Kh. Muhammad Nasim, J. The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 14.03.2023, whereby, the writ petition filed by the appellants, herein, has been dismissed.
2. The brief facts of the case are that the appellants were appointed as Junior Auditors in the department of Auditor General of Azad Jammu and Kashmir. As per rules promulgated on 29.04.2005, the post of Assistant Audit Officer, BPS-17 (AAO) was liable to be filled in 50% by initial recruitment and 50% by promotion amongst the Senior/Junior Auditors, having seven/five years' service and qualified the SAS/PIPFA, respectively. The appellants were duly nominated for departmental course (PIPFA) and they qualified the same in the years 2013-2014. In the year 2017, eight posts of AAO became vacant in the department. Four out of these posts were reserved for promotion quota whereas, remaining were reserved for initial recruitment Being qualified, the case of the appellants was sent to the Departmental Promotion Committee (DPC) and as per the recommendations of DPC, the appellants were promoted as AAO vide notification dated 23.08.2017, on acting charge basis against the posts reserved for initial recruitment, with the condition that their regularization to the higher post(s) will be subject to availability of promotion quota.
Meanwhile, 13th amendment was introduced in the Constitution, whereby, the appellants' department was shifted under the control of AJ&K Government, however. Under Article 51-A of the1 constitution, their accrued rights were protected. It is alleged that some employees of the department (Azfar Ali Kiani & others) claimed their promotion on the basis of amendment made in Recruitment Rules, in the year 2012 (enforced in Pakistan) by filing a writ petition before the High Court but the relief was declined to them on the ground that the amended Recruitment Rules, 2012 are not enforced in AJ&K. Their writ petition was dismissed with the direction to the official respondents to frame the rules. The judgment of the High Court was maintained by this Court.
Under the directive of the High Court as well as this Court, new rules i.e. the Azad Jammu and Kashmir Audit Service (Recruitment, Promotion and Transfer) Rules, 2020 (Rules, 2020) were framed, according to which the upgraded post of AAO is liable to be filled in 67% by promotion of qualified Senior Auditors, BPS-16 and 33% by promotion of unqualified Senior Auditors, BPS-16.
However, a note was also appended that "Junior Auditors who have 07 years' service and have qualified SAS/PIPFA before implementation of Auditor General of Pakistan/AJ&K Service Rules issued on 03.10.2012 will also be eligible for promotion as Assistant Auditor Officer". It is further alleged that a working paper for filling up 10 available posts of AAO was prepared and forwarded on 11.02.2022, wherein, the names of the appellants were also included, however, the Secretary Finance returned the working paper vide letter dated 17.03.2022 with the assertion that the appellants have not qualified the SAS/PIPFA before implementation of Auditor General of Pakistan/AJ&K Service Rules dated 03.10.2012, hence, they are not eligible for promotion.
3. In the above circumstances, the appellants filed a writ petition before the High Court on 28.03.2022 with the claim that they were duly considered by the DPC and as per Condition No. 2 of their order of acting charge promotion dated 23.08.2017, their regularization to the higher post was subject to availability of promotion quota. Their rights are protected under the Constitution and as per SI No. 209 of Civil Establishment Code Edition, 2007 (Estacode), they are liable to be regularized with effect from the date of occurrence of vacancies without conducting fresh DPC. Now, the promotion quota has become available but the official respondents while mis-interpreting the note incorporated in new rules are bent upon to deprive the appellants of their right of promotion on the pretext that as per Rules only those Junior Auditors are liable to be promoted who have qualified PIPFA before implementation of Recruitment Rules, 2012, whereas, the fact of the matter is that Recruitment Rules, 2012 were never implemented and enforced in AJ&K. The appellants sought a direction for their promotion/confirmation as AAO on regular basis with effect from the date of occurrence of vacancies i.e., 02.06.2018 (date of 13th amendment). They also prayed for quashment the impugned working paper dated 11.02.2022 as well letter dated 17.03.2022. After necessary proceedings, the learned High Court dismissed the writ petition through the impugned judgment.
