Kh. Muhammad Nasim, J. The genesis of this matter lies in the recruitment process initiated by the Department of Elementary and Secondary Education in 2020, following the Azad Jammu and Kashmir Teachers Recruitment Policy, 2017 (Recruitment Policy).
2. The brief facts of the case are that in 2020, the Department of Elementary and Secondary Education advertised various posts of Primary Teachers, Junior General Line Teachers, Junior Science Teachers, Junior Arbi Teachers, Junior Qari Teachers, PET and Drawing Teachers to be filled through the National Testing Service (NTS) in accordance with the Recruitment Policy. After completion of selection process, the qualified candidates were appointed. The names of private respondents, herein, were placed at different positions in the respective waiting lists. The respondents, herein, filed four separate writ petitions, while the contents of the writ petitions differ slightly (which we will discuss. in this judgment). The common claim of the respondents as is evident from the contents of the writ petitions, is that under the Recruitment Policy, merit lists remain valid for a period of 365 days. However, after the issuance of the merit lists, the Election Commission of Azad Jammu and Kashmir imposed ban on appointments and transfers during the period of general elections. The period on appointments lasted for 160 days as even after completion of the process of elections the ban was not lifted. Now, after expiry of 365 days from the issuance of merit lists the appellants, herein, are going to halt the recruitments from the waiting merit lists, whereas the fact of the matter is that the period of 160 days during which the ban on appointments and transfers was imposed, should be excluded while computing the period of 365 days; and if this period is excluded the merit lists remain valid and the candidates on waiting lists deserve for appointments. After necessary proceedings, the learned High Court through the impugned consolidated judgment dated 20.07.2023, accepted the writ petitions in the following manner: "22. In the wake of supra discussion, a bon droit the respondents are directed to appoint the petitioners (as per order of merit from the wait list) within 02 months. Furthermore, irrespective of fact whether the candidates on wait list from differently abled segment have approached this Court or not their grievance shall be redressed likewise, rest of the available posts be filled in through de novo process strictly in accordance with law, after properly calculating, computing and adhering to the prescribed quota."
This judgment is the subject-matter of titled appeal by leave of the Court.
3. The learned counsel for the appellants argued the case zealously. His prime contention is that various posts of Primary Teachers, Junior General Line Teachers, Junior Science Teachers, Junior Arbi Teachers, Junior Qari Teachers, PET and Drawing Teachers were advertised to be filled in Union Council/Constituency-wise through NTS. After conducting test and interview separate merit lists for each category of posts were prepared. The merit list for the posts of Junior Teachers was issued on 07.04.2021, for the posts of Junior Qari Teachers on 10.04.2021 and for the posts of Primary Teachers on 21.04.2021. As per Recruitment Policy, the merit lists were valid for a period of one year, therefore, all the lists expired on 07.04.2022, 10.04.2022 and 21.04.2022, respectively. The respondents approached the High Court after expiry of the waiting lists, hence, their writ petitions were not maintainable but the learned High Court illegally accepted the same. He further submitted that the respondents were bound to point out the existence of vacant posts, but they failed to fulfil this legal obligation. The learned High Court has issued the impugned direction in vacuum. The learned counsel further argued that Recruitment Policy was issued by the Government after approval of the Cabinet and the Courts cannot change, amend or alter the same. This aspect has not been considered by the learned High Court while handing down the impugned judgment. He lastly argued that the learned High Court has passed the impugned judgment against law, rules, facts and without appreciation of the record, therefore, the same is liable to be set at naught. The learned counsel placed reliance on the cases reported as Abdul Hameed and others vs. WAPDA and others [2021 SCMR 1230], Asif Fasihuddin Khan Vardag vs. Government of Pakistan and others (2014 SCMR 676] and Shahid Pervaiz vs. Ejaz Ahmed & others [2017 SCMR 206], in support of his version and prayed for acceptance of the appeal.
