' 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, whereby following relief is solicited by petitioner:- "It is, therefore, most humbly prayed that by allowing this 'petition respondents No. 7 to 10 may kindly be asked that under what authority of law they are holding the posts of Sub-Engineers BPS- 16 in Local Government and Rural Development Department and by issuance of appropriate writ the notification dated 02.09.2010 may kindly be declared illegal, unlawful and void ab-initio to the extent of the provision of regularization/confirmation of officers in BPS-16 i.e. Respondents No. 7 to 10 alongwith the order dated 26.08.2011, corrigendum dated 16.05.2011 and letter dated 01.12.2011, issued in consequence and continuance of the impugned part of the said notification. Any other relief to which the petitioner is entitled may also graciously be granted alongwith the costs."
2. The precise facts culminating into filing of the instant writ petition are that petitioner is first class States Subject of Azad Jammu & Kashmir and is permanent employee of Local Government and Rural Development Department. It is claimed that respondents No. 7 to 10 were appointed on contract basis in the World Bank Finance Project called as C.I.S.P. Organized by Local Government and Rural Development Department. The contractual appointments of the said respondents were to be terminated with completion of C.I.S.P. Project which created no right whatsoever for regular appointments as was clearly mentioned in their notification of appointments dated 02.05.2008. The Government-respondent, however, issued notification dated 02.09.2010, through which 218 posts of C.I.S.P. Were shifted on normal budget and contract employees who were having at least five years service in the project, were to be regularized as permanent employees of Local Government and Rural Development Department. The official respondents decided to absorb/appoint project employees in violation of Constitutional Provisions, Civil Servants Act and Public Service Commission Act. The aforesaid private respondents were consequently appointed by Secretary Local Government and Rural Development Department, on temporary basis as Sub-Engineers B-16 without advertisement of posts and selection process vide order dated 26.08.2011. However, latter on official respondents unlawfully and illegally declared that private respondents No. 7 to 10 possessed grade B-16 as their personal scale in violation of notification dated 02.09.2010. The Finance Secretary, respondent No. 2, initially issued a corrigendum dated 16.05.2011, through which the posts of Sub-Engineers B-16 created vide notification dated 02.09.2010, were downgraded to Sub-Engineers B-11, which order was assailed before the Service Tribunal by petitioner whose promotion was blocked, however, again for mala fide reasons a letter dated 01.12.2011 was issued by Secretary Local Government and Rural Development Department, to Accountant General Office, declaring that grade B-16 was the personal scale of respondents No. 7 to 10 just to save their skin, hence, the instant Constitution petition.
3. After admission of writ petition, the respondents were directed to file written statement however, despite obtaining several opportunities official; respondents No. Ito 6 and 11 failed to do the needful, therefore, were proceeded ex parte vide order dated 02.10.2012. The private respondents No. 7 to 10 contested writ petition through detailed written statement, wherein it is stated that petitioner is not an aggrieved person, hence, writ petition is not maintainable. It is further stated that petitioner was also a project employee funded by UNICEF and posts of the said project were brought on normal budget vide notification dated 18.07.2000. As mode of appointment of petitioner was similar to the answering respondents, hence, he cannot challenge the impugned orders. It is averred that through notification dated 02.09.2010, as many as 218 posts were brought on normal budget and other employees were not impleaded as party in the line of respondents, therefore, writ petition is bad in law. It is further stated that legality of the impugned notification is sub judice before the apex Court, hence, prayed for dismissal of writ petition.
