1. ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this writ petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, petitioners, herein, seek a direction to the respondents to amend the Azad Jammu and Kashmir Tehsildar and Naib Tehsildar Service Rules, 1991. They have also challenged the legality and propriety of the order dated 20-2-2012.
2. Facts shortly stated are that the Azad Jammu and Kashmir Public Service Commission advertised some posts including Naib Tehsildar B-14 as per requisition of the Azad Jammu and Kashmir Board of Revenue vide advertised No,2/2010. Petitioners, herein, competed for appointment against the posts of their respective unit and were recommended by the Public Service Commission vide handout dated 11-1-2012. It is further alleged that the Board of Revenue has not issued appointment orders of the petitioners in light of the handout of the Public Service Commission rather vide order dated 20-2-2012 the selectees were deputed for training for a period of one year in Revenue Academy Muzaffarabad. It is stated in the above mentioned order that the selectees have to complete the training at their own expenses and thereafter they shall be appointed against available posts. The case of the petitioners is that the action of the Board of Revenue is contrary to law because vacant posts of Naib Tehsildar were referred to the Public Service Commission and after the test and interview, they have been selected, therefore, it was enjoined upon the' Board of Revenue firstly to appoint the petitioners in light of the recommendations against their respective quota and thereafter depute them for training on Government expanses as the same practice is adopted by the Board of Revenue for appointment for ACs. The non-issuance of appointment orders and non-payment of salaries to the petitioners, herein, is arbitrary, discriminatory and unjust act of the respondents. It is submitted that the Board of Revenue has requisitioned the vacant posts against the quota of different units and the Public Service Commission has selected the candidates after test and interview, therefore, Board of Revenue cannot take an inconsistent position saying that the petitioners shall obtain training at their own expanses thereafter their appointments against the quota shall be made.
3. ' Respondents have contested the .Petition by filing written statement. It is admitted in the written statement that petitioners have been selected/recommended by the Public Service Commission as Naib Tehsildar in view of the merit list appended with the written statement. It is pleaded that under the Azad Jammu and Kashmir Patwari, Qanoongo, Tehsildar and Naib Tehsildar Service Rules, 1991 the recommended candidates have to undergo the departmental training for a period of one year and after completion of training they will be eligible for appointment. They further pleaded that this practice is existing since the time of pre-partition and without following the above procedure petitioners cannot be appointed.
4. ' Barrister Humayun Nawaz Khan, the learned counsel for the petitioners inter alia argued that petitioners have been selected against vacant posts by the Public Service Commission on the requisitions sent by the Board of Revenue. He further argued that once they have been selected they have a right to be appointed on regular basis as has been done in the case of other civil servants including the Revenue Department. The learned counsel contended that earlier the candidates for Naib Tehsildar were approved by the departmental authority, therefore, they deputed for training at their own expenses and after completion of the training they were to be selected against the quota by the Departmental Authority whereas in ' the present case before sending the requisitions to the Public Service Commission the ambiguity in the rules, if any,as liable to be removed. The learned counsel submitted that petitioners cannot be penalized for the fault of the respondents. He contended that petitioners are being discriminated in garb of rules and previous practice which has no legal sanctity.
5. ' Ch. Shaukat Aziz, the learned Additional Advocate-General contended that petitioners have appeared in the test and interview in light of conditions of the advertisement which has been issued as per departmental rules, therefore, after accepting the same they cannot be allowed to come with volta-face by taking an inconsistent position. The learned Advocate further contended that departmental practice is continuously followed so for appointments of Naib Tehsildars are concerned and rule has the force of law and that cannot be nullified mere on aspiration of the petitioneRs, He submitted that completion of the departmental training is sine-qua-non for appointment of the petitioneRs, The learned Advocate alleged that every department has its own rules which have been framed under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 and the petitioners are not similarly placed because their service is not regulated by such rules. He further submitted that petition has been filed with unclean hands and for ulterior motives, therefore, the same may be dismissed.
6. 'I have heard the learned counsel for the parties and gone through the record of the case.
7. ' The service of the Naib Tehsildars is regulated by the Rules known as the Azad Jammu and Kashmir Revenue Department Tehsildar and Naib Tehsildar Service Rules, 1991 issued vide notification dated 23-11-1991. Previously 50% posts of Naib Tehsildar were to be filled in through initial recruitment out of approved candidates of Naib Tehsildar selected on the basis of competitive examination in accordance with their order of merit and who have successfully completed training prescribed by Board of Revenue. This schedule has been amended vide Notification No,S&GAD/A-4(297)/08 dated 4-3-2010 and the quota for different categories has been rescheduled and 43.50% quota has been reserved for initial recruitment. It was approved that the appointments shall be made on the basis of competitive examination to be conducted by the Public Service Commission. In light of the above amended rules the requisitions were sent by the authority and the advertisement No,2/10 was issued by the Public Service Commission whereby various posts of Naib Tehsildar have been advertised against the quota of different units. No condition is listed in the advertisement that selection will not confer any right on the petitioners despite recommending them and they will be appointed after completion of the departmental training that too, in case of availability of the posts. The order dated 20-2-2012 passed by the Senior Member Board of Revenue is in contravention of the notification dated 4-3-2010 referred to hereinabove. The Public Service Commission has conducted the test and interview against the permanent vacancies. Where the legislature has intended that before the permanent appointment the candidates shall be selected for the training then their appointments cannot be deferred till the completion of the training. The Rules pertaining to the Forest Department for appointment of ACF and Range Officer can be referred to in support of the aforesaid fact. As the petitioners have been recommended by the Public Service Commission permanently against the declared vacant posts, therefore, they are liable to be appointed as such by the competent authority. Thereafter, they should have been be deputed for training and if the training is not completed by a candidate then his confirmation can be refused. Similar practice is B adopted in other departments including Revenue Department. The Assistant Commissions were appointed against vacant posts and their formal orders are issued and thereafter, they were deputed for training. So is the case of the appointment of ASPs etc. And the other relied examples. The practice relied upon by the respondents is not supported by the statutory provision and after the amendment in the rules no such a practice can be adopted because only those posts would be referred to the Public Service Commission for appointment which are vacant and available against the quota mentioned in column 8 of the relevant rules. The action of the respondents is therefore, violate of the rule of equality before law and equal protection of law and discriminatory. Moreover, if any amendment is required that can be proposed by the department. TENo one can be penalized for the fault of an executive authority, who has to perform function in accordance with the rules. If the conditions of requisition would have been incorporated in the advertisement then the position would otherwise. is well-settled that, a party cannot be penalized for the act of the authority. (PLDI 1994 Lah. 3).
8. In view of above, the petition is accepted and the respondents D are directed to issue formal notification of the appointment of the petitioners and thereafter, they shall be deputed for training.