' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the above captioned cases, therefore, I propose to decide the same through this single judgment.
3. Precise facts giving raise to Writ Petition No,1485 of 2010 are that petitioner is 1st class State Subject who hails from village Matehai, Muzaffarabad and is qualified Doctor of Pharmacy from Bahauddin Zakariya University Multan. It is stated that a post of Drug Inspector-Hospital Pharmacy B-17 was lying vacant in the Health Department of Azad Jammu and Kashmir and petitioner being qualified applied for the same before the Prime Minister, Azad Government of the State of Jammu and Kashmir who passed an order for his ad hoc appointment on 28-6-2010. It is claimed that 2 posts of Drug Inspectors and 5 posts of Hospital Pharmacists were sanctioned by Finance Department of Azad Jammu and Kashmir on 8-6-2010. It is further stated that Secretary Health- respondent advertised 5 posts of Drug Inspectors and Hospital Pharmacists in daily news in which last date for filling applications was fixed by 15-12-2010. It is asserted that later on a corrigendum was issued by Secretary Health, whereby number of posts were reduced from 5 to 3 through Daily Express Islamabad dated 14-12-2010. Against the abovementioned impugned advertisement and corrigendum the instant writ petition was filed for quashing the same with prayer for direction to advertise all the available posts of Drug Inspectors and Hospital Pharmacists on the basis of district wise quota.
4. After admission of writ petition, the respondents were summoned who filed written statement on 2-4-2011, wherein it is stated that 2 posts of Drug Inspectors and 6 posts of Hospital Pharmacists were created vide notification dated 8-6-2010. It is further stated that 8 posts of Drug Inspectors were in existence in the Department earlier which were also filled in through initial recruitment on recommendations of Public Service Commission, out of which 2 posts were filled in amongst the candidates from District Muzaffarabad, therefore, the quota of District Muzaffarabad was already exhausted, hence, petitioner could not be appointed on ad hoc basis as Drug Inspector. It is further stated that newly created 8 posts of Drug Inspectors and Hospital Pharmacists were requisitioned to the Public Service Commission on the basis of district wise-quota. It is claimed that till regularization of the disputed posts on recommendations of the Public Service Commission, firstly it was decided to fill in the above referred 8 posts on ad hoc basis through impugned advertisement, however, as the aforesaid scheme posts meanwhile were brought on normal budget, hence, it was recommended by Director General Health on 26 November, 2010 that petitioners of Writ Petition No,760 of 2011 along with 2 others be appointed on ad hoc basis and due to aforesaid reason posts were reduced from .8 to 3 vide notification dated 10-12-2010, hence, impugned corrigendum was published on 14-12-2010.
5. The brief facts giving raise to Petition No,101 of 2011 are that petitioner is first class State Subject, hails from district Hattian Bala and possesses degree of D-Pharm. It is claimed that Secretary Health-respondent requisitioned 8 posts of Drug Inspectors and Hospital Pharmacists B-17, to be filled in on permanent basis for 7 units of Azad Jammu and Kashmir, on the basis of districtwise quota, out of which one post was allocated for district Hattian Bala, to Public Service Commission in the month of November, 2010. It is stated that out of the above mentioned 8 posts, the Health Department advertised 5 posts including one post of district Hattian Bala to be filled in on ad hoc basis vide notification dated 8-12-2010. It is asserted that petitioner being qualified applied for his appointment on ad hoc basis through application dated 15-12-2010, however, Health Secretariat, thereafter issued corrigendum advertisement published in "Daily Express Islamabad" dated 14-12- 2010, whereby 5 posts were directed to be filled in on open merit instead of districtwise quota against which the instant writ petition was filed for direction to advertise all the above mentioned 8 posts of Drug Inspectors and Hospital Pharmacists B-17 on the basis of districtwise quota instead of open merit.
6. After admission, the respondents were summoned, who filed written statement on 29-11-2011, wherein it is stated that all disputed posts of Drug Inspectors and Hospital Pharmacists B-17 were requisitioned to Public Service Commission, which were also advertised through 'daily news' dated 8-4-2011, however, due to status quo order granted by this Court in Writ Petition No,760 of 2011 along with three other writ petitions, neither ad hoc nor regular appointments could be made by the respondents.