4. Raja Amjad Ali Khan, the learned counsel for petitioner vehemently argued that posts of Sub- Engineers B16 were neither advertised nor any selection process was adopted, however, by violating basic provisions of Civil Servant Act, 1976, Public Service Commission Act, 1986 and rules framed thereunder, private respondents No. 7 to 10 were appointed/adjusted as Sub-Engineers B- 16 unlawfully for mala fide reasons. He further argued that posts of Sub-Engineers B-16 were not available in Local Government and Rural Development Department, therefore, declaring grade B-16 of private respondents as their personal scale on the part of Finance Department through script dated 16.05.2011 and by Secretariat Local Government and Rural Development Department vide letter dated 01.12.2011 was violative of law. He maintained that the impugned notification dated 02.09.2010, to the extent of regularization of 05 years' employees of development schemes on preferential basis was set aside by the apex Court in civil appeal No. 67/2012 titled Waqas Latir and 3 others v. Azad Govt. & 6 others decided on 06.10.2012, hence, prayed for issuance of solicited writ.
5. Sardar Abdul Sammie Khan and Mrs. Kokab Al- Sabah Rohi, Advocates, while controverting arguments of the learned counsel for petitioner, submitted that on the basis of shifting 218 posts on normal budget through notification dated 02.09.2010, private respondents were rightly appointed against the posts of Sub-Engineers B-16 on the basis of their meritorious contract service and prayed for dismissal of writ petition.
6. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, as well as written statement of contesting respondents and examined the appended documents with utmost case.
7. A contemplate perusal of record reveals that private respondents Muhammad Maroof Khan, Amjad Hussain Mughal, Tahir Farooq and Muhammad Arshad Khan, were appointed as Sub- Engineers B-16 in development project of C.I.S.P., on contract basis vide notification dated 02.05.2008, coupled with corrigendum dated 27.05.2008 respectively. The aforesaid four posts of Sub-Engineers B-16 were, however, brought on normal budget vide notification dated 02.09.2010.
The aforesaid notification speaks as under:--- "Secretary Local Government and Rural Development Department Azad Govt. Of the State of Jammu and Kashmir, Muzaffarabad ' Notification: ' No./SLGRDD/113012-22/2010. The President Azad Jammu & Kashmir has been pleased to accord the approval for:---
(1) Shifting of the 218 posts of Azad Jammu & Kashmir 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 para 1(a) and (b) below.
(2) Creation of 38 new posts on Normal Budget (Recurring Budget) for re-organization of Local Government and Rural Development Department from 1st July, 2010 as per detail and conditions prescribed in para 2(a), 2(b), 2(c) below.
(3) 1(a) Detail of AJK-C.I.S.P. Staff/Posts to be Transferred on Regular Budget. {{TABLE}} S.No. Name of Post BPS No. Of Posts 1 Superintending Engineer 19 1 2 Dy. Director M&E/MIS 18 1 {{TABLE}} 3 Dy. Director Coordination 18 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 Community Development Officer 16 8 10 Sub-Engineer 16 4 11 Assistant 14 1 12 Data Entry Operator 12 11 13 Community Organizer 12 54 14 Accountant 11 3 15 Overseer 11 41 16 Draftsman 11 5 17 Senior Clerk 9 1 18 Junior Clerk 7 9 19 Machine Operator 5 1 20 Driver 4 26 21 Naib Qasid 1 32 Total 218 {{TABLE}} 1(b) Method/Conditions for Regularization AJK C.I.S.P 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 assessment and selection 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, C.I.S.P. 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(al Detail of Posts for Divisional Directorate Poonch. {{TABLE}} S.No. Name of Post BPS No. Of Posts 1 Divisional Director 19 1 2 Executive Engineer 18 1 3 Assistant Engineer 17 1 4 Superintendent 16 1 5 Data Entry Operator 12 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 Total 18 2(b1 Detail of Posts 'or District Sudhnotti and Bhimber.
S.No. Name of Post BPS Name of Posts Bhimber Sudhnotti Assistant Director 17 Converted from Project Manager
2. Assistant Engineer 17 1 1
3. Head Clerk 14 1 1
4. Accountant 11 1 1
5. Overseer 11 1 1
6. Senicr Clerk 9 1 1
7. Junior Clerk 7 1 1
8. Driver 4 2 2
9. Naib Qasid 1 1 1
10. Chowkidar 1 1 1 Total 10 10 {{TABLE}} 2(c) Conditions: i. The Posts shall be filled under prescribed recruitment rules. ii. Staff of other development schemes (PC-1 projects) in the department who possess at least 05 years continuous service shall be adjusted on these posts on priority basis.
