' CH. MUHAMMAD IBRAHIM ZIA, J.--- The captioned appeal by leave of the Court is addressed against the judgment of the High Court dated 2.1.2013, whereby writ petition filed by the appellants has been dismissed.
2. The necessary facts forming the background of the appeal are that Mirpur University of Science and Technology, Mirpur (hereinafter to be referred as MUST), was established through Ordinance No,XVIII of 2008. It is alleged that the above mentioned Ordinance was not laid before the Azad Jammu and Kashmir Legislative Assembly and the same has been re-enacted time and again and lastly Ordinance No, XXI of 2012 was promulgated. According to the version of appellants, since establishment of the University, only two meetings of the Senate were held while no meeting of any of the authorities of the University specified and set up in terms of Section 15 of the Mirpur University of Science and Technology; Ordinance, 2008 (hereinafter to be called as MUST Ordinance), was ever held. It is alleged that in view of Section 41 MUST Ordinance, the Chancellor, the 1st Senate, the 1st Syndicate, Academic Council and 1st Vice Chancellor were appointed. The Senate approved the budget of the University so as to meet the expenditures pertaining to development work and also created posts in various grades in respect of teaching staff and the University was established on substantive basis. It is further stated that the Chancellor directed that statutes of the University are being framed in order to perform various functions and till then the statutes of the Azad Jammu and Kashmir University shall be followed. It is alleged that keeping in view the exigency of the matter, the competent authority decided to make appointments to the various posts in the establishment of the University without advertisement, with a view to save time -and the fact that the selection board was not in existence, therefore, appellants were appointed till the process of selection is held. It is further averred that after appointments of petitioners/appellants on initial basis, the matter was placed before the Senate in its meeting held in May-June, 2010. The Senate approved the appointments of the petitioners/appellants along with their services rendered, on regular basis. The statutes of the University being followed by the MUST, do not provide that any post fallirg vacant to which the initial recruitment shall be made, is to be advertised. It is discretion of the appointing authority to decide whether any post may be advertised or not in accordance with the statutes which are being followed by the University. It is averred that various Universities of the status of MUST including the University of Azad Jammu and Kashmir have regularized the temporary/contractual services of the employees on the basis of principle contained under rule 12 of Establishment (Recruitment) Statutes, 1983 and powers vested to the Senate under Section 20 of the MUST Ordinance. The petitioners/appellants solicited their regularization against the posts held by them through the writ petition before High Court. The learned Judge High Court, after necessary proceedings dismissed the writ petition through the impugned judgment, hence, this appeal.
3. Raja Muhammad Hanif Khan Advocate, the learned counsel for the appellants argued the case at some length. In the light of peculiar facts of the case, he submitted that most of the appellants have been appointed by the competent authority according to the powers vested in it under the statute. The appellants are serving since their appointments and have also gained valuable experience. According to the statutory provisions, the advertisement of the posts or vacancies is not mandatory. The vested legal rights have been created in favour of the appellants, thus, the concerned authorities are under the legal obligation to regularize their services on permanent basis. He placed reliance upon the cases reported as Pakistan International Airlines Corporation
(PIAC) through Chairman and others v. Nasir Jamal Malik and others, [2001 SCMR 934], Muhammad Nasrullah Khan and another v. Federation of Pakistan through Secretary Establishment Division and others, [2001 PLC C.S. 1168], Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another [PLD 1990 SC 295], Irian Anwar Baloch v. Secretary, Ministry. Of Communications Islamabad and 4 others, [1997 PLC C.S. 792] and Abdul Razzak v. Chief Minister Sindh, Karachi and others [1993 PLC C.S. 692].
4. Conversely, Ch. Muhammad Latif Advocate, the learned counsel for respondents strongly opposed the appeal on the ground that according to statutory provision of equality before law, for appointment in the public office, merit is fundamental requirement. The appellants were appointed purely on temporary basis. They accepted the terms of temporary appointment, thus, they, under the principle of acquiescence cannot claim permanent induction. He further submitted that for permanent induction, advertisement of vacancy and determination of merit through open transparent selection process is necessary. The question of creation of vested legal rights does not arise as the impugned judgment of the High Court is quite consistent with the principle of law which does not call for any interference, therefore, this appeal is liable to be dismissed with costs.
