' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby Rule 5 of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 along with schedule made thereunder and Notification No,9693-9700/2008 dated 5-12-2008 have been challenged for having been issued without lawful authority and ultra-vires of the Constitution. The advertisements dated 8-10-2011 and 8-9-2012 have also been challenged for having been issued in violation of circular/directive issued by the Services and General Administration Department on 4- 7-2012.
2. Precise facts giving rise to the instant writ petition are that the petitioners are first class State Subject holders belonging to different units of Azad Jammu and Kashmir who are, refugees working for betterment of the society in liberated territory and believe in supremacy of rule of law and Constitution. It is stated that petitioner No,5 is elected member of Legislative Assembly against reserved seats for refugees of Jammu and Kashmir settled in Pakistan. It is averred that to provide equal share in the Government's service, the Government of Azad Jammu and Kashmir time and again through different rules has reserved quota for different units in civil services for all units including refugees settled in Pakistan. It is alleged that 25% quota has been reserved for refugees while rest for other units, vide Government notification dated 28-10-1996. It is further stated that laws enforced in Azad Kashmir i,e, the AJ&K Public Service Commission Act, 1986, the AJ&K Public Service Commission (Functions) Rules, 1978 and The AJ&K Public Service Commission (Procedure)
Rules, 1994 also commanded and make it obligatory for the Government to observe quota in the matter of appointments. It is claimed that in the year 2011 about 14 posts of grades B-16 and B-17 lying vacant in Local Government Board were advertised by the respondents through proclamation dated 8-10-2011 without determination of quota allocated to different units, hence, Writ Petitions Nos.15 of 2011 and 395 of 2012 were filed which after hearing were decided by this Court vide judgment dated 12-4-2012. Against the aforesaid judgment, a petition for leave to appeal was filed which too was dismissed by the apex Court vide order dated 28-8-2012. Meanwhile, on violation of Statutory law regarding allocated quota of refugees was raised in the Legislative Assembly, which constituted a special Committee to ascertain the violation of quota of the refugees settled in Pakistan. It is alleged that Government-respondent vide Circular No,S&GAD-7(6)2012 dated 4-7- 2012 imposed ban on selection process upon all the posts, included those which have been advertised previously without determination of quota. It is further stated that on the basis of Rule 25 of the Local Council Service (Appointment and Conditions of Service) Rules, 1990 Government- respondent relaxed quota to the extent of gazetted posts of Local Government Board and Municipalities with direction to make such appointments through open merit, vide notification dated 5-12-2008. It is averred that in negation of circular dated 4-7-2012 the respondents have determined to take test and interview from the candidates against the posts which were advertised vide proclamation dated 8-10-2011 without determination of quota, for which purpose fresh advertisement has been issued in Daily Khabrain dated 8-9-2012. The petitioners have challenged validity of the aforesaid advertisements dated 8-10-2011, 8-9-2012 and notification dated 5-12-2008 along with Rule 5 of The Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rulies, 1990 with further prayer to restrain the respondents from taking test and interview on the basis of advertisement dated 8-10-2011.
3. The respondents have contested the writ petition by filing written statement, wherein, it is stated that-the petitioners are not aggrieved persons as they never applied for the disputed posts on the basis of advertisement dated 8-10-2011, therefore, they have no locusstandi to file the instant writ petition. It is further stated that writ petition is actuated with malice which has been filed by the respondents with unclean hands and the same is also politically motivated, hence, liable to be dismissed. It is averred that no violation of any rule or law has been committed by the respondents in the impugned advertisement dated 8-9-2012 as further proceedings have been initiated in the light of judgment of this Court dated 12-4-2012. It is claimed that the petitioners are trying to obtain review of judgment dated 12-4-2012 of this Court through the instant writ petition which is not permissible under law. It is further clarified that advertisement dated 8-9-2012 is merely information to the candidates for written test on the basis of earlier advertisement dated 8-10-2011, upheld by this Court vide judgment dated 12-4-2012, therefore, submitted for dismissal of the writ petition.
