' 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.
2. Precise facts giving rise to the instant writ petition are that the petitioner is Assistant in Prime Minister Secretariat and claimed himself to be an elected President of Central non-gazette civil servants (Regd.) Association. It is stated that' in light of summaries of different committees, respondent No,2 on 29-7-2011 put forward a comprehensive summary regarding temporary and contract employees for their induction on permanent basis, which stood forward to the Prime Minister of Azad Government of the State of Jammu & Kashmir for approval and same was accorded on 25-8-2011. It is averred that the respondents were duty bound to issue notification on the basis of the above approval. It is 'stated that vis-a-vis to the said approval of the Prime Minister dated 25-8-2011, the respondents advertised certain posts for induction on permanent basis through the impugned proclamations dated 1-1-2012. Against the said proclamations the petitioner was constrained to file the instant writ petition on 16-1-2012.
2. A pre admission notice was issued to the respondents for filing parawise comments who duly filed the same on 18-1-2012, wherein it is stated that on the basis of a consolidated judgment of.
This Court dated 8-8-2011, the posts in question were advertised through the impugned proclamations dated 1-1-2012. It is claimed that the concerned employees were appointed on temporary/contract basis that cannot be confirmed against the disputed posts without adopting due process of law. It is averred that the petitioner is President of nongazetted permanent employees who is not aggrieved from the impugned advertisements.
4. The learned counsel for the petitioner, Mr. Mushtaq. Ahmed Janjua, Advocate, vehemently argued that it was binding obligation of the respondents to notify the order of the, Prime Minister dated 25-8-2011. The learned counsel pressed into service that the respondents have appointed various persons by relaxing Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules 1977, therefore, necessary direction for issuance of notification in the light of approval of the Prime Minister dated 25-8-2011 regarding appointment of temporary/contract employees without advertisement and selection process may be issued. The learned counsel further submitted that advertisements promulgated on the basis of consolidated judgment of this Court dated 8-8-2011 against which few concerned temporary/ contract employees filed petitions for leave to appeal before the apex Court which were dismissed in default and then restored, hence, by issuing the impugned advertisements the respondents violated order of the apex Court.
5. The learned counsel for the respondents, Ch. Shoukat Aziz Additional Advocate-General submitted that the petitioner is not falling in the definition of an aggrieved party by any stretch of imagination; therefore, the instant writ petition is liable to be dismissed on this short score. The learned counsel pressed into. Service that the impugned proclamations were issued by the respondents on the basis of consolidated judgment of this Court dated 8-8-2011, hence, again writ petition on the part of the petitioner as a probing public pertaining to cause of the same employees is against the earlier judgment, hence, the instant writ petition is not maintainable. He further emphasized that the petitioner has not invoked jurisdiction of this Court with clean hands who is not entitled to any relief, hence, writ petition inlay be dismissed in liming.
6. After hearing the learned counsel for the parties at length, I have perused the contents of writ petition along with appended documents minutely.
7. A contemplate perusal of the impugned proclamations dated 1-1-2012 reveals that on the basis of consolidated judgment of this Court dated 8-8-2011, the posts were advertised by respondent No,2 so that the same may be filled in after adapting due process of law. For the purpose of induction into regular service the law is well-settled and in this regard an illuminating latest precedent of the. Apex Court titled Mst. Tanveer Ashraf and 25 others v. Azad Government and 2 others [2011 SCR 528] is crystal clear wherein at page 535 it was held 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, 1'976 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, no 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 SCR 341, wherein it has been observed:--- ' It seems necessary to first advert to the argument of Mr. S.M. Zafar that Right No,15 (equality before law) is not applicable to entry into Government Service and that the only fundamental right applicable is Right No,17. This argument has no force and must be repelled. The Constitution has to be treated, in accordance with all pronouncements of superior Courts, as one organic whole and must be harmoniously construed. In this connection I may refer to Azad Government of the State of AJ&.K v. Kashmir Timber Corporation [PLD 1978 SC (AJ&K) 42} in which it was observed that:- "Besides these he 'has also referred to Maxwell and Crawford which support the broad principle of interpretation. From these authorities the following principles of interpretation of statutes emerge:- -- {{TABLE}} (1)that a Constitutional instrument should be read as a whole and its provisions construed harmoniously; (2)xxxxxxxxxxxxxxxxxxxx (3)xxxxxxxxxxxxxxxxxxxx (4)xxxxxxxxxxxxxxxxxxxx {{TABLE}} ' 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 in consistency. 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 lie 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 person belonging to a particular ideology or political creed may be deprived of liberty under a harsher law than the otheRs, Similar is the case of other rights for instance freedom of speech, movement, assembly, association, trade etc. ' If Right No,17 is alone applicable then discrimination on the basis of place of birth, parentage and many other considerations would become valid. In that case it would be possible to make laws, for instance, that judicial service in Azad Jammu and Kashmir will be reserved for sons of serving or.
Retired Judges or those 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 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."