5. We have given our utmost attention to the respective arguments of the learned counsel for the parties and also gone through the record. The gist of the appellant's case and claimed relief is summarized in the prayer clause of writ petition which reads as follows:-- "It is, therefore, most respectfully submitted that the appointment to the posts held by each of the petitioner may kindly be regularized in view of all enabling provisions of the University (MUST)
Ordinance, read with the Establishment (Recruitment) Statutes, 1983 along with all other enabling Rules and on the basis of principle of equality with the employees of other Universities who were regularized having the similar status to that of the petitioners. The respondents may kindly be restrained from passing any order so as to terminate the petitioners from service. Till the writ petition is decided, the respondents may also be directed to restrain so as to pass any order of termination of services of the petitioners and with a view to protect the right to service of the University already accrued in favour of each of the petitioners. Any other relief admissible under law may also be granted."
6. The appellants themselves averred in the writ petition that on the establishment of MUST University, till the statutes of University are framed, the statutes of the Azad Jammu and Kashmir University were made applicable. It is further averred that with a view to save the time and due to non-existence of Selection Board, the appellants were appointed against the posts held by them till the process of selection through selection committee/Board is held. They also in their writ petition have brought on record that their initial appointments were purely on contract which were subsequently extended from time to time. The basic appointment order of all the appellants is consisting of the identical terms and conditions which reads as under:- "1. The appointment is purely on contract basis for a period of six months or till holding of the selection board with effect from date of joining and may be extendable on the basis of satisfactory performance.
2. The appointment is liable to be terminated on one month notice from either side or of one month's salary in lieu thereof as the case may be.
3. In all other matters services of the appointee shall be governed under the Statutes and Rules of the University enforced from time to time.
Thus, there is no, dispute regarding the factual aspect of the matter that all the appellants have been appointed purely on contract basis with the condition that their services may be terminated on one month's notice from either side and in all the other matters services of the appointee shall be governed under the Statutes and Rules of the University enforced from time to time.
7. The learned counsel for the appellants has failed to refer to any statutory provision in support of his contention for regularization of contract appointments. However, he contended that as the services of the appellants are not regulated by the Civil Servants Act, therefore, all the previous pronouncements on the subject relating to advertisement of the post being distinguishable are not applicable to the case in hand. There is no cavil with this contention of learned counsel for the appellants that the services of the appellants are not being regulated by the Civil Servants Act. At the same time, we are conscious of the fact that any law or act of the public functionary violative to the Constitutionally guaranteed fundamental rights is void. The Constitution has guaranteed the very basic fundamental right of equality before law. In case of appointment against public office, the purpose of equality before law can only be achieved through open transparent competitive method of selection on merit. This aspect has been dealt with by this Court in the case reported as Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others 2012 PLC (C.S.) 524 the relevant portion of the judgment reads as under:- "6. The interim Constitution of Azad Jammu and Kashmir has guaranteed the right of equality before law and equal treatment of law, thus, this right can only be enforced by following the prescribed mode of appointment by advertising the vacancies and determination of the merit of the eligible candidates through transparent selection process. Law doesn't admit any such tactics that any person, who has been appointed on ad-hoc basis and thereafter for one reason or the other continued such for an indefinite period and then becomes entitled for the permanent induction. Such induction through back door, in fact, amounts to violation of constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment. If such practice is allowed it will encourage the influential and clever persons to maneuver for occupation of the civil post and deprive the qualified candidates to compete on the basis of merit. Such a practice is not only violation of law and fundamental rights but also at the end of the day may result into inefficiency, maladministration and also be a main cause of generating the corruption."
' Subsequently, in another full Court's judgment handed down in the case titled Waqas Latif and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 6 others (2013 PLC (C.S.) 887) once again almost on identical legal and factual proposition, it has been observed as following:- "6. .... 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 and others v. Muhammad Younas Tahir and others, reported as 1994 CLC 2339. 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;
(2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(3) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(4) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx ' 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 become 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 post's 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 l's 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 of 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."
