The captioned writ petition has been filed u/S. 44 of Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. Shortly stated facts of the supra titled writ petition are that Petitioners No, 1 & 2 were appointed as Junior Technician Radiology and Junior Technician Cardiology on 16.09.2013 and Petitioner No, 3 was appointed as Junior Technician Surgical in new City Teaching Hospital Mirpur on May 2015 against the development Scheme and later on government, in its meeting held on 20.01.2017 decided and directed to shift 108 existing posts on normal budget from 01.03.2017 and posts of petitioners along-with other posts come on normal budget and the petitioners are performing their duties against the occupied posts since 2013. As per contents of petition, the government directed to shift the existing staff position on normal budget but the respondents after decision of government advertised all the posts including the posts held by the petitioners in newspaper on 22.04.2017 and the petitioners applied against the advertised posts and after test and interview came on merit position and recommended by the respective selection committee on 15.05.2017. It is craved that petitioners were recommended by Respondents No, 4 & 5 but they did not issue the appointment orders of petitioners up till now, hence, this writ petition with the prayer to direct the respondents to issue the appo intment orders of petitioners, to pay them the salary and to decide the matter of amendment in the rules pending before them as per law .
3. The learned counsel for petitioners submitted that as the petitioners are working in the Health Department for the last many years on temporary basis and now when the posts of Junior Technician were advertised vide advertisement dated 22.04.2017, published in Daily Khabrain, they applied and after appearing in test and interview got the merit position and duly they were recommended by the selection committee for appointment and now after their selection on merits, the respondents are legally bound to issue their appointment orders but due to some mala-fide or unknown reason they are not doing what they are bound to do under law, so the writ of mandamus is required against them. He further submitted that when they done their diploma course at that time, it was one year diploma course and they cannot be penalized for no fault. The respondents may also be directed to amend the rules expeditiously .
4. Conversely , Mr. Kamran Tariq Advo cate for private Respondent No, 7, vehemently contended that no appointment can be made against the prevalent rules and it is the prerogative of government to amend the rules.
The rules cannot be amended according to wish and whims of a particular person or group of persons and the recommendations of selection committee in favour of petitioners are ab-initio void due to reason that those have been made against the prevalent rules and law. He next contended that the Selection Committee was not competent to make such recommendations which are against the law and particularly when the petitioners do not possess the requisite qualification.
5. The learned AAG owns the arguments of learned counsel for private Respondent No, 7.
6. I have heard the arguments advanced by the learned counsel for the parties and also gone through the record of the case.
7. There is no dispute on the point that prevalent rules promulgated on 24.06.201 5, prescribe the qualification for the posts of Junior Technician Primary Health Care as Metric with science, second division, with 2 years diploma in relevant field recognized by Pakistan Nursing Council and admittedly the petitioners do not possess the educational/academic qualification prescribed under rules as they have not done two years diploma course in the relevant field and law is well settled on the point that no appointment can be made against the rules neither the rules can be changed according to wish and whims of a particular person even a group of person. Same proposition came before the Honble apex of Azad Jammu & Kashmir in a case titled Zahid Waqas vs. Azad Govt. & others decided on 31.03.2017 in which it was held as under: "I agree with the submission made by the learned Additional Advocate General that it is the sole prerogative of the authority concerned to frame or amend the rules. It may be observed here that the rules can only be challenged when the same have been framed in conflict with the provisions of parent Act or the constitution, whereas, in the instant case no such eventuality is available. The learned High Court while passing the impugned judgment has rightly relied upon the case law reported as Syed Saleem Hussain Kazmi vs. Azad Govt. & 4 others [2005 SCR 259], Rizwan Muzaf far vs. Azad Governm ent & others [2010 SCR 156] and Syed Rasheed Hussain Shah vs. Azad Government & 6 others [2014 SCR 883], wherein it has been held that the Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected to as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent.
Moreover , it has also been held in the referred reports that the rules cannot be challenged without any proof of mala-fide, whereas, in the case in hand, the petitioner failed to substantiate the element of mala-fide."
8. So, admittedly when the petitioners do not possess the required qualification prescribed under rules they are not entitled for any appointment inspite of the fact that they have been recommended by the selection committee. The recommendations of selection committee on the face of it are illegal. A candidate who is not eligible to qualify for a post cannot be recommended for appointment against the same post and it is also established principle of law that illegal gain or order cannot be protected through writ jurisdiction. The relief given by issuance of a writ is discretionary in nature and under Section 44 of Azad Jammu &-Kashmir Interim Constitution Act, the powers can be exercised only in favour of that person who has a legal and lawful right which was infringed or denied by the person while functioning in connection with affairs of the state of Azad Jammu & Kashmir . An illegal order without lawful authority cannot be made a basis for such relief. My this view finds support from the cases reported as [1992 SCR 149] [2015 SCR 284] [2000 SCR 557]. For convenience the relevant caption in the case titled "Shaukat Hussain Awan vs. AJ&K Bar Council & 4 others" reported as 2015 SCR 284 is reproduced herein below: "The writ jurisdiction is discretionary . According to celebrated principle of law any act in violation of law neither creates any legal right in favour of its beneficiary nor writ can be issued for protection of ill-gotten gains or implementation of illegal orders."
9. The petitioners do not come within the purview of an aggrieved party , so, no writ can be issued in their favour .
The learned counsel for petitioners during the course of arguments contended that another advertisement given by Abbas Institute of Medical Sciences Muzaffarabad (AIMS) shows that they have invited the applications from the applicants who possess one year diploma course in the relevant field, this contention cannot strengthen the case of petitioners due to the reasons that any advertisement or act of a person against the rules cannot be treated as a precedent, therefore, this argument is hereby repelled.
The crux of above discussion is that, findings no force in this writ petition, it is hereby dismissed in limine .