7. Precise facts giving raise to Writ Petition No,760 of 2011 are that petitioners are first class State Subjects, who are serving as Drug Inspectors-Hospital Pharmacists B-17 in various districts of Azad Jammu and Kashmir. It is stated that petitioners applied for the above posts in furtherance of advertisement dated 8-4-2008, interviewed by a high-level selection board and then recommended for appointment on contract basis. It is stated that petitioners Nos.1 and 2 were appointed as Drug Inspectors B-17 Poonch and. Bhimber, whereas petitioners Nos.3 and 4 were appointed as Hospital Pharmacists B-17 Bhimber and Poonch on recommendations of the selection board on contract basis for a period of one year against a project namely (Monitoring Quality of Drugs and Establishment of Drugs Testing Laboratories) vide notifications dated 22-6-2008 and 24-6-2008 respectively. It is asserted that above appointments of petitioners were made on the basis of contract policy of 2006, who were entitled for salaries of Rs,30,000 per month, however, they had been paid only Rs,15,720 per month. It is claimed that petitioners had been performing their duties diligently to the entire satisfaction of their superiors and on expiry of one year contract, extension was solicited, which remained pending with official respondents, however, petitioners were directed orally to continue their work with assurance of renewal of contract/ad hoc appointment when the said posts would be shifted on normal budget. It is also stated that petitioners are continuously working against disputed posts, however, no salaries were paid to them since 1st July, 2009 and petitioners had also been paying official expenses from their own pockets on assurances of their superiors that the same shall be redeemed to them along with their salaries in lump sum. It is asserted that salaries of Government employees were increased by 15% on 1-7-2009 and 50% along with 20% medical allowance on 30-6-2010, which were also not paid to petitioners. It is further stated that the disputed posts were transferred on normal budget by Finance Department on 8-6-2010 and thereafter Director General Health-respondent proposed ad hoc appointment of petitioners, who were already working on 3-9-2010. It is further asserted that petitioners are continuously holding the disputed posts on assurances of ad hoc appointment and in this regard various documents were appended along with petition. It is claimed that due to status quo order of this Court in writ petitions titled "Raja Ishtiaq Akbar v. Azad Government and others", "Raja Liaqat Ali Khan v. Azad Government and others" and "Raja Yasir and others v. Azad Government and others", the process of ad hoc appointment of petitioners could not be finalized. It is alleged that petitioners were given assurance by respondents for their regularization, which promise could not be kept by them and now petitioners have become overage, hence, cannot participate in competitive examination. It is stated that respondents have confirmed 13 employees of Education/Information Technology Department, who were appointed on contract basis, hence, petitioners also moved an application to the Prime Minister of Azad Jammu and Kashmir, stating therein that case of petitioners was at par with employees of the said Department, who deserved same treatment in the light of notification dated 25-3-2010, however, no process was taken in this regard. It is stated that Government of Punjab had increased the number of posts of Drug Inspectors-Hospital Pharmacists B-17 vide notification dated 3-2-2010, therefore, on parity basis; the posts of Drug Inspectors-Hospital Pharmacists B-17 should also be directed to be increased by the official respondents in Azad Jammu and Kashmir. It is claimed that respondents instead confirmation of petitioners, advertised disputed posts for regularization through the Public Service Commission in 'daily news' dated 8-4-2011. It is alleged that the above advertisement was published by violating instructions of Services and General Administration Department dated 27-3- 2003. Against the abovementioned advertisement with prayer of regularization the instant writ petition was filed before this Court on 28-4-2011
8. A pre-admission notice was issued to official respondents, who filed comments which were treated as written statement on request of learned counsel for the official respondents vide order dated 28-11-2011. It is stated in the above written statement that petitioners were appointed on contract basis as Drug Inspectors against a scheme, which period was already expired. It is claimed that all posts of Drug Inspectors were transferred on normal budget, therefore, the same were liable to be filled in through the Public Service Commission and contract appointment of petitioners cannot be regularized through writ jurisdiction. It is also stated that requisition for all posts of Drug Inspectors and Hospital Pharmacists were sent to the Public Service Commission and the same were also advertised, against which instant writ petition is not maintainable. It is further stated that petitioners, being contract employees could not claim any kind of allowance etc. It is also asserted that posts were available according to strength of units and a few districts were already granted posts on the basis of their quota, while rest of the units were feeded according to prescribed rules on the basis of which the Public Service Commission advertised the posts in question. It is further stated that as posts were available on the basis of units, therefore, the same could not be advertised on open merit. The private respondent also raised same version as taken by him in Writ Petition No,101 of 2011 and prayed for dismissal of the instant writ.
