Through the above titled writ petition filed under Section 44 of the AJ&K Interim Constitution Act, 1974, a direction has been sought against the official non-petitioners to set-aside the appointment orders of private non-petitioners Nos. 6 and 7 as Junior Clerks dated 14.03.2013 for having been passed without lawful authority and to appoint the petitioner in accordance with Death Package dated 12.09.2006.
2.Petitioner's father Farooq Durrani, Head Clerk, died during service of Forests Department on 15.092011. The petitioner applied for job on the basis of "Assistance Package for Families of Government Employees Who Die In Service" dated 12.09.2006. Despite repeated applications to the Divisional Forests Officer and Minister for Forests, the petitioner has not been appointed as Junior Clerk or Forests Officer. The petitioner has prayed to the Court to declare him entitled for appointment under the afore-cited memorandum dated 12.09.2006. It may be mentioned here that private non-petitioners No 6 and 7 have been appointed as Junior Clerks on adhoc basis vide even dated orders on 14.03.2013. The petitioner has prayed to the Court to set aside the orders of appointments of the private non-petitioners as well 3.Official non-petitioners have filed written statement wherein it has been contended that private non-petitioners have been appointed as Junior Clerks in order to run routine business. It has further been contended that regular appointments against these posts would be ordered after advertising the same in accordance with rules. The official non-petitioners have further contended that the petitioner has relied on an office memorandum dated 12.09.2006 which is not a Govt. notification and has not the force of law. Written statement on behalf of non Petitioners No.6 and 7 also contains the same version.
4. I have heard learned counsel for the parties and learned Legal Advisor appearing on behalf of Forests Department. In order to evaluate the petitioner's claim, validity of office memorandum dated 12.09.2006 has to be examined. Finance Department of Govt of Azad Jammu & Kashmir issued an office memorandum on 12.09.2006, which is commonly known as "Death Package" A lump sum financial package has been announced through office memorandum for different pay scales of. Govt. employees who die in service. Finance Department has announced the employment for the posts in BS-1 to BS-15 for 2 years on contract without advertising the posts.
Besides that, facility of waiving of Mouse Building Advance has also been announced in this package. A perusal of the notification further reveals that assistance package has been approved by the President of Azad Jammu & Kashmir.
5. Assistance Package announced by Finance Department of Govt. of AJ&K dated. Sep 12,2006 does not carry force of law for the following reasons:-- (i)Under Rules of Business, Finance Department is not competent to provide mechanism for employment in Govt. service. At the most, the Finance Department may accord financial concurrence for creation or upgradation of a post where National Exchequer is involved.
(ii) Assistance package announced by Finance Department through an office memorandum is a violation of AJ&K Civil Servants Act, 1976 and the AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977.
6. For proper appreciation, Section 4 of the AJ&K Civil Servants Act, 1976 is reproduced as under:-- "4. Appointments:--Appointments to civil service of Azad Jammu & Kashmir or a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorized by it in that behalf.."
7. The Govt. of AJ&K has framed rules in pursuance of the AJ&K Civil Servants Act, 1976, which it is empowered under Section 23 of the Act. Rule 4 of the AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977 provides as under:-- "In the Civil Secretariat, each Department or office of the Government, there shall be one or more Departmental Selection Committees."
8. Sub-rule (6) of Rule 4 further provides as under:-- "(6) Respective Departmental Selection Committees shall make Selection for appointment:-- (i)By initial recruitment, transfer or promotion to all posts in BS-1 to 15; (ii)By transfer or promotion to all posts in BS-16 and 17 in or under a Department or Office for which it is constituted."
9. In the same way, different appointing authorities have been mentioned for appointment in different grades. For appointment in BS-1 to BS-15, "Respective Authorities exercising such powers immediately before the commencement of these rules or such authorities as may thereafter be empowered", have been described.
10. Rule 17 of "AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977 provides as under:-- "Initial appointment to all posts in BS-1 and above except those filled under Rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government".
11. It is worth mentioning here that even an adhoc appointment has in be made after advertising the post under Rule 23. The relevant provision is as under:- "23. (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.
(2) After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on adhoc basis for a period not exceeding six months pending nomination of candidate.by the selection authority: Provided that (1)the vacancy is advertised properly in the newspaper; (2)The appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; (3)The selection is made on the basis of merit determined by objective criteria; (4)The appointment order certifies that a requisition has been sent to the selection authority; and (5)The appointment is made subject to revocation at any time by the competent authority; Provided further that adhoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade".
12. Scheme of law provided in AJ&K Civil Servants Act, 1976 and Rules made there under provides that respective selection committee is empowered to appoint a person in BS-1 to BS-15 after advertising the post. Without going through the prescribed procedure of law, an appointment to any post in civil service of Azad Jammu & Kashmir would be invalid. Superior Courts of AJ&K have time and again resolved the proposition in different cases. The Hon'ble Supreme Court of AJ&K in a remarkable judgment reported as 1994 SCR 341 has laid down while elaborating Section 23 of AJ&K Civil Servants (Appointment & Conditions of Service) Rules, 1977 as under:-- "Method of adhoc appointment:--Adhoc appointment not a bounty--to be made in public interest for a limited period of six months and is to be made on the basis of open merit- it is clearly spelt out that adhoc appointment can only be made;-- (i)The vacancy is advertised.