4. Mr. Tahir Aziz Khan, Advocate, the learned counsel for the appellants narrated in detail the facts of the case and submitted that the impugned judgment of the High Court is against law. The appellants were nominated for PIPFA and they qualified the same. Being qualified, they were duly considered by the DPC and on the recommendations of the DPC and approval of the authority, vide notification dated 23.08.2017 they were promoted on acting charge basis against the posts reserved for initial recruitment subject to the condition that their regularization to the higher post(s) shall be subject to availability of promotion quota. Their rights accrued are protected under the Constitution and SI.209 of the Estacode also entitles them for regularization. Now the promotion quota has become available but the respondents while misinterpreting the note incorporated in the newly promulgated rules are bent upon to deprive the appellants of their valuable accrued right, thus, the appellants were left with no option except to invoke the jurisdiction of the High Court but the learned High Court without properly appreciating the matter, dismissed the writ petition on erroneous grounds. He further submitted that the appellants never claimed their promotion against the Rules, 2020 rather the case of the appellants is simply that they were promoted on acting charge basis with the condition that the promotion will be regularized on availability of the promotion quota, now the promotion quota has become available and in the light of the protection given to the appellants by the Constitution they are liable to be regularized against the posts held by them. He further added that in the year 2019, the official respondents have not promoted the appellants for the reason that they are going to confirm/regularize them on their respective posts but now once again they are withholding the due confirmation of the appellants. In this state of affairs, the impugned judgment of the High Court is not sustainable and liable to be set aside while issuing a direction to the respondents to regularize the appellants against the promotion quota. In support of his contentions, he referred to the cases reported as Fazal-e-Rabbi Khan vs. Azad Govt. and others [2013 PLC (C.S.) 357], Azad Govt. and others vs. Farhat Shaheen [2007 SCR 62], Secretary Irrigation and Power Department vs. Abdul Hamid Arif and others 11991 SCMR 628], Muhammad Yousaf v. Abdul Rashid [1996 SCMR 1297], Fazal Rehmani vs. Chief Minister NWFP and others [PLD 2008 SC 769] and Basharat Hussain and others vs. Muhammad Imtiaz and others [2009 SCR 530]
5. Conversely, Kh. Muhammad Maqbool War, Advocate-General, Muhammad Yaqoob Khan Mughal and Aamir Ali Awan, Advocates, the learned counsel for the respondents submitted that the impugned judgment of the High Court is well in accordance with law. They submitted that the appellants have based their claim on the rules promulgated in the year 2020 according to which 67% posts of AAO are to be filled in by qualified Senior Auditors and 33% by unqualified Senior Auditors. The appellants have not challenged the rules, hence, they are not entitled to any relief.
They further submitted that the names of the appellants are included in the impugned working paper and it is upto the Selection Board to promote the suitable incumbents in the light of prevailing rules. The appellants may approach the Service Tribunal if any adverse order is passed against them. The learned High Court has, therefore, rightly passed the impugned judgment.
6. We have heard the learned counsel for the parties and gone through the record. A perusal of the record shows that the appellants were appointed as Junior Auditors in the Department of Auditor General of Azad Jammu and Kashmir. After being nominated, they qualified the PIPFA. The method, qualification and other conditions for appointment to the posts in BPS-16 and above in the Audit. and Accounts Department under the Azad Jammu and Kashmir Council Secretariat were laid down vide Notification No. FI-1/4/80-AJKC issued on 29.04.2005 (Rules, 2005). According to the said Rules, the post of AAO. BPS-16, was liable to be filled in 50% by initial recruitment and 50% by promotion of Senior/Junior Auditors with five/seven years' service and having qualified the departmental examination viz SAS/AAT (PIPFA). The post of AAO was upgraded in Pakistan vide notification dated 18.05.2010 and the said notification was adopted in AJ&K on 25.05.2010. The department forwarded a working paper on 26.05.2017 for promotion of Senior/Junior Auditors as AAO, BPS-17 against 08 available posts. In pursuance of the aforesaid working paper, the meeting of the DPC was held on 18.08.2017. The DPC, after considering the matter, recommended the appellants for promotion. Consequent upon the recommendations of DPC and approval of the competent Authority, the appellants were promoted on acting charge basis against the quota of initial recruitment, vide Notification dated 23.08.2017. Condition No. 2 of the aforesaid notification reads as under: "2. Their regularization to higher post(s) shall be subject to availability of promotion quota, otherwise, they shall be liable to reversion to their lower position(s) in case of appointment of regular incumbent(s) of the post(s) on recommendation of AJ&K Council Public Service Commission."
In the meantime, 13th amendment was introduced in the Constitution on 02.06.2018 and the department of Audit and Accounts stood shifted/transferred to the Government of AJ&K. Sub- Article (3) of Article 51-A of the Constitution postulates that: "(3) The rights of the persons under existing laws of Azad Jammu and Kashmir who were, immediately before the commencement of the Azad Jammu and Kashmir Interim Constitution (Thirteenth Amendment) Act, 2018, serving under the Azad Jammu and Kashmir Council shall be protected and officers and servants on deputation from the Federal Government or any province shall be entitled for repatriation to their parent organizations."