4. The learned Advocates appearing for the respondents, although argued the case one-by-one, however, their cumulative claim is that the impugned judgment passed by the High Court is strictly in accordance with law calling for no interference by this Court. They argued that under the Recruitment Policy the merit lists prepared by the appellants, herein, were valid fora period of 365 days, however, the period during which the Government imposed ban on the appointments and promotions i.e., 160 days should be excluded while computing the period of 365 days. For this purpose, the respondents filed writ petitions before the High Court which have rightly been accepted. They further argued that the respondents have suffered by the discriminatory conduct of the appellants herein. On one hand, the appellants previously extended the validity period of waiting list without showing any sufficient cause, and on the other hand, the appellants also issued appointment orders of the candidates after expiry of the stipulated period from the same waiting lists on the basis of which, the respondents claim their appointments. Thus, the fundamental right of equal treatment before law as guaranteed by the Constitution has been violated by the appellants. They further argued that the officials of department have admitted before the High Court that they stayed their hands from making promotions due to which so many posts likely to become vacant could not become vacant. Thus, it was enjoined upon the appellants to exclude the period of ban while making appointments of the candidates from the waiting merit lists. They further argued that the respondents kept waiting for the fruits of litigation for a long time, hence, under the principle of 'legitimate expectation' the Courts are expected to provide shelter to the deserving persons in a legal way. They lastly argued that the learned High Court while passing the impugned judgment discussed, considered and resolved all the legal points by appreciating law on the subject matter and there is no legal justification for interference in the impugned judgment.
5. Raja Sajjad Ahmed Khan, the learned Advocate, has also filed an application for arraying the intervenor applicants in the line of the appellants. His contention is that after expiry of statutory period of merit lists, no appointments can be made from the said merit lists but the learned High Court issued the impugned direction without considering the law on the subject and facts of the case.
6. We have heard the learned counsel for the parties along with the intervenors and gone through the record minutely.
7. It is evident from the record that in the year 2020 several posts of Primary Teachers, Junior General Line Teachers, Junior Science Teachers, Junior Arbi Teachers, Junior Qari Teachers, PET and Drawing Teachers were advertised by the Department of Elementary and Secondary Education to be filled in Union Council/Constituency-wise. After conducting the test and interview, the merit lists were prepared accordingly. The merit lists for the posts of Junior Teachers were issued on 07.04.2021, for the posts of Qari on 10.04.2021 and for the posts of Primary Teachers on 21.04.2021, respectively. Clause 17(vii) of the Recruitment Policy, postulates that: "Merit lists shall remain valid for a period of 365 days from the date of recommendations of the concerned Recruitment Committee."
The respondents in their writ petitions have commonly prayed for a direction to the appellants, herein, to extend the validity period of merit lists and appoint them against the posts which were likely to become vacant during the period of ban. A direction was also sought to restrain the respondents from issuing fresh advertisements and filling up the said posts. The prayer clause of one of the writ petitions is reproduced as under: "It is, therefore, very humbly prayed that by accepting the instant writ petition an appropriate writ may kindly be issued on the following manners: i. Directed the official respondents to extend the validity period of merit lists of Primary/Juniors Teachers/Elementary Teachers of all categories on the basis of above reasons for 5 months which period has been lost due to ban which imposed upon the appointments of NTS Candidates by the officials and the appointment the petitioners against the vacant posts as per merit list after providing the extension in merit to meet the ends of justice. ii. Directed the respondents to restrain to fresh advertisement of the posts of Elementary Teachers primary/juniors of all categories, filling the said vacant posts, shifting, transferring from one place of another place or promotion against the vacant posts of the Elementary teachers of all categories in all over Azad Jammu and Kashmir except the appointments of the petitioners as per merit lists in the interest of justice."
In our opinion, in such like writ petitions, the respondents-petitioners were supposed to point out the respective Union Council to which they belong; the post against which they applied; their positions in the waiting merit lists; the details of vacancies which have occurred during the period of 365 days; or the vacancies which were likely to become vacant during the period of ban; and lastly to prove that they are eligible for appointment against the said vacancies. Keeping in mind this criterion, we would like to take up the writ petitions one-by-one.