9. The learned counsel for petitioner in Writ Petition No, 1485 of 2010, Mr. Sadaqat Hussain Raja, Advocate, submitted that the impugned advertisement regarding ad hoc appointment pertaining to posts of Drug Inspectors/Hospital Pharmacists along with corrigendum published in "Daily Express Islamabad" dated 14-12-2010 regarding curtailment of the above strength of posts from 5 to 3 are unlawful, therefore, the same may be quashed. The learned counsel was confronted that as the abovementioned advertisement and corrigendum are no more available and claim of petitioner was for advertisement of 7 posts while Health Department had advertised 8 posts of Drug Inspectors and Hospital Pharmacists on the basis of district-wise quota through 'daily news' dated 8-4-2011, not challenged by petitioner, which got finality, hence, writ petition has become infructuous, the learned counsel submitted that the same may be decided by giving reasons. The relief claimed in the above writ petition is reproduced as under:--- "In view of above, it is very humbly prayed that by accepting this writ petition the advertisement for the ad hoc appointment of posts of Drug Inspector/Hospital Pharmacist B-17 along with corrigendum may kindly be declared against the law, rules on the subject and may kindly be set aside; ' It is further stated that the respondents may kindly be directed to advertise all the available posts of Drug Inspector/Hospital Pharmacist and other cadres of same qualification by observing the District Quota as provided by law. Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be granted."
10. A glance perusal of above mentioned relief clause reveals that solicited relief was already granted by the official respondents to petitioner as the disputed posts were advertised on the basis of district-wise quota, not challenged by petitioner, in 'daily news' dated 8-4-2011. The respondents took specific plea that against, quota of district Muzaffarabad 2 posts of Drug Inspectors were advertised against which one Raja Muhammad Haneef, Drug Inspector DHO Office Muzaffarabad and against other post Sardar Riaz-ul-Hassan, Hospital Pharmacist, CMH Muzaffarabad were appointed on recommendations of the Public Service Commission, therefore, quota of Muzaffarabad was already exhausted under law. The abovementioned version was not repudiated by petitioner through replication, therefore, by accepting the claim of respondents as proved through pleading the writ petition filed by petitioner, Raja lshtiaq Akbar, is declared as not maintainable which even otherwise has become infructuous.
11. The Writ Petition No,101 of 2011 was filed by petitioner Zahid Yaqoob Khan, who solicited relief that 8 posts of Drug Inspectors and Hospital Pharmacists B-17 including the post of district Hattian Bala, be directed to be advertised on district-wise quota with further prayer to restrain the official respondents from making appointment on ad hoc basis vis-a-vis to unit-wise quota in accordance with impugned corrigendum dated 14-12-2010, while petitioners in Writ Petition No,760 of 2011 viz; Anwar Hussain and others, solicited their confirmation on the basis of their contractual appointments, therefore, I firstly proceed to take Writ Petition No,760 of 2011.
12. The learned counsel for petitioners in Writ Petition No, 760 of 2011, Barrister Hamayun Nawaz Khan, Advocate, strenuously argued that petitioners applied for the posts of Drug Inspectors/Hospital Pharmacists in furtherance of advertisement dated 8-4-2008, who were interviewed by high level selection board and on the basis of recommendations of the above board they were appointed on contract basis vide notifications dated 24-6-2008 and 22-7-2008 respectively. After expiry of the above contract period, the respondents initiated extension proceedings which were delayed and petitioners were directed orally to continue to work with assurance that their contract would be renewed. Meanwhile disputed posts were shifted on normal budget and respondents initiated proceedings for ad hoc appointment of petitioners, however, needful could not be done. The learned counsel pressed into service that official respondents in identical situation confirmed 13 employees of Education/Information Technology Department, hence, petitioners also applied through an application to the Prime Minister of Azad Jammu and Kashmir, stating that the case of petitioners was at par with employees of Education/Information Technology Department, however, no proceedings were taken on the application of petitioners and meanwhile they have become overage. The learned counsel emphasized that on the basis of rule of promissory estoppel, the official respondents cannot escape from their