4. The learned counsel for the petitioners, Raja Sajjad Ahmed Khan, Advocate, while reiterating the grounds of writ petition submitted that although impugned advertisement dated 8-9-2012 has been issued on the basis of earlier advertisement dated 8-10-2011, however, both the above mentioned advertisements are against mandatory provisions of quota system and verdict of the apex Court as laid down in Umar Hayat's case (1999 PLC (C.S.) 93) in which after tracing history of the quota its strict adherence has been commanded. The learned counsel further argued that on the basis of Government circulars dated 4-7-2012 and 12-9-2012 the respondents cannot obtain test and interview regarding disputed posts, therefore, both the advertisements supra may be quashed as such. The learned counsel pressed into service that Rule 5 of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 promulgated vide notification dated 20-1-1990 is violative of constitutional provisions pertaining to quota system and repeated pronouncements of the apex Court, therefore, the same may be struck down. The learned counsel in, support of his contentions referred to and relied upon following case-law:---
(i) Umar Hayyat v. Azad Government and 3 others (1999 PLC (C.S.) 93);
(ii) Government of Balochistan v. Azizullah Memon and others (PLD 1993 SC 341);
(iii) Azizur Rahman Chowdhury v. M. Nasiruddin and 5 others (PLD 1965 SC 236);
(iv) Robkar Adalat v. Sarfraz Alam Assistant Town Planner Mirpur Dev. Authority, Mirpur (1996 MLD 1752);
(v) Chief Secretary/Referring Authority Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan (PLD 1983 SC (AJ&K) 95 and;
(vi) Azad Government of the State of 'Jammu and Kashmir and another v. Kashmir Timber Corporation (PLD 1979 SC (AJ&K) 139).
' In Umar Hayyat's case, it was held by the apex Court of Azad Jammu and Kashmir that quota system introduced on 16 March, 1974 is mandatory in nature which negates other view that it is.
Rule of convenience. It was further held that all concerned functionaries are bound to implement such quota and inconsistent order will be a serious illegality.
' In the second case referred to hereinabove, inter-alia, it was held that enacting any law which takes away or abridges fundamental rights guaranteed and any law made in contravention of Article 7 of the Constitution of Pakistan, 1973 shall be to the extent of inconsistency be void.
' In Azizur Rahman Chowdhury's case, it was held that validity of action taken in Martial Law Order No,104 can be examined, after lifting of Martial Law, however, actions, taken and completed would not be interfered with by the Courts. It was further held that Martial Law Order No,104 supra was not required to be declared ultra vires, being no longer in force.
' In the fourth case, it was, inter alia, held that unconstitutional law must be struck off by superior Courts whenever and wherever notices.
' In the fifth case, it was held that superior judiciary always be required to be vigilant to see that rights enshrine in constitution be not violated and legislative functions must be within its defined legal bounds. In case of failure of legislature to keep itself within its constitutional limits, judiciary ought to step to enforce compliance of the constitution. It was further held that Courts being Custodian and protector of constitution are under obligation to strike down any law violating constitutional restrictions or limits.
' In the last case, it was held that legislature has no power to enact beyond prescribed limits. Such- like legislation can be struck down by Court.