It is pertinent to mention here that as per record, after upgradation of the post of AAO to BPS-17, the rules were framed in Pakistan in the year 2012, however, the same were not adopted in AJ&K. Some employees i.e., Azfar Ali Kiani & others, filed a writ petition before the High Court claiming their promotion on the basis of Recruitment Rules, 2012, however, their writ petition was dismissed by the High Court on 04.11.2016 with the direction to the competent authority to frame the rules for the purpose of promotion and ancillary matters there to for the employees serving in the offices of Auditor General and Director General of Audit Azad Jammu and Kashmir. Against this judgment an appeal, by leave of the Court, was filed before this Court which was disposed of vide judgment dated 02.11.2017 with the direction to the competent authority to take necessary steps for framing the rules. In the light of directives of the High Court as well as this Court, the Rules, 2020, were framed. According to the said Rules, the post of AAO, BPS-17, is liable to be filled in 67% by promotion of qualified Senior Auditors and 33% by promotion of unqualified Senior Auditors, however, following note was also added: "Junior Auditors who have 07 years' service and have qualified SAS/PIPFA before implementation of Auditor General of Pakistan/AJ&K Service Rules issued on 03.10.2012 will also be eligible for promotion as Assistant Auditor Officer".
It is claimed by the appellants that after promulgation of Rules, 2020 the promotion quota had become available and they were awaiting of their regularization in the light of SI. No. 209 of Estacode and Condition of No. 2 of notification of their acting charge promotion dated 23.08.2017 but the respondents instead of regularizing the acting charge promotion of appellants on the basis of DPC already conducted, prepared and forwarded a working paper on 11.02.2022 for promotion of Senior/Junior Auditors as AAO, BPS-17. The names of the appellants were also included in the working paper. The said working paper was returned back vide letter dated 17.03.2022 by the Finance Department with the observation that according to Rules, 2020, only those Junior Auditors are liable to be promoted who have qualified the PIPFA before implementation of Recruitment Rules, 2012 (enforced in Pakistan), whereas, the appellants have qualified the PIPFA in the years 2013-14. In these circumstances, the appellants filed a writ petition before the High Court with the following prayer: "In view of above, it is very humbly prayed that this Hon'ble Court may very graciously be pleased to issue writ of the following subjects:-
(i) That the respondents may very graciously be directed/ordered to make promotion/confirmation of the petitioners as Assistant Audit Officer BPS-17 on regular basis with effect from the date of occurrence of the vacancies i.e. 02.06.2018 [Date of Thirteenth Amendment Act, 2018 as transpires from the provisions of the New Enforced Rules dated 20.01.2021 [Annexure PH] with all back dated perks, privileges, and benefits, with cost, in the interest of justice.
(ii) That the impugned letter issued vide No. Finance/Admin/5562/2022 dated 17.03.2022 [Annexure PJ] may very kindly be quashed and strike down by declaring the same as having no legal effect. And if this Honorable Court reaches to the conclusion that in the given circumstances, the so-called impugned Working Paper dated 11.02.2022 [Annexure PJ/1] is obstacle/legally existing in field in presence of the impugned letter dated 17.03.2022 then the same may very kindly be quashed/ strike down.
(iii) That any other alternate, appropriate or consequence relief for which the petitioners under the circumstances deemed entitled that may also be granted to meet the ends of justice."
The learned High Court, after necessary proceedings, dismissed the writ petition through the impugned judgment.
7. In the light of respective pleadings of the parties and the arguments addressed at bar the only proposition involved in this case is whether the appellants are entitled to be regularized against the post of AAO, BPS-17 and whether note incorporated in Rules, 2020 is a hurdle in their way. It may be stated here that the appellants were promoted on acting charge basis vide notification dated 23.08.2017 with the condition that the regularization of their promotion to the higher post is subject to availability of the promotion quota. Article 51-A (3) of the Constitution, reproduced hereinabove, shows that the rights of the persons under existing laws of Azad Jammu and Kashmir who, were serving under the AJ&K Council immediately before commencement of the 13th amendment shall be protected. The notification dated 23.08.2017, being not challenged by anybody, has attained the finality and got the status of law, thus, in the light of this notification a valuable right stood accrued to the appellants. The Now the promotion quota has become available and the appellants were liable to be regularized. So far as "note" incorporated in the rules is concerned, it is an admitted fact that Rules, 2012 (enforced in Pakistan) were never adopted and enforced in AJ&K. Even otherwise, the case of the appellants is quite different. Their case is that they were promoted on acting charge basis on the recommendations of the DPC with the condition that on availability of promotion quota they will be regularized. Now the promotion quota has become available, and their rights are protected under the A Constitution, hence, they are liable to be regularized under SI.
