' 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 both the captioned writ petitions, therefore, I proposed to decide the same through this single judgment.
3. Precise facts giving rise to Writ Petition No,267 of 2013 are that petitioners are permanent employees of Azad Jammu and Kashmir Government Revenue Department and rendering their services on officiating basis as Naib Tehsildar B-14, who were appointed firstly on current charge and then on officiating basis vide orders dated 14-10-2010, 10-2-2012 and 15-1-2013 respectively. It is alleged that petitioners are eligible for regular promotion as Naib Tehsildar B-14 against allocated promotion quota in accordance with prescribed rules. It is further stated that official respondents failed to send the case of petitioners for regular promotion to relevant selection authority and instead the said respondents have determined to revert them to their parent posts for mala fide reasons, hence, they constrained to file the instant constitutional petition.
4. The official and private respondents contested the writ petition through detailed written statements, wherein, it is stated that there were 24 posts of Naib Tehsildar pertaining to quota of Poonch Division, out of which, only 9.12 were falling against allocated, 38% quota of promotion, however, 15 Gardawars were promoted out of whom 8 were promoted on regular basis 6 on officiating while 1 on current charge basis. It is further stated that against 12% reserved quota of Ministerial Staff, there were only 3 posts allocated for the above quota, however, 7 clerks were promoted as Naib Tehsildar, out of whom, 4 on permanent basis, 2 on officiating and 1 on current charge basis. The private respondents further added in written statement that in fact initially petitioners were appointed as Naib Tehsildar B-14 on current charge basis against the quota reserved for initial recruitment which orders were not placed by them on record for mala fide reasons and later on they obtained orders of officiating promotion in connivance with the Department. It is claimed that even' on the basis of documents relied upon by the petitioners, the promotion quota was already overflowed, therefore, solicited relief cannot be granted to petitioners and prayed for dismissal of writ petition.
5. , Precise facts forming background of Writ Petition No,310 of 2013 are that petitioners are permanent employees of Azad Jammu and Kashmir Government Revenue Department and rendering their services as Naib Tehsildar B-14, on officiating basis in their parent Department. It is claimed that they were promoted against 12% allocated quota of Ministerial Staff, who were firstly promoted as such on current charge basis and thereafter on officiating basis through order dated 14-2-2012. It is averred that petitioners have already passed one year revenue training course of Naib Tehsildar and have also passed departmental examination. It is alleged that petitioners are eligible for regular promotion as Naib Tehsildar against 12% quota of Ministerial Staff, however, respondents failed to place their matter before the concerned selection authority for promotion, hence, they constrained to file the instant petition.
6. The official and private respondents controverted the contents of writ petition through detailed separate written statements. It is stated by respondents that according to Departmental Statutory Rules, only 12% quota is allocated for Ministerial Staff, on the basis of which out of 24 posts only 3 were falling against quota supra, however, 7 clerks were already promoted as Naib Tehsildar, out of whom, 4 on regular basis, 2 on officiating and 1 on current charge basis, hence, their quota has already been overflowed. The contents of writ petition as a whole have also been controverted by the respondents.
7. Syed Nazir Hussain Shah Kazmi, the learned counsel for petitioners, while reiterating the grounds of writ petitions submitted that out of 80 posts of Naib Tehsildar, 24 posts were falling against quota of Poonch Division, out of which only 12 were falling against the quota of initial recruitment, however, the official respondents have appointed 19 candidates through initial recruitment by violating Statutory Rules. The learned counsel pressed into service that as petitioners are holding the posts of Naib Tehsildar against promotion quota, hence, it was enjoined upon the official respondents to send their cases for regular promotion to the concerned selection committee in accordance with rules. The learned counsel while referring report of committee appointed by Senior Member Board of Revenue vide order dated 8-5-2012 submitted that quota of promotion has been violated, hence, prayed for issuance of solicited writ. The learned counsel for petitioners, however, on Court query admitted that all the petitioners were promoted on officiating basis as incumbents of the disputed posts were promoted as Tehsildar B.16 on officiating basis.
8. Ch. Shaukat Aziz, the learned Additional Advocate-General, while controverting arguments of the learned counsel for petitioners submitted that all the petitioners were promoted firstly on current charge basis against quota reserved for initial recruitment and then on officiating basis through different orders, however as visualized by section 11 of the Azad Jammu and Kashmir Civil Servants Act, 1976 an officiating promotee can be reverted without any notice at any time. The learned Additional Advocate-General further submitted that against 9 posts of Naib Tehsildars, 15 Gardawars were promoted; therefore, quota of Gardawars was already overflowed. The learned Additional Advocate-General further submitted that against 12% allocated quoted of Ministerial Staff only 3 posts were available; however, 7 clerks were promoted, hence, craved for dismissal of writ petition.
