' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal with the leave of the Court has been addressed against the consolidated judgment of the High Court dated 12-3-2012 whereby three writ petitions have been dismissed.
2. Necessary facts forming background of the appeal are that the appellants filed Writ Petitions Nos.1742 and 1575/10, in the High Court through which they claimed that the Government of Azad Jammu and Kashmir, vide notification dated 2-9-2010 approved the shifting of 218 posts of the Azad Jammu and Kashmir Community Infrastructure Service Program (to be referred as CISP, hereinafter,) on normal budget including the employees of CISP. It is alleged by the appellants that the notification has been endorsed by the Director-General, Local Government and Rural Development Department on 22-9-2010 whereby it has been ordered that cases of the employees mentioned in the notification be referred to Public Service Commission on the basis of "one post one candidate", which is against the law and violative to the right of competition of the appellants.
It is further claimed that the posts have to be filled in on the basis of competition and merit. The case of the appellants is that they were eligible to compete against the said posts and by issuing the impugned notification, their right of competition and livelihood has been curtailed. The learned High Court, after necessary proceedings dismissed the writ petitions filed by the appellants, vide impugned judgment dated 12-3-2012, hence, the present appeal has been filed to assail the same.
3. Mr. Sadaqat Hussain Raja Advocate, the learned counsel for the appellants, after detailed discussion of facts, summarised his arguments on the points that the appellants are the State Subjects and duly qualified but they are being deprived of their fundamental right to be appointed against these posts on the basis of merit due to back-door tactics of filling the posts. It is the prevailing practice of the official respondents that to accommodate their favourites on the basis of nepotism and favouritism firstly induct them by using back door channels against some projects posts or temporary posts and after some period, the same posts are either transferred on the normal budget or declared permanent by using underhand methods. It is clear violation of the constitutionally guaranteed fundamental rights and the law on the subject. Such tactics, practically amount to defeat the spirit of law and perpetuate the practice of illegal appointments on the basis of favouritism and nepotism. He further submitted that the impugned notification dated 2nd September, 2010 is self-speaking proof of the mal practice of the respondents. The notification is self-contradictory. The first condition imposed in the notification is that all the posts shifted to normal budget shall be filled in by following duly prescribed recruitment rules. Whereas the subsequent conditions Nos.2 to 4 are totally against law and self-contradictory. For filling permanent post in civil service of Azad Jammu and Kashmir, under the constitutional provisions, law has been prescribed and the foremost requirement of the law and spirit of the constitution is to provide equal opportunity to all the eligible candidates to compete for the merit and after determination of merit through transparent competition appointments should be made. To achieve this purpose; the first requisite is the advertisement of vacant posts. Law on this point has already been thrashed out in numerous cases, especially in a famous case of civil service, titled Azad Jammu and Kashmir Government and others, v. Muhammad Younas Tahir and others reported as 1994 CLC 2339 and a latest judgment titled Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others reported as (2011 SCR 528). Therefore, it is requested that by accepting this appeal the impugned judgment of the High Court may kindly be vacated and the condition of the impugned notification dated 2-9-2010, except Condition No,1, shall be declared illegal.
4. Messrs Ch. Shoukat Aziz, the learned Additional Advocate-General, Raja Muhammad Hanif Khan and Mr. Roza Ali Khan, Advocates, the learned counsel for the respondents, defended the impugned judgment and submitted that through the impugned notification 218 posts of the Azad Jammu and Kashmir-CISP have been shifted on the normal budget whereas 38 new posts have been created for re-organization of the Local Government and Rural Development. In both the categories of these posts, the persons who are already serving, having at least 5 years' service, have to be adjusted on priority basis subject to determination of eligibility and suitability by the concerned authorities. Thus, no question of violation of law arises. The appellants have got no locus standi, hence, the appeal is not maintainable. Therefore, the same may be dismissed.
5. We have dispassionately attended the arguments of the learned counsel for the parties and also perused the record. It will be useful to reproduce the notification dated 2-9-2010 which speaks as under:--- Secretariat Local Government and Rural Development Department Azad Government of the State of Jammu and Kashmir Muzaffarabad.