' In both the above referred cases titled Tanveer Ashraf and 25 others v. AJ&K Government and 2 others, [2011 SCR 528], and Waqas Lauf and 3 others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and 6 others [2013 PLC (C.S) 887], the petitioners filed writ petitions for regularization of their ad-hoc/contract appointments. In the light of statutory provisions and previous pronouncements of this Court, relief was denied. In Waqas Latif's case, it was observed that:- "11. As the question of the rights of persons, already inducted in service is concerned, they have themselves opted for temporary services while accepting the terms and conditions imposed in their induction orders. They have been paid for the period they served and even they have gained experience on the public exchequer's costs. Moreover, their rights are also equally protected. They have equal chance to compete in open transparent selection process and prove their merit. If they succeed in proving their merit, there will be no discrimination on the basis of their temporary appointments. Therefore, this cannot be said that their rights in any way are adversely affected."
8. In view of above detailed reasons and referred case-law, it is clear that in the Azad Jammu and Kashmir, it is settled law that the permanent appointment or regularization as permanent against public office or in civil services or statutory bodies can only be made on the basis of selection on merit. For determination of merit, advertisement of vacancy is precondition. Thus, in view of the settled principle of law, any person who has been appointed purely on contract basis; cannot as of right claim regularization on permanent basis.
9. The learned counsel for the appellants mostly stressed in his arguments regarding application of statutory provisions of Rule 12 of the Establishment (Recruitment) Statutes, 1983, followed by the MUST University, Mirpur. It will be useful to reproduce here the relevant provision of these rules which reads as under:- "12. In exceptional circumstances the Vice-Chancellor may for reasons to be recorded in writing relax the provisions of University Statutes. In particular he may relax these provisions in relation to a person appointed to a post in the establishment before the promulgation of these Statutes who though not eligible or qualified for appointment to that post according to the aforesaid provision has, in the opinion of the Vice Chancellor, proved his fitness by good work and conduct."
A bare reading of the rule clearly conveys that these residuary powers are vested in the authority to meet the specific eventuality in exceptional circumstances, thus, the exception cannot be adopted as a general rule. Therefore, the High Court has rightly interpreted these rules and findings in para-10 of the impugned judgment are quite consistent with the spirit of law which do not call for interference by this Court.
10. Another most heated argument advanced on behalf of the appellants is that as no counter affidavit has been filed by the respondents with their written statement before High Court, thus, under the principle of law laid down by this Court in the case reported as Ehtezaz Asgher and others v. Ch. Muhammad Sajawal and 2 others [2012 YLR 1580] it will be deemed that the whole case of the petitioners/appellants has been admitted by respondents, both on facts and law. In our opinion, this argument is partially misconceived. According to celebrated principle of law, there is no estoppel against law nor mere non-filing of counter affidavit can be treated as a valid reason to frustrate the spirit of law. According to statutory provisions and principle of law, the affidavits are normally accepted regarding the question of fact which otherwise cannot be established from record or other evidence. Even an affidavit cannot be given preference over record or the documents. The principle of law laid down in the referred judgment is neither absolute and unqualified nor is of universal application. It depends upon the factual and legal propositions of each case as to regarding which of the propositions and to what extent an affidavit is admissible.
Therefore, we are unable to agree with the opinion of learned counsel for the petitioners/appellants that mere non-submission of counter affidavit amounts to admission of whole case of the petitioners/appellants. Therefore, this argument stands repelled.
