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 the captioned writ petitions, therefore, I proposed to decide the same through this single judgment.
3. The precise facts of Writ Petition No.1426/2011 are that petitioner is first class State Subject of Azad Jammu and Kashmir, who is domicile holder of District Muzaffarabad and is qualified as B.A. It is claimed that on recommendation of respective selection committee, petitioner was inducted in Stamps Department as Junior Clerk B-5, vide order dated 03.07.1995. Thereafter, he was promoted as Senior Clerk B-7 in the said Department. It is maintained that according to "AJ&K Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service Rules, 1991, 12% posts of Naib Tehsildars are reserved for promotion by selection from ministerial staff of Revenue, Rehabilitation and Stamps Department.
It is further alleged that in Revenue Department of Azad Jammu and Kashmir numerous vacancies of Naib Tehsildars became available against 12% allocated quota of ministerial staff but always the same were filled in by initial recruitment or by promotion from other cadre while ignoring the qualified and experienced incumbents of Stamps Department. It is averred that as some posts of Naib Tehsildars were available in the Revenue Department for promotion against the quota reserved for departmental promotion, hence, father of petitioner submitted an application before the Minister Revenue, stating therein, that the petitioner may be promoted as Naib Tehsildar against 12% quota reserved for ministerial staff. The Revenue Minister, directed the competent authority to act upon the rules but needful was not done. It is claimed that many posts of Naib Tehsildars were sent to the Public Service Commission for advertisement against the rules, without determination of departmental quota on political motivation. It is further stated that through an order of the Prime Minister an approval for induction of Shehzad Sharif (co-petitioner) was issued which was objected to by the Board of Revenue and in this regard a summary for review was also filed for the purpose which was turned down. A successive review also met the same fate. The petitioner through the instant constitution petition has challenged orders of the Prime Minister Azad Govt. Of the State of Jammu and Kashmir dated 06.07.2011 and 05.08.2011 pertaining to appointment of Shehzad Sharif (Co-petitioner) and solicited enforcement of 12% quota of ministerial staff with further direction to promote him as Naib Tehsildar B-14 against the aforesaid quota as per rules.
4. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioner is not an aggrieved person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, however, contents of writ petition relating to 12% quota and its violation have not been controverted.
5. The precise facts culminating into filing of Writ Petition No.690/2012 are that petitioner is first class State Subject of the Azad Jammu and Kashmir having qualification of BSIT (Honors) equivalent to M.Sc, Computer Science. It is claimed that father of petitioner, was retired from the post of Additional Commissioner from Revenue Department. It is further maintained that an amendment was brought in Azad Jammu and Kashmir Revenue Department Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service kules, 1991, whereby 6.50% quota was allocated to the children of the officers and employees of Revenue Department who are in service, retired or died during service, through competitive examination to be conducted by Public Service Commission, vide notification dated 02.04.2011. However, aforesaid notification was changed later on and on the basis of previous practice, respondent No.4 issued notification dated 15.01.2011 through which requirement of the Public Service Commission was relaxed and appointment of children of officers/employees of Revenue Department was declared to be made through Board of Revenue. In the light of the above notification Government had withdrawn 2 posts from the Public Service Commission pertaining to children of officers/employees of Revenue Department vide notification dated 05.03.2011. It is maintained that petitioner through his father moved an application on 03.04.2011 to the then Prime Minister for his appointment as Naib Tehsildar against 6.50% quota reserved for children of officers and employees of Revenue Department. The aforesaid application was allowed by the Prime Minister and respondent No. 4 was directed to appoint petitioner accordingly, however, latter preferred an appeal/review against the order dated 03.04.2011 which was rejected and summary for appointment of petitioner was approved by the then Prime Minister on 06.07.2011. Against the aforesaid, order, respondent No.4 filed another review petition on 28.07.2011 which was also rejected vide order dated 05.08.2011. The orders supra were again challenged by Senior Member Board of Revenue, through review petition which also met the same fate vide order dated 24.12.2011. It is stated that the aforesaid orders of the Prime Minister were not acted upon by respondents Nos.4 and 5, hence, petitioner constrained to file the instant constitution petition.
6. The writ petition has been resisted by respondents through paradise comments which, on request of their learned counsel, were treated as written statement vide order dated 27.02.2013. It is averred that petitioner by twisting facts obtained orders from the Prime Minister for his appointment against the post of Naib Tehsildar B-14 by obtaining relaxation of Public Service Commission, however, as orders were contrary to law, therefore, successive review petitions were filed for recalling the aforesaid orders and prayed for dismissal of writ petition.
