The captioned writ petitions have been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the instant writ petitions, therefore, I proposed to decide the same through this single judgment.
3. The brief facts of Writ Petition No. 749/2013 are that, inter alia, one post of junior Agriculture Teacher B-09, pertaining to constituency No. 1 poonch, was advertised by Director Schools Technical, Respondent No. 2 in "Daily Jammu & Kashmir" through corrigendum advertisement dated 17.11.2010. The petitioner Asad Qayyum being qualified as Matric with three years diploma in Agriculture applied for the same. After obtaining test and interview a merit list was prepared by the concerned Selection Committee who was placed at Serial No 1 in the said list. The private respondent Muhammad Nawaz, being qualified as M.A., B. Ed. Applied against three advertised posts of Junior Science Teachers, published in "Daily Jammu & Kashmir" dated 24.6.2008. He was placed at Serial No. 3 of merit list and on recommendation of Selection Committee was appointed as Junior Science Teacher, in High School, Tahai, vide order dated 16.10.2008. As there was no vacant post, hence, the said respondent was not allowed joining, who was later on temporarily adjusted against the post of Junior Agriculture Teacher, in High School, Sehra, vide order dated 17.1.2009. The post of Junior Science Teacher, against which respondent Muhammad Nawaz, was appointed, however, advertised in "Daily Ausaf' dated 7.12.2010. He filed writ petition against the above advertisement and also solicited relief that from the post of Junior Agriculture Teacher where he was temporarily appointed be not disturbed. The petitioner Asad Qayyum, filed an application for impleading him party in the writ petition, however, he was allowed to file an independent writ vide order of this Court dated 20.5.2013. During pendency of the above writ petition, Respondent No. 1 placed an order on record dated 17.05.2013, whereby Muhammad Nawaz Respondent No. 4 was adjusted permanently while converting the disputed post of junior Agrotec into junior Science Teacher, hence, petitioner Asad Qayyum, has filed the instant writ petition for quashment of order supra who also solicited direction for his appointment against the said post on the basis of merit.
4. The official respondents after admission Writ petition were directed to file written statement, however, despite se ice they failed to file the same, therefore, were proceeded ex-parte vide order dated 28,10,2013. The writ petition has been contested by private respondent No. 4 Muhammad Nawaz through written statement dated 28.10.2013. The facts of the above respondent's written statement and his writ petition are same, therefore, are jointly reproduced in Paragraph herein below for the sake of brevity
5. The summary of Writ Petition No. 1480/2013 is that Muhammad Nawaz, petitioner is first class State Subject of Azad Jammu & Kashmir hails from District poonch. He was appointed after due process of law as junior Science Teacher B-9, on recommendation of respective selection committee in. Government Boys High School Tahai, vide order dated 16.10.2008, which was not implemented due to non-availability of post, hence he was adjusted against a vacant post of junior Agriculture Teacher, in Government Boys High School Sehra, vide order dated 17.01.2009. A writ petition was filed by him before this Court for his adjustment against the post of junior Science Teacher, however, as Government re-designated the posts of junior and Senior Technical teachers as junior and Senior Science teachers vide notification dated 30.08.2013 and he was adjusted on permanent basis in Government Boys High School, Sehra, vide order dated 17.05.20.13, hence, an application for withdrawal of writ petition was moved, which was consigned to record as withdrawn vide order dated 20.05.2013. It is alleged that the official respondents have determined to cancel adjustment order of petitioner dated 17.05.2013, hence, the instant writ petition has been filed for protection of the said order.
6. As the case of Muhammad Nawaz, petitioner for protection of order dated 17.05.2013, is same which he defended in case of Asad Qayum, therefore the instant writ petition was taken for preliminary arguments along with the ease of Asad Qayum, which was already ripe for final arguments.
