1. Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is solicited by the petitioner:-- "1. To declare the basic initial appointment order of private Respondents No. 5 dated 16.04.2014 along with resolution dated 11.04.2014 as null and void because through Government notification the post of Assistant Engineer BS-17 was re-designated properly as Sub Engineer BS-11 on 25.06.2015 and how the private Respondent No. 5 was appointed permanently through aforesaid impugned order.
2. In the light of reported case "2017 SCR 87" the impugned subsequent order dated 30.06.2015 (Annex J) may kindly be declared null and void.
3. May kindly be declared the impugned promotion order of the said private respondent- Respondent No. 5 dated 31.01.2019 (Annexure L) along with corrigendum dated 08.02.2019 as null and void because both orders have been passed by misusing of powers and contrary to Section 16 of the Development Authority Muzaffarabad. Even otherwise, in accordance with rules, the private respondent is not fulfilling the required length of service.
4. May kindly be asked the Respondent No. 5 under what authority of law he is occupying the public office i.e. post of Sub-Engineer B-11, now the post of Assistant Engineer B-17 on officiating basis.
5. Further may kindly be directed Respondent No. 5 to return salary from the date of appointment now when he drew from Government Exchequer illegally.
2. Facts necessary for disposal of petition in hand are that petitioner is performing his duty as Sub- Engineer since 05.09.2006 in Development Authority Muzaffarabad and for promotion in next higher grade, he stands at Serial No. 1. It is submitted that against a vacant post of Assistant Engineer B-17, one Mr. Nadeem Qureshi was promoted on officiating basis vide order dated 29.07.2015. It is further submitted that the case of another incumbent named Muhammad Adil was sent for consideration and promotion against the post of Assistant Engineer BS-17 before the Selection Board but concerned Board did not agree to be promoted against incumbent, hence, in such a situation, petitioner is only who stands at Serial No.1 in the seniority list of Sub-Engineer BS-11 to be promoted against the post of Assistant Engineer but the official respondents in order accommodate the Respondent No. 5, Secretary Board (time) without prior approval of the Government by misusing the powers downgraded the post of Assistant Engineer to Sub-Engineer vide order dated 11.04.2014, and thereafter Chairman Development Authority by violating the relevant procedure appointed the said Respondent No. 5 illegally without adopting due process of law as Sub-Engineer BS-11 on permanent basis vide order dated 16.04.2014, thus basic appointment of the private respondent is illegal. It is further contended that vide order dated 31.01.2019, the private respondent was promoted as Assistant Engineer BS-17 on officiating basis despite the fact that he is most junior to the petitioner, hence, while allowing the petition in hand, relief be sought as prayed for.
3. The writ petition has been resisted by official Respondents No. 1, 2 and 4, by filing written statement, wherein, it is stated private respondent has been assigned the additional charge of post of Assistant Engineer and on coming the concerned officer, private Respondent No. 5 shall automatically restore to its original position. It is further submitted that High Court has already resolved the matter through judgment dated 16.01.2016, hence, the same cannot be re-opened.
4. The writ petition has also been resisted by Respondent No. 5 by filing written statement, wherein, it is stated that High Court has already decided the matter in hand hence, no interference is required.
5. It is further submitted that petitioner has filed the writ petition by concealing the facts, hence, the writ petition is liable to be dismissed.
6. The learned counsel for the petitioner while reiterating the contents of the petition in hand, vehemently argued that initial appointment of the private is illegal because while confirming him, no advertisement has been made rather while re-designating the post of Assistant Engineer in BS- 17 as Sub-Engineer BS-11 has been appointed the private respondent on permanent basis by colourable exercise of powers and derogation of relevant service rules, which is against the law provided for permanent induction. He further contended that when the basic order is found illegal, the subsequent order shall down fall automatically. The learned counsel further submitted that an incompetent authority has re-designated the post of the Assistant Engineer, hence, such act being against the fundamental right, is liable to be reversed. The learned counsel further argued that appointment of the private respondent as Assistant Engineer is also illegal because the he is junior to him in seniority, hence, the same may be recalled.
7. The learned counsel for Respondent No. 5 has submitted that the matter has already been resolved by the High Court regarding the matter in hand, hence, no need to interfere in it again.
8. Having heard the learned counsel for parties, I have also gone through the record of the case made available at the file.