11. The learned counsel for the appellants also attempted to built his arguments on the point of discrimination. According to his version, as in some cases, services of some persons have been regularized thus, the appellants also deserve for the same treatment. To substantiate his arguments, he has referred to the appointment orders annexed with the memo. Of appeal from annexures PH/1 to PH/3 available at pages 189 to 191 of the paper book. A perusal of these orders reveals that through these orders, some ministerial staff, Data Entry Operators, Senior Clerks and Junior Clerks have been appointed and none of these appointee's service has been regularized rather their appointment orders speak that their appointments are made on the basis of recommendations of the selection committee. Thus, it appears that the appointments were made on the basis of selection on merit and the question of regularization of contract appointments does not arise. It will be useful to reproduce one of the orders referred to by the learned counsel for the appellants which reads as under:- "ORDER: ' The Vice Chancellor, on the recommendation of Selection Committee held on May 3, 2012 has been pleased to appoint Mr. Mansoor Khan s/o Muhammad Yaqub, R/O village and P.O. Barhing, Tehsil and District Bhimber, AJ&K, as Senior Clerk (BPS-9) with usual allowances as admissible under rules with the following terms and conditions:--- Terms and Conditions:
1. The appointee will be on probation for a period of two years.
2. In all other matters services of the appointee shall be governed under the statues and rules of the University enforced from time to time.
3. The appointee will have to obtain certificate of fitness from the concerned District Health Officer in Azad Jammu and Kashmir on joining the duty.
4. The appointee will be entitled to get salary against the vacant post of Senior Clerk (BPS-9) in the Office of Registrar.
' If the above terms and conditions are acceptable to you, please submit the joining report to the Registrar, within 20 days from the date of issuance of this order."
' Therefore, neither these orders are helpful to the appellants nor support the arguments of the counsel for the appellants. This argument also has no substance as in the case reported as Azad Jammu and Kashmir Government and others v. Muhammad Younas,Tahir and others [1994 CLC 2339] the proposition of equality before law has been discussed in detail.
12. The learned counsel for the appellants advanced another argument that the Senate of the University has approved the regularization of the services of the contract appointees. To substantiate this argument, some record of the meeting has been referred which has been carefully examined by us. The examination of record reveals that the Senate has not permanently regularized or accorded approval of permanent induction of the contract appointees. The Senate has approved in the terms that "the Senate has approved the appointments of faculty members as made by the Vice-Chancellor for a period of 6 months." Thus, it appears that the approval of Senate regarding appointments is in fact for a period of six months and not for permanent induction. Moreover, examination of record also reveals that numerous posts of Professors, Assistant Professors, Director Works, Deputy Director Commerce, Assistant Treasurers and Assistant Engineers, have been advertised by the University and after completion of due selection process by the selection Board, appointments were made. Even according to prevailing practice of the University, the contention of appellants is not tenable. In the same institution, it cannot be allowed that some appointments be made after advertisement of the post and others without advertisement and determination of merit. If such dual mode is allowed, it will surely be a discrimination. The argument of learned counsel for the appellants that the advertisement of the posts is not required by law also stands negated by this practice of University.
13. The case law referred to and relied upon by the learned counsel for the appellants being distinguishable has no nexus, hence, is not helpful in the case in hand.
' The case reported as Muhammad Nasrullah Khan and others v. Federation of Pakistan through Secretary, Establishment Division and others, [2001 PLC (C.S.) 1168], is judgment of Service Tribunal which deals with the promotions of civil servants.
' The case reported as Irfan Anwar Baloch v. Secretary, Ministry of Communications Islamabad and 4 others, [1997 PLC (C.S.) 792], is a judgment of Service Tribunal, which deals with the rights of civil servants.
' In the case titled Abdul Razzak v. Chief Minister, Sindh, Karachi and others, [1993 PLC (C.S.) 692], the point of equal treatment regarding relaxation of qualification of third division amongst the same class of persons has been discussed.
' The case-law referred to in the case reported as Shrin Munir and others v. Government of Punjab through Secretary, Health, Lahore and another, [PLD 1990 Supreme Court, 295], relates to admissions in the Medical Colleges.
' In the case reported as Pakistan International Airlines Corporation (PIAC) through Chairman and others v. Nasir Jamal Malik and others, [2001 SCMR 934], the matter relates to framing of the rules and regulations.
' Thus, none of the referred cases has any application to the case in hand.
The appellants have failed to point out any material illegality or infirmity in the impugned judgment of the High Court. For the above detailed discussed legal and factual propositions, this appeal has no merits, hence, the same stands dismissed with no order as to costs.