Ch. Muhammad Ibrahim Zia, C.J-. In all the captioned appeals by leave of the Court, common proposition is involved, hence, the same are being decided through this single consolidated judgment.
2. The brief facts of Civil Appeal No.158 are that the appellants were appointed as Junior Science, Arabic Teachers/Teacheress and Qari/Qaria, in different years. At the relevant time the Azad Jammu and Kashmir Elementary and Secondary Education Department Teaching Cadre Service Rules, 1994, amended upto 2011 were enforced according to which the qualification for Junior Teacher was FA/FSc, CT, for Arabic Teacher Middle Pass plus Molvi Fazil etc. and for Qari Middle Pass Molvi Fazil plus Sanad Qirat. The posts occupied by the appellants were advertised. The appellants applied for same but the selection process could not be completed due to one or the other reason. In the meantime, vide notification dated 22.12.2016 the Azad Jammu and Kashmir Elementary and Secondary Education Department Teaching Cadre Service Rules, 2016 were enforced while repealing the Rules, 1994 and the qualification for Junior General Line Teacher, Junior Science Teacher, Arabic Teacher and Qari/Qaira was also changed. The Government of AJ&K also issued the AJ&K Teacher's Recruitment Policy, 2017 vide notification dated 01.03.2017.
Thereafter, the Education Department advertised various posts of all the Districts including the posts occupied by the appellants which were to be filled through National Testing Service (NTS) and invited applications from the desirous candidates. The appellants filed writ petition No. 671 before the High Court. They claimed that according to the amended rules, they have become ineligible for appointment against the posts held by them on temporary basis. The amended Rules are not applicable to them, therefore, the test and interview should be conducted on the basis of previous rules. They prayed for holding of test and interview on the basis of previous advertisements and quashment of subsequent advertisements. The learned High Court through judgment dated 15.05.2017, dismissed the writ petitions in limine.
3. The brief facts of Civil Appeal No.159, are that the appellants, herein, filed writ petition No.558/2017 before the High Court alleging therein, that they are serving as the Primary Teacher B-7 and B-9 in the department of Elementary and Secondary Education on ad-hoc basis and were appointed as such through the different orders. The posts have been advertised by the respondents vide advertisements dated 24.06.2015 and 06.03.2015, however, the process could not be completed.
The posts were again advertised through NTS advertisement dated 18.03.2017. They requested for quahsment of the aforesaid advertised dated 18.03.2017 with further prayer to hold test and interview from them under advertisement dated 06.03.2016 and previous rules dated 15.11.2011. The learned High Court, after necessary proceedings, dismissed the writ petition in limine through the impugned judgment dated 13.04.2017.
4. The brief facts of Civil Appeal No.160 are that the appellants, herein, filed a writ petition before the High Court alleging therein that they are serving as Arabic Teacher/Teachress B-9 in the department of Elementary and Secondary Education on ad-hoc basis and were appointed as such vide orders dated 03.09.2015 and 01.12.2015, respectively. The posts have been advertised by the respondents in "Daily Jung" dated 15.03.2017 followed by another advertisement published in "Daily Ausaf" dated 28.03.2017. The appellants requested for quashment of the aforesaid advertisement with the further prayer to hold test and interview from them on the basis of previous rules not appended along with the writ petition. The learned High Court, after necessary proceedings, dismissed the writ petition in limine through the impugned judgment dated 21.04.2017.
5. The brief facts involved in Civil Appeal No.166/2017 are that they appellants filed writ petition No.674/2017 before the High Court, claiming therein that they hail from the District Poonch and were appointed as Primary Teachers on temporary basis. In the year 2012, few posts of Primary Teachers were advertised in "Daily Ausaf" dated 15.06.2012. They participated in test and interview and successful candidates were appointed from the other Districts except three Union Council i.e. Sher Kakoota, Batal Mandhole and Sehra Tai, due to stay order granted by the High Court which was later on recalled. It was further claimed that at that time the qualification required for Primary Teacher was F.A. 2nd Division along with PTC as mentioned in the advertisement by distributing marks as 85% for degrees/qualification (testimonials) and 15% for interview and the said criteria was changed in the year, 2015 with 35% marks for qualification/degree through Government notifications dated 12.11.2013 and 27.05.2015. The Education Department again advertised the posts on 01.02.2014. The appellants participated in test and interview and again the successful candidates from the other Districts were appointed. It was alleged that the official respondents again unlawfully advertised the posts of Primary Teachers along with other posts for all District of Azad Jammu and Kashmir including Union Council Sehra, Batal Mandhole and Sher Kakoota on 14.03.2017 along with a corrigendum dated 15.03.2017 in colorable exercise of powers. The learned High Court dismissed the writ petition in limine along with two other writ petitions through impugned judgment dated 15.05.2017.
