M. TABASSUM AFTAB ALVI, C.J.---The captioned writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, following prayer is made by petitioner:-- "It is, therefore, very humbly prayed that the petition may kindly be accepted and appropriate writs in the following manner may kindly be issued in favour of petitioner against respondents: -
(i) the respondents be directed to issue permanent appointment order in favour of petitioner as Research and Planning Officer B-17.
(ii) to pay all the emoluments including monthly salary to petitioner.
(iii) Not to disturb petitioner from her present place of posting."
2. The summary of case is that petitioner being qualified as MS (Hon's) in discipline 'of Rural Development was appointed as Research and Planning Officer B-17, on ad hoc basis, for 06 months period through notification dated 26.07.2013, which post was created by the Government vide notification dated 19.06.2013. It is alleged that the aforesaid appointment of petitioner was extended time and again. Meanwhile, Neelum Valley Development Board (Employees) Service Rules, 2012, were challenged before this Court through Writ Petition No,243/2014, titled "Zia Asghar and others v. Azad Govt. and others" which after due process of law were eset aside vide judgment dated 25.06.2014. Thereafter, petitioner applied for her permanent appointment under the Neelum Valley Development Board Act, 1999, (hereinafter to be called as Act, 1999). In this regard, Prime Minister, Azad Government of the State of Jammu and Kashmir gave approval in favour of petitioner on 23.10.2015, hence, Chairman, Neelum Valley Development Board, issued second appointment order in her favour subject, to approval by the Board on 03.11.2015. It is contended that majority of the members have approved the aforesaid appointment of petitioner, however, respondent No,3, was reluctant to issue her regular appointment order, hence, the instant constitution petition.
3. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioner is not an aggrieved person, who failed to point out any infringement of her legal grievance, hence, writ petition is liable to be dismissed. It is averred that petitioner has not come to the Court with clean hands. It is claimed that according to Act, only Board has authority to appoint any candidate in scale B-17, while petitioner was not appointed by the Board, however, proceedings were processed, but due to Election, 2016, approval was not granted, therefore, formal order in favour of petitioner could not be issued, hence, submitted for dismissal of writ petition.
4. Mr. Haider Rasheed Mughal, the learned counsel for petitioner strenuously argued that his client was appointed on ad-hoc basis as Research and Planning Officer B-17, by the competent authority vide Govt. notification dated 26.07.2013. He pressed into service that Neelum Valley Development Board (Employees) Service Rules, 2012, were challenged through writ petition before this Court which were ultimately set-aside, hence, petitioner applied for her permanent appointment under the Act, 1999. The learned counsel maintained' that as per Section 10 of Act, 1999, Board is competent to appoint petitioner against disputed post, hence, a direction was issued by the Prime Minister of Azad Government of the State of Jammu and Kashmir on 23.10.2015, to Chairman, Neelum Valley Development Board for her appointment, therefore, appointment order of petitioner subject to approval by the Board was issued by Chairman on 03.11.2015. He contended that majority of the members approved the aforesaid order, however, respondent No,3, did not issue permanent appointment order of petitioner and for certain period she has not been paid salary, hence, submitted for acceptance of writ petition. The learned counsel in support of his contentions referred to and relied upon the following case law:-
(i) Fuad Asadullah Khan v. Federation of Pakistan through Secretary Establishment and others (2009 SCMR 412).
(ii) Muhammad Shoaib and 2 others v. Government of N.W.F.P. through the Collector, D.I. Khan and others (2005 SCMR 85).
(iii) Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others (2004 SCR 298).
(iv) Aijaz Mustafa Samtio, Advocate v. Government of Sindh and others (2002 PLC (C. S.) 11 7).
(v) Administrator, District Council, Larkana and another v. Ghulab Khan and 5 others (2001 SCMR 1320).
(vi) An unreported Judgment of this Court in Writ Petition No,1243/2014 titled "Nazia Shaheen v.
District Education Officer (Female), Bhimber and others" decided on 17.05.2016.
