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 captioned writ petitions, therefore, we propose to decide the same through this single judgment.
3. Precise facts giving rise to Writ Petition No.700 of 2011 are that petitioners being 1st Class State Subjects of Azad Jammu and Kashmir were appointed as Constables in Police Department on contract basis, vide orders dated 26-4-2008, 29-4-2008, 2-5-2008, 29-4-2008, 6-5-2008, 14-7- 2008, 26-6-2008, and 6-5-2008 respectively. It is stated that respondent No.2 advertised the vacant posts of Constables in Daily News to fill in the same on permanent basis which advertisement was challenged through writ petition titled Shakoor Bashir and others v. Azad Government and others, and the same was accepted through judgment dated 17-7-2009. Against the above mentioned judgment, an appeal was filed by the respondents before the apex Court which was dismissed vide judgment dated 11-5-2010. Against the above mentioned judgment, a review petition was also filed by the respondents which too was dismissed by the apex Court vide order dated 8-11-2010, It is alleged that on the basis of the above mentioned judgment of the apex Court the respondents issued appointment orders of the petitioners in the above case, however, did not adjust the petitioners on the pretext that they were not party in the aforesaid writ petition. It is claimed that on the basis of sections 13 and 14 of the Police Act, 1861 coupled with Rule 2.9 Chapter-II of Police Rules, 1934 which provisions were duly interpreted in the above mentioned judgment, the petitioners were liable to be adjusted against the vacant posts on permanent basis, however, needful was not done by the respondents. It is further stated that after filing the instant writ petition, it came into the knowledge of the petitioners that Government notification dated 9-3- 2010 was issued with mala fide intention to deprive the petitioners from their accrued vested rights pertaining to their absorption and to frustrate the judgments of this Court and that of the apex Court. The petitioners through amended petition also 'challenged the vires of the above notification dated 9-3-2010, whereby after sub-rule 3(b) of Rule 2.9 sub-rules (4) and (5) have been added in the Police Rules, 1934. The petitioners through the captioned writ petition solicited their adjustment on permanent basis against the posts of Constables with further prayer to quash advertisement dated 3-7-2012 through which disputed posts were advertised by respondent No.2, and also abrogation of notification pertaining to amended provisions of sub-rules (4) and (5) in the Police Rules, 1934 dated 9-3-2010.
4. Precise facts of Writ Petitions Nos.1388 of 2012 and 1452 of 2012 are that the petitioners of the above captioned writ petitions being first class State Subjects of the Azad Jammu and Kashmir were temporarily appointed as Constables in the Police department. It is stated that respondent No.2 advertised vacant posts of Constables in Daily News and the petitioners being qualified applied for the same, participated in test and interview and were declared qualified for recruitment. It is averred that the petitioners were appointed on contract basis against the quota of different units as Constables who have also completed training from Police Training School, Muzaffarabad and are performing their duties in different projects and schemes. It is stated that respondents advertised the posts of Constables in Daily Khabrein dated 3-7-2012 to fill in the same on permanent basis. It is alleged that through notification dated 9-3-2010, after sub-rule 3(b) of Rule 2.9 sub-rules (4) and (5) were added in the Police Rules, 1934, which came into the knowledge of the petitioners from the objections filed by the respondents. The petitioners solicited their adjustment/absorption against the posts of Constables with prayer for abrogation of notification dated -9-3-2010 and advertisement dated 3-7-2012.
5. The respondents contested the writ petitions through detailed written statements, wherein, it is stated that the petitioners have got no locus standi to file the instant writ petitions as they have' based their claim on the judgment dated 17-7-2009, whereas, after the above mentioned judgment of this Court Departmental Rules were amended through notification dated 9-3-2010. It is stated that as all the petitioners were appointed purely on temporary/contract basis against projects/schemes, therefore, they cannot be regularized without adopting due process of law. It is submitted that as the petitioners voluntarily accepted temporary/contract appointments and signed the appointment orders with all its terms and conditions, which orders clearly postulated that the petitioners would have no right for absorption in the Police Force on permanent basis due to their, contractual appointments.