6. The brief facts of Civil Appeal No.167 are that the appellants, herein, filed writ petition No.685/2017 before the High Court claiming therein that they were appointed as Qari, Junior Teacher and Primary Teacher on temporary basis in the light of the previous Service Rules, 1994 which have been amended through Government notification dated 22.11.2016. The Education Department advertised 13 posts of Qaris through National Testing Service (NTS) as per new recruitment policy through the advertisement dated 14.03.2017 which may be declared illegal. They further claimed that appellant No.9, Furqan Saleem, is son of a teacher. The Government has issued a notification dated 06.05.2008 through which 5% quota has been reserved for teachers' son but the respondents have not calculated the said quota while advertising the posts. The learned High Court dismissed the writ petition in limine through the impugned judgment dated 10.05.2017 on the ground of non-furnishing of the certified copies.
7. The brief facts of Civil Appeal No.174 of 2017 are that the appellant, herein, filed writ petition No.672/2017 before the High Court alleging therein that he hails from District Kotli and is performing his duties as Qari in the Government Boys High School Jandroot, District Kotli. The Education Department advertised 13 posts of Qari B-9 for District Kotli, vide advertisement dated 13.03.2017.
The Secretary Elementary and Secondary Education vide Government notification dated 12.01.2016, allocated 5% quota of teachers sons. He claimed that his father was performing his duties as a Teacher (Qari) in Education Department, who died during service and he was appointed as Qari on temporary basis vide order dated 19.10.2011, which was endorsed by Divisional Director Schools (Male), Mirpur Division, vide order dated 31.01.2012. He further claimed that the aforesaid posts of Qari B-9, have been advertised through National Testing Service without calculating Teachers' son quota. The learned High Court dismissed the writ petition in limine through the impugned judgment dated 10.05.2017 on the ground of non-furnishing the certified copies.
8. In all the appeals, the learned counsel for the appellants raised identical and common arguments except in appeals No.167 and 174 in which additional question of determination of teachers' son quota is also involved. The most stressed point in all the cases is that the appellants were appointed at different times and holding the posts. At the relevant time of appointments, under the enforced rules they were qualified and eligible to be appointed. Subsequently, their posts were advertised more than once but due to one or the other reason the concerned authority/selection committee failed to complete the process. Thus, due to failure of the authority the appellants cannot be penalized. In appeal No.166, it is further argued that the appellants qualified test and interview but due to interim injunction of the Court their appointment orders were not issued, subsequently, the interim injunction was recalled, thus, they cannot be deprived of their accrued legal rights. They commonly argued that the appellants were holding the post and they were appointed being fully qualified. The subsequent change of rules may not operate retrospectively and adversely affect their accrued vested rights. Therefore, to the extent of posts held by them the new policy along with advertisements for holding NTS test be declared unlawful.
They referred to the cases reported as Muhammad Fayyaz & others vs. Shah Nawaz Khan & others [PLJ 1999 SC(AJ&K) 334], Basharat Hussain & others vs. Muhammad Imtiaz & others [2009 SCR 530], Azad Government & others vs. Shehzad Naseem Abbasi [2006 SCR 396], Azad Government & others vs. Sardar Mukhtar Khan [2016 SCR 206] and Tanveer Fatima vs. Divisional Director Schools & others [2016 SCR 714]. They further argued that due to failure of the authority some of the appellants have crossed the upper age limit prescribed under rules.
9. In appeals No.167 and 174 it is also further argued that the writ petitions have been dismissed on the ground of violation of rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, whereas, according to the principle of law enunciated by this Court in the latest judgments the writ petition cannot be dismissed on such like ground as when the documents are admitted the writ petition cannot be dismissed due to non-furnishing of such documents.
10. Sardar Abdul Hameed Khan, Advocate, the learned counsel for the appellants in Civil Appeals No.159 and 160 filed written arguments along with some additional documents including some enforced policies of the Government of Punjab and Balochistan.
