Regularization of ad hoc Appointment) Act, 1992 is found to be void as it was violative of Fundamental Rights No,15."
7. So far the case-law referred to by the appellants is concerned, it is, due to peculiar facts and principle of law is distinguishable. In Dr. Noveeda Tufail's case 2003 SCM R 291 basically the Federal Government formulated a policy on the basis of some rational classification for regularization of the services of ad hoc appointees. In furtherance of this policy all other Provincial Governments except the Government of Punjab, also adopted this policy. The Supreme Court of Pakistan, on the basis of equality among the ad-hoc appointees of all the provinces, directed the Provincial Government of the Punjab to initiate process of regularization in the light of the policy of Federal Government. The Federal Government, in its policy, laid down the criteria on the basis of recommendation of a Committee. It is useful to refer here the policy formulated by the Federal Government:--- "To, ' The Secretary, ' Federal Public Service Commission, Islamabad.
' Subject: Regularization of ad-hoc appointments made between October, 1981 to December, 1990.
' Sir, ' I am directed to say that the issue of regularization of ad hoc appointments made between October, 1981 to December, 1990 have remained under active consideration of the Government from time to time. The Prime Minister was pleased to appoint a special Committee under the Chairmanship of Secretary Law, Justice and Parliamentary Affairs to make its recommendations in the matter. The Committee after an in-depth discussion of the issue in the light of Supreme Court's judgment in Case No,104 of 1992 recommended the following course of action as the most appropriate manner in which the Honourable Court's judgment could be implemented:--
(i) Cases as of ad hoc appointees who were fully qualified and recruited after properly following the prescribed procedure including invitation of applications through advertisement and observance of provincial quotas it was agreed that such cases may be referred to the FPSC for confirmation.
(ii) Cases where the prescribed procedures in terms of qualifications, observance of provincial quotas and invitation of applications through advertisement etc. Were not observed while making the recruitment such appointees will appears along with fresh candidates before the FPSC for selection. To enable such ad hoc appointees to appear before the FPSC as they may have crossed the prescribed maximum age limit for a particular post, it was agreed that appropriate age relaxation may be allowed through an amendment in the relevant SRO." (Underling is ours)
' 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-clause (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 trusty 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. So far the other case 2009 SCR 493 is concerned, the hereinabove referred proposition has also been agreed and reaffirmed. Para 11 of the judgment speaks as following,-- "Admittedly a chain of authorities of this Court and umpteen number of judgments of the Supreme Court of Pakistan have settled the proposition of law that ad hoc appointment doesn't create any right for regular appointment and that it is a stop-gap arrangement which has to continue till a regular appointment, as postulated by the Civil Servants Act, 1976 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, is made. Similarly an ad hoc appointment, as far legal position is concerned, does not confer any right whatsoever irrespective of the period of such an incumbency. The ad hoc appointment can be made fora limited period when the post is available and the same is advertised by the Public Service Commission. If ad hoc appointments are regularized, even by the Legislative Assembly, the piece of legislation is ultra vires the Constitution and has to be removed from the statute book. Similarly the executive Government while exercising its powers under section 22 of the Civil Servants Act, 1976, if regularizes the appointment of an ad hoc appointee or exempts the incumbent from appearing before the Public Service Commission, the notification or order so issued is to be sent to sleep forever. Thus, no right can be conferred on an ad hoc appointee for regular induction without recommendations of the Public Service Commission, is the law. Reference in this respect can be made to the cases reported as 1994 SCR 341 and .1994 SCR 297. In addition the cases reported as 1996 SCR 165 and 2001 SCR 91 can be referred."
' However, at the end the direction has been issued in favour of appellant, Bilal, for determination of his suitability on the basis of "one man one post". In our considered opinion this direction is not even in consonance with the above stated and reaffirmed principle of law. We are constrained to hold that issuance of direction for determination of suitability on the basis of "one man one post" is not justified nor is a good principle of law, therefore, we respectfully disagree with the opinion of honourable bench to this extent.
9. In the case in hand, it has also been factually admitted that the posts occupied by the appellants have been advertised for permanent induction but for one reason or the other, the appellants either failed to appear or despite appearance failed to qualify on merit, hence couldn't succeed to be regularly appointed, thus on this score the judgments relied by them, are also distinguishable.
10. So far the question of minutes of Cabinet meeting is concerned, in our considered opinion unless it is converted into the instrument having force of law, it has no legal sanctity or value.
According to the constitutional provision although the executive authority of Azad Jammu and Kashmir is exercised in the name of President by the Government consisting of the Prime Minister and the Ministers, who are collectively responsible to the assembly but the exercise of such power is subject to authentication in such manner as is specified in the rules. The minutes of Cabinet meeting placed on record, are of mere recommendatory nature. Unless these are converted into a legal instrument having force of law are not enforceable. If these minutes of the Cabinet meeting are converted into some legal instrument, vires can be judged in the light of constitutional standard, because in Azad. Jammu and Kashmir Interim Constitution Act it has been guaranteed that any law which takes away or abridges the fundamental rights, is void. So it is abundantly clear that any law or Cabinet decisions inconsistent with the constitutionally guaranteed fundamental rights cannot attain the valid status or survive. Moreover, such-like Cabinet meeting's minutes cannot be given preference over the validly enforced law. We have also noticed with serious concern that an uncalled for procrastination has been caused in disposal of this case, which is regrettable. All of us; the bench, bar and litigants should endeavor the expeditious disposal of the cases to save ourselves from the situation of "Justice delayed, Justice denied".
' For the above stated reasons, this appeal has no substance, hence is dismissed without any order as to costs.