8. The perusal of writ petition also reveals that the petitioner is not an aggrieved party within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 as neither any of his right was violated nor threatened. The above point was considered by the apex Court in case titled Raja Iqbal Rashid Minhas v. Azad Jammu and Kashmir Council and 3 others PLD 2002 SC (AJ&K)
1. At page 540 of the report, it was held as under:-- "It . May also be pointed out that there is a wide difference between a writ of certiorari and a writ of habeas corpus or a writ of quo warrant. Except the writ of habeas corpus and the writ of quo warranto which can be invoked by any person, the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is one in a writ of prohibition whose rights are threatened, in Writ of mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here in' strict juristic sense. It is sufficient if the person alleging to be "an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the lobs of softie personal advantage. A party who stands to lose or gain an advantage by observance or nonobservance of law is an aggrieved party. ,A 'person. Aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petition or an appeal in this Court against the impugned judgment of the High Court." #TBS of the #TBE ' Similar point came under consideration before the Lahore High Court in case titled Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan [PLD 1964 (W.P.) Lahore 138]. At page 142 of the precedent case, it was laid down as follows:--- "No authority was cited before us by the learned counsel for the petitioners contending for the opposite .View, but it was argued by them that, the petitioner-association was a party aggrieved within:the meaning of Article 98 of the Constitution for various reasons: It was said that the association is an "aggrieved- party" because it enjoys a consultative status for operating the Ordinance, and that the sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party 'who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected' his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence-to lodge either the writ petition or an appeal in this 'Court against the impugned judgment of the High Court."
' Similar point came under consideration before the ,Lahore High Court in case titled Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan [PLD 1964 (W.P.) Lahore 138]. At page 142 precedent case, it was laid down as follows:--- ' No authority was cited before_ us by the learned counsel for the petitioners contending for the opposite view, but it was argued by them that the petitioner-association was a party aggrieved within the meaning of Article 98 of the Constitution for various reasons. It was said that the association is an "aggrieved party" because; it., enjoys a consultative, status for operating the Ordinance,- and that the grievance made in the petition is that in the process of setting up of the Minimum Wages Board and the recommendations made by the Board, there has been a departure from the provisions of- the Ordinance. An, added strength was given to this contention by the fact that there was no other association representing the Steel Mills Owners and that the petitioner- association was a registered body under the Trade Organization Ordinance of 1961. We consider that none of these considerations confers on the association the character of an "aggrieved .Party" within the meaning of Article 98 of the Constitution, as, the grievance complained of must in its effect entail a direct injury to the petitioner to make it an aggrieved party, and the injury has to be co-related to the relief sought in the petition to avoid that injury. In writ jurisdiction, reliefs-claimed have to be construed and granted in terms of the prayers made in the petition See Pakistan v. Ali Afzal (2) and the Courts are not called upon merely to decide metaphysical questions of law without reference to the relief which is sought in the petition. In the present case, the petition under Article 98, according to the subject heading, is directed against the respondent for an order to withdraw and cancel and treat as of no valid effect the minimum rates of wages recommended by the West Pakistan Minimum Wages Board, as published in West Pakistan Gazette dated the 15th of March 1963 under section 6(1) of the Ordinance and at the end the same prayer is repeated that the Court on .Being of the opinion that the respondent had acted in excess of its authority conferred on it by law may be pleased to issue an order directing the cancellation of the aforesaid Notification. It is obvious that the notification in question, laying down the minimum wages for the workers in the Schedule appended to it does not at all affect the interests of the petitioner association as such to make it an "aggrieved party" for the purpose of making a writ petition. The Association does not have to pay the wages to workers and it cannot make a grievance of that fact--that the wages have not been legally fixed. It is the individual members, i,e,, the owners of the different Steel Re- rolling Mills that have to foot the bill, of the increased wages, as ordained in the notification, and it is they who are individually in various degrees affected by the notification. In this situation, respectfully agreeing with the view expressed in the authorities noted above, we are constrained to hold .That this petition is not competent, as the 'petitioner-association by itself, apart from its individual members, is not at all directly affected with the practical outcome of the impugned notification:"
9. The contention of the learned counsel for .The petitioner that order of the apex Court was violated by the respondents, therefore, the petitioner being President of non-gazetted employees Association could invoke jurisdiction of this Court, is misconceived as in case of any violation of command of the Hon'ble supreme Court the concerned petitioners/appellants can move the esteemed Court and not the present petitioner that too through fresh writ petition as a probing public about a cause which was already decided by this Court. Even if it is presumed that approval of the Prime Minister dated 25-8-2011 was granted on move of the petitioner regarding permanent adjustment of contract temporary employees even then he cannot be considered as an aggrieved person for issuance of writ of certiorari for simple reason that he was neither candidate or applied nor hold any of the disputed posts on contract or temporary basis duly advertised through the impugned proclamations.
10. The petitioner himself claimed to be a President of non-gazetted permanent employees/civil servants Association. The contract/temporary employees are neither permanent nor civil servants; therefore, he has got no locus standi to file the instant writ petition even from this angle which looks to be frivolous one, in the given eventualities. The sequel of the above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed in limine.