11. M/s. Raza Ali Khan, Advocate-General and Sajid Hussain Abbasi, Advocate, appearing on behalf of the respondents forcefully defended the impugned judgments and submitted that the writ petitions were not maintainable due to application of principle of laches. The Education Policy for holding NTS test was enforced vide notification dated 26.11.2015 which matter has already been conclusively resolved by this Court in Civil Appeal No.142/15 decided on 13.06.2016. All the appellants are holding the posts on temporary basis. No vested legal right is accrued in their favour. The writ jurisdiction cannot be exercised for protection of ill-gotten gains. The appellants have made vague assertion in their writ petitions and failed to bring on record any supportive documents, thus, the writ petitions have rightly been dismissed in limine. They further argued that the test and interview has already been held but the candidates who have been selected on merit and vested legal rights have been accrued in their favour, have not been arrayed as party, therefore, on this score too the appeals are not maintainable. They placed reliance on the cases reported as Muhammad Riaz Munna vs. The State [1993 SCM R 1321]. Government of NWFP vs. Dr. Sheikh Muzaffar Iqbal & others [1990 SCM R 1524], Dr. Muhammad Hussain vs. Principal Ayub Medical College & others [PLD 2003 SC 143] and Mumtaz Ali Bohio and others vs. Federal Public Service Commission & another [2002 SCM R 772].
12. We have dispassionately heard the counsel for the parties and gone through the pleadings of the parties as well as the other relevant record. Before proceeding further, we deem it necessary to observe that on behalf of the appellants-petitioners some important propositions regarding holding of test and interview and preparation of merit list have been raised but regrettably they have not seriously attempted to substantiate their claim by bringing on record the relevant documents. According to the settled principle of law, the Courts have to decide the propositions on the basis of pleadings of the parties and other material brought on the record. The propositions requiring examination of the record and other material cannot be resolved in vacuum in absence of such required material. So the claim of some of the appellants that they appeared in response to previous advertisements and qualified test and interview does not find support from the record in view of the failure of the appellants to bring on record the required material.
13. The most stressed proposition raised and heatedly argued on behalf of the appellants is regarding change of the policy and the rules relating to the posts of Teachers of Education Department. The counsel for the appellants have argued that no law can be enforced retrospectively to deprive the appellants of their vested legal rights. The rules have to operate prospectively. As the appellants are holding the posts before amendments in the rules and enforcement of new policy, thus, they are entitled to be inducted into service according to rules enforced at the time of advertisement of the posts in the past. They relied upon the cases reported as Muhammad Fayyaz & others vs. Shah Nawaz Khan & others [PLJ 1999 SC(AJ&K) 334], Basharat Hussain & others vs. Muhammad Imtiaz & others [2009 SCR 530], Azad Government & others vs. Shehzad Naseem Abbasi [2006 SCR 396]. In our considered view, the referred judgments are not applicable to the case of the appellants in view of the peculiar facts and circumstances of this case. In the case Muhammad Fayyaz & others vs. Shah Nawaz Khan & others PLJ 1999 SC(AJ&K)
334 the principle of law laid down is that the amendments in law shall operate prospectively and where amendment made in rules enlarges sphere of competition for the purpose of selection, such amendment would not operate retrospectively. Same like, in Basharat Hussain & others vs. Muhammad Imtiaz & others [2009 SCR 530] it has been held that subsequent alteration of qualification cannot snatch a right which has already accrued to a civil servant. In Azad Government & others vs. Shehzad Naseem Abbasi [2006 SCR 396] after final selection of the candidate against a post the appointing authority refused appointment on the ground that selection authority has been changed. It was held that the law operates prospectively, whereas, in the instant case as it has already been observed that no material has been brought on record by the appellants that anyone of them in due course of previous advertisements had been selected on merit against the advertised posts. The appellants have failed to satisfy the Court that anyone of them was validly selected on merit against the previously advertised posts. They are holding the posts temporarily on ad-hoc basis. They are neither civil servants to whom the service law or the rules made under the Azad Jammu and Kashmir Civil Servants Act, 1976 are applicable nor anyone of them has proved that he has been selected on merit against the advertised posts. In this situation, the question of accrual of vested right does not arise, hence, in view of the peculiar facts of the case neither the argument advanced on behalf of the appellants is tenable nor the case law referred to in this regard is applicable.