9. The claim of the petitioner herein is that all the act through orders/notification dated 16.04.2014, 11.04.2019, 25.06.2015, 25.06.2015, 31.01.2019 and 08.02.2019 regarding private Respondent No. 5 from the date of his confirmation as Sub-Engineer to assigning the charge of Assistant Engineer BS-17 is illegal, whereas, the claim of private respondent herein, is that the matter in hand, has already been decided by High Court vide judgment dated 16.01.2016. In light of claim of the private respondent, I am inclined to go into the judgment already rendered by this Court. Prior to discuss the merits of the case, I would like to elaborate the matter that Nadeem Qureshi and two others filed a writ petition under titled "Nadeem Qureshi and others vs. Azad Govt. and others" before this Court, while challenging the validity of Notification dated 25.06.2015, order dated 01.04.2014 and resolution dated 20.03.2014 and this Court, while dismissing the petition in limine, observed as under: "Now, adverting to the controversy raised in Petition No. 1326/2015, it may be stated that vide Notification dated 07.10.2015, Mr. Nadeem Qureshi, Petitioner No. 1, herein, has been promoted as Assistant Engineer B-17, on officiating basis, hence, his grievance has been redressed. So far as the case of Petitioners No. 2 and 3 in Petition No.1326 of 2015 is concerned, it has been stated by the learned counsel for the respondents that one post was vacant with the department which has been filed in by appointing Petitioner No.1 through promotion on officiating basis therefore, in my opinion the other petitioners may apply for the purpose when some other posts fall vacant.
10. Furthermore, in view of findings given in Para 19, the Government is competent to re-designate, upgrade or degrade any post. No violation of any law has been pointed out regarding the notification dated 25.06.2015."
11. From perusal of aforesaid observation already recorded by this Court, this Court has held that Government is competent to upgrade, downgrade or re-designate any post and maintained the order dated 25.06.2015, however, the other aspect of the matter that official respondents, in continuation of the aforesaid order, issued another order dated 30.06.2015, impugned herein, through which, against the re-designated post of Sub Engineer, one Muhammad Safeer Awan was appointed on permanent basis, without adopting the due process of law, has not been addressed by this Court, which is left open to this Court to decide the same.
12. From perusal of order dated 25.06.2015, reveals that the post of Assistant Engineer BS-17 was downgraded and re-designated as Sub Engineer BS-11 by the President of Azad Jammu and Kashmir and official respondents appointed private Respondent No. 5 on permanent basis as Sub Engineer vide order dated 30.06.2015. Prior to reproduce the wording of notification dated 30.06.2015, I would like to discuss that earlier vide resolution dated 16.04.2014, Board of Development Authority, Muzaffarabad in its meeting decided that till availability of post of Sub Engineer, nomenclature of post of Assistant Engineer BS-17 is changed as Sub Engineer and also the same is downgraded from BS-17 to BS-11 and amazingly confirmed the private Respondent No. 5 against the post in question. Later on, vide order dated 16.04.2014 while referring the Resolution No. 274 dated 16.04.2014, official respondents, again confirmed the private respondent against the re- designated post. Thereafter, vide order dated 25.06.2015, the President of Azad Jammu and Kashmir, has redesigned the post of Assistant Engineer BS-17 to Sub Engineer BS-11 on permanent basis and Development Authority Muzaffarabad, in light of notification of President dated 25.06.2015, once again confirmed the private respondent as Sub Engineer BS-11. Wording of order dated 30.06.2015 is reproduced as under: From perusal of aforesaid reproduced order of Development Authority Muzaffarabad, it reveals that after re-designation of the post, private respondent has been confirmed without adopting the procedure provided in law. From perusal of aforesaid order, it also reveals that the private respondent neither has been confirmed on the recommendations of Selection Board/committee nor procedure provided in the law has been adopted while confirming him, however, proper procedure for induction against any post, is to advertise the same and conduct the test and interview, and a participant, who attains merit position shall be appointed. According to Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, any post which is to be filled in on permanent basis must be advertised, which lays down as follows: "17. Initial appointment to all posts in GradesI 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 the Board, as the case may be, after advertisement of the vacancies in newspaper, or in the manner to be determined by the Government."
13. As per law, any post which is to be filled in on permanent basis must be advertised and any appointment which has been made without advertisement even then the same has been made on the recommendations of the respective selection committee, shall be void. My this view finds support form case titled "Secretary for Prime Minster, Prime Minster's Secretariat, Azad Jammu and Kashmir, New Secretariat, Muzaffarabad and 3 others vs. Muhammad Aslam etc" reported as 2000 PLC (C.S.) 155, wherein, it was observed as under: "In our view, therefore, the condition of advertising a post contained in Rule 17 reproduced above being of fundamental importance, must be held to be mandatory in nature with the result that if a post has not been advertised the appointment made against the post, even if based on the recommendation of a Selection Board, shall be void. In light of the above enunciation of law it is our view that the appointment order of the respondents did not create any right in them."