promise pertaining to their confirmation on the basis of their long standing contractual appointments by treating them discriminately in violation of the Fundamental Right No,4(15) i,e, equality before law, as guaranteed in the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned counsel further argued that the impugned advertisement dated 8-4-2011 is contrary to instructions dated 27-3-2003, hence; the same is liable to be quashed. The learned counsel also pressed into service that Government of Punjab increased the number of posts of Drug Inspectors/Hospital Pharmacists; therefore, under principle of parity with Punjab, the same may also be increased in Azad Jammu and Kashmir. The learned counsel while referring to various documents appended with writ petition, forcefully argued that petitioners are continuously holding the posts firstly on the assurance of official respondents for extension of their contractual appointments and secondly on assurance of ad hoc appointment, however, the needful could not be done due to proceedings with regard to bringing the disputed posts on normal budget and then due to status quo order granted by this Court against ad hoc appointments in three different writ petitions mentioned in earlier part of this judgment. The learned counsel submitted that salary of Government employees was increased by 15% on 1-7-2009 and 50% along with 20% medical allowance vide notification dated 30-6-2010 for which petitioners were entitled, therefore, necessary direction for extension of their contract/ad hoc appointment may be issued. In support of his contention, the learned counsel referred to and relied upon the following cases:---
(i) "Arfan Hameed SDO Mirpur and 42 others v. Secretary Education and others" [2005 CLC 564];
(ii) "Azad Jammu and Kashmir Government and 4 others v. Messrs Spintex Ltd." 1998 PTD 3200;
(iii) "Ch. Abdul Mujeed and others v. Azad Jammu and Kashmir Government and others" [PLD 2001 AJK 24] and
(iv) "Azad Government and 2 others v. Muhammad Naseer Ch. And 2 others" [2010 SCR 186] ' In case of "Arfan Hameed and 42 others v. Secretary Education and 3 others" [2005 CLC 564], rule of promissory estoppel was highlighted that where one party had, by his word or conduct, made to the other party, a clear promise which was intended to create or effect a legal relationship to arise in future knowing or intending that it would be acted upon by the other party to whom promise was made and it was, in fact so acted upon by the other party, that promise would be binding on the party making it and he was not entitled to resile from it. Besides, equality of State subjects and safeguard against discrimination in service, it was further held that Prime Minister was Chief Executive of the State and Executive authority of State vested in it, who would exercise said authority either directly or through Ministers. As order of petitioners regarding their appointment was made in a duly processed summary submitted by Secretary Education with concurrence of Finance Department duly approved by Prime Minister and order was neither carried out nor referred back as visualized by Rules of Business, therefore, petitioners in that case were declared as entitled for relief of appointment.
' In case titled "Azad Jammu and Kashmir Government and 4 others v. Messrs Spintex Ltd. [1998 SCR 167] besides highlighting promissory estoppel, it was held that no department of the Azad Government of the State of Azad Jammu and Kashmir can issue any order without approval of the Finance Department, which directly or indirectly affects the finance of the Government or which, in particular, involves remission or consignment of revenue actually or potentially. It was further held that unlawful order of the Prime Minister cannot be implemented through writ jurisdiction.
' In case titled "Ch. Abdul Mujeed and others v. Azad Jammu and Kashmir Government and others"
[PLD 2001 AJK 24] it was held that all State Subjects are equal before law under the provision of section 4(15) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and in case of discrimination, Mandamus can be issued by the High Court.
' In case titled "Azad Jammu and Kashmir Government and 2 others v. Muhammad Naeer Ch. And 2 others" [2010 SCR 186], it was held that as number of posts of Assistant Director Environment was only three, while number of administrative units at the time of advertisement was 8, hence, it was not possible for the concerned department to determine the quota of district, therefore, method adopted by the department on the basis of instructions dated 27-3-2003, sending requisition to Public Service Commission for advertising the posts on the open merit was declared as valid.