5. The learned counsel for the respondents M/s Sardar Abdul Sami Khan and Mushtaq Ahmed Janjua, Advocates, while controverting the arguments of the learned counsel for the petitioners argued that against the impugned advertisement dated 8-10-2011, two writ petitions bearing No,15 of 2011 titled Afzal Ahmed and 5 others v. And Jammu and Kashmir Government and 2 others dated 4-1-2011 and No,394 of 2012 Jameel Ahmed v. Azad Jammu and Kashmir Government and 2 others dated 17-2-2012 were filed which were dismissed vide judgment dated 12-4-2012, however, it was observed by this Court that respondents shall make provisions in Rules for adapting quota as the same .Is being followed in other Government Departments for appointments through initial recruitments in future, therefore, the instant writ petition is not maintainable as solicited relief has already been extended to the petitioners. The learned counsel pressed into service that the instant writ petition is filed with malice due to critical debate of petitioner No,5 at the floor of Assembly who is member of Legislative Assembly of Azad Jammu and Kashmir, which is also politically motivated and has been filed with unclean hands. The learned counsel further emphasized that as the impugned advertisement dated 8-10-2011, which is bone of litigation between the parties, was already protected through judgment dated 12-4-2012 which was also upheld by the apex Court vide order dated 28-8-2012, therefore, second writ petition for abrogation of the same advertisement is not maintainable under law. The learned counsel further argued that circular dated 12-7-2012 is not applicable to the past and closed transactions which is only prospective therefore, test and interview can be conducted regarding disputed posts on the basis of advertisement dated 8-10-2011 and subsequent advertisement dated 8-9-2012 is only an information to the candidates for appearance in the written test on the basis of previous advertisement upheld by this Court vide judgment dated 12-4-2012. The learned counsel further submitted that a judgment of Court of law cannot be modified by promulgation of any circular and even contents of the said circular reveals that the same is prospective, hence, cannot nullify the effect of earlier judgment of this Court dated 12-4-2012. The learned counsel further emphasized that Local Government Board is an autonomous body, therefore, the instant circular is not applicable on induction in Local Council Services. The learned counsel in support of their contentions referred to and relied upon following case-law:---
(i) Development Authority Muzaffarabad and another v. Shahid Qureshi and 7 others (2004 SCR 80);
(ii) Shaukat Hussain Gillani v. Abdul Rehman Abbasi and 2 others (1992 PLC (C.S.) 468).
' In Development Authority Muzaffarabad's case at page 83, it was held by theapex Court, as under:-- "We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Admittedly all the respondents were the employees of Development Authority Muzaffarabad. The Development ' Authority Muzaffarabad was established for making all types of arrangements which were necessary for planning and development of the area falling within the framework of notified area of Muzaffarabad City through an Act of the Assembly known as the Development Authority Muzaffarabad Act, 1989. In order to cdrry out the purposes of this Act, in exercise of the powers conferred by section 39 of the Development Authority Muzaffarabad, Act, 1989, the Government framed the rules known as the Development"
Authority Muzaffarabad Employees (Efficiency and Discipline) Rules, 1995. Under the provisions of the Act, a Board has been constituted consisting of the Chairman and not less than three members to be appointed by the Government and the general direction and administration of the Development Authority Muzaffarabad exclusively have been vested in the Board. The Board has got exclusive powers in respect of matters relating to the administration of the authority and its affairs. The Board is also vested with the jurisdiction to issue general directions in respect of acts or things which may be exercised or done by the Development Authority. In this case neither any Committee was appointed by the Board to look into the affairs of the Development Authority nor was any order passed by the Board on the recommendations of any Committee. The Government under the provisions of the Act was not justified in law to assume the role which exclusively vested in the Board, therefore, the impugned notification was passed by the Government in colorable exercise of jurisdiction. Even otherwise 'before removing the respondents from their service no show cause notice was issued to them. It is repeatedly laid down principle of law that unless specifically excluded the principle of natural justice which is known in law as the audi alteram partem shall be presumed to be the part of every enactment. According to this principle no adverse order can be passed against any person without providing such person the right of hearing. In light of the language applied for in framing the rules known as the Development Authority Muzaffarabad Employees (Efficiency and Discipline) Rules, 1995, the right of hearing of the employees of Development Authority is provided to them like other civil servants of the Government. We have also noticed that there was no complaint against the respondents by the Board of Directors of the Development Authority nor such Board ever recommended that services of the respondents were not required for the Effective and smooth working of the Development Authority. In these circumstances there was not occasion for the Development Authority to file an appeal before this Court. The Government interfered in the affairs of the 'Development Authority without taking any policy decision with the prior consultation of the Board of the Development Authority. We have noticed that Government without waiting for the report of the Committee constituted by it on the same day directed the Development Authority Muzaffarabad to remove the respondents from their service who without following the procedure contained in the rules gave effect to the directions of the Government which practice is directly in conflict with the provisions of the Interim Constitution Act, Development Authority Muzaffarabad Act, 1989 and the Rules framed thereunder. In the light of these facts the learned Judge in the High Court was justified in law in setting aside the Government Notification dated 23-12-2000. The reliance in support of this finding is placed on the authority of this Court titled Chairman Development Authority Muzaffarabad and another v. Sajjad Ahmed Sheikh and others (Civil Appeal No 127 of 2003 decided, on 12-12-2003."