The counsel for the respondents on this proposition have rightly relied upon the case reported as Mumtaz Ali Bohio and others vs. Federal Public Service Commission & another [2002 SCM R 772], wherein it has been held that no candidate has a vested right to be governed by any particular set of Rules. The paragraph 6 of the referred judgment reads as follows:- "6. Neither the competency of respondent No.1 to change the rules in public interest could be challenged nor any candidate has vested right to be governed by any particular set of Rules. It is within the domain of respondent No.1 to make any alteration in the recruitment policy before finalization of the appointments. If the rules are altered/changed, the latter rules will supersede the former. Vested rights originate from contracts, statutes, and by operation of law. None of the above conditions is attracted in this case. The Rules of 2000 could not be invoked for the examination to be held in the year 2001, when the rules of latter year were available. The order of High Court is perfectly correct and no interference is warranted."
The apex Court of Pakistan in the case reported as Dr. Muhammad Hussain vs. Principal Ayub Medical College & others [PLD 2003 SC 143], while dealing with the amendments in service rules held as follows:- "In the light of what has been stated hereinabove the petitioner has absolutely no vested right and the competent Authority is fully competent to make amendment in the prescribed qualifications and by doing so no illegality whatsoever has been done. We are, therefore, not inclined to accept this petition which is dismissed being meritless."
In the case reported as Government of NWFP vs. Dr. Sheikh Muzaffar Iqbal & others [1990 SCM R 1524], while dealing with the change of rules, it has been observed that: "No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post. The Govt. has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the post which the civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy."
Thus, on this vital proposition in view of the above survey of the case law it can be safely held that the appellants are neither civil servants nor have succeeded to prove that anyone of them had been selected on merit against any advertised post, thus, in their favour no legal right has been vested. In this context, they have no locus standi to challenge the vires of the policy and the rules laid down for induction of the teachers.
14. So far as the question of induction through NTS test is concerned, it requires no further deliberation as on this proposition this Court in the case titled Asia Tabassum & others vs. Saima Manzoor & others [Civil Appeal No.142/2016 decided on 19.06.2016] has already observed that: "After going through condition No.iii of the above referred notification, it is clear that mode of appointment against the non-gazetted posts has been provided through National Testing Service (NTS). The condition is neither un-constitutional nor in violation of any law. In our estimation, this is the mode through which the object of transparency in the appointments can exceptionally be achieved. Even otherwise, the appellants do not appear to be affected by the direction issued by the High Court as they will have full opportunity to participate in the selection process. If they succeeded to get the merit position, surely they will be there amongst the successful candidates."
15. Another proposition which has also been raised is that some of the writ petitions have been merely dismissed on the ground of violation of rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, whereas, the documents annexed with the writ petitions are admitted documents and in view of principle of law laid down by this Court in the case reported as Tanveer Fatima vs. Divisional Director Schools & others [2016 SCR 714] and some other subsequent judgments the writ petitions were not liable to be dismissed on this ground. We have no cavil with the argument advanced on behalf of the appellants. It is now almost settled that although under the provisions of rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 furnishing of certified copies or documents is mandatory requirement but if the same is not objected from other side and the documents are admitted then dismissal of writ petition on this ground is not justified, however, despite this it appears to be futile exercise as in view of conclusion hereinabove drawn the writ petitions even otherwise on merit are not maintainable.
16. In appeals No.167 and 174 an additional ground has been raised that according to the enforced policy and law for induction against the post of teachers there is 5% quota reserved for teachers' son. Although, the writ petitions have been dismissed in limine on another grounds, however, in our considered opinion on this sole ground reopening of the matter will not serve any just purpose and cause, rather while exercising inherent powers, we deem it appropriate to observe that in case the teachers' son quota exists, the concerned authorities are directed to consider the same according to the spirit of the law and take necessary steps in this regard.
17. We also deem it necessary to observe here that admittedly the process of selection through the NTS has been completed and the candidates have also been selected on merit but this is another aspect of the matter that none of the appellants have bothered to take any step for arraying the candidates selected on merit as parties, therefore, in this state of affairs even otherwise the writ petitions are not maintainable.
18. Before parting with the judgment, we deem it necessary to observe in public interest that the prevailing tendency on the part of the Executive, specially, in the Education Department and unnecessarily prolonging the matter of appointments against the permanent vacancies, not only creates anomalous situation resulting into depriving the eligible candidates from their right of competition at the right time but also generates multi-dimensional mal-practices resulting into adversely effecting the performance of the department. In this context, all the executive authorities from top to bottom are under the legal obligation to take necessary steps for completion of the process of selection on merit for appointments against the available posts before completion of the financial year in which the posts became available. In future, the violation on the part of executive shall be deemed serious misconduct and violation of law as well as the direction of this Court.
For the above stated reasons, subject to hereinabove observations, finding no force, these appeals are hereby dismissed with no order as to costs.