' MOHAMMAD AZAM KHAN, CJ.All the above-titled appeals by leave of the Court arise out of the judgments of the High Court dated 20th August, 2013 and 4th October, 2013, whereby writ petitions No. 1396 of 2011, 1515 of 2011, 1720 of 2011 and 1986 of 2011, have been decided respectively with a direction to the official respondents to advertise all the posts of Mohllam-ul-Qunan (B-1) and to fill in the same in the light of the provisions of the Azad Jammu & Kashmir Elementary and Secondary Education Service Rules, 1984, amended vide notification dated 12th June, 2013.
2. The Government of Azad Jammu & Kashmir issued a notification on 6th August, 2011, whereby out of 1865 Aaima Masajid, 403 Aaima Masjid were appointed/adjusted in BPS-1, having qualification of Middle plus Sanad in Qirat. It was also ordered that in future, the minimum qualification for the posts will be Matric plus Sanad in Qirat and previous service before issuance of the notification shall not be counted for pension purposes and all others Aaima Masajid who were appointed as Aima Masajid against the salary of Ra.1000/- per month, their services shall be deemed terminated. Four writ petitions were filed on different grounds by different persons, including the appellants in appeal No. 187 of 2013 and the appellants in appeal. No. 30 of 2014. Since, all the appeals involve the Same law point, these are being disposed off through the proposed considered judgment.
3. Sardar Abdul Sammie Khan and Barrister Humayun Nawaz Khan, Advocates while arguing on behalf of the appellants in appeal No. 2 of 2014, titled Molvi Abdul Latif Qari & others v. Azad Govt. & others submitted that the appellants were appointed through notification dated 6th August, 2011 on the ground that they were previously working as Aaima Masajid against the fixed salary of Rs.
1000/- per month. It was long standing demand of the Aaima Masajid, working under the Government that they may be permanently adjusted in Government service. The Government issued the said notification and appointed them, on regular basis. The High Court has no jurisdiction to declare the appointment orders against law and cancel the same. The judgment of the High Court is beyond the pleadings which is not maintainable.
4. Mr. Asghar Ali Malik, Advocate, while arguing on behalf of the appellant in appeal No. 30 of 2014, titled Nosheen Akhlaq v. Secretary Education and others, submitted that the notification dated 6th August, 2011 is illegal. The Government has power to create the post but it has no power to appoint any person against the permanent post without due process of law. The learned counsel argued that the High Court has correctly declared that without advertising the posts, the notification dated 6th August, 2011 is not maintainable, however he submitted that the appointment orders issued on the basis of list which found part of the notification dated 6th August, 2011 is not maintainable because the list annexed with the notification was tempered one. In the original list, the name of the appellant was at serial No. 45 but the same has been deleted from the new tempered list. The learned counsel submitted that the notification was issued without framing the rules for the post.
Now the rules have been framed by the Government through notification dated 12th June, 2013. The name of the post is Mohallam-ul-Quran. The appellant is entitled for appointment against the post of Mohallam-ul-Quran. The learned single Judge in the High Court has incorrectly observed that the appellant is not entitled for appointment. The finding of the High Court is against the clear Constitutional provisions.
5. Sardar Abdul Sammie Khan, Advocate, counsel for respondents No. 7 to 26, defended the judgment of the High Court to the extent that the appellant, was debarred from being appointed as Mohallam-ul-Quran. the learned counsel submitted that in the titled appeal, Sheraz Latif and Mazhar lqbal who were party in the High Court have not been arrayed as respondents in the petition for leave to appeal. They were necessary party and in absence of necessary party the appeal is not competent and merits dismissal on the sole ground. The learned counsel relied upon the case reported as Muhammad Akhtar Shirani & others v. Punjab Text Book Board, etc. [PLJ 2005 SC 561].
6-7. Mr. Sadaqat Hussain Raja, Advocate, counsel for the appellants in appeal No. 113 of 2014, titled Qari Muhammad Pervaiz & others v. Azad Government and others, submitted that the notification dated 6th August, 2011 is discriminatory. There were 1865 Aaima Masajid, working under the Government, while only 403 have been appointed through the said nopioation. The appellants and some others have been discriminated. They were also qualified, but were not appriinted. The appointments have been made by pick and choose. AU the Aiama Masajid were entitled to be appointed; therefore, the notification is bad in the eye of law. The gh Court has correctly set aside the same. The learned counsel submitted that through the notification dated 6th August, 2011, 403 Aaima Masajid were appointed in BPS-1 without framing the rules, without any policy and without advertising the posts, therefore, the notification is bad in law and not maintainable. The learned counsel also argued that the learned High Court has correctly issued the direction for appointment in the light of rules framed by the Government. The appointments made without framing the rules are not maintainable. The law requires that all the appointments in civil service be made according to rules after advertising the same.
