1. SYED SHAHID BAHAR, J. The titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974 seeking aid of this Court by seeking a specific relief in the following manner:-- "It is, therefore, very humbly prayed on behalf of the petitioner that by accepting the instant writ petition, an appropriate writ may kindly be issued in following manner:-
(i) Setting aside the impugned Notification bearing No. Secretariat/E&SE/16423-33/2021 dated 21.05.2021, of private respondent No.7 being void ab-initio and having been issued without lawful authority and in violation of the law and the rules and being unconstitutional, unlawful and illegal.
(ii) Directing the official respondents to adjust the petitioner, herein, us Divisional Director Schools Elementary and Secondary Education (F) Mirpur Division, Mirpur, in place of respondent No.7, as per enforced rules in Azad Jammu and Kashmir for safe administration of justice."
2. The main controversy raised by the petitioner revolves around the notification dated 21.05.2021, listed herein with the writ petition as (Annexure PC) through which the private respondent No.7, has been posted as incharge Divisional Director (Female). The abstract of the notification is reproduced' as under:- FACTS IN BREVITY:- The petitioner, a Senior Subject Specialist B-19, was posted in Girls Higher Secondary School Tatrinote Tehsil Rawalakot, District Poonch, who opted to assail the above mentioned notification on the strength of multiple arguments inter-alia other grounds. As per seniority list duly framed and issued by the Competent Authority (listed herewith the writ petition as Annexure PB) the name of the petitioner figures at serial No.11 whereas in juxtaposition name of tile respondent No.11 figures at serial No.49 of the same, hence, the petitioner is admittedly ranked senior to the respondent No.7. Vis a vis, as per scheme of relevant rules governing the matter i.e. "The Azad Jammu and Kashmir Elementary and Secondary Education Department Administrative Cadre (Appointment and Conditions of Service) Rules, 2018", the modus operandi for appointment/posting against the post of Divisional Director has already been envisaged and postulated in a specific manner.
3. Relevant abstract of the rules is reproduced as under`:- By promotion on the basis of selection on merit from amongst District Education Officers/Deputy Directors (M/F) BS-18 appointed/promoted under these Rules and having at least 12 years' service in BPS-17 and above: Provided that till the time, officers mentioned above become available for promotion, the post of Divisional Director BS-19 shall be filled as under:- ii. By transfer on the basis of seniority cum fitness from amongst the panel of senior most 5 officers of BS-19 having at least 12 years service in B-17 and above in the Department"
4. As per above articulated table of the rules it unequivocally reveals that the slot of Divisional Director is to be filled in two bifurcated manners. By promotion on the basis of selection on merit from amongst District Education Officers/Deputy Directors (M/F) BS-18, appointed/promoted under these rule and having at least 12 years service in BS-17 and above; while the other mode is by transfer on the basis of seniority cum fitness from amongst the panel of senior most 05 officers of BS-19 having at least 12 years service in B-17 and above in the Department.
5. As per claim of the petitioner her case falls under the proviso (ii) of the aforesaid rules.
6. It is pertinent to mention here that as the order impugned herein was previously suspended by this Court and the suspension order was assailed by the respondent before the Hon'ble Supreme Court and ultimately vide order dated 05.11.2021, the Hon'ble Supreme Court by keeping intact the status- quo order have given a direction quo disposing of the case within 04 months period.
7. PETITIONER'S SUBMISSIONS:- Raja Tariq Bashir, Advocate, learned counsel for the petitioner vehemently contended that the order dated 21.05.2021, has got no recognition in hierarchy of the service law as there is no concept of such, like appointment by posting a person on incharge basis against the post which is available for permanent appointment in accordance with rules that too keeping aside and neglecting the order of seniority. Learned counsel staunchly added that the petitioner is most senior officer in the - department who always had been ignored and bypassed by the relevant quarters despite the fact at least consideration against the aforesaid post is a legal right of the petitioner as per scheme of rules wherein concept of sending panel of 5 officers has been provided. He further contended that the impugned notification is without lawful authority passed contravention of law and colorable exercise of powers. As per argumentation of the learned counsel for the petitioner the official quarters could not snatch rights of the petitioner in an arbitrary manner by not considering her against the aforesaid post at the eve of appointment. Learned counsel relied upon the authoritative precedents of the Hon'ble Apex Court of Azad Jammu and Kashmir i.e. [2016 SCR 1352] and [2016 SCR 134] and craved for acceptance of writ petition.