' Muzaffarabad, Dated 2-9-2010 Notification ' No,/SLGRDD/113012-22/2010, The President Azad. Jammu and Kashmir has been pleased to accord the approval for
1. Shifting of the 218 post of AJK Community Infrastructure Services Program on Normal Budget (Recurring Budget) from 1st July, 2010 and regularization of those contract employees who are having at least five years' service in the subject project in accordance with the detail, conditions and method prescribed in paras 1(a) and 1(b) below.
2. Creation of 38 new posts on Normal Budget (Recurringb Budget) for re-organization of Local Government and Rural Development Department from 1st July 2010 as per detail and conditions prescribed in paras 2 (a), 2(b) 2(c) below.
1(a) Detail of AJK-CISP Staff/Posts to be transferred on regular budget {{TABLE}} S.No.Name of Post BPSNo. of posts
1. Superintending Engineer 191 2.Dy. Director M&E/MIS 181 3.Dy. Director Coordination 181 4.Executive Engineer 182 5.Assistant Engineer 1710 6.Environment Officer 172
7. Computer Programmer 171 8.Computer Operator 164 9.Community Development Officer168 10.Sub Engineer 164 11.Assistant 141 12.Data Entry Operator 1211 13.Community Organizer 1254 14.Accountant 113 15.Overseer 1141 16.Draftsman 115 17.Senior Clerk 115 18.Junior Clerk 79 19.Machine Operator 51 20.Driver 426 21.Naib Qasid 132 Total 218 rintending Engineer 19 1
2. Dy. Director M&E/MIS 18 1
3. Dy. Director Coordination 18 1
4. Executive Engineer 18 2
5. Assistant Engineer 17 10
6. Environment Officer 17 2
7. Computer Programmer 17 1
8. Computer Operator 16 4
9. Comm {{TABLE}} 1(b) Method/Conditions for Regularization AJK CISP Staff:-
(i) The Posts shall be filled in with duly Prescribed recruitment rules.
(ii) Cases of officers carrying posts BPS-16 and above who possess at least five years of service shall be referred to the Public Service Commission on the basis of "One post One Candidate" for suitability assessm ent and selection.
(iii) Cases for suitability assessm ent and se'ection of employees carrying posts of BPS-1 to BPS-15 shall be processed through respective committees already notified for selection of government employees on the basis of "One post One Candidate".
(iv) Consequent upon such transfer, CISP staff shall continue working on projects as well as normal departmental activities in order to ensure effective and efficient execution of projects.
(v) No post shall be created on development schemes in future and existing staff shall be dedicated for execution of new development schemes/activities of LG&RDD sector. Vi. Renewal of these posts would be obtained from Finance Department yearly for five years.
2(a) Detail of Posts for Divisional Directorate Poonch. {{TABLE}} S.No.Name of Post BPSNo. of posts 1 Divisional Director19 1 2.Executive Engineer18 1 3.Assistant Engineer17 1 4 Superintendent 16 1 5.Date Entry Operator12 1 6.Accountant 11 1
7. Overseer 11 2 8.Junior Clerk 7 2 9.Driver 4 3 10.Naib Qasid 1 3 11.Chowkidar 1 1 12.Sweeper 1 1 Total18 {{TABLE}} S.No.Name of Post BPSNo. of Posts Bhimber------...Sudhnooti 1 Assistant Director17Converted from project manager 2 Assistant Engineer171 1 3 Head Clerk 141 1 4 Accountant 1111 5 Overseer 1111 6 Senior Clerk 911 7 Junior Clerk 711 8 Driver 422 9 Naib Qasid 111 10 Chowkidar 111 Total10 10 {{TABLE}} 2(c ) Conditions:
(i) The Posts shall be filled under prescribed recruitment rules.
(ii) Staff of other development scheme (PC-1 projects) in the department who possess at least 05 years' service shall be adjusted on these posts on priority basis.