6. The learned counsel for the petitioners, Sadaqat Hussain Raja, Advocate, while reiterating the grounds of writ petitions submitted that although the posts occupied by the petitioners were advertised for appointment on temporary/contract basis, however, as they had already undergone selection process, therefore, on the basis of rule of law laid down by this Court in case of Shakoor Basheer and others v. Azad Government and others decided on 17-7-2009 and upheld by the apex Court vide judgment dated 11-5-2010 they were liable to be confirmed/absorbed, hence, by quashing advertisement dated 3-7-2011 the necessary direction for their absorption may be issued.
The learned counsel further emphasized that impugned notification dated 9-3-2010 was issued with mala fide intention, whereby, sub-rules (4) and (5) were added after sub-rule 3(b) of Rule 2.9 of the Police Rules, 1934 in order to frustrate the above mentioned judgment of this Court as well as that of the apex Court, therefore, the same may also be quashed. The learned counsel further submitted that advertisement dated 3-7-2012 pertaining to appointments of Constables be set- at-naught by directing the respondents to adjust/absorb the petitioners against the disputed posts of Constables on permanent basis. The learned counsel pressed into service that six constables, who, were appointed on contract basis were absorbed vide order dated 27-4-2010, however, the petitioners were discriminated, hence, necessary direction for absorption of the petitioners be issued for the ends of justice. In support of his contentions the. learned counsel referred to and relied upon the following case-law:---
(i) Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others, (1996 SCMR 1185);
(ii) Tara Chand and others v. Karachi Water and Sewerage Board Karachi and others, (2005 SCMR 499); and
(iii) Dr. Naveeda Tufail and 72 others v. Government of Punjab and others, (2003 SCMR 291).
In case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) it was held that if the Service Tribunal or Supreme Court decides a point of relating to the terms of service of a civil servant which covers not only the case of civil servant, who litigated, but also of other civil servants who have not taken any legal proceedings, in such a case, the dictates and rule of good governance demands that the benefit of such judgment be extended to other civil servants as well.
In case of Tara Chand and others v. Karachi Water and Sewerage Board Karachi and others (2005 SCMR 499), it was, interalia, held that a judgment in rem is a legal determination bringing not only the parties but all persons. It applies particularly in admiralty matters, declaring the status of a ship, matrimonial causes, grants of probate plus administration and condemnation of goods by a competent Court.
In case of Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) it was held that on the basis of principle of equality, the petitioners being ad-hoc lecturers, who served in the province of Punjab for about five years on the basis of laid down policy of Federal Government, the process of their regularization against the posts occupied by them shall be initiated and in case, any of the petitioners was not found suitable by the Public Service Commission, he would not be retained in service.
7. The learned counsel for the respondents, Messrs Ch. Shaukat Aziz, Additional Advocate-General, Raja Aftab Ahmed Khan Advocate and Raja Ghulam Sarwar Khan Advocate, while controverting the arguments of the learned counsel for the petitioners submitted that as the petitioners were appointed purely on temporary basis against different projects/schemes, who had accepted terms and conditions of temporary appointments, therefore, due to principle of estoppel and acquiescence they cannot be regularized against the permanent posts of Constables without adopting due process of law. The learned counsel further submitted that sub-rules (4) and (5) of Rule 2.9 of Police Rules, 1934 were added by the Government while exercising powers vested in it, under Section 46 of the Police Act, 1861, therefore, no illegality was committed by the Government while making amendment in the above Rules vide impugned notification dated 9-3-2010. The learned counsel for the respondents in support of their contentions relied upon the following case- law:
(i) Suleman Ahmed v. Tanveer Ahmed Mir and 3 others (2002 PLC (C.S.) 714);
(ii) Ghulam Mustafa v. Azad Government and 2 others (1996 MLD 355);
(iii) Muhammad Aftab Khan v. District Education Officer and 2 others (2001 PLC (C.S.) 28); and .
(iv)Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others (PLD 1988 SC 155).
In case of Suleman Ahmed v. Tanveer Ahmed Mir and 3 others (2001 SCR 282) it was held that the respondent duly participated in the test and interview after going through the terms and conditions of advertisement published by Public Service Commission and surrendered himself to its jurisdiction and could not qualify the test and interview, hence, he was not an aggrieved person to challenge the selection of appellant by filing a writ petition.
In case of Ghulam Mustafa v. Azad Government and 2 others (1996 MLD 355) it was held that as a result of mutual consent and agreement between the committee on one hand and the allottees on the other hand, the original site plan was changed and allotments were made. Appellant in the given case duly participated in the proceedings of subsequent allotment having acquiesced in the matter, cannot come forward with a volta face to challenge the subsequent allotment.