8. PRIVATE RESPONDENT'S SUBMISSIONS: While on the other hand Raja Sajjad Ahmed Khan, Advocate, learned counsel for private respondent No.7 staunchly, opposed the stance of the petitioner and prayed for dismissal of the same. He stated at bar that the petitioner has got no locus-standi to challenge the lawful appointment and posting of the respondent No.7. He further contended that the order is completely a stop gap arrangement and matter pertains to terms and conditions of service which is solely within jurisdictional domain of the Service Tribunal, therefore, writ petition is liable to be dismissed. He further contended that prior to appointment of the respondent No.7, so many other officers who were rank junior to the petitioner remained appointed against the aforesaid post but the petitioner did not challenge their appointment as such, hence, she is estopped by her own conduct to file the instant writ petition, therefore, writ petition entails dismissal, SUBMISSION BY OFFICIAL RESPONDENTS:- The official respondents in their parawise comments almost half heartedly accepted the claim of the petitioner to the extent of seniority and categorically alleged that the matter could not be decided on administrative level on account of institution of the instant writ petition and pendency of the same. They have also alleged in their parawise comments that the -notification impugned herein has been passed as temporary arrangement and permanent appointment against the same will be carried out in accordance with the scheme of rules and seniority.
9. Arguments heard record perused.
10. DETERMINATION BY THE COURT:- Be that as it may it unequivocally reveals from departmental rules that the post of Divisional Director is liable to be filled in by promotion on the basis of selection on merit from amongst District Education Officers/Deputy Directors (M/F) BS-18 appointed/promoted under these Rules and having at least 12 years service in BPS-17 and above and by transfer on the basis of seniority cum fitness from amongst the panel of senior most 5 officers of BS-19 having at least-12 years service in B-17 and above in the Department.
11. So far as the modus operandi regarding such appointment is concerned the same has also been provided in the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
12. Rules, 1977. The relevant extract of the same is reproduced as under:- "APPOINTMENT BY PROMOTION, TRANSFER OR DEPUTATION
9. Appointment by Promotion: (1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate committee or board.
(2) Promotion including proforma promotion shall not be claimed as a matter of right by any Civil Servant.
10. Qualification for promotion: Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the selection authority.
13. [10-A. Appointment on acting charge basis:- [(1) The Appointing Authority may fill a post reserved for departmental promotion by appointing on acting-charge basis, the most senior civil servant of the cadre or service concerned, who possesses at least three forth of the prescribed length of service or the experience for the post or both case may be, and is otherwise eligible for promotion except for the prescribed length of service and the experience.]
(2) Where the appointing authority is satisfied on report of the selecting authority that no suitable officer is available to fill a post in Grade 17 and above reserved under the rules to be filled by initial recruitment and it is expedient not to allow the post to remain unfilled, it may appoint to that post on acting charge basis the most senior officer eligible for promotion to that post.
(3) No appointment on acting charge basis shall be made against a post, which is likely to remain vacant for a period of less than six months.
(4) No appointment on acting charge basis shall be made without recommendations of the departmental promotion committee or Azad Jammu and Kashmir Selection Board as the case may be, but such appointment shall not be deemed to have been made on regular basis for any purpose nor shall confer any right for regular appointment.
14. 10-B Appointment on current charge basis:- (1) Where a post is likely to remain vacant for a period of less than six months and, the appointing authority does not consider it expedient to make an appointment on ad-hoc basis it may appoint a Civil Servant, who is eligible for promotion under Rules, to that post on current charge basis.
(2) An appointment made on current charge basis shall come to an end on appointment of a person on regular basis or on the expiry of six months whichever is earlier.]
11. Appointments by transfer to posts in a functional unit shall be made from among the persons holding appointments on regular basis in another functional unit in the same Grade in which the post to be filled exists: - Provided that persons holding posts in all Pakistan Unified Grades, may be appointed by transfer to a certain number of posts as may be determined from time to time.
12. Until the rules laying down the qualifications and other conditions for the purposes of promotion are made no person shall be promoted to a post in a higher Grade on regular basis unless he has passed such test as may be specified by the appointing authority to be conducted by the selection authority.
15. Provided that the Government may dispense with the requirement of passing the test in relation to such posts as may be specified.