8. Mr. Muhammad Yaqoob Khan Mughal, Advocate, counsel for the appellants in appeal No, 3 of 2014, titled Abdul Waheed Khan & others v. Azad Government and others, adopted the arguments of Barrister Humayun Nawaz Khan, Advocate and further submitted that the appellants were appointed as Aaima Masajid through the notification dated 6th August, 2011. They were not arrayed as party in the line of respondents. Without arraying them as party their appointment orders cannot be set aside and the order without hearing a person is not maintainable.
9. While controverting the arguments, Mr. Sadapat Hussain Raja and Mr. Asghar Ali Malik, Advocates, counsel for the respondents, argued that the High Court has correctly decided the legal question that any appointment order made without advertising the post, without framing the rules and policy Is not maintainable.
10. Mr, Mushtaq Ahmed Janjua, Advocate, counsel for the appellants In appeal No. 187 of 2013, titled Mst, Zaheena Teufiq v, Nigah Heider and others, submitted that the judgment of the High Court to the extent of Metric qualification and that women are not eligible to be appointed as Mohallam-ul- Quran is against the law and not maintainable. The judgment to the extent of declaring the notification dated 6th August, 2011 as illegal, is correct. He submitted that the notification was issued against law.
11. Syed Shahid Bahar, Advocate, counsel for the respondents, submitted that the notification was issued illegally without advertising the posts, without framing the rules. There is no illegality in the judgment of the High Court.
12.We have heard the learned counsel for the parties and perused the record.
13. The background of the case is that Aaima Masajid were appointed in the Masjid Schools for teaching the Quran initially at the rate of Rs. 300/- per month, which was later on raised to Rs.
500/- per month and ultimately it was increased and fixed as Rs. 1000/- per month. 1865 Aaima Masajid were teaching the Quran in Masjid Schools. It was a long standing demand of the Masjid School Teachers that they may be adjusted in Government service on permanent basis. The Government created posts of 403 teachers, B-1 and through notification dated 6th August, 2011, appointed 403 Masjid Schools Teachers in BPS-1, according to the list annexed with the said notification, having qualification of Middle with Sanad in Qirat. For proper appreciation the 'notification dated 6th August, 2011 is reproduced as under:-- {{URDU TEXT }} ' A perusal of the notification leaves no doubt that the appointments against 403 posts in BPS-1 have been made without framing the rules, without any policy and without advertising the same under law. Under Section 4 of the Civil Servants Act, 1976, an appointment against a civil post shall be made in the prescribed manner by the Government or an authorized person. Under Rule 17 of the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service), Rules, 1977, all the appointments in B-1 and above through initial appointment shall be made on the basis of examination or test to be held by the appropriate Committee or the Board after advertising the vacancies and appointments have to be made under the prescribed rules. Any appointment order made without framing the rules, without advertising the post and without conducting the test and interview by the appropriate Selection Committee or Board is against the law and . not maintainable. We are fortified in our view by the judgment of this Court delivered in the case titled Secretary for Prime Minister and 3 others v. Muhammad As/am & 5 others [2000 SCR 263], it was observed as under:--- "In our view therefore the condition of advertising a post contained in rule 17 reproduced above being of fundamental importance, must be held to be mandatory in nature with the result that if a post has not been advertised the appointment made against the post, even if based on on the recommendation of a Selection Board, shall be void. In the light of the above enunciation of law it is our view that the appointment order of the respondents did not create any right in them."
' Similarly, in the case titled Azad Jammu & Kashmir Board of Intermediate and Secondary Education and another v. Abdul Rauf Khan and 11 others [2002 SCR 139], it was held as under:--- ".... Under Rule 17 of the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 all posts in B-1 and above have to be advertised in the newspapers. This is a mandatory requirement, therefore, appointment made in violation of this rule cannot be protected under law. Since the above-referred posts were not advertised as required by Rule 17 of the above- referred law, therefore, the recommendations made by any Selection Committee and appointment made In consequence of such recommendations are of no consequence. The appointments of private respondents by promotion against such upgraded posts are Illegal and cannot be maintained: The Secretary of the Board, therefore, was justified to cancel these orders which were passed in favour of private respondents in an arbitrary and unguided manner. This fact has not been brought by the parties to our notice as to whether these posts were created earlier under the approval of the Controlling Authority or were subsequently created by the Chairperson subject to the approval of the Board. However, the appellants are directed to fill these posts strictly in accordance with the law and rules applicable."