In case of Muhammad Aftab Khan v. District Education Officer and 2 others (2001 PLC (C.S.) 28) it was held that the appellant participated in proceedings taken in pursuance of the judgment of the High Court and failed to obtain his appointment, he could not be allowed to challenge the impugned judgment of the High Court, which was passed in exercise of writ jurisdiction.
In case of Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) Punjab and others (PLD 1988 SC 155), inter-alia, it was held that rules which granted weightage to academic qualifications against experience were not unreasonable and harsh. It was further held that where the power was possessed and had been exercised reasonably and on relevant considerations, exercise of such power could not be said to be mala fide.
8. After hearing the learned counsel for the parties at great length, we have perused the contents of writ petitions and examined the appended documents with our utmost care.
9. A glance perusal of appointment orders of the petitioners reveals that after appointment of the candidates on the basis of merit, the petitioners were appointed purely on temporary/contract basis against different temporary projects/schemes through different orders. It appears that the disputed posts were created for induction on permanent bases later on, therefore, no illegality was committed by the official respondents to advertise the posts in question for induction on regular basis. The point pertaining to induction into regular service came under consideration before this Court in case titled Asif Gulab v. Azad Government of State Jammu and Kashmir through its Chief Secretary Muzaffarabad and 3 others (2011 PLC (C.S.) 1402) and at page 58 it was held as under:-- - "After hearing the learned counsel for the parties at length, we have perused the contents of writ petition along with appended documents in light of the arguments of the learned counsel for the parties. The service in Azad Jammu and Kashmir is regulated by an Act of the 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 in the personal manner. Section 23 of the said Act authorizes the Government to make rules for carrying out the purpose of abovementioned 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 II of these rules prescribes the method and manner of appointment to the post in various grades whereas Part III of rules 16 and 17 prescribes the manner for initial appointment to the posts in grade 16 and above. Rule 23 Part IV, of the aforementioned rules postulates the manner of making ad-hoc appointments. For proper appreciation of controversy, it would be useful to reproduce:--- (1)When a post is required to be filled the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.
(2)After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the selection authority.
Provided that; (1)the vacancy is advertised properly in the newspapers; (2)the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; (3)the selection is made on the basis of merit determined by objective criteria; (4)the appointment order certifies that a requisition has been sent to the selection authority; and (5)the appointment is made subject to revocation at any time by the competent authority; Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade.
(10) A perusal of the above rules makes it clear that even ad-hoc appointment cannot be made in an arbitrary manner. The first condition for making an ad-hoc appointment is that the same shall be made in the public interest. The second one is that before making such appointment the appointing authority shall forward requisition to the selection authority. The appointment is subject to further conditions listed in sub-rules (1) to (5) of rule 23 reproduced hereinabove. These conditions are mandatory and cannot be ignored at the time of making ad-hoc appointment. The proviso to the rule has an ordinarily effect which commands that ad-hoc appointment shall not confer any right to the persons so appointed in the matter of regular appointment for the same post nor the service will be counted towards seniority in the grade. The case titled Azad Jammu 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 that Act, were declared as ad hoc".
Similar point was resolved by the apex Court in case of Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others (2012 PLC (C.S.) 524). At page 535 it was held by their lordships as under:-- "It is amazing that the perusal of the most of the appointment orders of the ad hoc appointees ifeveals 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 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, amount 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 complete on the basis of merit. Such a 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 arguments 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) 421 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)xxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxx (4)xxxxxxxxxxxxxxxx Even otherwise the established rule is that in case of apparent inconsistency between two provisions of law, attempt should be made to harmonize them as there is presumption against inconsistency. In fact there is no inconsistency between the two Rights under consideration.
Fundamental Rights 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 equat protection of law.
In my view the guarantee of equality before law in more fundamental than all other fundamental rights. It is also my view that most of other rights would in some situations becomes 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, person belonging to a particular ideology or political creed may be deprive 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 who are recommended by the members of the Legislative Assembly shall be appointed to posts in Government service. If we test these laws against the touchstone of Right No. 17 the said laws will have to be declared valid. However, if Right No.15 is applied in all probabilities such laws will be declared invalid on the ground that they deny equality before law and equal protection of law and create a class which is not reasonable. This analysis shows that the argument of Mr. S.M. Zafar is without substance.