14. Same proposition came under consideration before the apex Court in case titled "Mst. Tanveer Ashraf and 25 others vs. Azad Govt. And 2 others" reported as 2011 SCR 528, wherein, it was held that if the adhoc appointment is made against any post and the same is likely to be filled in on regular basis, the department has to advertise the post. Relevant observation is as under: "The first and foremost requirement of proper procedure is the advertisement of vacancy and selection made on the basis of merit determined by the objective criteria, as has been specifically laid down in the sub-clauses (1 to 4) of sub-rule (2) of rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and condition of service) Rules, 1977. The perusal of record shows that the appellants have not placed on record any advertisement to prove that the vacancies for ad- hoc appointments have been advertised nor they placed on record any merit list prepared in compliance of sub-clause (3) of sub-rule (2) of Rule 23 of Rule, 1977 rather the authority in its comments has categorically stated that all the appointments have been made in violation of rules governing the adhoc appointment. Thus, in our opinion, the judgment of the Supreme Court of Pakistan having peculiar facts is distinguishable and not helpful to the appellants. In the same judgment the Supreme Court of Pakistan has categorically laid down that the adhoc appointment does not confer any right for permanent induction. It has also been held that the appointment in public sector is a trust in the hands of public authorities and if their legal and moral duty to discharge their functions as trusty with compete transparency as per requirement of law S/o that no person who is eligible to hold such post, is excluded from process of selection and is deprived of his right induction in service. It has also been observed in this case that making of recruitment on amounts on adhoc basis with or without advertisement amounts to curtailments of the right of deserving person to be appointed on regular basis. The adhoc appointment against a post in public sector, is a stopgap arrangement which is not of a permanent character of the civil servant. It is not proper and in the public interest to fill a post required to be filled in through the method prescribed by law, by making adhoc appointment and regularize it without taking any step necessary for Its regularization/confirmation.
15. As stated above, it has been proved that while confirming the private respondent against the post of Sub-Engineer BS-11, official respondents have violated the procedure provided in Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 in the line that the post in question neither has been advertised nor procedure for permanent induction has been adopted while conducting the test and interview. Furthermore, in Para No. 3 of the writ petition, the petitioner has specifically pleaded that the basic/initial appointment of private respondent is illegal, in rebuttal, private respondent in his written statement, nowhere, has negated the aforesaid stance through a single word nor succeeded to produce record of advertisement of post in question and in its continuation, test and interview was conducted, through which, he has been confirmed, meaning thereby, that appointment of private respondent has been made without adopting due course of law and the learned counsel for private Respondent No. 5, during course of arguments when confronted that whether basic appointment of petitioner has been made after advertisement of post and adopting due course of law, who also failed to satisfy the Court and simply stated that petitioner has got no locus standi to file the petition in hand, hence, keeping in view the aforesaid situation, it is held that appointment of private respondent has been made, being violation of procedure provided in Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, hence, the same is not liable to be maintained.
16. As far as the claim of the petitioner regarding officiating promotion of the private respondent as Assistant Engineer BS-17, through notification dated 31.01.2019 is concerned, from perusal of aforesaid order dated 31.01.2019, the private respondent has been assigned the additional charge of Assistant Engineering for stop gap arrangement due to leave of concerned official. As stated hereinabove, that the appointment of the private respondent has been declared null and void being violative of law, hence, such notification has already been gone in vaccume, hence, for guidance to department regarding assigning the charge, the matter in hand is taken up, from perusal of seniority list dated 23.02.2018, reveals that petitioner herein is listed at Serial No. 3 of the seniority list of Sub-Engineer out of which, one, listed at Serial No. 2 has been promoted and Muhammad Safeer Awan, has been shown below to the petitioner herein in seniority, hence, in presence of seniors of same cadres, assigning of charge to the junior is not warranted in law, hence, in light of observation recorded herein above, notification dated 31.01.2019 is not liable to be maintained and in such situation when charge is to assumed for stop gap arrangement, the departments must be considered the senior official for the purpose.
17. The crux -of the above discussion is that while accepting the writ petition in hand partly, orders dated 16.04.2014, 11.04.2014 and 30.06.2015 to the extent of confirmation of the private Respondents No. 5 (Muhammad Safeer Awan) stand quashed and respondents are directed to fill in the post in question i.e. Sub Engineer BS-11, as per procedure provided in Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, whereas, notification dated 31.01.2019 being corrum non judice, also stands quashed, resultantly, the official respondents are directed to assign the charge of post of Assistant Engineer to senior most Sub-Engineer in the department for stop-gap arrangement, if necessary. 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.