' Section Officer ' Local Government and Rural ' Development Department (underlining is ours)
' A minute examination of the impugned notification, reproduced hereinabove, speaks that the Government has transferred the posts of development scheme through the referred notification on the normal budget but the services of the incumbents of these posts have not been regularized rather for their regularization, some conditions have been laid down. The first condition speaks that all the post shall be filled in with duly prescribed recruitment rules whereas through subsequent conditions Nos.2 and 3, it has been laid down that the cases of the officers carrying the posts of BPS-16 and above, possessing at least 5 years' service, shall be referred to Public Service Commission on the basis of one post one candidate for suitability assessment and recruitment.
Whereas the cases of the employees of grade B-1 to B-15 shall be processed through respective committees on the principle of "one post one candidate".
6. So far condition No,1 of the referred notification is concerned, the same speaks of filling the posts according to duly prescribed recruitment rules. In the Azad Jammu and Kashmir, under the constitutional provisions, Azad Jammu and Kashmir, Civil Servants-Act, 1976 has been enforced and the rules have been made there under, in 1977, which are called as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. According to the spirit of the constitution, Civil Servant Act and the recruitment rules, all the posts in the civil service shall be filled in on merit determined by the open transparent competitive method. This Court, in several cases has interpreted and enunciated the principles governing the induction into civil services. In this regard, we may fortify through the wisdom of landmark judgment titled Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others reported as 1994 CLC 2339. According to the facts of this case, a large number of persons were inducted into service on the ad hoc basis. Among them, some were continuing for period of more than 10 years. The Azad Jammu and Kashmir legislative Assembly, made a law known as "The Azad Jammu and Kashmir Civil Servants (Regularization of Ad hoc Appointment) Act, 1992, through which ad hoc appointee's services were regularized but when the vires of this Act, were challenged and the Court tested this legislative Act on the touch stone of the constitutionally guaranteed fundamental rights, the Act, was found contrary to fundamental Right No,15 which speaks that all the state subjects are equal before law, thus, the Act was struck down. The relevant portion of this judgment speaks as under:-- - "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 upport 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) xx xx xx xx xx xx xx xx
(3) xx xx xx xx xx xx xx xx
(4) xx xx xx xx xx xx xx xx ' 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 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, 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. 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 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 licenses. Going by the plain phraseology of Right No,15 every citizen must be allowed to have a driving license 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 license. 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 licenses. 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."
' The same view is later on adopted by this Court in the case titled Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others, reported as 2011 SCR 528, wherein some ad-hoc appointees were having service of more than 15 years on their credit but to upheld the supremacy of law and spirit of merit, their permanent induction without open competition was disapproved by this Court following the dictum laid down in the above referred comprehensive judgment.
8. It is now settled that except the method of appointment on merit determined through a transparent open competition, no other method, tactic, policy or practice can be approved, therefore it can be safely held that condition No,1 imposed in this notification is quite in accordance with the spirit of law and principle of law enunciated by this Court in several cases.
9. So far the validity of Conditions Nos.2 and 3 of the notification is concerned, these conditions are .Ex facie contrary and distructive to condition No,1 imposed in the notification referred hereinabove.
It is also a celebrated principle of law that the validly enforced law cannot be defeated by any executive order or notification. If the Government, in the public interest, is of the view that some change in the law relating to service matters is necessary, it will have to follow the legal method of amending, substituting or making the law but through the executive notification, validly promulgated and enforced law's spirit cannot be allowed to be defeated.