8. Writ petition No. 1172/2022: This writ petition was filed on 21.03.2022 by 5 candidates, however, during arguments Mr. Saqib Ahmed Abbasi, Advocate, pointed out that Fayyaz Ahmed, Danish and Danyal Tahir have even otherwise appointed, hence, there remains no dispute to their extent. The claim of the remaining candidates, as is evident from the record annexed with the writ petition, is that Saba Saeed applied for appointment against the post of Junior Qaria Teacher and figured at Serial No. 4 in the waiting list, whereas, Abdul Latif applied for the post of Primary Teacher and figured at Serial No. 17 of the waiting list. They have not pointed out any post of their respective constituency falling vacant during the period of 365 days or which was likely to fall vacant rather their sole claim is that the letters dated 16.03.2022 and 08.03.2022 according to which the appellants, herein, have imposed ban on the proposals of appointments of Elementary Teachers after 31st March, 2022 are liable to be set aside for the reason that the period of ban upon the promotions and transfers is to be excluded in the like manner as the Government had previously extended the validity of merit lists vide notification dated 11.10.2019. In our opinion, the petitioners in this writ petition failed to prove that certain posts were vacant or likely to become vacant against which they were eligible to be Appointed.
9. Writ Petition No. 2461/2022: In this writ petition, filed on 17.06.2022, the petitioners (7 in numbers) have relied upon the summary forwarded by the Minister Education to the Prime Minister of AJ&K for extension of the validity period of the waiting lists upto April 2022 mentioning therein that due to the ban imposed during the general elections the posts could not fall vacant. They also claimed that the Government has previously extended the validity of the merit lists and they are also liable to be dealt with in the similar manner. But in this writ petition also, the petitioners failed to point out that such and such posts were lying vacant or likely to fall vacant during the ban and that they were eligible to be appointed.
10. Writ petition No. 2783/2022: The claim of the petitioners (10 in numbers) in this writ petition, filed on 18.07.2022, is also based upon the summary of the Minister and previous act of the Government regarding extension of time in the validity of the merit lists but they also failed to prove that certain posts were vacant or likely to fall vacant during ban and that they were eligible to be appointed.
11. Writ Petition No. 1951/2023: This writ petition was filed by the petitioner on 22.05.2023 for her appointment from the waiting list prepared on 07.04.2021 wherein she figured at Serial No. 2. It is her claim that a post of Primary Teacher is lying vacant in Union Council Kacheeli, however, she also failed to point out that when the said post had become vacant.
12. According to the celebrated principle, of law governing the pleading of the parties, the party who fails to bring on record the necessary material for a specific relief, cannot be granted relief in vacuum. In our opinion, in this case the learned High Court has issued the writ in vacuum. We assert this opinion for the following reasons: The respondents failed to bring on record that they approached the authorities for redressal of their grievance. The respondents failed to demonstrate and bring on record any document through which it could be ascertained that the concerned authorities violated any clause of the Recruitment Policy. Though High Court has mentioned in the impugned judgment that it had summoned report of vacant posts of Primary as well as Junior Teachers, etc. from the Education Department from all divisions of Azad Jammu and Kashmir, but has not even referred to any single post falling in any specific Union Council or the Constituency, which was likely to be vacant during 365 days of subsistence of merit lists but could not become vacant due to ban imposed by the Election Commission.
The respondents have also not alleged or brought on record that violation of Para 14(i), (ii) (iii) and
(v) of the Recruitment Policy, has been committed by the concerned authorities. In absence of relevant record prepared under aforesaid provisions issuance of writ in a general manner is not justified.
The true spirit of Para 17(vii) of the Recruitment Policy in respect of the validity of merit lists has not been appreciated as it was meant to remain valid for each Union Council and Constituency and posts likely to be vacant in respective units were to be proved. It was enjoined upon the respondents to place any relevant record, but they failed to do as such. Para 18(d) of the Recruitment Policy has not been taken into consideration wherein it has been laid down that "the teachers in the same category (UC/constituency based merit) shall be adjusted in their domiciled UC/constituency". It was not justified to issue the writ petition in a general manner in absence of respective record of each Union Council and Constituency. It has not been mentioned in the impugned judgment that when validity of the merit list of respective Union Council or Constituency was to come to an end and due to General Notification of the Election Commission whereby bar was imposed on recruitments, promotions etc., and which period was to be excluded after the expiry of the validity period of merit lists.