16. [13. Appointment by promotion on officiating basis:- [(1) Where a post falls vacant as a result of (ex-cadre) transfer, deputation, leave or appointment on acting charge/officiating basis of the regular incumbent or is reserved under the rules to be filled by transfer or is permanently available as vacant and is reserved for regular promotion on the recommendation of the appropriate selection board/committee, the appointing authority may make appointment by promotion against such post on officiating basis.]
(2) No person shall be promoted on officiating basis unless he possesses the qualification and experience prescribed for the post and his promotion as such is approved by the Chairman of the appropriate Selection Authority.
(3) An officiating promotion shall not confer any right of promotion on regular basis but shall be liable to be terminated as soon as a person becomes available for promotion on regular basis.
(4) Officiating promotion shall be made on the same term and conditions as to pay as are prescribed for regular appointment by promotion.]
14. Qualification and experience for promotion: (1) All persons holding posts in a functional unit in the same Grade who possess the minimum qualifications and experience prescribed for promotion shall be eligible to compete for promotion and take part in the test to be held for the purpose.
(2) A person who fails in the test and is not promoted on the basis of competitive merit, shall be deemed to have been superseded by his Juniors, who are promoted provided that inter se seniority of the officers thus promoted shall be maintained on promotion; Provided that a person, who was not able to take part in the test due to reasons beyond his control may be permitted in writing one more chance by the appointing authority and, if so allowed, shall retain his inter se seniority on promotion if he does not fail in a special test, which may be held for the purpose, or the next regular test, following the previous test in which he did not appear. In any other case a person not appearing in the test shall be deemed to have failed in the test and has been superseded.
17. 14-A. [****] 15.(1) Educational Qualification for Appointment and Deputation: [Subject to any rules or orders on the subject issued by the Government, a Civil Servant who fulfills the conditions and is considered suitable may be sent on deputation to an Autonomous or Semi-Autonomous Organization, established by law, on such terms and conditions as may be decided by the appointing authority in consultation with the borrowing Organization; Provided that leave and pension contributions shall invariably be made by the borrowing Organization."
18. Having survey of the entire scheme of above rules it is reflecting that concept of incharge appointment receives no recognition from the law. Modus operandi regarding temporary appointment or for that matter incharge posting otherwise can be a stop gap arrangement as given in the above mentioned rules.
19. It is now become a practice in the various departments to make such like orders in derogation of the scheme of rules. Thus this inference can be drawn that said stereo typical orders in violation of rules are deliberately being issued in order to extend undue benefit to those employees who otherwise are not coming up to mark for such like posts in accordance with the relevant rules. It is an admitted fact that seniority list has already been chalked out by the Competent Authority in the instant matter. Although seniority alone is not sufficient for consideration in the case of promotion in higher rank but coupled with other factors consideration of a person who qualifies to be considered as such is necessary, as well as procedure for appointment provided in the rules is liable to be followed. Mode of appointment against the post in question has been envisaged in the rules as infra.
20. S. No.Name of the DepartmentFunctional UnitName of the Post with GradeAppointing Authority 1 2 3 4 5 2 -do- -do-Divisional Director Schools (M/F)
21. BS-19-do- Maximum Qualification for Appointment by Method on RecruitmentAge For initial RecruitmentExamination Training other "requirements for confirmationintial Recruitment or TransferPromotion Min Max 6 7 8 9 10 11 -- -- i. By promotion on the basis of selection on merit from amongst District Education Officers/Deputy Directors (M/F)
22. BS-18 appointed/promoted under these Rules and having at least 12 years service in BPS-17 and above.
23. Provided that till the time, officers mentioned above, become available for promotion, the post of Divisional Director BS-19 Shall be filled as under: ii. By transfer on the basis of seniority cum fitness from amongst the panel of senior most 05 officers of BS-19 having at least 12 years service in B-17 and above in the Department.