10. Under Conditions Nos.2 and 3, the principle of "one post one candidate" has been adopted which is inconsistent with the spirit of law. We need not deliberate in, detail because this principle has already been discarded by this Court, in Tanveer Ashraf's case, reported as 2011 SCR 528. The relevant para 8 of the judgment is reproduced as under:--- "8. So far the other case ' 2009 SCR 493 is concerned, the hereinabove referred proposition has also been agreed and reaffirmed. Para 11 of the judgment speaks as following:--- "Admittedly a chain of authorities of this Court and umpteen number of judgments of the Supreme Court of Pakistan have settled the proposition of law that ad hoc appointment doesn't create any right for regular appointment and that it is a stopgap arrangement which has to continue till a regular appointment, as postulated by the Civil Servants Act, 1976 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, is made. Similarly an ad hoc appointment, as far legal position is concerned, does not confer any right whatsoever irrespective of the period of such an incumbency. The ad-hoc appointment can be made for a limited period when the post is available and the same is advertised by the Public Service Commission. If ad hoc appointments are regularized, even by the Legislative to Assembly, the piece of legislation is ultra vires the Constitution and has to be removed from the statute book. Similarly the executive Government while exercising its powers under section 22 of the Civil Servants Act, 1976, if regularizes the appointment of an ad hoc appointee or exempts the incumbent from appearing before the Public Service Commission, the notification or order so issued is to be sent to sleep forever. Thus no right can be conferred on an ad hoc appointee for regular induction without recommendations of the Public Service Commission is the law. Reference in this respect can be made to the cases reported as 1994 CLC 2339 and 1995 PLC (C.S.)
59. In addition the cases reported as 1996 PLC (C.S.) 912 and 2001 PLC (C.S.) 264 can be referred."
' However, at the end the direction has been issued in, favour of appellant Bilal, for determination of his suitability on the basis of "one man one post". In our considered opinion this direction is not even in consonance with the above stated and reaffirmed principle of law. We are constrained to hold that issuance of direction for determination of suitability on the basis of "one man one post" is not justified nor is a good principle of law, therefore, we respectfully disagree with the opinion of honourable bench to this extent."
11. As the question of the rights of persons, already inducted in service is concerned, they have themselves opted for temporary services while accepting the terms and conditions imposed in their induction orders. They have been paid for the period they served and even they have gained experience on the public exchequer's costs. Moreover, their rights are also equally protected. They have equal chance to compete in open transparent selection process and prove their merit. If they succeed in proving their merit, there will be no discrimination on the basis of their temporary appointments. Therefore, this cannot be said that their rights in any way are adversely affected.
12. So far the question of crossing upper age limits is concerned, it has already been observed by this Court that in the Azad Jammu and Kashmir, in this regard, special laws, rules dealing with the relaxation in upper age limit, i,e, (The AJ&K (Relaxation of Age Limit) Rules, 1997)" are holding the field which speak that for computation of upper age limit, the period of ad hoc continuous service rendered, shall be counted. Therefore, the apprehension of the inducted persons that they may be deprived of the service due to crossing the upper age limit is without any substance.
13. A perusal of the impugned judgment reveals that the learned High Court, while disposing of writ petitions, has taken impression from the case titled Azad Government and others v. Ghulam Mustafa Abbasi and others Civil Appeal No,91 of 2009, decided on 16-7-2010. In this case, the question of permanent induction of the incumbent civil servants was neither raised nor decided by this Court. In fact, in this case, notification dated 27-10-2001 was challenged in the High Court through which the notification of shifting the posts was cancelled. The High Court had declared the notification challenged therein as without lawful authority and restored the previous notification dated 18-7-2000 for shifting the posts on normal budget. The Government filed appeal against this judgment and during appeal, it was brought into the notice of the ' Court that the posts have been shifted to normal budget and the judgment of the High Court has been implemented, thus, the appeal was disposed of: Therefore, in that case, neither the question of permanent induction was raised nor it was discussed and decided, thus, it can safely be held that the dismissal of the writ petitions of the appellants by the High Court in the light of hereinabove discussion was not justified.
In view of the detailed reasons discussed hereinabove, we are constrained to accept this appeal set aside the impugned judgment of the High Court and consequently declare that Conditions Nos.2 and 3 of the impugned notification dated 2-9-2010 illegal, contrary to Condition No,1 and the law in forced in the Azad Jammu and Kashmir, therefore, are of no legal effect. The respondents shall fill the posts according to spirit of law enforced and Condition No,1 (b) (i) of the impugned notification. This appeal stands disposed of. No order as to costs.