A writ petition cannot be issued in vacuum rather it is the duty of the petitioners to bring on record the sufficient material to enable the Court to determine the proposition involved in the case. In this regard, reliance may be placed to the case reported as Sher Dil and another vs. Azad Govt. and others [2015 SCR 355), wherein, it has been held that: "The appellant failed to bring on record sufficient material to substantiate their averments of writ petition. According to the celebrated principle of law it is always duty of the petitioner in the writ petition to state the material, factual and legal proposition and also for substantiating their factual aspects, bring on record the required proof. According to nature of the cases as is in the instant case, the seniority list, promotion order, and other factual propositions are relating to the public documents and official record. The appellant-petitioners herein have not brought on record any document in support of their version, thus, the High Court has rightly handed down the impugned judgment."##TE##
13. Now, the questions arises whether the High Court was justified to extend itself the validity period of the merit lists by interfering in the policy matters. It may be stated here that the principle of the separation of powers is a fundamental tenet of democratic governance, designed to ensure a system of checks and balances among the executive, legislative, and judicial branches of government. One key aspect of this principle is the limitation on judicial interference in the realm of policy matters. Courts are generally precluded from delving into the substantive content of government policies, as such matters fall within the purview of the executive and legislative branches. The rationale behind this limitation lies in the understanding that policy formulation is an inherently political process that requires the expertise, discretion, and democratic mandate of elected officials. Courts, on the other hand, are tasked with interpreting and applying the law rather than making policy decisions. Consequently, the judiciary refrains from substituting its judgment for that of the elected branches, recognizing that policy matters involve complex considerations and trade-offs that are better addressed through the democratic political process. This principle fosters a harmonious balance among the branches of government, promoting stability and preserving the democratic framework. While the judiciary plays a crucial role in upholding the rule of law and protecting individual rights. The delineation of powers ensures that policy decisions remain primarily within the realm of the elected branches, insulated from unwarranted judicial intervention. It may be stated here that the policy decision issued in accordance with law carries the status of law. It is upto the Government to extend the validity of the merit lists in special circumstances or refuse to do so but such like extension cannot be obtained from the Courts.
14. The superior Courts have held time and again that the Court's role is not to interfere in policy decisions, unless it was manifest that, such policy decisions were the outcome of arbitrary exercise of power, mala fides, were patently illegal or manifestly unreasonable. It was held in the case reported as Abdul Hameeds, Water and Power Development Authority [2021 SCMR 1230] that: "11. The roles of each organ of the State are defined within the Constitution of the Islamic Republic of Pakistan, so also in different laws. The learned Tribunal has elaborately dealt with this issue, and, has relied on a judgment of this Court reported as Muhammad Shabbir Ahmad Nasir vs. Secretary, Finance Division Islamabad (1997 SCMR 1026) and Muhammad Farid Khattak vs. Chief Secretary, Government of N.W.F.P (2009 SCMR 980). A transgression of those roles by one organ would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution of the Islamic Republic of Pakistan. It is not the role of the Courts to interfere in policy decisions, unless it is manifest that, such a policy decisions are the outcome of arbitrary exercise of power, mala fides, patently illegal or manifestly unreasonable. Reliance in this regard is placed on the case of Asaf Fasihuddin Khan vs. Government of Pakistan (2014 SCMR 676) of which, the relevant part is reproduced as: "It is to be noted that the duty of the Court is to confine itself to the question of legality. Its concern should be whether a decision-making authority exceeded its powers; committed an error of law; committed a breach of the' rules of natural justice; reached a decision which no reasonable tribunal would have reached; or abused its powers".