13. The learned counsel for respondents, Raja Muhammad Haneef Khan and Sardar Habib Zia, Advocates, while controverting arguments of learned counsel for the petitioners, submitted that petitioners were appointed as Drug Inspectors/Hospital Pharmacists on contract basis for one year, which period was expired, therefore, they cannot be directed to be confirmed on the basis of their contractual appointments. The learned counsel further emphasized that under law no appointment can be made without advertisement of post, merit and recommendations of respective selection authority. The learned counsel also pressed into service that the disputed posts were advertised by the Public Service Commission as requisitioned by the Health Department in accordance with scheme of law and petitioners can apply under law for such posts and participate in competitive proceedings. They emphasized that the instructions dated 27-3- 2003 were also not violated by the Department as number of disputed posts was 8 and other units were already feeded, hence, the writ petition be dismissed, submitted the learned counsel for respondents. In support of their contention, the learned counsel for respondents referred to and relied upon the following:---
(i) Azad Jammu and Kashmir Government and others v. Muhammad Younis Tahir and others" 1994 CLC 2339 and "Kh. Manzoor Qadir and 5 others v. Azad Government and others" [2010 SCR 215] ' In case titled "Azad Jammu and Kashmir Government and others v.. Muhammad Younis Tahir and others [1994 CLC 2339] it was held as under:--- "In accordance With the scheme lay down by sections 48 and 49 of the Interim Constitution Act and the Public Service Commission Act and the Rules made under them, if a citizen wants to enter the civil services of Azad Jammu and Kashmir in grade 16 or above has to pass through the following procedure. Firstly the applications are called by the Public Service Commission for which certain conditions are laid down which must be fulfilled by the candidates. They relate to qualification, age etc. After receiving the applications the Public Service Commission's held written and the oral tests on the basis of Merit recommendations are formulated. For every post there are hundreds of applicants, although they are less in posts of specialized nature. It means that a person stands a remote chance of selection in an open competition and only those are selected who on account of their qualifications, brilliants and hard work proves themselves to be the best among the contestants. This is the plain requirement of the laws which apply to all State subjects but the regularization Act has given a special benefit to those who are ad hoc appointees. Jobs have been bestowed to them by a operation of law by depriving people Iike Javaib Iqbal Khawaja who is unemployed and had applied to the Public Service Commission and wanted to compete for a job. His right to compete is recognized by the existence laws but has been taken away.
' It is legal requirement, as evidenced by section 48 of the Azad Jammu and Kashmir Interim Constitution Act, read with Public Service Commission Act and with Public Service Commission (Functions) Rules that the merit and suitability of the candidates must be judged by the Public Service Commission. Therefore, this function cannot be performed by any other authority. In the present case this job has been performed by the Legislature through the regularization Act, which declared them "validity selected" without going through the selection procedure."
' In case titled "Kh. Manzoor Qadir v. Azad Government and 5 others" [2010 SCR 2151, it was held that contract appointment made by the Government can be terminated on one month's notice or one month's pay in lieu thereof.
14. After hearing learned counsel for the parties at length, I have perused the contents of writ petitions and have also examined the relevant record.
15. Admittedly the posts of Drug Inspectors and Hospital Pharmacists B-17 were advertised by the department in "Daily Pakistan' dated 8-4-2008 purely on temporary and contract basis for one year. The petitioners being qualified, on recommendations of respective selection board were appointed against a temporary scheme vide notifications dated 24-6-2008 and 22-7-2008 respectively which appointments were expired after completion of one year period. The claim of petitioners pertaining to their extension and failure of respondents to appoint them on ad hoc basis and payment of salary shall be dealt with at later stage of the judgment. However, the service in Azad Jammu and Kashmir is regulated by an Act of Assembly which has been promulgated on the strength of Section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Section 4 of the Azad Jammu and 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. Section 23 of the said Act authorizes the Government to make rules for carrying out the purposes of above mentioned Act. In exercise of these powers the Government has made rules known as The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Part H of these rules prescribes the method and manner of appointment to the post in various grades whereas Part Ill of Rules containing 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.
16. 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 ordinary 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 and Kashmir Government and others v. Muhammad Younas Tahir and others [1994 CLC 2339] 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 the 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 and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 received the attention of the apex Court of Azad Jammu and 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 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 appointment 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 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."
17. Similarly in a case titled Sheikh Manzoor Ahmed v. Azad Government and others 1995 PLC (C.S.)
59 the same view was reiterated by the Hon'ble Supreme Court.
18. The point pertaining to induction in civil service on permanent basis again came under consideration before the Apex Court of country in Civil Appeal No,35 of 2007 titled "Mst. Tanveer Ashraf and 25 others v. Azad Jammu and Kashmir Government and 6 others" decided on 30-5-2011, 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 and Kashmir, 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 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 as 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 maneuver 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 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. Zaffar 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 board 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; ' Even otherwise the established rule is that in case of apparent inconsistency between two provisions of law, attempt should be made to harmonies 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 and 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 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 protection of law and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zaffar 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 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 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 licencess. 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."