' In case of Syed Shaukat Hussain Gillani supra it was held by their lordships as follows:--- "We have given our due consideration to the arguments. Irrespective of the controversy regarding the application of the rules, we are of the view that the question of correct application of the rules in the instant case would arise only if the appellant shows that he had right to be considered for promotion as Naib Tehsildar. The fact that quota in case of Ministerial staff and the Field staff had already stood exhausted, none of the contending parties could claim promotion as Naib Tehsildar as of right. Thus, we are not persuaded by the arguments advanced by the learned counsel for the appellant that promotion of the respondents should be set at naught, despite the fact that the appellant had no right to be considered for promotion as Naib Tehsildar. Under Section 4 of the Service Tribunals Act, 1975 a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person. At least a civil servant challenging the appointment of another civil servant should, prima facie, show that he had a chance to be considered for appointment against the civil post at the relevant time. If he is not found to be qualified for appointment either by initial, recruitment or otherwise, he cannot be permitted to challenge the appointment of another civil servant on the ground that although he was not qualified to be considered for the appointment yet his rival was also suffering from the same disqualification. The civil servant who invokes the jurisdiction for redressing his grievance must show that he was an aggrieved person as envisaged under the relevant law".
6. After hearing the learned counsel for the parties at great lengal we have perused the contents of writ petition and examined the appended documents with our utmost care,
7. The learned counsel for the respondents have raised a preliminary objection that the impugned advertisement dated 8-10-2011, which is bone of litigation between the parties, was already challenged before this Court in Writ Petition No,15/11 titled Afzal Ahmed and others v. Azad Government and others and Petition No,394 of 2012 Jameel Ahmed v. Azad Government and others which were decided by this Court vide judgment dated 12-4-2012, hence, the instant writ petition is not maintainable. In the above judgment, while dismissing both the writ petitions the respondents were allowed section process, however, it was observed that competent authority shall make provisions in the prescribed Rules for adapting quota, therefore, it is essential to decide first the said preliminary objection. In this respect para 6 of judgment dated 12-4-2012 is relevant which is reproduced as under:--- "It may be stated that initially quota was fixed by the Government of Azad Jammu and Kashmir vide notification dated 12-13-1972 for the refuges settled in Pakistan, district Mirpur, Poonch and Muzaffarabad. However, after enactment of Civil Servants Act, 1976 and Rules made thereunder quota has been given statutory recognition and has been re-fixed and redetermined by the Government from time to time after creating the new units/districts of Azad Jammu and Kashmir," however, quota for different units have been re-determined and has been ordered to be followed strictly as is evident from the notification appended with the petitions as well as pronouncements of the apex Court of Azad Jammu and Kashmir. It is noticed that service of Azad Jammu and Kashmir Local Government Board is regulated by the Rules known as Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990. Rule 5 provides manner of initial recruitment to the post of grade B-I1 and above. The appointments through initial recruitment to the posts of grade B-11 and above are to be made on the basis of the result of competitive examination and test on open merit. Government notification dated 5-10-2008 has also been placed on the record which, reveals that all the- gazette posts under Local Government Board and related institutions would be filled in on open merit basis. Neither Rule 5, nor notification dated 5-12-2008 has been challenged by the petitioners in their petitions; therefore, both the petitions are dismissed. However, it may be observed that the competent authority shall make provisions in Rules for adapting quota as the same is being followed in the other Government Departments for appointments on the gezatted posts through initial recruitment and the same is commanded by the apex Court in Idrees Mahmood and another v. Muhammad Naseer Chaudhary and 5 others (2010 SCR 187) and Umer Hayat's (PLJ 1999 SC Azad Jammu and Kashmir 190) case in which after tracing the history of the quota, its strick adherence to has been commanded. Authority therefore, is directed to take steps to adopt a uniform policy in future in view of the afore-stated cases".