In this regard further reliance may be placed on the case reported as Arshad Hussain Khan and others vs. Inhabitants of Islam Nagar and others [2019 CLC 877], wherein, it was held that: "It may also be stated here that the policy decisions made by the Government can only be challenged in the writ jurisdiction when they are violative of any law or rules or is against the fundamental rights of the citizens, otherwise, such decisions which are made by the public functionary after visiting the spot etc., in the public interest, can neither be shifted to the Court nor the Court can substitute its finding in place of the Government official because judging the suitability or making the policy in respect of the development projects, is within the exclusive domain of the Government unless some violation of law, as stated above, is pointed out.
Reference may be made to the cases reported as Watan Party and another v. Federation of Pakistan and others [PLD 2013 Supreme Court 167), Ramessa Khalid v. Government of Punjab (PLD 2013 Lahore 45) and Ch. Latif Akbar and 261 others v. Azad Government and 10 others [2017 SCR 305), wherein, it was observed that policy making of the development projects are in the exclusive domain of the Federal or Provincial Government, as the case may be, and the Courts should refrain from interfering with the polices launched by public authorities for smooth working of public institutions, until and unless they are proved to be repugnant to fundamental rights of the citizens. This Court in the last cited case has also approved the same view and at page 324 of the report has observed as under: "15. No doubt it is the prerogative of the Government to take administrative steps and formulate the policy but while formulating the policy the Government cannot ignore the public interest and rights accrued to the state subjects or beneficiaries of any enforced policy. The authority of the Government to shift the posts, establish the institutions, organize the departments or reorganize the same is provide under the Statute. In this regard this Court has already enunciated the principle of law in the case reported as Muhammad Akhtar and others v. Azad Government and others [2016 SCR 8531 that the Courts are not supposed to interfere in the domain of other institutions
15. It is obvious that the interference in the policy matters by the Courts is only justified when it is against the relevant statute or is discriminatory. As stated hereinabove, as per the relevant statute i.e., clause 17(vii) of Recruitment Policy merit lists remain valid for a period of 365 days, whereas, the respondents failed to prove that within this period any post fell vacant against which they were eligible to be appointed, thus, they remained unsuccessful to show any violation of the Recruitment Policy justifying interference by the Courts, however, they have based their claim on discrimination.
16. The discrimination has been asserted by the respondents on two scores. Firstly, that the Government has previously extended the period of validity of the merit lists and in the like manner the respondents are also entitled to get extension in the validity period of the merit lists. Secondly, the appellants have appointed several candidates from the waiting lists even after expiry of 365 days. So far as the argument that the Government had previously extended the validity of the merit lists, is concerned, we have held in the preceding paragraphs that the Courts are not supposed to interfere in the policy matters and it is upto the Government to extend the validity of the merit lists in special circumstances or refuse to do so but such like extension cannot be obtained from the Courts. So far as the other contention that the appellants have appointed several candidates even after expiry of the merit lists, is concerned, it may be stated here that fundamental right to equality, as enshrined in the Constitution, does not imply equality in illegal actions or the violation of law.
Instead, it signifies equality in a lawful sense, with a focus on upholding the supremacy of the law and safeguarding constitutionally guaranteed fundamental rights. The principle underlying the concept of equality before law underscores that individuals should be treated equitably and justly under the legal system. However, this principle does not extend to justify or legitimize an unlawful or illegal action. In other words, it does not promote equality in wrongdoing. Rather, it emphasizes the importance of equality in the lawful sense, wherein all individuals are subject to the same legal standards and enjoy the same legal protections to ensure the supremacy of law and the preservation of constitutionally guaranteed fundamental rights. It is crucial to recognize that one wrongful act cannot serve as a justification for committing another wrongful act or perpetuating the same. Allowing such practices would undermine the very purpose of legislation and the foundational principle of the supremacy of the law. Therefore, if the appellants have illegally appointed some candidates out of the expired waiting lists, this cannot serve as a valid reason for accepting the respondent's claim of discrimination. Similar view has been expressed by this Court in the case reported as Farkhanda Jabeen and others vs. Azad Govt. and others [2015 SCR 1362] in the following manner: "9. So far as the argument of the learned counsel for the appellants regarding equality before law is concerned, no doubt, according to the constitutionally guaranteed fundamental rights, equality does not mean equality in the illegalities and violation of law, it means equality in good sense for supremacy of law and upholding the constitutionally guaranteed fundamental rights. Any wrong act cannot be justified for doing another wrong act or perpetuate the same. If such practices are recognized, it will amount to defeat the vary purpose of legislation and supremacy of law.