19. Therefore, as per my considered view, the relief pertaining to regularization of petitioners against the posts of Drug Inspectors/Hospital Pharmacists B17 on permanent basis without advertisement to fill in the posts on permanent basis, merit and recommendations of the Public Service Commission cannot be extended in view of scheme of law and the above precedents of the apex Court. The precedent referred to and relied upon by the learned counsel for petitioners, Barrister Hamayun Nawaz Khan, Advocate, titled "Arlan Hameed and 42 others v. Secretary Education and 3 others" [2005 CLC 564], is a judgment in personam and the same cannot be accepted as a judgment in rem, which will frustrate the Civil Servants Act, 1976, rules made thereunder as well as Azad Jammu and Kashmir Public Service Commission Act, 1986. Even otherwise, the precedent case is distinguishable for the following reasons:---
(i) The Prime Minister of Azad Jammu and Kashmir on the duly processed summary submitted by the Secretary Education with concurrence of the Finance Department granted approval for appointment of petitioners in that case vis-a-vis to case of the petitioners in the present case;
(ii) The scheme was introduced as a result of agreement with World Bank and Government of Azad Jammu and Kashmir and it was also agreed that staff of the scheme would be gradually shifted to normal budget which fact was also incorporated in PC-1 and the same is lacking in the instant case;
(iii) The posts were created for petitioners in that case while in the instant case it was incorporated in creation notification that posts shall be filled in under rules and the same were never brought on normal budget for petitioners.
20. The contention of learned counsel for petitioners that the posts of Drug Inspectors were increased in Punjab vide notification dated 3-2-2010, therefore, direction for increasing said posts should also be given to official respondents, is also not tenable. The population, circumstances and budget of Punjab and Azad Government of the State of Jammu and Kashmir is altogether different, hence, I am not inclined to extend the above solicited relief specially so when notification of parity with Punjab is no more in existence and now only guiding principles can be looked into by the Azad Government.
21. As regards the controversy in the case that whether the disputed posts are liable to be filled in after advertising the same on open merit in light of instructions dated 27-3-2003, it may be observed that district-wise quota in view of statutory rules is mandatory. The whole service structure of Azad Jammu and Kashmir is based on district-wise quota apart from notification in respect of quota issued from time to time since 1971 to 2009 in respect of administrative units. Rule 12 of the Public Service Commission Rules is relevant which provides that it is the duty of department seeking recommendations from the Public Service Commission to determine the quota of each district on the basis of sanctioned strength of posts. However, a new situation was brought into notice of Azad Government that whenever number of posts to be filled in by competitive examination are lesser than the administrative units, the departments use to fill in the posts in their discretion from the administrative units of their choice, therefore, Government issued instructions dated 27-3-2003 which postulates that if the number of posts are less than administrative units, then the process of selection shall be completed on the basis of open merit. In the instant case firstly there were 3 posts, which were increased time and again and at the time of advertisement the same were 8 while total posts were 18 in number. The claim of official respondents is that other three units were already granted posts on the basis of quota, which assertion was not repudiated by petitioners; therefore, I am not inclined to quash the impugned advertisement dated 8-4-2011.
22. The contention of learned counsel for petitioners, Barrister Hamayun Nawaz Khan, Advocate, that petitioners are continuously holding the posts of Drug Inspectors/Hospital Pharmacists has substance. A glance perusal of plethora of documents appended with writ petition reveals that petitioners are continuously holding the posts, however, they were not appointed on ad hoc basis firstly due to .Proceedings of transferring the posts on normal budget and secondly due to status quo order granted by this Court in three writ petitions mentioned hereinabove in earlier part of this judgment. The official documents appended by petitioners were not controverted by the respondents. Even assertions made by petitioners that they were holding posts and not paid salaries since 1-7-2009, which are continuously holding the same on assurance of official respondents pertaining to extension of ad hoc appointment were not specifically denied. I am, therefore, inclined to extend relief (ii) of Writ Petition No,760 of 2011 to petitioners, Anwar Hussain and 3 others, on the basis of record appended and assertions made in their writ petition.
23. The nub of the above discussion is that Writ Petition No, 1485 of 2010 is dismissed. Writ Petition No,101 of 2011 is accepted in the manner that the Public Service Commission respondent is hereby directed by issuing writ of Mandamus to conduct test and interview pertaining to 8 posts of Drug Inspectors and Hospital Pharmacists forthwith and recommend on merit eligible candidates for appointment on the basis of advertisement dated 8-4-2011, whereas, Writ Petition No,760 of 2011 is partly accepted to the extent of extension of ad hoc appointment of petitioners, Anwar Hussain and 3 others from 1-7-2009, till regularization of the said posts by the Public Service Commission. The official respondents are also hereby directed to issue ad hoc appointment order of the above petitioners and pay them enhanced salaries since 1-7-2009 plus allowances admissible under law within two months.