' This appeal, by leave, is meant to call up and quash the judgment passed by a Division Bench of the High Court on 1st of March, 1981, whereby while disallowing the appellant's writ petition moved under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Division Bench refused to disturb the recommendations of the Public Service Commission which was followed by a Government Order No. Forest/4116-4122/79. By this recommendation and the Government. Order Khizar Hayat was required to undergo M.Sc. (Forestry) training at Forest Institution, Peshawar prior to his appointment as Assistant Conservator of Forests.
2. The dispute has arisen in the following way: By means of an advertisement issued on 9th of September, 1979, in the daily 'Nawa e-Waqt', the Azad Kashmir Public Service Commission invited applications to give training to two persons against the posts of Assistant Conservator of Forests in M.Sc. Forestry. The Public Service Commission interviewed various candidates and thereafter prepared a list of merit in which Khizar Hayat, respondent No.3, was placed at No.1 while the appellant was placed at No.2. Khizar Hayat, it may be stated here, was a senior Range Officer and he superseded the appellant for his past experience in the department. The merit list when sent to the Government the Government desired the Public Service Commission to reconsider the matter but the Public Service Commission declined to depart from the recommendations earlier made.
3. The appellant challenged the validity of the recommendations as well as the Government order referred to above by way of a writ petition which, as said earlier, was dismissed by the High Court.
4. Mr. Basharat Ahmed Sheikh, in support of the appeal submitted:-
(i) that the appointment against the post of Assistant Conservator of Forests in question being an initial recruitment, the addition of marks of experience to the respondent No.3 was not only contrary to the advertisement but was also violative of section 7 of the Ordinance known as Azad Jammu and Kashmir Public Service Commission Ordinance (hereinafter to be referred as the Ordinance) read with rule 4 framed under section 10 of the said Ordinance;
(ii) that the advertisement does not stipulate additional marks for experience and it only provides for test and interview regarding the subject of forestry; and
(iii) that the Ordinance and the rules do not also provide for additional marks for past experience.
Addition of marks for past experience thus being violative of the advertisement as well as the Ordinance and rules the learned Division Bench of the High Court fell in error to disallow the writ petition.
5. As against this the learned Advocate-General as well as Ch. Muhammad Riaz Akhtar, the learned counsel for the respondents, has contended that the advertisement does not put any embargo to add marks for past experience; and that the word 'test' used under section 7 of the Ordinance is comprehensive to include past experience which may well be considered to be an additional merit.
It was further contended that as no law or rule or terms of advertisement have been violated, the action of the Public Service Commission and that of the Government was not amenable to the writ jurisdiction.
6. It is settled law that all statutory bodies and functionaries are under obligations to act in accordance with law and relevant rules; and deliberate or flagrant disregard thereof would render their acts without authority subject to the review vesting in the superior Courts. For this view of the matter if the Public Service Commission gives advice to the Government in the matter of recruitment in departure to the law or rules; such an advice, if called in question before the superior Courts, would stand vitiated and an appropriate writ in such matter may be allowed to direct the Public Service Commission to act according to law and the relevant rules and the direction may even be given to. the Government not to act on such recommendations or advice. The power to issue a Writ to the Government or the Commission is one which a Court, however, in exercise of high responsibility would not exercise unless the Court is satisfied that the action is clearly violative of any law or something having the force of law. Therefore, acts performed or orders made by the public authorities deserve due 'regards by the Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or profess their functions examined and only then, if it is found that the act done or order made or proceedings undertaken is without lawful authority, the Courts would declare such acts as to be of no legal effect.
7. Coming to the present case; a reference to the plain language of section 7(a) of the Ordinance, which reads: "The functions of the Commission shall be--
(a) to conduct tests and examinations for recruitment to the civil services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section 10.", is enough to show that it is not susceptible to the interpretation and limitation canvassed by Mr.B.A.Sheikh on behalf of the appellant. The Commission was competent for the purpose of recruitment for a civil service whether initial or by promotion to regard experience as one of the factors for determining the merits of a candidate. It has nowhere been laid down in the relevant Ordinance or the rules framed thereunder and the advertisement that in cases of initial recruitment the experience of a candidate would not be taken into consideration. No doubt the advertisement does not speak of any experience as an additional qualification nevertheless it has been clearly mentioned in the relevant advertisement that selection would be made on the basis of merit which would be adjudged by holding test and interview. To me merit includes experience and it was not, therefore, necessary to mention in the advertisement that experience would also be taken as one of the factors for determination of merits. The definition of the word 'test' given in the relevant rules, it is significant, includes not only written examination but aiso interview and viva voce. Experience, to me, is one of the factors which can legally be considered as an additional merit. Thus it satisfies the observation made above that acts performed by the public authorities deserve due regard by the Courts and every possible explanation for their validity should be explored.
8. 'Test', according to the Readers, Digest Great Encyclopaedic Dictionary, Vol. III, carries the meaning 'critical examination or trial of qualities of persons or things,. Webster's Third New International Dictionary also carries the identical meaning of the word 'test'.
9. To be precise under section 7 of the Ordinance read with rule 4 framed under section 10 of the Ordinance, function of the Public Ser vice Commission includes test and examination to know the suitability of the candidates to a particular post. According to rule 2(h) the word 'test' includes written examination, interview and viva voce. It is apparent that the definition of the word 'test' is comprehensive to include the allocation of marks on the basis of interview and viva voce. The Act or the rules do not indicate the nature of the questions which are to be put by the Public Service Commission to the candidates while conducting interview or any viva voce. This entirely rests to the discretion of the Public Service Commission to adopt any method to adjudge the suitability of the candidates and no hard and fast rules are advisable to be formulated for the purpose of recruitment for a civil post; whether initial or by promotion. The Public Service Commission, therefore, is fully empowered to regard experience as one of the factors for determination of merits of a candidate.
10. In view of the above I am of the considered view that the Public Service Commission in the present case has not transgressed its powers in giving additional marks to respondent No.3 for his past experience and has, in fact, acted in exercise of its statutory authority. The Public Service Commission was the sole Judge of facts and of the necessity, expediency, advisability or reasonableness of the action to be taken to adjudge the suitability or merits of the candidates. On this view of the matter no fault can be found with the judgment of the High Court.
11. Apart from the above, I have serious doubts in my mind about the maintainability of this appeal for the reason that respondent No.3, after completion of the course at Peshawar, has joined his service as Assistant Conservator of Forests since two years which fact is admitted at the bar. however, as this appeal fails on another ground I do not want to express myself about this point and leave it open to be decided in some other appropriate case.
' In the result this appeal fails with costs.