CH. MUHAMMAD IBRAHIM ZIA, J. --- These appeals by leave of the Court have been addressed against the separate judgments of the High Court dated 20.12.2013 and 13.05.2014, through which the writ petitions filed by the appellants, herein, have been dismissed.
2. The facts giving rise to appeals No. 143, 148 and 178/2014, are that the appellants are performing their duties in the Education Department as Computer Instructor B-17, and Computer Lab. Assistant B-7, in Districts Kotli, Mirpur, Bhimber, Sudhnuti and Neelum. According to the narrated facts, the appellants were initially appointed against the scheme/project under the control of Azad Jammu and Kashmir Information Technology Board known as "Establishment of Computer Labs. In 90 and 110, Government High Schools Boys and Girls in Azad Kashmir". They were appointed after selection on merit against the project posts. It is alleged that on completion of the project, these posts were shifted to the normal budget of the Education Department vide notification dated 11.01.2012. The appellants' version is that some of the Computer Lab. Assistants working against the scheme/project posts have already been confirmed but they are being discriminated. The appellants fd separate writ petitions in the High Court while claiming their regular appointment against the questioned posts. The learned High Court after necessary proceedings dismissed the writ petitions through the impugned consolidated judgment. Whereas, brief facts involved in appeal No. 225/2014 are that the appellants filed a writ petition before the High Court claiming their regular appointment against the posts of Male and Female Computer Instructors, B-17 and to declare the advertisement dated 21.12.2012 (whereby applications have been invited for filing in the questioned posts) as quorum non judice and void ab initio. After necessary proceedings, the learned High Court dismissed the writ petition vide impugned judgment dated 13.05.2014. Feeling aggrieved, the appellants have approached this Court through the instant appeals.
3. The learned counsel for the appellants, advanced almost identical arguments, hence, no separate reference is required. The common ground of attack is that the appellants are State Subjects and being qualified for the vacancies which they are holding were appointed by the competent authority. The appellants have rendered services since last many years, thus, according to law, they deserve permanent induction and harmonization against these posts. The learned counsel for the appellants also argued that the appointments were made after advertisement of the posts by following the prescribed mode. Although at that time the posts were of contract nature but as the same now have attained permanent status, therefore, vested legal rights have been created in favour of the appellants. Another argument advanced with reference to some notifications 'placed on record is that some employees posted against this project/scheme have already been permanently inducted into service on the identical vacancies who have been regularized by the respondents, therefore, according to the principle of equality before law and the Constitutionally guaranteed fundamental rights, the respondents also exercised their powers in favour of the appellants. Therefore, while accepting all the appeals, the impugned judgments of the High Court be recalled and the writs be issued in favour of the appellants. They placed reliance upon the cases reported as Azad Govt. & another v. Raja Muhammad Nasab Khan and 20 others [2011 SCR 257], and Dr. Naveeda Tufail and 72 others v.
Govt. Of Punjab & others [2003 SCM R 291] in support of their version.
4. Conversely, M/s. Ch. Muhammad Ashraf Ayyaz and Ch. Mehmood Hussain, the learned Additional Advocate-General, representing the respondents in all the appeals forcefully defended the impugned judgments and submitted that the same are quite consistent with the statutory provisions of law on the subject as well as the principle of law enunciated by the apex Court of the State. According to the scheme of law, permanent induction in civil services against any post can only be made in the prescribed manner. The basic requirement for such induction is advertisement of the permanent post and determination of merit. Whereas, in the instant cases, neither any permanent post was advertised nor merit for permanent induction was determined. He submitted that on this subject, there is a chain of authorities of the apex Courts one of which is famous judgment in the case reported as Azad Jammu and Kashmir Government & others v. Muhammad Younas Tahir & others, reported as 1994 SCR 341, whereas subsequently this principle has been consistently followed in the cases reported as Mst. Tan veer Ashraf & 25 others v. AJ&K Government & 2 others, reported as 2011 SCR 528. Lastly, the case which is fully applicable from four corners is reported as Waqas Latif and others v. Azad Government and others [2013 SCR 150] in which all these aspects have been considered and finally concluded that on the basis of contract or temporary appointment, permanent induction cannot be claimed. Therefore, all these appeals having no substance are liable to be dismissed with costs.