' Section Officer Local Government & Rural Development Department"
' A minute examination of the aforesaid notification reveals that Government-respondent brought 218 posts of development scheme on normal budget, however, services of the contract employees were not regularized rather for the purpose certain conditions were laid down. The first condition 1(b)i pertained to the posts which shall be filled in with duly prescribed recruitment rules which condition is in accordance with statutory law. However, conditions No. Ii and iii of the notification that cases of officers carrying posts of BPS-16 and above, who possessed 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 while cases of employees of BPS 1 to 15 shall be processed, mutatis mutandis to respective selection committees were against statutory law, hence, to that extent the same were set at naught by the apex Court in civil appeal No. 67/2012 titled Waqas Latif and 3 others v. Azad Govt. & 6 others decided on 06.10.2012. Therefore, in view of the aforesaid precedent/case of the apex Court, the appointments of private respondents against the disputed posts of Sub-Engineers B-16 are accordingly bad in law.
8. The service in Azad Jammu & Kashmir is regulated by an Act of the Assembly which has been promulgated on the strength of Section 49 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. Section 4 of the Azad Jammu & Kashmir Civil Servants Act, 1976, postulates that the appointment against a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorized by it in that behalf. Section 23 of the said Act authorizes the Government to make rules for carrying out the purpose of above- mentioned Act. In exercise of these powers the Government has made rules known as The Azad & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Part II of these rules prescribes the method and manner of appointment to the post in various grades whereas Part III of rules 16 and 17 prescribes the manner for initial appointment to the posts in grade 16 and above.
Rule 23 Part IV, of that afore-mentioned rules postulates the manner of making ad-hoc appointments which rule is reproduced as under:-
(1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.
(2) After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the selection authority: ' Provided that:
(1) the vacancy is advertised properly in the newspapers;
(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;
(3) the selection is made on the basis of merit determined by objective criteria;
(4) the appointment order certifies that a requisition has been sent to the selection authority; and
(5) the appointment is made subject to revocation at any time by the competent authority: ' Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grada.
' A perusal of the above rule makes it clear that even ad-hoc appointment cannot be made in an arbitrary manner. It be observed that a contract or temporary appointment is synonymous to ad- hoc appointment The first condition for making an ad -hoc appointment is that the same shall be made in the public interest. The second one is that before making such appointment the appointing authority shall forward requisition to the selection authority. The appointment is subject to further conditions listed in sub-rules (1) to (5) of rule 23 reproduced hereinabove. These conditions are mandatory and cannot be ignored at the time of making ad-hoc appointment. The proviso to the rule has an ordinarily effect which commands that ad-hoc appointment shall not confer right to the persons so appointed in the matter of regularization appointment for the same post nor the service will be counted towards seniority in the grade. The case titled Azad Jammu & Kashmir Government and others v. Muhammad younas Tahir & others (1994 SCR 341), is the leading authority on the point wherein Regularization of Ad-hoc Appointment Act, 1992, was declared by the apex Court as unconstitutional and all the appointments made on the basis of that Act, were declared as ad-hoc. The appointments were ordered to be made through the process of the Public Service Commission. Rule 23 of The Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, received attention of the apex Court of Azad Jammu & Kashmir.
At page 375 of the report it was observed as under:---- "The reading of the rule leaves a distinct impression that ad hoc appointment is not a bounty but is made in public interest for a limited period of six months and is made on the basis of open merit. It is clearly spelt out that ad hoc appointment can only be made after a requisition has been sent to the Public Service Commission. The emphasis is made more-prominent by providing in sub-rule (1) that the first step to be taken for ad hoc appointment is to forward a requisition to the selection authority and then by requiring in sub-rule (4) that appointment order should contain a certificate that a requisition has been sent to the selection authority. A large number of orders of ad hoc appointments have been placed on the record but, I regret to note, these orders do not contain any such certificate which means requisitions were not sent to the Public Service Commission in violation of rule 23. These orders also do not show that any selection was made on the basis of merit. The conclusions necessarily be follow: Firstly the ad hoc appointments are not made on the basis of merit; Secondly that requisition is not sent to the Public Service Commission when the appointments are made".