No. 209 of the Estacode which postulates that: "2. The matter has been considered in the Establishment Division in light of the provisions of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, read with the promotion Policy Covering Promotion upto BS-21. It is clarified that an officer recommended for promotion on temporary basis by the Central Selection Board/Departmental Promotion Committee and approved by the competent authority is liable to be reversion to lower post in case the higher post is subsequently either abolished or ceases to exist or its original incumbent joins back. However, if a temporarily promoted officer continues working against the higher post without any break and in the meanwhile a regular vacancy in the cadre becomes available, no fresh clearance of the central selection Board/DPC and approval of the Competent Authority is required for his promotion to higher post on regular basis. The officer will, therefore, be deemed to have been promoted on regular basis with effect from the date of occurrence of the vacancy on regular basis in the cadre subject to the conditions:
(a) No disciplinary/Criminal proceedings have been initiated against him/her during the period from the date of temporary promotion till the occurrence of vacancy on regular basis.
(b) His/her upto date Service record would form the basis for assessing fitness for promotion on regular basis."
The provisions of Estacode have the force and effect of rules as held in the cases reported as Muhammad Yousaf and others vs. Abdul Rashid and others [1996 SCMR 1297] and Fazali Rehmani vs. Chief Minister NWFP [PLD 2008 SC 769]. The above reproduced provisions of Estacode clearly speak that if a temporarily promoted officer continues working against the higher post without any break and in the meanwhile a regular vacancy in the cadre becomes available, no fresh clearance of the central selection Board/DPC and approval of the Competent Authority is required for his promotion to higher post on regular basis. Admittedly, the appellants were promoted on acting charge basis consequent upon the recommendations of DPC and approval of the of the competent authority, therefore, in the light of notification dated 23.08.2017, Article 51-A of the Constitution and 81.209 of the Estacode, the appellants were liable to be regularized without any fresh clearance of the DPC and approval of the competent authority but despite this the impugned working paper has been moved. It is stated by the respondents in the concise statement that after 13th amendment Estacode is not applicable in the case of the appellants. This Court in the case reported as Muhammad Younas vs. Azad Govt. and others [2010 CR 271] has held although the Estacode is not applicable in Azad Jammu and Kashmir, however, keeping in view the principle of parametria, the guidelines can be taken by the competent authority from the codal provisions. In our opinion, the case of the appellants is at better footing as compared to the appellant in the referred pronouncement. They were employees of AJ&K Council and it is admitted by the respondents in the concise statement that before 13th amendment Estacode was applicable to the appellants. As per the facts of the case, the appellants were promoted on acting charge basis on 23.08.2017 with the condition that their regularization to the higher posts is subject to availability of promotion quota. Thus, in terms of SI. No. 209 of the Estacode, a valuable right of regularization stood accrued in their favour which cannot be snatched by subsequent legislation.
Even otherwise, the rights of the appellants', are protected under Article 51-A of the Constitution, hence, the assertion of the respondents that Estacode is not applicable to the appellants is not correct and stands repelled.
8. The department also admits the application of SI. 209 of the Estacode as one Mr. Muhammad Javaid Abbasi, Acting Charge Stenographer was regularized as regular Stenographer in terms of SI.
No. 209 of Estacode as is evident from annexure ."PP/I". In this state of affairs, we are of the considered view that the appellants were liable to be regularized in the like manner and they were not required to challenge the Rules, 2020.
9. Another vital aspect of the case is that in the year 2019, the department promoted some employees junior to the appellants as Senior Auditors. The appellants were not considered for promotion on the ground that the department is going to regularize the appellants against their respective posts. The seniority list appended with the working paper moved for their promotion shows the names of the appellants with the remarks "promoted as AAO on acting charge basfs".
Thus, on one hand the respondents have not promoted the appellants as Senior Auditors and at the same time they are withholding their due regularization on the false ground Rules that the appellants have not challenged the Rules.