Therefore, if the respondents have regularized or permanently inducted some persons against law, that cannot be a reason for accepting the appeals or protecting their illegal acts by directing them to perpetuate the illegalities rather such situation requires eradication of corrupt practices and the concerned authorities should bring law into action to do the needful."
In another case reported as Syed Mazahir Hussain Kazmi vs. Commissioner Revenue and others [2022 SCR 1073] this Court observed that: "... The orders cited by the learned counsel for the appellant cannot be relied to issue a writ in the present case and even if for the sake of the argument, the department had earlier appointed some persons against the rules the same cannot be taken into consideration as a precedent because according to celebrated principle of law one wrong cannot be made a basis for another wrong.
When a party comes in the Court with a specific claim, it must stand on its own legs and has to advance some cogent and strong evidence to prove its case. The appellant in the case in hand has failed to prove its stance in appeal before this Court therefore, no case for discrimination is made out. Reliance in this regard can be placed on a case reported as Sheikh Tariq Hussain vs. Lahore Development Authority and others, [2009 CLR 978), wherein, it has been held that: "Prima-facie, the petitioner does not qualify to be promoted on 50% quota by promotion from different cadre. The order cited by the learned counsel for the petitioner is an interim order, which cannot be relied upon to issue writ in the present case and even if the department had earlier promoted its employees against the rules cannot be taken into consideration as precedent because one wrong cannot be made basis for another wrong while writ is maintainable only against a vested right, but the petitioner has failed to establish that while belonging to another cadre promotion to the post in question is his vested right."
However, as neither the alleged appointees are parties before us nor their appointment orders have been challenged by anybody, hence, we deem it appropriate to refrain ourselves from further commenting upon in this regard.
17. It is also contended by the respondents that they are liable to be appointed under the principle of 'legitimate expectation'. It is worth mentioning that in public or administrative law, a legitimate expectation is a clear, unambiguous and unqualified assurance, understood by those to whom it is given, that a particular course of action will be taken, or a particular procedure will be followed. In this case, the Government through Recruitment Policy unambiguously and unqualifiedly assured that the waiting lists shall remain valid for a period of 365 days and appointments shall be made during this period, but as stated hereinabove the respondents have failed to prove that the posts fell vacant during this period and they were eligible to be appointed, thus, they cannot claim their right on the basis of principle of legitimate expectation.
18. As stated hereinabove the policy decision issued in accordance with law carries the status of law. It is the settled principle of interpretation of statutes that the provisions of a law should be read as it exists on the statute book and the Courts cannot add or subtract anything from it. Reliance may be placed on the cases reported as Javed Hussain Shah vs. Azad Govt. and others [2001 SCR 567], Raja Tariq Aziz vs. Azad Govt. and others [2003 SCR 158] and Hakam Din vs. State and others [2005 SCR 314]. Thus when a period of 365 days is specifically provided in the policy, carrying the status of law, the Courts are not supposed to extend or reduce such period rather this power is vested with the framers of the policy.
For the above stated reasons, while accepting this appeal the impugned judgment of the High Court dated 26.07.2023 is set aside.
Consequently, the writ petitions filed by the respondents are dismissed, however, Petitioner Nos. 1, 2 and 4 in Writ Petition No. 1172/2022 have been even otherwise appointed, hence, to their extent writ petition is declared infructuous.
Before parting with, we are aware that the last NTS examination was conducted in the year 2021, and a considerable time has elapsed since then. The extraordinary delay in conducting the NTS has put the eligible candidates in a state of uncertainty. Thus, the appellants, herein, are directed to take necessary measures to fill in all the vacant posts through NTS expeditiously, preferably within a period of four months from the communication of this judgment. A copy of this judgment shall be sent to the Secretary concerned for compliance.