9. Similarly in a case titled Sheikh Manzoor Ahmed v. Azad Govt. & others (1994 SCR 297), the same view was reiterated by the Hon'ble Supreme Court.
10. The private respondents in the case in hand, were firstly appointed as Sub-Engineers B-16 on contract basis in C.I.S.P. Project organized by Local Government and Rural Development Department, liable to be terminated in completion of project, with further condition that the same would not create any right of regular appointment vide notification dated 02.05.2008. The aforesaid posts were, inter alia, brought on normal budget vide notification dated 02.09.2010. After bringing the said posts on normal budget private respondents were temporarily adjusted by Secretary Local Government and Rural Development Department, vide order dated 26.08.2011. The posts were neither advertised nor selection process was adopted, however, Finance Department vide script dated 16.05.2011, downgraded the disputed posts as Overseers B-11 and declared that grade B-16 shall be personal scale of the private respondents. The similar order dated 01.12.2011, in the shape of letter was also issued by Secretary Local Government and Rural Development Department.
Through the aforesaid orders statutory law of land was brushed aside by both the concerned respondents. Even conditions No. I and ii of notification dated 02.09.2010 were also violated by the official respondents to accommodate the private respondents in colourable manners. The method of regular appointment recently again came under consideration before the apex Court in case titled Mst. Tanweer Ashraf and 25 others v. AJ&K Govt. & 2 others [2011 SCR 528]. At page 535 of the report it was held as follows:--- "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 & Kashmir, appointments in the service are regularized by the law known as the Azad Jammu & Kashmir Civil Servants Act, 1976 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 & 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, amounts 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 manoeuver for occupation of the civil post and deprive the qualified candidates to compete on the basis of merit. Such practice is not 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 & 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. Kasha) it Timber Corporation PLD 1978 S.C. (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:- --
1. That a Constitutional instrument should be read as a whole and its provisions construed harmoniously; (2)XX XXX XXX (3)XX XXX XXX (4)XX XXX XXX Even otherwise the established rule is that in case of apparent inconsistency between two provisions of law, attempt should be made to harmonise 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 & 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 fights. 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, persons 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 & 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 those 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. There difficulties are real and substantial. Therefore, reasonable classification was recognized. Supposing a law is to be enacted to regulate grant of driving licences. Going by the plain phraseology of Right No. 15 every citizen must be allowed to have a driving licence 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 licence. 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 licences. 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 & Kashmir Civil Servants (Regularization of Ad-hoc Appointment) Act, 1992 is found to be void as it was violative of Fundamental Rights No. 15".
11. The official respondents, therefore, in collusion with each other appointed to private respondents in violation of the aforesaid leading precedent of the apex Court as well Younis Tahir's case supra.
12. For the reasons enlisted above as private respondents No. 7 to 10 failed to show that under what authority of law they are holding the posts of Sub-Engineers B-16 and performing their functions in connection with affairs of the State, hence, the impugned order dated 26.08.2011 alongwith script of Finance Department dated 16.05.2011 and letter of Secretariat Local Government and Rural Development Department, dated 01.12.2011 to the extent of private respondents are quashed and aforesaid posts are declared as vacant. The official respondents are hereby directed to fill in the posts in dispute, after advertising the same in daily news on the basis of merit and recommendations of respective selection authority in accordance with prescribed rules. The private respondents may participate in competition and in case of over-age they will be granted relaxation in accordance with provisions of the Azad Jammu & Kashmir Civil Servants Recruitment (Relaxation of Age Limit) Rules, 1997. The writ petition is accepted in the manner as indicated herein above with no order as to costs.