The Interim Constitution Act, through Right No.15 holds out a firm and forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. It 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."
10. The contention of the learned counsel for the petitioners that on the basis of rule of law laid down by this Court in case of Shakoor Bashir and others v. Azad Government and others dated 17- 9-2009 upheld by the apex Court through judgment passed in Civil Appeal No.35 of 2010 titled Azad Government and others v. Shakoor Bashir and others dated 11-5-2010, the petitioners are liable to permanent adjustment/absorption is misconceived as the facts of the above-mentioned case are distinguishable. The petitioners, herein, themselves' granted consent for their appointments on contract basis, therefore, due to principle of acquiescence, now, they cannot come forward with a volta face for their regular induction on the strength of their. contractual appointments. The perusal of orders of most of the petitioners reveals A that their contractual appointments were made against projects for fixed periods liable to be terminated on notice of one month or payment of salary thereof, without giving any reason. The said petitioners also accepted condition No.9 incorporating therein, that contractual appointments in question shall not be considered for permanent induction. The orders of most of the petitioner are identical in nature. In this regard for ready reference Order Book No.357 dated 10-4-2010 is reproduced as below:--- {{URDU TEXT}}
11. The contention of the learned counsel for the petitioners that 6 candidates who were appointed on contract basis like petitioners, were adjusted by the respondents on permanent basis vide order dated 27-4-2010, while his clients were not absorbed for mala fide reasons is also not tenable. The perusal of the above Order Book No.438 dated 27-4-2010 reveals that certain candidates who were falling on merit did not join service, therefore, alternate 6 candidates were appointed on the basis of merit through order dated 27-4-2010.
12.The last contention of the learned counsel for the petitioners that the impugned notification dated 9-3-2010 whereby after sub-rule 3(b) of Rule 2.9 the new sub-rules (4) and (5) were added for mala fide reason to frustrate the judgment of Shakoor Basheer and others v. Azad Government and others is also not acceptable. The Government has the vast powers under section 46 of the Police Act, 1861 to promulgate rules. The above mentioned amended provisions were added by the Government to establish additional Police for the purpose of respective projects. The said provisions are neither contrary to The Azad Jammu and Kashmir Interim Constitution Act, 1974 nor its parent law, i.e. Police Act, 1861. The provisions are also neither harsh nor unreasonable. The identical point came under consideration before the apex Court in case of Syed Saleem Hussain Kazmi v. Azad Government and 4 others (2005 SCR 259). At page 262 of the report it was held as under:--- "We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. From the record It is clear that the appellant before us is M.A.
Economics as compared to respondent No S who besides M.A. Economies is also Masters in Health Management, Planning and Policy HMBP from U.K. The appellant has attributed mala fide to the Government for framing rules whereby educational qualification higher than M.A has been prescribed for the post of Assistant Director/Assistant Chief Planning but no details have been provided as to why the Government Authority was trying to extend benefit to contesting respondent over and above the service rights of the appellant. The mala fide cannot be attributed to the Government in vacuum without furnishing any supporting material in this regard. Under section 49 of the AJ&K Interim Constitution Act, 1974, the AJ&K Civil Servants Act, 1976 was enacted to regulate the terms and conditions of the employees in the service of AJ&K Government. The AJ&K Civil Servants Act, 1976, is therefor, a mother Act. In exercise of powers conferred to Government or any other person under section 23 of the said Act, the Government or such person' is authorized to make such rules as are necessary and expedient for carrying out the purposes of this Act. So it is for the Government or that authorized person to lay down the qualification or make rules in respect of civil servants under its/his command. The wisdom of the Government or such authorized person without any proof of mala fide in this regard cannot be challenged or substituted by the Courts of law".
13.Before parting with the case, it is liable to be observed here that the petitioners have been performing their duties as constables on contract basis since long, hence, by following the impugned advertisement dated 3-7-2012 they can also apply for the posts in question and participate in competitive examination for their induction into regular service. The concerned respondents shall receive their applications, if not already submitted, and in this regard, one week period shall be granted to the petitioners for doing needful. In case; any of the petitioners has cross the upper age limit, the necessary relaxation shall also be granted to him in the interest of justice.
14.For the reasons enlisted above, finding no substance in the instant writ petitions the same are hereby dismissed, with the above observations, with no order as to costs.
Petitions dismissed.