24. The case of petitioner is pertaining to method No.2 of the above rules which postulates that when the appointment against the post in question is to be made by transfer then it must be carried out on the basis of selection on merit and on recommendations of Selection Board concerned from amongst the panel of senior most officers of BPS-20 in the department. Whereas as per method No.1, permanent promotion on the post is to be made on the basis of selection on merit from amongst the District Education Officers/Deputy Directors (M/F) BS-18, appointed/promoted under these rules having at least seven years service in B-17 and above. It is pertinent to mention here that proviso of the first method of recruitment envisages that if officers according to method No.1, of rules are time being not available then promotion/appointment against the post in question is to be made as per method No.2 mentioned above. In the light of scheme of above rules, it is crystal clear that the impugned notification (herein) has been issued by the authority by adopting method No.2 of the rules and same has been passed without adopting the prescribed procedure provided in the rules supra. It is settled principle of law that a thing which is required to be performed in a particular manner cannot be done otherwise and if so performed the same is nullity and bears no legal consequence which can safely be termed as ab initio void.
25. By adverting to the contention of the learned counsel for the private respondent No.7, that the petitioner has failed to challenge the appointments made against the post in question in past. The objection of the learned counsel for the respondents in this regard is repelled as it is also a golden principle of law that two wrongs cannot make one right. The notification (impugned herein) receives no recognition from law, hence, not sustainable.
26. Majesty of law demands that the Courts of law should fashion/beautify the path of justice in accordance with law and justice should have been done though the heavens fall i.e. fiat justitia ruat caelum (Latin legal phrase).
27. ".................The Hon'ble Supreme Court in the case titled Muhammad Khursheed and another v.
28. Secretary Education Schools and 4 others [2011 SCR 175], has ordained as under:- The scheme of law/rules is clear that all the appointments have to be made on the recommendations of selection committee. The appointments made without recommendations of the selection committee are void ab initio. Similarly the promotion orders are issued on the recommendations of the selection committee and any promotion/appointment order issued in violation of the relevant rules is void ab initio and not sustainable...."
29. In another relevant judgment on the subject matter is delivered by the Hon'ble Supreme Court in case titled Dr. Kh. Mushtaq Ahmed v. Azad Government and others [1995 PLC (C.S.) 410], wherein a similar proposition was dealt with. The relevant dicta of the Hon'ble Supreme. Court is reproduced as under:- "--In the service laws of Azad Jammu and Kashmir there is no concept of appointing permanently or temporarily a civil servant to a post carrying higher grade in his pay and scale---Under section 8 of the Azad Jammu and Kashmir Civil Servants Act 'promotion' to a post carrying higher grade with the accepted connotation of 'posting' and 'transfer' is moving to a post in the same grade to which a civil servant belongs---Under Section 16 of the Act a civil servant appointed to a post or grade shall be entitled in accordance with the rules to the pay sanctioned for such post of grade-- the rules provide only three modes by which a person can be appointed to a part (a) by promotion
(b) by transfer and (c) by initial recruitment--the said rules also provide for appointment (i) on acting charge basis (ii) on current charge basis (iii) on officiating basis."
30. Issuance of such like orders in routine 'without adhering to the scheme of service laws definitely give birth to the concept of lawlessness and administrative injustice. It is worth mentioning that justice is not only to be done by the Courts of law but simultaneously it is a sacred duty which is to be performed by all the functionaries and office holders who are at the helm of affairs in their capacity to pass any order or to decide any matter pending before them or for that matter where any sort of discretionary power is to be exercised by any authority in view of concept of better government provided in the preamble clause and keeping in view of doctrine of administrative justice.
31. Before parting with the judgment, I legitimately expect that the relevant quarters must keep in mind the scheme of relevant law and rules at the eve of issuing such like orders. Golden settled principles are indicating the road map in this regard; for example a thing which is required to be performed in a specific way can only be done in the same manner, which is not allowed to be performed directly cannot be performed indirectly.
32. At this juncture it is worth mentioning that where authority is to perform pure administrative function, it is required to act fairly and honestly. The duty to act fairly as the concept may be called is an expansion of the principal of natural justice, it denotes an implied procedural obligation.
33. Departure from rules particularly where certain legal rights are involved militates against of due process of law and mocks the concept of better government provided in the preamble clause of the Azad Jammu and Kashmir Interim Constitution, 1974.
34. Nub of the above discussion is that notification dated 21-5-2021, listed herein as (annexure "PC") through which the respondent No.7, has been appointed as incharge Divisional Director Schools, is alien to the rules, hence, the same is set at naught/quashed accordingly. The official respondents are directed to fill in the post of Divisional Director School B-19, strictly in accordance with the scheme of "The Azad Jammu and Kashmir Elementary and Secondary Education Department Administrative Cadre (Appointment and Conditions of Service) Rules, 2018", within one month period.