5. When the learned Additional Advocate-General was confronted regarding the notifications issued by the respondents whereby some persons on the identical posts have been regularized, he submitted that these are invalid acts of the authorities and proper action is under process against them. In this regard, he has also contacted the concerned authorities.
6. The departmental authorities were also summoned to explain that how some persons have been permanently inducted into service or regularized, but no satisfactory explanation is extended except that the concerned authorities while exercising the powers have passed invalid orders.
7. We have considered the arguments of the learned counsel for the parties and also the factual legal propositions involved in the case. Except variations of the names of the parties and nomenclatures of the posts, the mode of appointment is one and the same. All the appellants have been appointed against the posts falling in the project named "Establishment of Computer Labs. In 90 and 110 Govt. High Schools in AJ&K" on contract basis. For instance, one of the appointment orders is reproduced as under:- "Azad Jammu and Kashmir Information Technology Board, Muzaffarabad Office Order: ' On the recommendation of Selection Committee, the competent authority is pleased to appoint following as Lab. Assistant for Govt. Girls High School with mediate effect against the project titled "Establishment of Computer Labs. In (90) High School in AJK" under the following terms and conditions, i.e. {{TABLE}} Name Father NameDistrict School Anila Tahir. Tahir MehmoodBhimber Kandhala Either party can terminate contract on one month notice or one month salary in lieu thereof.
He/She will produce a medical certificate from concerned Medical Superintendent.
His/Her appointment will be initially for a period of 2 years or till the completion of the project whichever is earlier.
On expiry/completion of the contract/project whichever is earlier, the services of the appointee shall stand terminated automatically and shall not confer on the individual any right of absorption otherwise or regularization of his services.
(H. Khuram Shehzad.) Project Supervisor ' AJK Information Technology Board.'
' In this background all these appeals are disposed of through this single judgment.
8. The moot point is whether the persons who have been appointed on contract basis are entitled for permanent induction without due process of law. In our opinion in this regard in presence of the authoritative judgments of this Court, no further deliberation is required. Reference can be made to the latest judgment of this Court handed down alter survey of case-law while following the consistently enunciated principles in the case reported as Waqas Latif and others v. Azad Government and others [2013 SCR 150] wherein, while dealing with the identical proposition it has been observed as under:- "6. So far No. 1 of the referred notification is concerned, the same speaks of filling the posts according to duly prescribed recruitment rules. In the Azad Jammu and Kashmir, under the Constitutional provisions, Azad Jammu and Kashmir, Civil Servants Act, 1976 has been enforced and the rules have been made there under, in 1977, which are called as the Azad Jammu & Kashmir Civil Servants (Appointment & Conditions of Service) Rules, 1977. According to the spirit of the Constitution, Civil Servants Act and the recruitment rules, all the posts in the civil service shall be filled in on merit determined by the open transparent competitive method. This Court, in several cases has interpreted and enunciated the principles governing the induction into civil services. In this regard, we may fortify through the wisdom of landmark judgment titled Azad Jammu and Kashmir Government & others v. Muhammad Younas Tahir & others, reported as 1994 SCR 341.
According to the facts of this case, a large number of persons were inducted into service on the ad-hoc basis. Among them, some were continuing for period of more than 10 years. The Azad Jammu and Kashmir Legislative Assembly, made a law known as "The Azad Jammu and Kashmir Civil Servants (Regularization of Ad-hoc Appointment) Act, 1992, through which ad-hoc appointee's services were regularized but when the vires of this Act, were challenged and the Court tested this Legislative Act on the touch stone of the Constitutionally guaranteed fundamental rights, the Act, was found contrary to fundamental right No. 15 which speaks that all the state subjects are equal before law, thus, the Act was struck down. The relevant portion of this judgment speaks as under:- ' 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.
Kashmir Timber Corporation [PLD 1978 SC (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;
(1) XX XX XX XX XX XX XX
(2) XX XX XX XX XX XX XX
(3) XX XX XX XX XX XX XX ' Even otherwise the established rule is that in case of apparent inconsistency between two provisions of law, attempt should be made to harmonize 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 and 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 rights. It is also my view that most of other rights would in some situations becomes 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, person belonging to a particular ideology or political creed may be deprive 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 and 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 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 ol 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. These difficulties are real and substantial.' ' Therefore, reasonable classification was recognized.