10. The grounds on which the writ petition has been dismissed are outlined in ground "D" of the memo. of appeal filed before this Court, which are reproduced as under: "(i) That no rules were holding the filed after bifurcation of Accounts and Audit Departments;
(ii) That the promotion of the petitioners on acting charge basis was not backed by any rules, hence, no right stood accrued to them;
(iv) That the petitioners have accepted the condition of their acting charge promotion, hence, they cannot resile from it by taking contradictory stance;
(v) That acting charge promotion does not create any right for regular promotion particularly when the same is not backed by any rule;
(vi) That the petitioners have not assailed the vires of Rules, 2020;
(vii) That the controversy relates to terms and conditions of service, hence, the petitioners may approach the Service Tribunal; and
(viii) That the writ petition is premature."
In our opinion, none of the above grounds is sustainable. It is proved from various documents appended with the writ petition that after bifurcation of Audit and Accounts Department and at the time of acting charge promotion of the appellants, Rules, 2005 were enforced. The appellants have not resiled from the condition of their acting charge promotion rather their whole case rests upon the condition incorporated in their acting 'charge promotion order. Admittedly, acting charge promotion does not create any right for regular promotion but the appellants are not claiming their promotion on the basis of their acting charge promotion rather their case, as discussed hereinabove, is quite different. The other ground that the appellants have not challenged the vires of Rules, 2020 is also not correct in the light of observations recorded by us hereinabove. Even otherwise, it is settled principle of law that when two interpretations are possible one which is beneficial to the subject must be adopted. The note incorporated in Rules 2020, with the relevant column of promotion of AAO, speaks that "Junior Auditors who have 07 years' service and have qualified SAS/PIPFA before implementation of Auditor General of Pakistan/AJ&K Service Rules issued on 03.10.2012 will also be eligible for promotion as Assistant Auditor Officer"##TE##As Rules, 2012 were never enforced in AJ&K, thus, the beneficial interpretation which can be made is that the Junior Auditors who have seven years' service and have qualified SAS/PIPFA, will also be eligible for promotion as AAO. If this interpretation is not made, none of the employees of the department will be benefited from the above note and the legislation will become purposeless.
Hence, from this angle too, the appellants are liable to be regularized.
10. The observations of the High Court that the controversy relates to the terms and conditions of the service and the appellants may approach the Service Tribunal are also not correct because the appellants have filed a writ petition for a direction to the respondents to regularize their services in the light of Article 61-A of the Constitution read with SI. No. 209 of the Estacode. Such like direction can only be issued in a writ jurisdiction. In this regard, the learned counsel for the appellants has rightly referred to the case reported as Azad Govt. and others vs. Farhat Shaheen [2007 SCR 621, wherein, almost in the identical circumstances, this Court held that: "7. As far the contention of the learned counsel for the appellants that the Service Tribunal has the jurisdiction in the instant matter and the High Court had no jurisdiction to issue writ is concerned, it has no substance because in the instant case it was averred by the respondent in the writ petition that she has been recommended by the Selection Board whose recommendations are not being acted upon, therefore, a direction may be issued to the appellants (respondents) that they should act upon those recommendations. The Service Tribunal has no jurisdiction to issue such kind of direction. The jurisdiction conferred on the Service tribunal is only against a final order. Under Section 4 of the Service Tribunals Act an appeal can be filed against the final order of the departmental authority pertaining terms and conditions of service. In the present case a direction was sought against the authority to issue formal notification. This direction can only be issued by the High Court' under Section 44 of the AJ&K Interim Constitution Act. Same like proposition arose before this Court in Muhammad Khaliq's case reported in PLJ 2000 SC (AJ&K)
165, wherein it was held by this Court that such kind of direction can only be issued by the High Court and the Service Tribunal has no jurisdiction to issue the same. In the instant case a direction was sought by the respondent while invoking the extraordinary jurisdiction of the High Court. It is only the High Court that can issue such direction under Section 44 of the AJ&K Interim Constitution Act, 1974 and the Service Tribunal has no jurisdiction to issue any sort of such direction. This view finds support from a case reported as Basharat Hussain and others vs. Muhammad Imtiaz and others (2002 SCR 399]"
The upshot of the above is that this appeal is allowed and the impugned judgment of the High Court is set aside. Consequently, the writ petition is accepted and the letter dated 17.03.2022 as well as the working paper dated 11.02.2022 are set aside with a direction to the official respondents to regularize the appellants in the light of notification dated 23.08.2017 and SI.209 of Estacode. No Order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.