7. The learned counsel for parties pleaded the case according to their respective pleadings.
8. A contemplate perusal of record reveals that, inter alia, one post of junior Technical Teacher, was advertised against allocated quota of Constituency No. 1 of District poonch, through "Daily Jammu & Kashmir" dated 17.11.2010. The petitioner Asad Qayum being qualified as Matric with 3 years diploma in Agriculture applied for the same and after obtaining test and interview, was placed at Serial No. 1 of the merit list dated 30.12.2010. However, private respondent Muhammad Nawaz on the basis of advertising three posts of junior Science Teachers through proclamation dated 24.06.2008. applied and after obtaining test/interview was placed at Serial No. 3 of the merit list and consequently was appointed on recommendation of respective Selection Committee as junior Science Teacher, vide order dated 16.10.2008. He was posted in High School Tahai, who submitted his joining report on 25.10.2008, however, due to non-availability of the post he was not allowed joining in the said school. He was then posted in High School, khli Dharamen, instead of High School,- Tahai, where he was again declined joining due to non-availability of the post. It appears that later on he was adjusted as a stop-gap-arrangement as junior Agriculture Teacher in High School, Sehra, vide order dated 17.01.2009. Meanwhile, amongst others the vacant posts of junior and Senior Technical Teachers were re-designated as Junior and Senior Science Teachers vide notification dated 30.8.2011. The private respondent Muhammad Nawaz, who was selected for the post of Junior Science Teacher on the basis of notification supra, while declaring the disputed post of Junior Agrotec Teacher, as Junior Science Teacher, was adjusted on permanent basis vide impugned order dated 17.5.2013. However, as disputed post of Junior Agrotec Teacher was already advertised on 17.11.2010 and after obtaining test and interview Asad Qayum, petitioner topped in the merit list, hence, a legal right has been accrued in his favour who cannot be deprived of his vested right of appointment under law. An identical point came under consideration before the apex Court in case titled Nasreen Akhtar & 3 others v. Sameena Bilqees & 3 others (2006 SCR 312), wherein at page 320 of the report it was held as under:-- "So far as the appellants Nasreen Akhtar and others are concerned, it is an admitted fact that they- appeared in the light of advertisement dated 25.7.2004 before the Selection Committee and passed the test and interview. Under law they are entitled to be appointed against the vacant posts for which they contested. Even otherwise they were not party before the High Court and the judgment under challenge has been passed at their back. The Education Department should have issued their appointment orders in the light of merit list but unfortunately they were dragged in the litigation which is the fault on part of officials of Education Department. Even otherwise only the notice dated 02.08.2004 was challenged by Sameena Bilqees in the High Court and the learned judge of the High Court only declared the notice as being illegal and without jurisdiction, whereas the appellants Nasreen Akhtaj and others appeared for test and interview before the Selection Committee in the light of advertisement dated 25.07.2006 and passed the same. The respondent Sameena Bilqees did not challenge the aforesaid advertisement. She only challenged the notice dated 02.08.2004 and the learned judge of the High Court. only declared the notice as without lawful authority, therefore, the judgment of the High Court was not binding on the appellants. As the appellants Nasreen Akhtar and others have secured positions in the merit list, therefore, a right has accrued in their favour 'and they cannot be deprived of their vested right. Even otherwise, for the sake of argument, If it is accepted that the advertisement dated 25.07.2006 was issued without lawful authority, even then that was the fault of the department, not appellants. No person can be panelized for the fault of the department" .
The similar view was express by the. apex Curt in case titled Muhammad Imtiaz Khan vs. AJK Government & 3 others (2001 SCR 115), wherein at page 119 of the precedent, it was observed as follows: "The principle of law laid dawn above is fully applicable to the present case. The P.S.C. had commenced the selection process by advertising the disputed post and the appellant had duly applied for it. It is nobody's case that the requisition was withdrawn by the Government. Thus a right had come to reside in the appellant that he should be considered for appointment to the advertised post in the light of the rules prevalent at the time when the post was advertised. Thus, the view taken by the High Court not correct."
9. A reading of impugned order dated 17.05.2013, reveals that private respondent Muhammad Nawaz, was adjusted against disputed post of junior Agrotec Teacher on the basis of re- designation of the posts of junior and senior Technical Teachers as junior and Senior Science Teachers vide notification dated 30.08.2011. The said notification was not applicable on the post in question which was already advertised on 17.11.2010 and selection process was completed on 30.12.2010. It is settled principle of law that a notification shall take effect from the date of issuance,of the same which cannot be issued retrospectively. The said principle of law was considered by the apex Court of Pakistan in case titled Sheikh Fazal Ahmed vs. Raja Ziaullah Khan and another (PLD 1964 SC 494), wherein at Page 501 of the report it was observed as under:-- "This amendment had come into force on 22.2.1963. An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had, however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statute has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation. In Ramat Ullah vs. Deputy Settlement Commissioner (1), this Court held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation)
Act could not have retrospective effect."
The similar view was expressed by the Lahore High Court in a case titled A. Razzaq & Co. us.