5. Raja Amjad Ali Khan, the learned counsel for respondents vehemently argued that petitioner was initially appointed as Planning and Research Officer B-17, on ad hoc basis, vide notification dated 26.07.2013. He further contended that on the direction of the Prime Minister of Azad Government of the State of Jammu and Kashmir dated 20.10.2015, Chairman, Neelum Valley Development Board, issued appointment order of petitioner on 03.11.2015, subject to approval of the Board. The learned counsel pressed into service that under section 10 of Act, 1999, the appointing authority of petitioner is Board and not Chairman. He emphasized that Secretary Board after issuance of the same, suggested that approval of the Board may be obtained by circulation, which appointment was never approved by the Board. He pressed into service that petitioner has already been paid salary for the period she worked, hence, submitted for dismissal of writ petition.
6. I have perused the contents of Writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of record reveals that petitioner being qualified as MS (Hon's) in discipline of Rural Development was appointed on ad hoc basis for 06 months against a post of Research and Planning Officer B-17, vide notification dated 26.07.2013. The last extension was granted to petitioner for further 06 months w,e,f, 28.07.2015, vide notification dated 05.10.2015. It further reflects from record that Neelum Valley Development Board (Employees) Service. Rules, 2012, were challenged before this Court through Writ Petition No,243/2014, titled "Zia Asghar and others v. Azad Govt. and others" which after due process of law were set aside by Division Bench (DB) of this Court vide judgment dated 25.06.2014. Thereafter, petitioner applied for permanent appointment under Act, 1999, against which Chairman, Neelum Valley Development Board, issued her appointment order as per direction of the Prime Minister, subject to approval by the Board, on 03.11.2015. It will be useful here to reproduce Section 10 of Act, 1999,which speaks as under:-- "10. Employees of the Board:- The Board may, from time to time, employ such officers, servants, experts or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit.
Provided that salaried officers and servants of BPS-18 and above shall not be appointed except with the prior approval of the Government."
A reading of section 10, supra, makes it abundantly clear that only Neelum Valley Development Board was competent authority to appoint officers, servants, experts and consultants for performance of its functions. A perusal of record reveals that appointment of petitioner was not made in accordance with provision of section 10 of Act, 1999, rather the same was issued by Chairman, Neelum Valley Development Board, upon the direction of the Prime Minister of Azad Government of the State of Jammu and Kashmir, subject to approval by the Board, however, the Board never approved the aforesaid appointment. It is settled principle of law that an unlawful order of the Prime Minister, cannot be directed to be enforced through discretionary relief of writ jurisdiction. The same proposition came under consideration before the Apex Court in case titled "Major Muhammad Aftab Ahmed (Retired.) v. Azad Jammu and Kashmir Government" [1992 SCR 3071 and at page 312, of the report it was observed as under:- "(iii) Even if it is assumed for the sake of arguments that the Prime Minister had made the order for the appointment of the appellant to the post of Superintendent of Police still it cannot be given effect to or enforced by way of issuing writ directing the respondent to issue the order of his appointment to the said Post as it is a settled law that the writ jurisdiction cannot be exercised to direct a person to give effect to an unlawful order of any authority even though it is competent authority to pass such an order in a lawful manner. Since, as said earlier, the appointment of the appellant could not be made to the post of Superintendent of Police under the rules the orders of the Primer Minister claimed by the appellant to be the orders of his appointment to the said post being violative of the relevant rules were unlawful and consequently were not enforceable by the High Court in its writ jurisdiction which is discretionary in nature and its exercise is always refused where the ends of justice and facts of the case do no justify and call for to do so."
An identical view was expressed by the Apex Court in case titled "Zareena Kausar v. Divisional Director Schools and 3 others" [2014 SCR 878], wherein, at page 882, it was held as under:- "The arguments of the learned counsel for the appellant that order was implemented with letter and spirits in pursuance of the impugned order, appellant assumed the charge while submitting her joining report, therefore, there was no justification to cancel the same after a short span of time, is ill-founded as an illegal order cannot be protected on the ground that the same has been implemented."