8. A contemplate perusal of judgment reproduced above reveals that this Court has already observed that Rule 5 of The Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 and notification dated 5-12-2008 are violative of quota, therefore, competent authority shall make provisions in the said Rules for adapting quota regarding appointments through initial recruitment. The learned counsel for the petitioners frankly conceded that against the abovementioned judgment a petition for leave to appeal was filed before the apex Court which was also dismissed vide short order dated 28-8-2012. As the solicited relief has already been extended to the petitioners for adapting quota in the relevant Statutory Rules, as the same is being followed in all other Government Departments for initial recruitment and its strick adherence has also been commanded, therefore, we are of the considered view that the instant writ petition is not maintainable.
10. The contention of the learned counsel for the petitioners Raja Sajjad Ahmed Khan, Advocate, that on the basis of circulars dated 4-7-2012 and 12-9-2012 no test and interview can be conducted by the respondents against disputed posts is also misconceived and is hereby repelled. As the impugned advertisement dated 8-10-2011 was protected vide judgment dated 12-4-2012 passed by this Court and that of the Hon'ble Supreme Court dated 28-8-2012, therefore, implementation of the above circulars has an effect of frustrating the above mentioned judgments. It is settled principle of law that neither any notification nor circular can operate retrospectively to impair existing rights or nullify effect of final judgment. The similar point came under consideration before the apex Court of Pakistan in case of Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180). At page 184 of the report, it was held as under:--- "It is well settled proposition that a notification by the Provincial Government cannot operate retrospectively to impair an existing right or to nullify the effect of a final judgment of a competent Court even if the notification be expressly so designed.
' The effect of "final determination" of the rights of parties to a litigation was considered by the Privy Council in John Lemm v. Thomas Alexender Mitchell 1912 AC 400 and the principle laid down was that the effect of the judgment which in the "absence of appeal (operates as) a final determination of the rights of the parties" rests on the general principle that a man is not to be vexed twice for the same cause of action unless, it is "excluded by the Legislature in explicit and unmistakable terms". In the instant case the pendency of the certificated appeal in this Court had destroyed the finality of the High Court's order dated 11-10-066, and therefore, was hit by the new dispensation in section 30-A of the Act."
11. The contention of the learned counsel for the petitioners that Government-respondent imposed ban on test and interview against all previous advertisements vide circulars dated 4-7-2012 and 12-9-2012 is also baseless. A perusal of the above-mentioned circulars reveals that the same were not promulgated by the Government as alleged. It appears that both the above-mentioned circulars were issued by Services and General Administration Department on the basis of instruction of a special committee of. Legislative Assembly, constituted for the purpose in its meeting held on 30-6-2012. According to our considered view instruction issued by the committee cannot bypass statutory laws especially rule 17 of the, Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977 which is reproduced as under:- "Initial appointment to all posts in grades 1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government."
12. According to rule 17, supra, all posts of grade 1 and above shall be made on the basis of examination or, test to be held by the appropriate Selection authority after advertisement of the vacancies in newspapers. Even otherwise whether quota allocated to the refugees has been violated or not is still under inquiry of the above-mentioned committee which has yet not come to any final conclusion, therefore, on the basis of the above circulars the respondents cannot be stopped from selection on the basis of earlier judgment dated 12-4-2012.
13. Before parting it is liable to be observed that on the basis of judgment of this Court dated 12-4- 2012, respondents are under obligation to make provisions in the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 for adapting quota as the same is being followed in all other Government Departments to make uniform policy and equal protection of law to all Government employees. The notification dated 5-12-2008 in future will be deemed as a nullity in the eye of law.
14. For the reasons enlisted above, finding no substance in the with no order as to cost.