' The same view is reiterated in the case titled Shahzad Abdul Hussain v. Chief Conservator of Forests and 5 others [2008 SCR 512]. The relevant portion read as under-- "A perusal of the record reveals that the appointments of both the appellants were made without advertising the posts. Rule 17 of the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 clearly lays down that initial appointment on all the posts in grade 1 and above shall be made through test held by the appropriate committee as the case may be after advertising the posts in Newspaper or any manner to be determined by the Government. This Court in a number of cases has held that if the post is not advertised the appointment made on the recommendation of Selection Committee or Selection Board shall be invalid,"
' The Azad Jammu & Kashmir Government through notification dated 12th June, 2013, amended the Azad Jammu & Kashmir Elementary and Secondary Education Service Rules, 1084 and added item No, 18-A in the Schedule of the Rules where the mode of appointment of is laid down: The relevant text of the rule is as under: Name of the DemFunction at UnitName of the PostAppointing Aunt, v =y r.Method for recruAge for initial recruitmentExamination tra conditions r confirmation/ pri -7 :- 72 itment R.
I2 3 4 5 67 8 910 II A:: .... By initial recruitment1835 7.; :S; itary airy E ls F,duc,laharn- (11-1)t E. v w -, as per Col. 6ment ;A :.: E c- ' The amendment has been introduced on 12th June, 2013, which has no retrospective effect, therefore, the posts have to be filled in a prescribed manner which is laid down in the relevant law.
The available posts shall be filled in after advertising the same, after conducting test and interview and the appointments have to be made on the recommendations of the relevant Selection Committee/Board. In the light of clear statutory provisions, the notification dated 6th August, 2011, whereby 403 persons were appointed in BPS-1 without framing the rules, without advertising the posts, without conducting the test and interview and without recommendations of the Selection Board or Authority, is not maintainable and the High Court has correctly observed the same.
14.We have also considered the argument of Mr. Muhammad Yacioob Khan Mughal, Advocate, counsel for the appellants in appeal No. 3 of 2014, titled Abdul Waheed Khan & others v. Azad Government and others, that the appellants were appointed through the notification dated 6th August, 2011. They were not arrayed as party in the line of respondents and without hearing them, the appointment orders have been set aside which offends the long standing celebrated principle of Audi Alteram Partem. We agree with the contention of the counsel for the appellants that a person cannot be condemned without hearing. The appellants were appointed through the notification dated 6th August, 2011, and the notification has been set aside without hearing them, resultantly their services have been terminated. The question which needs resolution is that if we allow the appeal of the appellants and remand the case to the High Court, provide them an opportunity of hearing, will that be fruitful. We confronted the counsel for the appellant, are provided an opportunity to defend the appointments made through notification dated 6th August, 2011 which has been declared as illegal, how they will justify their orders on the basis of said notification, the learned counsel frankly admitted that the appointment orders were issued without framing the rules, without advertising the posts and without conducting the test and interview.
When the law on the point is settled and the notification has been issued in clear violation of settled law then acceptance of appeal and remand of case will be an exercise in futility. Our view is fortified by the judgment delivered in case titled Secretary for Prime Minister & 3 others v.
Muhammad Aslam & 5 others [2000 SCR 263], whereby in para 8 of the judgment it was held as under:--- "8.We agree with the learned counsel for the appellants that the learned Judge in the High Court did not lay down a correct law that the rule of 'audi alteram partem has universal application. It has been held by this Court in Mst. Rehana Aziz v. Mst. Shakeela Ashraf & 2 others (1998 SCR 281) that if a person is not qualified to hold a post it is not necessary to hear him before rescinding his appointment. The learned Judge in the High Court has himself referred in the judgment under appeal the judgment of the Supreme Court of Pakistan reported as Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad v. The General Public [PLD 1988 SC 645], wherein it is known to the extent of certainty that if and when an opportunity is afforded, a person would take a certain position already known there is no point of affording opportunity of hearing. In the present case if the respondents had been given an opportunity of hearing their answer could have been that posts were not advertised, as has been admitted by them in their written statement. These two cases show that hearing was not necessary before termination of service of the respondents."