The same view was expressed by the Lahore High Court, Lahore, in case titled "Ignees Maria and another v. District Coordination Officer, District Bahawalnagar and 2 others" [2012 PLC (C.S.) 772], wherein, at page 784 of the report, it was opined as follows:- "15. Next comes the objection of learned counsel representing the private respondents/ newly appointed Class-1V employees that their appointment are protected by the principle of locus poenitentiae and that omissions made by the departmental authorities cannot be made basis to upset their appointments. I am afraid the principle of locus poenitentiae cannot be pressed into service to protect the ill-gotten gains. If some benefit has been obtained in sheer disregard to settled procedure and it also has been done by tarnishing the rights of other eligible persons, then such a benefit cannot be maintained perpetually and as discussed above, in the case in hand, neither a valid Recruitment Committee was ever constituted nor the recommendations can be said to have been validly made by the competent authority, as such, the entire recruitment process being defective, the above argument of learned counsel is not sustainable under any law."
8. The appointment of petitioner against of post of Research and Planning Officer B-17, was made by Chairman without advertisement of post, merit and recommendation of Selection Authority. The Statutory Rules were also not framed by the Board for the aforementioned post. The appointment of petitioner is, therefore, hit by rule of law laid down by the Apex Court in cases titled "Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others (1994 CLC 2339) and "Mst. Tanveer Ashraf and 25 others v. AJ&K Government and 2 others (2012 PLC (C.S.) 524).
9. It further reflects from the report of the Chairman, Neelum Valley Development Board dated 14.12.2017, that Secretary Board after issuance of the disputed order, suggested that approval of the Board may be obtained by circulation, which was never approved by the Board, hence, contention of the learned counsel for petitioner that most of members have approved the same, is misconceived. It appears from the said report that petitioner never joined against the post in question on the basis of illegal order dated 03.11.2015. As per order dated 22.01.2018, petitioner was directed to produce her joining report, pertaining to the post in question, on the basis of order dated 03.11.2015. She produced a report which is a photostate copy. A perusal of record reveals that photostat copies of order dated 03.11.2015, as well as, joining report dated 03.11.2015, have been appended with the writ petition. As per law photostat copies are not admissible. The aforesaid point came under consideration before the Apex Court in case titled "Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others" [2003 SCR 260], wherein, at page 263 it was opined as under:- "Under the. High Court Procedure Rules, 1984, the appellants were bound to furnish the attested copies of the record upon which the reliance was placed by them with their writ petition, whereas photostat copies were provided by them in the High Court, therefore, their writ petition was not maintainable. However, this aspect of the case remained unattended. Before this Court the appellants again appended with the petitioner for leave to appeal the Photostat copies which have been attested by one Amir Hussain Shah, Headmaster Government High School Devi Gali.
These copies have not been obtained in accordance with law nor any explanation has been furnished that where original documents have been left after preparing the Photostat copies; because photostat copies, as we all know, are prepared through mechanical process, therefore, without the original record, the same cannot be relied in evidence particularly when these have not been obtained from the person who is supposed to be in possession of the original record..."
The similar point came under consideration before the Apex Court in case titled "Sardar Farooq Ahmad Khan and 2 others v. Azad Government and 3 others" (2001 YLR 666) it was hold as under:-- "The High Court correctly came to the conclusion that violation of sub-rule 2 of rule 32 of the High Court Procedure Rules has been committed because the attested copies of the notification dated 08.10.1998 and the proclamation published were not placed on the record. Only photostat copies of the same were placed on the record. The learned counsel for the appellants was not correct that the aforesaid rule is not applicable to the writ proceedings. In fact the aforesaid rules applicable to the writ proceedings of the High Court and not only to the civil proceedings in which an order is passed by the Courts subordinate to the High Court."
The same proposition came under consideration before this Court in case titled "Sajida Maqsood v.
Deputy Commissioner/Collector District Muzaffarabad and others" (2013 MLD 520), wherein, at page 534 of the report, it was held as under:-- "As the Photostat copies are not admissible under law, therefore, no relief can be granted to petitioner on the basis of so called orders of the Prime Minister."
10.It also appears from the report of Chairman, Neelum Valley Development Board, dated 14.12.2017, that petitioner has already been paid salary for the period she worked, hence, stance of petitioner that she has not been paid salary for certain period, is not supported from record.
11.The authorities referred to and relied upon by the learned counsel for petitioner are distinguishable which are not helpful to petitioner.
12. The crux of above discussion is that finding no substance in the instant writ petition, hence, the same is hereby dismissed. Consequently order dated 04.04.2017, for payment of salary to petitioner is recalled. No order as to the costs.