(ii). A duly qualified person is appointed.
(iii)Selection is made on the basis of merit.
(iv)Appointment order certifies that the requisition has been sent to the selection authority.
(v) The appointment is made subject to revocation at any time".
13.It may be mentioned here that Govt. of AJ&K had regularized services of dozens of adhoc appointees through AJ&K (Civil Servants (Regularization of Adhoc Appointment) Repeal Act, 1993.
The apex Court held that the afore-cited Act is found in contradiction with Public Service Commission Act. The AJ&K (Civil Servants (Regularization of Adhoc Appointment) Repeal Act, was set-aside by the Supreme Court.
14.In Muhammad Riaz Khan's case (2010 SCR 131),. the Supreme Court of A.J&K has concluded that Police Rules, 134, were framed by the Govt. under Police Act, 1861. Any policy decision, instruction or standing order contrary to service rules affecting the terms and conditions of service of a civil servant issued by such authority which has no jurisdictional competence to frame the rules cannot have a force of rules. It. was further held that any standing order adversely affecting the terms and conditions of a Police Officer guaranteed by the rules cannot be issued.
15.In a case titled "AJ&K Govt. & 02 others v. Muhammad Naseer Chaudhry & 02 others" (2010 SCR 1 86), the Supreme Court of AJ&K has held as under:-- "--If the instructions have been issued by the same authority which is vested with the power to make rules, then the instructions must carry the weight of rules -- and shall have equal binding force as that of rules--Any policy decision or instructions contrary to rules cannot be considered a valid rule --Policy decision or instructions issued by the rule making authority shall have equal binding force if these are not in contravention of rules".
16. Functions and responsibilities of Finance Department have been provided under Rule 15. of Rules of Business, 1985. For proper appreciation, Rule 15 of Rules of Business, 1985, is reproduced as under: -- "15.Consultation with Finance Department:(1) No Department shall, without previous consultation with the Finance Department, authorize any orders, other than orders in pursuance of any general or special delegation made by the Finance Department, which directly or indirectly affect that finance of the Government or which in particular, involve:-- (a)Relinquishment, remission or assignment of revenue, actual or potential, or grant of guarantee against it or grant or lease of land or mineral, forest or water power rights; (b)Expenditure for which no provisions exists; (c)A charge in the number or grading of posts or in terms and conditions of service of Government servants or their statutory rights and privileges which have financial implications; (d)Levy of taxes, duties, fees or ceases; (e)Floatation of loans; (f)Re-appropriations within budget grants; (g)Alteration in financial procedure or in the method of compilation of accounts or of the budget estimates; (h)Interpretation of rules made by the Finance Department.
(2)No amendment or interpretations of such Service Rules as have no financial implication shall be made by the Finance Department without the prior concurrence of the Services and General Administration Department.
(3)No proposal, which requires previous consultation with the Finance Department under sub- Rule (1) but in which the Finance Department has not concurred, shall be proceeded with unless a decision to the effect has been taken by the Cabinet, Formal orders shall, never the less issue only after the Finance Department has exercised scrutiny over the details of the proposal.
(4)Except to the extent that power may have been delegated to Department under rules framed by the Finance Department, every order of an Administrative Department conveying a sanction of be enforced in audit shall be communicated to the audit authorities through the Finance Department".
17.Whole the scheme of law reproduced above leads to the conclusion that the Government is empowered to frame rules for appointment of civil servants in different grades. The Govt. of AJ&K has framed rules for the purpose in the year 1977. Under the afore-cited rules, a civil servant in BS-1 to BS-15 can be appointed by the competent authority on recommendations of concerned selection committee. Any other mode of recruitment through a notification or even an Act of the Legislative Assembly has no legal force as held by the Supreme Court of AJ&K. Finance Department is, therefore, not authorized to provide an alternate mode of recruitment of 'civil servants in BS-1 to BS-15 through office memorandum dated 12.09.2006. Office memorandum is found violative of AJ&K Civil Servants Act, 1976 and the rules made there under. It is further held that the afore-cited Assistance Package is violative of departmental rules as well. It has been stated earlier that Govt. is empowered to frame rules for induction in service of Azad Jammu & Kashiir, so, if he Govt. desires to announce any facility for children of employees who die in service, it may do so after amending the relevant provisions of AJ&K Civil Servants Act, 1976 and the rules made there under.
18. Before parting with the discussion, it is noticed that Forests Department has appointed the private non-petitioners on temporary basis vide orders dated 14.03.2013 and has not advertised the posts as yet. It is, therefore, directed that the Forests Department shall advertise the posts in question forthwith and make regular appointments in accordance with law.
1 Nutshell of the above discussion is that office memorandum of the Finance Department dated 12.09.2006 is held ineffective to the extent of employment for posts in BS-1 to BS-15 on 02 years contract without advertisement. The petitioner has no right to claim appointment under the afore- cited Assistance Package and is not an aggrieved person in the eye of law. The writ petition is,