' Similarly, in another case titled District and Sessions Judge, Bagh & another v. Muhammad Wajid (Civil Appeal No. 87 of 2012, decided on 01.04.2013) it was held as under:-- "8.So far as the contention of learned counsel for the appellant that the order has been recalled without hearing is concerned, has no substance as this Court has already in the case reported as Secretary for Prime Minister and 3'others v. Muhammad Aslam & 5 others [2000 SCR Mb observed that hearing of person is not necessary If according to law and facts of the case, It Is known to the extent of certainty that if and when an opportunity Is afforded, a person would take a certain position already known there Is no point of affording opportunity of Hearing.'' ' Thus, the objection is over-ruled.
15.We have also considered the argument of Sardar Abdul Sammie Khan, Advocate, counsel for respondents No. 7 to 26 in appeal No. 30 of 2014, that Sheraz Latif and Mazhar lqbal were petitioners in writ petition No. 1396 of 2011 in the High Court. They have not been arrayed as party in the line of respondents. They were necessary party and without arraying them as party in the line of respondents the appeal is not maintainable and merits dismissal on the sole ground. The argument has force that all the parties in the lower forum against whom an appeal is preferred, must be arrayed as party in the line of respondents and all those persons who were party in the lower forum and any relief is claimed against them without arraying them as party in the line of respondents, the appeal is not competent and merits dismissal. Nosheen lkhlaq, appellant, alongwith Sheraz Latif and Mazhar lqbal filed writ petition, claiming therein, that list of Aaima Masajid was tempered one. The High Court has not decided the question that list was tempered one. The High Court only decided that the notification for the appointment of 403 Aaima Masajid dated 6th August, 2011 is against law. The appellant has claimed no relief against Sheraz Latif and Mazhar lqbal. Non-impleadment of them, will not affect the appeal, even otherwise if we form the opinion that the judgment of the High Court whereby the notification dated 6th August, 2011 has been declared against law, is perfect and even dismissal of appeal No. 30 of 2014 will not affect the result because other appeals are competent, therefore, the objection is overruled.
16.The learned single Judge in the High Court while issuing the direction to the official respondents to advertise all the posts of Mohallam-ul-Quran, B-1 to fill in the same on the basis of Azad Jammu & Kashmir Elementary and Secondary. Education Service Rules, 1984, amended vide notification dated 12th June, 2013 strictly on merit and on the recommendations of the concerned Selection Committees also directed that the petitioners and private respondents except the Female candidates can apply for the same in accordance with the rules. The said observation has been recorded in the light of observation made in para Nos. 13 to 15 of the impugned judgment whereby it has been declared that a woman cannot be an Imam Masjid. The finding that the female candidates cannot apply under the rules at one side is against the fundamental right No. 17 enshrined in the Azad Jammu & Kashmir Interim Constitution Act, 1974 and on the other hand appears to be misconceived because in item No. 16-A in Schedule of Azad Jammu & Kashmir Elementary & Secondary Education Service Rules, 1984, added through notification issued on .12th June, 2013, reveals that name of the post is Mohallamul-Quran. The word "Mohallarn" means "teacher". The word "Mohallam" is defined in ;,?:Edition 1975, compiled by Alhaj Molvi. Feroz-ud-Din as under:--- {{URDU TEXT}} ' The dictionary meanings are clear that "Mohallarn-ul-Quran" means a teacher who teaches the Quran and not to "Imam". The Imam Masjid and Mohallam-ul-Quran are two different terms. The word "Mohallam-ul-Quran" in rules is not used only for men. The findings of the High Court to the extent of words "except female candidates" are not maintainable. The petitioners therein, private respondents and other persons who are eligible under the rules to apply for the said posts, may apply and compete for the same. Similarly, the setting aside of the notification dated 12th February, 2013 to the extent of transfer of post from one school to the other is also not maintainable because a post of, Mohallam-ul-Quran may be created/shifted in a Girls School. The reference of qualification of Matric in operative part of the judgment is unnecessary because entry No. 16-A introduced in Schedule of Azad Jammu & Kashmir Elementary and Secondary Education Service Rules, 1984, added through notification dated 12th June, 2013 lays down the qualification as Middle pass with Sanad in Qirat. The qualification of Matric is not recognized by the Rules. The observation to the extent of qualification of Matric is not maintainable.
' The result of the above discussion is that the notification dated 6th August, 2011 has correctly been struck down by the High Court and the High Court rightly issued the direction to the authorities to advertise all the posts of Mohallaum-ul-Quran, B-1 and fill in the same on the basis of the Azad Jammu & Kashmir Elementary and Secondary Education Service Rules, 1984 amended vide notification dated 12.06.2013, strictly on merit and recommendations of the concerned selection committees. The appeals are disposed off with the above observations. No order as to costs.