Raja Saeed Akram Khan, J.-- The titled appeal by leave of the Court has arisen out of the consolidated judgment passed by the High Court on 9.6.2016, whereby, the learned High Court while accepting the writ petition filed by respondents, 1 to 3, herein, set aside the appointment order of the appellant dated 5.10.2015 with the direction to the official respondents to appoint a suitable candidate from the merit list in accordance with law, whereas, the writ petition filed by the appellant, herein, has been dismissed with the observation that he is not eligible to be appointed as Patwari.
2. The brief facts of the case are that the appellant, herein, was appointed as Patwari on work-charge-basis against a vacant post in the Pearl Development Authority (PDA), Rawalakot and his services had been extended from time to time. He was confirmed against the post vide order dated 5.10.2015. Feeling aggrieved, respondents No. 1 to 3, herein, challenged the appointment order of the appellant dated 5.10.2015 by filing the writ petition in the High Court. The appellant, herein, also filed a writ petition in the High Court seeking direction to restrain the official respondents from cancelling the appointment order of the appellant. The learned High Court, after necessary proceedings and hearing the contesting parties accepted the writ petition filed by respondents No. 1 to 3, herein, and dismissed the writ petition filed by the appellant in the manners as indicated in the preceding paragraph. Hence, this appeal by leave of the Court.
3. Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for the appellant, argued that the judgment passed by the learned High Court is based on misconception of facts and law which is not sustainable in the eye of law. He submitted that the learned High Court while observing that the appellant was not eligible to be appointed as Patwari, failed to adhere to the relevant provisions of law on the subject in its true perspective.
The learned High Court has declared the appointment of the appellant as illegal on the sole ground of being overage, whereas, the rules provide that in case of a candidate already working as a Government servant on permanent, adhoc or work-charge-basis, the period of his continuous service for the purpose of upper age limit prescribed under any service rules, shall be excluded from his age. He maintained that the appellant has served as Patwari on adhoc basis for a period of more than 3 years since 2012, whereas, the learned High Court has passed the impugned judgment without taking into consideration the relevant provisions of law in this regard. He argued that the appointment order of the appellant is self-explanatory in nature, which speaks that his appointment has been made in continuation of work-charge/contract service. The appellant was already serving as Patwari in the Pearl Development Authority on adhoc basis and if the period served in the said department is excluded from his age for the purpose of upper age limit even then the appellant's age comes within the prescribed limit but the learned High Court has not properly attended this important aspect of the case. The learned counsel lastly argued that the Chairman PDA is competent to appoint a Patwari in the department, therefore, the appointment order of the appellant has been made in accordance with law.
4. Conversely, Mr. Jamshed Ahmed Butt, Advocate, the learned counsel for the respondents, strongly opposed the arguments addressed by the learned counsel for the appellant, while submitting that the judgment passed by the learned High Court is perfect and in accordance with law, therefore, no interference by this Court is warrant under law. He argued that the learned High Court has thoroughly attended the question of overage on the strength of the material available on record. He further argued that the appellant cannot be given the benefit of the period for which he has served on temporary basis. There is also a break in the period between the temporary and permanent service of the appellant, therefore, the period for which the appellant has not served in the department cannot be excluded from his age. He submitted that the post was not advertised and no selection process has been conducted, therefore, the appointment order of the appellant has been made without following the procedure provided by law. The learned counsel has relied upon the cases reported as Molvi Abdul Latif Qari (Qadri) & 366 others vs. Azad Government & 44 others [2014 SCR 1104] and Abid Akram vs. Danish Zaib & 5 others [2015 SCR 732].
5. We have heard the arguments of the learned counsel for the parties and gone through the record made available. The controversy involved in the matter is that Kamran Abbas, Patwari, who was serving on deputation in the Pearl Development Authority, Rawalakot, was repatriated to his parent department due to which a post fell vacant and the appointment of the appellant was made against the post on work-charge basis. The Government of the Azad Jammu and Kashmir vide notification dated 20.2.2014 relaxed the appellant's upper age limit for 2 years.
6. The main point agitated by the learned counsel for the respondents is that at the time of the appointment of the appellant, he was over-aged. According to the matriculation certificate, the date of birth of the appellant is 15.5.1972. He was appointed as Patwari on work-charge-basis against a vacant post on 5.10.2015. The Government of Azad Jammu and Kashmir vide notification dated 13th August, 2014 has relaxed the upper age limit up to 5 years and fixed the same as 40 years. The relevant portion of the notification dated 13th August, 2014 is reproduced as under:-- {{URDU TEXT}} The counsel for the appellant argued that the appellant has also obtained two years further relaxation in the upper age limit. A perusal of clause 4 of the notification dated 13th August, 2014, clearly conveys that during the period of 2 years from the date of issuance of the notification, nobody shall be given further relaxation in upper age limit. Although, no such document is available on record through which it could be ascertained that any further relaxation was made in favour of the appellant. However, if any such order issued in favour of the appellant, the same being violative of the notification dated 13th August, 2014, is not tenable. If the version of the appellant regarding further relaxation in the upper age limit is presumed as correct, even then after relaxation of the upper age limit for 2 years, the age of the appellant at the time of his appointment on 5.10.2015 was 43 years, 4 months. Therefore, the argument of the learned counsel for the respondents that the appellant being overage cannot be appointed, has substance.
8. Another argument addressed on behalf of the appellant is that the appointment order of the appellant dated 5.10.2015 has been issued in continuation of the previous order. It would be advantageous to reproduce here the appointment order of the appellant dated 5.10.2015, which reads as under:-- {{URDU TEXT}} The language of the order dated 5.10.2015 is unambiguously speaks that the appellant was appointed on the basis of experience. The appellant failed to prove that there was continuation in his service up to 5.10.2015, therefore, the argument being baseless stands repelled.
In light of above discussion, we have found no substance in this appeal, therefore, the same is hereby dismissed with no order as to costs.