' Supposing a law is to be enacted to regulate grant of driving licenses. Going by the plain phraseology of Right No. 15 every citizen must be allowed to have a driving license 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 license. 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 licenses. 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 and Kashmir Civil Servants (Regularization of Ad-hoc Appointment) Act, 1992 is found to be void as it was violative of Fundamental Rights No. 15."
' The same view is later on adopted by this Court in the case titled Mst. Tanveer Ashraf & 25 others v. AJ&K Government & 2 others, reported as 2011 SCR 528, wherein some ad-hoc appointees were having service of more than 15 years on their credit but to upheld the supremacy of law and spirit of merit, their permanent induction without open competition was disapproved by this Court following the dictum laid down in the above- referred comprehensive judgment.
8. It is now settled that except the method of appointment on merit determined through a transparent open competition, no other method, tactics, policy or practice can be approved, therefore it can be safely held that condition No. 1 imposed in this notification is quite in accordance with the spirit of law and principle of law enunciated by this Court in several cases.
' While disposing of the review petition filed by the respondents on this judgment, it has been further elaborated as under:--- "5. We have dived deep into appreciation of the arguments advanced at bar on behalf of the parties. The first and foremost heated argument advanced on behalf of the petitioners is that they have been inducted into service after advertisement of the posts and due process of selection. In this regard, they have placed on record clippings of advertisement of several posts published in the newspapers. On the factual aspect, we have no cavil with the argument of the learned counsel for the petitioners but the perusal of all these advertisements reveals that the vacancies were advertised either for temporary appointment or for appointment on contract basis. According to spirit and scheme of law, mere an advertisement of post for appointment on contract or temporary basis does not create any right or interest for permanent induction. According to provision; of the enforced law and policies, even for ad-hoc appointments, contract appointments and temporary appointment, advertisement of the posts is legal requirement. The statutory provisions of the enforced law on the subject are not supportive to the contentions of the learned counsel for the petitioners as in this case, all the petitioners were appointed temporarily on contract basis. The provisions of the Contract Appointment Policy, 2006 are very much clear. In clause IV sub-clause (vi) of the Contract Appointment Policy, 2006, there is prohibition on conversion of contract appointment into regular appointment. The relevant provision of statutory provision i.e. Sub-clause (vi) of clause IV of the Contract Appointment Policy, reads as follows:--- '(vi) A contract employee shall, under no circumstances, claim conversion of his contract appointment into regular appointment.'
6. So far as the mode of permanent induction is concerned, it has been prescribed under law, especially under the provisions of the Azad Jammu and Kashmir, Civil Servants Act, 1976 and the rules made thereunder. The Civil Servants Act has defined the term 'permanent post', 'temporary post' and also prescribed the mode of appointment for permanent induction. The term 'post' refers to the permanent post and not the contract or temporary post, therefore, on this aspect hardly any detailed deliberation is required. It is suffice to say that for permanent induction, advertisement of permanent post is prerequisite as to whether the post falls within the purview of Public Service Commission or Selection Committee or Board.
7. The other point which has been most forcefully been pressed on behalf of the petitioners is regarding the question of past and closed transactions. It has been argued that as per previous judgments of the High Court especially of this Court in Ghulam Mustafa Abbasi's case, the matter of permanent induction of the persons falling in different categories holding 101 posts finally concluded, therefore, the matter could not be reopened in the judgment under review. This point has already been dealt with in detail in the judgment under review. The relevant paragraph 13 of the judgment is very much clear, thus, according to principle of law, the points which have been considered and decided either way, cannot be made valid ground for review of the judgment. Even otherwise, this argument from another aspect has no substance as it has already been observed in the impugned judgment that in the previous round of litigation relating to 101 posts, controversy was regarding cancellation of notification dated 18.7.2000 whereas in the subsequent round of litigation in which the impugned judgment has been handed down, vires of the notification dated 2.9.2010 have been challenged. The authority/Government, itself has included 101 posts in this notification. In this notification if the petitioners can claim or assert for any grievance, that might be against the authority which has included these posts in the subsequent notification and on the basis of this they cannot claim review of the judgment. If there was any legal grievance available to them, they were at liberty to seek remedy before appropriate forum. As the petitioners have neither brought any such grievance before the Court against this notification and this Court through the judgment under review has examined the legality and propriety of this notification in the light of enforced law and in view of the settled principles of law laid clown in the previous famous judgments in the cases reported as Azad Jammu and Kashmir Government & others v.