9. Barrister Humayun Nawaz Khan, the learned counsel for private respondents, owned the arguments of the learned Additional Advocate-General and added that private respondents were selectees of Public Service Commission and after completion of training they were appointed/adjusted against the disputed posts, however, petitioners for mala fide reasons filed the instant writ petitions and obtained stay order due to which, the said respondents are suffering mental agony and irreparable loss. The learned counsel further added that regular appointment orders of private respondents were not challenged by the petitioners before any forum which got finality under law, whose quota was already overflowed, hence, submitted for dismissal of writ petitions.
10. After hearing the learned counsel for parties at great length, I have perused the contents of writ petitions examined the appended record and have given my earnest thought to the points raised by the learned counsel for parties.
11. According to the Azad Jammu and Kashmir Revenue Department, Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service Rules, 1991 50% quota pertaining to posts of Naib Tehsildar B-14 is allocated for initial recruitment which shall be made on recommendation of the Azad Jammu and Kashmir Public Service Commission as per District quota and order of merit on the basis of training, prescribed and departmental examination rules as enforced in Punjab. However, 38% quota is reserved for Qanoongos with minimum 6 years' service as such out of which at least 2 years' service as field Qanoongo while 12% quota is fixed for Ministerial Staff of the Revenue, Rehabilitation and Stamp Departments with at least 5 years working experience of. Revenue work, as specified by Board of Revenue. The petitioners Zulifqar Ahmed, Abdul Rasheed, Muhammad Fiaz and Muhammad Ashraf pertained to 38% quota of Qanoongos while petitioners Muhammad Ajaz Khan and Khalil Ahmed Chughtai related to 12% quota of Ministerial Staff. The petitioners have solicited writ of mandamus for their confirmation as Naib Tehsildar B-14 against quota supra. The official and private respondents submitted that against 38% quota of Qanoongos out of 24 posts of Naib Tehsildar only 9.12 posts were falling against the said quota, however, 15 Qanoongo were promoted out of whom 7 on permanent basis, 6 on officiating and 1 on current charge basis. The claim of respondents further is that against Ministerial quota, out of 24 posts only 3 posts were available, however, 7 clerks, out of whom 4 on permanent basis 2 on officiating and 1 on current charge basis were already promoted. The above mentioned assertion of respondents could not be repudiated by the petitioners through any reliable record. The learned counsel for petitioners, in support of his contention relied upon report of committee appended as (Annexure PC/1) along with replication. A perusal of the above report reveals that departmental quota of Qanoongos has already been overflowed to the extent of 0.3%, while that of Ministerial Staff 4.2%, therefore, on the basis of document referred to and relied upon by the petitioners their claim has been negated that disputed posts pertain to quota of Qanoongos and Ministerial Staff.
12. A perusal of current charge appointment orders dated 21-12-2009, 25-6-2010 and 12-4-2011 of petitioners Zulifqar Ahmed, Abdul Rasheed and Muhammad Fiaz reveals that they were appointed as Naib Tehsildar against quota allocated for initial recruitment while petitioner Muhammad Ashraf was appointed as a stop-gap-arrangement not against promotion quota, purely on temporary basis. The appointment orders of petitioners Muhammad Ajaz Khan and Khalil Ahmed Chughtai were also issued purely on temporary basis as a stopgap- arrangement and not against the quota of Ministerial Staff, on 21-10-2011 and 28-1-2011 respectively. The above mentioned orders were not placed by them on record which were produced by the private respondents through written statement, therefore, the petitioners have not invoked jurisdiction of this court with clean hands. It is settled principle of law that the constitutional jurisdiction is discretionary in a character, he who seeks equity must come to the Court with clean hands. An identical point was considered by the Lahore High Court in case of Iqtedar Hyder v. Bank of Punjab through its Chairman and another (2001 M LD 1537). At page 929 of the report it was held as under:- "It is also settled principle of law that he who seeks equity must come to the court with clean hands. It is pertinent to mention here that decree was passed against petitioner on 12-9-1998 and petitioner did not agitate the same before this Court by way of appeal nor filed any objection petition before the executing Court. In this view of the matter I am not inclined to exercise my discretion in favour of petitioner".
' Similarly in case of Amanullah Khan and others v. Lahore Development Authority and others (2004 YLR 1038). At page 483 it was held as follows:--- "It is also settled principle of law that the Constitutional jurisdiction is discretionary in a character, he who seeks equity, must come to the Court with clean hands. The respondents have granted three extensions to the petitioners but the petitioners did not avail the same, therefore, the petitioners did not approach this Court with clean hands. In this view of the matter, I am not inclined to exercise my discretion in favour of the petitioner".