7. Mr. Mushtaq Ahmed Janjua, the learned counsel for petitioner Ansar Ali, submitted that as per The Azad Jammu and Kashmir Revenue Department Patwari, Qanungo, Naib Tehsildar and Tehsildar Service Rules, 1991, 12% quota is allocated for promotion from ministerial staff of Revenue, Rehabilitation and Stamps Department, which has continuously been violated by respondents, therefore, necessary direction may be issued for placing case of his client before appropriate selection committee for consideration to be promoted as Naib Tehsildar B- 14 against the said quota. The learned counsel pressed into service that there is no any post for 6.50% quota reserved for children of officers and employees of Revenue Department, hence, writ petition of Shehzad Sharif is liable to be dismissed accordingly.
8. Kh. Muhammad Nasim and Sardar Abdul Sammie Khan, Advocates for petitioner, Shehzad Sharif vehemently argued that as per 6.50% quota reserved for children of officers and employees of Revenue Department necessary orders were passed by the Prime Minister Azad Govt. Of the State of Jammu and Kashmir time and again, for appointment of their client as Naib Tehsildar B-14 against which orders successive review petitions were also rejected, hence, writ of mandamus be issued for implementation of the aforesaid orders with further direction to send the said petitioner for training forthwith and craved for acceptance of writ petition.
9. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, examined the appended record with utmost care and have given my earnest thought to the points raised by the learned counsel for parties.
10. A contemplate perusal of The Azad Jammu and Kashmir Revenue Department Patwari, Qanungo, Naib Tehsildar and Tehsildar Service Rules, 1991, reveals that 43.50% quota pertaining to posts of Naib Tehsildars B-14 is allocated for initial recruitment on the basis of general merit, while 6.50% quota is reserved for children of officers and employees of Revenue Department who are in service, retired or died during service. However, 38% quota has been reserved for promotion of Qanungos, whereas 12% quota has been allocated for promotion of ministerial staff of Revenue, Rehabilitation/ Stamps Department. The posts of Naib Tehsildars B-14 regarding initial recruitment against 43.50% quota are liable to be filled in through competitive examination to be conducted by the Public Service Commission, whereas 6.50% quota of Children of officers and employees of Revenue Department are liable to be filled in through Board of Revenue. The promotion quota is, however, liable to be filled in through appropriate selection committees. The petitioner Ansar Ali relates to 12% quota reserved for Revenue, Rehabilitation and Stamps Department. The official respondents have not controverted his claim and it appears that the aforesaid quota has time and again been violated. The validity of orders of the Prime Minister, however, shall be dealt with at later part of this judgment. Therefore, by accepting his writ petition it is directed that his matter shall be placed before the appropriate selection authority for consideration to be promoted against the disputed post of Naib Tehsildar B-14 as per rules.
11. The claim of petitioner Shehzad Shard for appointment against the disputed post of Naib Tehsildar B-14 is contrary to statutory law. As per report of Secretary Board of Revenue dated 06.12.2013 against 6.50% quota 04 posts were requisitioned to the Public Service Commission, however, 02 were withdrawn from perview of the Public Service Commission and against aforesaid 02 posts departmental appointments were made. Against remaining 02 posts of the aforesaid quota two more candidates were appointed through Board of Revenue. As per report supra 02 candidates against 6.50% quota were also appointed as Naib Tehsildars B-14 on temporary basis. It appears that the aforesaid quota has already been overflowed. As there is no post available for appointment against 6.50% quota of officers and employees of Revenue Department, hence, no relief can be extended to petitioner Shahzad Sharif accordingly.
12. The learned counsel for petitioner Shehzad Sharif strenuously argued that implementation of repeated orders of the Prime Minister regarding appointment of their client against the disputed post of Naib Tehsildar B-14 was binding obligation of official respondents. It will be appropriate here that the relevant extract of the Azad Jammu and Kashmir Revenue Patwari, Qanoongo, Naib Tehsildar and Tehsildar Rules 1991, may be reproduced which speaks as under:- S#Name of DepartmentFunctional UnitName of the Post with gradeAppointing AuthorityMinimum Qualification for appointment by initialPromotion Method of RecruitmentAge of Initial recruitmentExamination training and other condition for confirmation MIN MAX 2 do do Naib Tehsildar BPS-14CommissionerGraduate from a recognized University(i)
Matriculate School Certificate exam(i) 43.50% of the Naib Tehsildar shall be appointed on the recommendation of Azad Jammu And Kashmir Public Service Commission as per district quota and order of merit.