Government of Pakistan etc. (PLJ 2000 Lahore 52) At Page 55 of the report it was held as follows: "It is settled position in law that a notification cannot have any retrospective effect and operates prospectively unless there is a clear provision to that effect in the legislation itself. The other settled proposition in law is that rights which accrue to or vested in a person on account of his having taken some action on the basis of a contract of a policy cannot be taken away by issuing a Notification."
An identical point was considered by the Karachi High Court in a case 'titled Abdul Razzak vs. Deputy Superintendent (Prey.) Central Excise & Land Customs Nazimabad and other (K.L.R 1983 Civil Cases (Kar.) 411). At Page 413 of the report it was observed as under: "The Notification dated 2-2-1982 as observed earlier, provides that the amendment in the Notification dated 25-6-1981 shall be with retrospective effect. If in law retrospective effect can be given to a notification by the notification itself, as has purposed to be done by the Notification dated 2-2-1982, petitioner's will have no case, as than all sound recorded cassettes, except those which had the recording of recitation from the Holy Quran, will be subject to sales tax even prior to 2-2-1982 and at the time cassettes of the Petitioners were seized by the Central Excise & Land Customs Authorities. No provision of the Sales Tax Act confers any power upon the Federal Government to issue a notification with retrospective effect. The law is clear on the point that an authority, which has been conferred the power of issuing notification in the nature of delegated legislation, is not competent to give retrospective effect to such notification. We may, therefore, observe that the Notification dated 25-6-1982 cannot be given retrospective effect although the said notification provides so."
10.A perusal of Para (viii) of notification dated 30.08.2011 also ,reveals that vacant posts of junior and Senior Technical Teachers were re-designated as junibr and Science Teachers, however, as selection process for the disputed post was completed much before, on 30.12.2010, therefore, neither the post was vacant nor notification ibid being prospective was applicable on disputed post of junior Agrotec Teacher.
11. The claim of Muhammad Nawaz, respondent is also genuine who is highly qualified as M.A. B.Ed. and against three advertised posts of junior Science Teachers pertaining to allocated quota of constituency No. 1 of District Poonch was selected by the concerned selection committee and on the basis of merit he was appointed as junior Science C Teacher vide order dated 16.10.2008. The said respondent was posted in various Schools, however, due to non-availability of junior Science teacher post, he was not allowed joining. Then he was adjusted as a stopgap-arrangement against the post of junior Agrotec Teacher, another cadre, vide order dated 17.01.2009. He was made rolling stone by the Divisional Director Poonch Division Rawalakot. The equity, therefore, demands that Divisional Director Poonch Division be asked that as three posts of junior Science Teachers were advertised and Muhammad Nawaz, private respondent was falling at Serial No. 3 of the merit list, then why he could not be adjusted against the third advertised post? The said respondent was ultimately adjusted by the same authority against the advertised disputed post of junior Agrotec Teacher relating to different cadre in respect of which selection proceedings were completed by the competent authority in accordance with corrigendum advertisement dated 17.11.2010 on 30.12,2010. If the disputed post of junior Agrotec Teacher B-9 was not vacant, then why it was advertised? The Divisional Director Poonch Division of relevant time is, therefore, responsible to extend mental agony, loss of finance and indulged the parties in long life litigation extended over years. The Secretary Education Schools, therefore, will take necessary legal steps against the concerned Divisional Director Schools, Poonch Division and all those who failed to appoint both the selectees against the advertised posts, who misused their powers in colourable fashion, whose conduct was prejudicial to good order as well as service discipline and for the purpose disciplinary proceedings shall be initiated and be placed before the competent authority, for disposal in accordance with law, with report to Registrar of this Court.
12. The crux of above discussion is that Writ Petition No. 749/2013 filed by Asad Qayyum, petitioner is accepted and impugned order pertaining to adjustment of Muhammad Nawaz, private Respondent No. 4 against the post of junior Agrotec Teacher by re-designating the same as Junior Science Teacher vide impugned order dated 17.05.2013 is quashed. The official respondents are hereby directed to appoint Asad Qayyum, petitioner against the said post within two months.
However, private respondent Muhammad Nawaz shall he adjusted against the post of junior Science Teacher within the above mentioned period. The writ petition No, 1480/2013 pertaining to protection of impugned order dated 17.05.2013 has become redundant, therefore, the same is consigned to record in limine. The office is directed to transmit an attested copy of the instant order to Secretary Education Schools for compliance. The costs shall follow the eventualities.