13. A contemplate perusal of officiating promotion of petitioner Zulfiqar Ahmed and others dated 14-10-2010, 10-2-2012 and 15-1-2013 reveals that they were promoted on officiating basis as Naib Tehsildar B-14 due to promotion of its incumbents as Tehsildar B-16 on officiating basis. Similarly, petitioners Muhammad Ajaz Khan and others were also promoted due to officiating promotion of Naib Tehsildar B.14 as Tehsildar B-16 vide order dated 14-2-2012. The learned counsel for petitioners when confronted with the above mentioned orders, he frankly conceded that all petitioners were promoted on officiating basis as Naib Tehsildar B-14 due to promotion of incumbents of the posts as Tehsildar B-16 on officiating basis. As the posts of Naib Tehsildar B-14 occupied by the petitioners are not available on permanent basis as its incumbents were promoted on officiating basis as Tehsildar B-16 as a stop-gap arrangement, therefore, direction in the nature of mandamus to promote the petitioners on regular basis as Naib Tehsildar B-14 cannot be issued under law as such.
14. An appointment by promotion on officiating basis can be made by the competent authority under Rule 13 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which is reproduced as under:- "Appointment by promotion on officiating basis.--- (1) Where a post falls vacant as a result of deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the rules to be filled by transfer, the appointing authority may make appointment by promotion against such post on officiating basis.
(2) No person shall be promoted on officiating basis unless he possesses the qualification and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate Selection Authority.
(3) An Officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(4) Officiating promotion shall be made on the same terms and conditions as to pay as are prescribed for regular appointment by promotion".
15. It is evident from sub-rule (1) of Rule 13 of the Azad Jammur and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 that officiating appointment could only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of the regular incumbent or is reserved under the rules to be filled by transfer. According to sub-rule (3) of Rule 13 supra the officiating promotion would not confer any right of promotion on regular basis and the same is liable to be terminated as soon as a person become available for promotion on regular basis. As statutory law does not confer any right for regular promotion on the basis of officiating promotion, therefore, the petitioners are not entitled for solicited relief. The same point was considered by the Hon'ble Supreme Court in case titled Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and others (2000 PLC (C.S.) 247). At page 101 of the report it was held as follows:--- "The next question pertains to condition of officiating appointments. It is evident from sub-rule (1) of Rule 13 of Rules that officiating appointment can only be made if the post falls vacant as a result of deputation, leave or appointment on acting charge basis of a regular incumbent or is reserved under the rules to be filled by transfer. In the present case it is nobody's case that the post against which 17 persons were promoted on officiating basis fell vacant due to any of the aforesaid eventualities. Rather the said posts appear to have been reserved for direct recruitment.
If the posts fell vacant due to retirement of previous incumbents or the same were newly created, the same could not be filled in on officiating basis under rule 13(1); similarly under sub-rule (3) of Rule 13, the officiating promotion would not confer any right of promotion on regular basis and same is liable to be terminated as soon as a person becomes available for promotion on regular basis. Therefore, it cannot be said that officiating promotion of some of the respondents was envisaged under rules or same could be made basis for giving ante-dated promotion to the said incumbents".
16. According to section 11 of the Azad Jammu and Kashmir Civil Servants Act, 1976 a civil servant appointed to a higher post or grade on ad hoc or officiating basis shall be liable to reversion to his lower grade and post without notice. As all the petitioners were admittedly promoted on officiating basis through different orders, therefore, for their reversion even no notice is required to be served upon them under law.
17. The private respondents are selectees of Public Service Commission, who were appointed on the basis of direction of this Court issued in case titled Muhammad Zahid and 29 others v. Azad Government and 6 others decided on 11-7-2012. It is claimed by the said respondents that they after completing training were adjusted against disputed posts, however, the petitioners for mala fide reasons, have filed the instant writ petitions. The learned counsel for petitioners admitted the appointment of interveners- respondents, however, his contention was that according to Statutory Rules, appointing authority of private respondents was Commissioner; however, they were appointed by the Board of Revenue. As thepetitioners failed to challenge the appointment orders of private respondents which got finality under law, therefore, the point is of merely academic nature which needs not to be attended and left open to be decided in any other case.
18. The nub of above discussion is that finding no substance in the instant writ petitions, the same are hereby dismissed with costs. Consequently stay order granted on 28-2-2013 and 5-3-2013 is hereby recalled.