Muhammad Younas Tahir & others [1994 SCR 341], and Mst Tanveer Ashraf & 25 others v. AJ&K Government & 2 others [2011 SCR 528], and conditions No. 2 and 3 incorporated in the notification have been declared illegal, self-contradictory and of no legal effect.
8. The learned counsel for the petitioners have failed to point out any illegality in this regard in the impugned judgment rather they have submitted that to this extent judgment is quite consistent with the statutory provisions as well as principle of law enunciated by the Courts, therefore, in our considered view, the petitioners have failed to make out any legal or valid ground for review of the judgment.
9. The review jurisdiction has been discussed in uncountable judgments by this Court. Without detailed discussions, reference may be made from plethora of judgments in the cases reported as Azad Govt. & others v. Gulzar Ahmed Abbasi & others [2005 SCR 361], Major (Retd.) Rafique Ahmed Durrani v. AJ&K University & others [2005 SCR 373], Muhammad Basharat v. Mrs. Naseem Begum & others [2009 SCR 185], Ch. Zahid Hussain v. Khalid lqbal & others [2009 SCR 192], Talat Yasmeen v.
Samina Rashid & others [2009 SCR 333], Sabir Hussain & others v. Muhammad Taj & others [2010 SCR 65], Malik Zafar Ali Awan & others v. Muhammad Riaz Khan & others [2011 SCR 96], Syeda Tasneem Kazmi v. Education Department & others [2011 SCR 155], Azad Govt. & others v. Shakoor Bashir & others [2011 SCR 228], and the Full Bench judgment in the case titled Shahida lftikhar & others v. She bana Mumtaz & others [2011 SCR 273]. Thus, the argument of learned counsel for the respondents that the petitioners have failed to make out any case for interference in review is having weight. In view of the consistent practice of this Court, there is no valid ground for review of the judgment, thus, the review petition stands dismissed.
10. Before parting with the judgment we deem it necessary to observe here that the Courts are to interpret and enforce the law as it is and not to legislate. Due to failure on the part of legislature or executive, people or a class of people may suffer but for rectification of this wrong, obligation lies upon the legislature and executive and not upon the Courts. The executive and legislature may be aware of the Constitutional limits, protection of the rights of the people and shall take steps for just and equitable purposes. The legislature or executive has to take necessary measures for protection of the rights of people on the rational and reasonable classification and not to deal with the matters in a discriminatory manner in violation of the Constitutionally guaranteed fundamental rights. In the instant case if the petitioners claim any vested legal right or there is any reasonable classification, it is the matter to be considered by the executive or the legislature by adopting the legislative measures, if necessary, but the Courts cannot legislate to change the law."
' In the light of the principle of law enunciated in the referred judgments, with reference to the contract policy and conditions of contract appointment orders, such services cannot be converted into regular appointments.
9. So far as the argument of the learned counsel for the appellants regarding equality before law is concerned, no doubt, according to the Constitutionally guaranteed fundamental rights, equality does not mean equality in the illegalities and violation of law, it means equality in good sense for supremacy of law and upholding the Constitutionally guaranteed fundamental rights. Any wrong act cannot be justified for doing another wrong act or perpetuate the same. If such practices are recognized, it will amount to defeat the vary purpose of legislation and supremacy of law.
Therefore, if the respondents have regularized or permanently inducted some persons against law, that cannot be a reason for accepting the appeals or protecting their illegal acts by *directing them to perpetuate the illegalities rather such situation requires eradication of corrupt practices and the concerned authorities should bring law into action to do the needful.
10. According to the celebrated principle of law, void or illegal orders do not create any right or interest in any person. Therefore, the respondents are directed to take up the matter seriously and, initiate for necessary action regarding the illegal regularization notifications issued by the authorities. The persons who have exercised the authority for passing such notifications shall also be taken to the task.
11. As on the identical legal and factual proposition, a number of authoritative judgments have already been delivered by this Court latest one of which on the subject is Waqas Latif's case, supra and the principle of law enunciated in this judgment due to identicity of legal and factual proposition is fully applicable to the appeals in hand. The High Court has rightly by following the judgments of this Court dismissed the writ petitions. The impugned judgments do not suffer from any legal infirmity, therefore, all the appeals stand dismissed with no orders as to costs.