(ii) 6.50% from amongst the children of the officers and employees of Revenue Department who21 35 [322. The Training Programme and Departmental Examination Rules as enforced in Punjab shall be applicable to the service are in service or retired or died during service as the case may be, selected through competitive examination to be conducted by the Public Service Commission.]
(iii) By promotion as under:
(a) 38% out of Qanoongos with minimum of six years service as such out of which at least two years service as field Qanoongo.
(b) 12 selection on merit from amongst ministerial staff of Revenue/ Rehabilitation and Stamps Department with at least five years working experience as specified by the Board of Revenue.] A bare reading of the aforesaid extract makes it abundantly clear that appointing authority of the post in dispute is Commissioner.
Therefore, all the orders of the Prime Minister Azad Govt. Of the State of Jammu and Kashmir and approval of summary for appointment of petitioner Shahzad Sharif are illegal. It is by now well settled principle of law that an illegal order of the Chief Executive cannot be enforced I through writ jurisdiction. The point supra came under consideration before the apex Court in case titled Major Muhammad Aftab Ahmed v.
Azad Jdmmu and Kashmir Government [1992 SCR 3071. At page 312 of the report it was held as follows:- "iii. Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said Post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even through he is competent authority to pass such an order in a lawful manner. Since, as said earlier, the appointment of the appellant could not be made to the post of superintended of Police under the rules the orders of the Prime Minister claimed by the appellant to be the orders of his appointment to the said post being violation of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do not justify and call for to do so."
13. The contention of Sardar Abdul Sammie Khan Advocate, the learned counsel for petitioner Shehzad Sharif that previously Ansar Ali petitioner filed Writ Petition No.919/2011 which was disposed off by this Court vide order dated 17.05.2012, hence, his writ petition merits dismissal is not tenable for the reason that through the aforesaid order even necessary observation for consideration of the aforesaid petitioner was passed which has yet not been acted upon, hence, the above order again strengthen the case of Ansar Ali that 12% quota was violated by respondents.
14. However, before parting it is liable to be observed here that previous practice and notification dated 15.01.2011, whereby initial recruitment pertaining to the posts of Naib Tehsildars B-14 regarding 6.50% quota of children of officers and employees of Revenue Department liable to be made through Board of Revenue are contrary to the Azad Jammu and Kashmir Patwari, Qanoongo, Naib Tehsildar and Tehsildar Service Rules, 1991. The aforesaid notification has been issued without any statutory backing. It is settled principle of law that in case of inconsistency between notification and statutory rules, the rules shall be prevailed. An identical point was arisen before the apex Court in case titled Muhammad Ejaz Khan and 12 others v. Mushtaq Ahmed Khan and 10 others [2010 SCR 201]. At page 205 of the report it was held as follows:-- ".... The Senior Member Board of Revenue was not competent to issue such policy which override the provisions of rules. It may be observed that a policy or notification cannot override the statutory rules framed by the Government under the statute. Instructions and policies cannot amend the statutory rules."
A similar point came under consideration before the apex Court of Pakistan in case titled Muhammad Nadeem Arif and others v. Inspector General of Police, Punjab, Lahore and others [2010 PLC (C.S) 924)] wherein at page 931 of the report it was held as follows:- II. The department consistently followed those instructions of the Inspector General of Police which were issued without approval of the Provincial Government. The instructions as well as departmental practice are illegal and violation of the directions or instructions on departmental practice conflicting with the parent statute or rule cannot remain operative and must be ignored even though they have been followed long, have been found to be convenient and have worked fairly in practice. No one is obliged to obey such directions/instructions/ departmental practice. The role of the directions/instructions is to supplement, never to contradict or conflict with rules. A direction/instruction cannot abridge, or run counter to, statutory provisions. If there is any conflict between the rules and the directions/ instructions/ departmental practice, the rules prevails. Instruction or departmental practice cannot amend or supersede the rules."
Therefore, in view of above the official respondents shall make appointments in future against 6.50% quota through Public Service Commission. The instant observation will, however, not affect appointments which have already been made on the basis of Government notification dated 15.01.2011.
15. The crux of above discussion is that Writ Petition No.1426/2011 is accepted and official respondents Nos.3 to 5 are directed to place the case of petitioner Ansar Ali before the appropriate selection authority for consideration to be promoted against the post of Naib Tehsildar B-14 within two months from the receipt of the instant order. However, Writ Petition No.690/2012 is baseless, hence, the same is dismissed.
An attested copy of the instant judgment shall be transmitted to Senior Member Board of Revenue and Commissioners of Divisions for compliance. The costs shall follow the eventuality.