SYED MANZOOR HUSSAIN GILANI, J.- The petitioner seeks a writ of quo-warranto against respondents 2 to 4 and a writ of Mandamus against respondent No.1.
2. The facts as alleged by the petitioner are that he is M A in Journalism and has ten years experience of being a teacher in the Education Department. He was appointed as Information Officer on ad hoc basis on 7-11-1990 and the period was again extended on 4-5-1991. According to him, he is approved by the Public Service Commission against the post of Information Officer, but is not appointed by the Government against the post. On the other hand, according to the petitioner, the respondents 2 and 3 who are not qualified for the post of Information Officer, have been so appointed by the Govt, and respondent No. 4 is appointed without approval of the PSC first on ad hoc basis and latter on his service is regularized under the AJ&K Regularization of Civil Servants (Ad hoc Appointments) Act, 1992. In his replication to the written statement filed by the respondents, it is alleged by the petitioner that the respondents, 2 and 3 are not MA Journalism, the minimum qualification provided for the post under Notification of the Govt dated 3-4-1988, which is applicable with retrospective effect from 12-1-1988 and their appointment against the post of Information Officer is thus without lawful authority. According to the petitioner, the appointment of respondents against the rule or by relaxation of rules in the presence of the petitioner who is qualified according to the rules, and is approved by the PSC, is illegal.
3. The respondents 2 and 3 filed the written statement on 20-4-1993 and respondent No. 1 on 19-6- 1993. Respondent N. 4 was allowed to be impleaded as a party on the application of the petitioner on 29-8-1993, who filed the written statement on 31-10-1993 The respondents stated in their rejonders that the petitioner is not approved by the PSC for the post. It is further stated that qualification prescribed for the post under the rule is not only MA Journalism, but 2nd class Graduate alongwith 3 years public or private experience in Journalism as well. The Government, according to the respondents, has relaxed the condition of experience in case of respondent No. 3 and age limit in case of respondent No. 2 on 14-6--1988 and 25-5-1988. Respondent No. 4 in his written statement stated that he is MA in Journalism and holds a Diploma in Mass Communication from U.S. It is admitted by the respondent that he was appointed on 13-8-1992 and not denied that his appointment was without the approval of the PSC. It however, stated by the respondent that his appointment was regularized under Regularization Act of 1992.
4. I've heard the learned counsel for the parties. It is contended by the learned counsel for the petitioner that the post of Information Officer was initially in B-16 and the minimum qualification prescribed for the then was MA Journalism or Graduate 2nd Class with an experience of 3 years in Journalism. But on the upgradation of the cadre post of Information Officer from B-16 to B- 17 vide Notification dated 3-4-1988, which is made applicable from 12-1-1988, the qualification for appointment to the post of Information Officer (B-17) by initial recruitment is prescribed as MA Journalism in 2nd Division without any alternative qualification. The respondents 2 and 3 were appointed in B-16 on 4-8- 1989, when the qualification prescribed for the post was 2nd Class MA Journalism and the post was upgraded to B-17 and there was no post in B-16. According to the learned counsel, appointment of respondents 2 and 3 against a post which carried Grade-17 and a qualification of MA Journalism is without lawful authority as the respondents did neither possess the qualification of MA Journalism nor were approved for the post in B-17, while the petitioner possessed the qualification and was also approved by the PSC for the post. It's further contended that relaxation by the Government of qualification of MA Journalism to enable the respondents to retain the appointment is illegal As against respondent No. 4, it is contended by learned counsel for the petitioner that in the presence of the petitioner who was approved for the post by the PSC and was working on ad hoc basis, the appointment of the respondent and his subsequent regularization under AJ&K Regularization of Ad hoc Appointments Act,1992, is without lawful authority.
5. The learned Ad hoe General arguing the case contended that when the PSC advertised the post of Information Officer, it was in B-16 and the qualification prescribed for the post was 2nd Class Graduate. The respondents were found suitable for the post and were so approved by the PSC for B-16 and on upgradation of the post they were placed in B-17 as they were already in B-16. The disability if any, argued the learned Advocate-General, stood removed by relaxation order by the Government on 12-6-1993 and the Govt is competent to relax the rules. The learned counsel for respondents 2 and 3 Sheikh Abdul Aziz further contended that petitioner figures after respondents in the merit list of the PSC which is on the file of the Court. He further contended that the petition suffers by laches and cited PLD 1993 SCAJ&K- 12 in his support. Raja Shiraz Kiani, learned counsel for respondent No. 4 contended that respondent No.4 is MA Journalism which is the qualification prescribed by the rules for the post of Information Officer and" his ad hoc appointment is regularized by the AJ&K Regularization of Civil Servants (Ad hoc Appointments) Act, 1992, hence the petitioner has no case against the respondent No.4.
6. The record relating to the impugned appointments was summoned from the Information Department and the proceeding of PSC relating to the test conducted for the post of Information Officer was also sent for in view of the assertion of the petitioner that he is approved by the PSC, and its denial by the respondents in the written statements. The file of the Department also revealed as admitted at bar that the prescribed qualification of being 2nd Class in MA Journalism for the post of Information Officer is relaxed by the Government in' case of respondents 2 and 3 vide Govt order dated 12-6-1993 and the appointment of both the respondents is ordered to be treated in B-17 with effect from the date of their original appointment. A copy of the order is placed on record.
7. It is admitted that when the posts of Information Officers were advertised by the PSC the post carried the basic Grade-16, but its cadre was raised to B-17 when the test for the post was conducted by the PSC on 8-5-1988. It is hot clear nor brought on record as to whether the amended rule whereby the qualification for the post was fixed as MA Journalism only, was brought to the notice of the PSC or not. Be that as it may the recommendations of the PSC form the basis for appointment of respondents by the Govt and it was for the Govt to satisfy itself as to whether the candidates approved by the PSC for the post of Information Officer fulfill the requirement of rules prescribing qualification for the post or not.
8. A perusal of the file relating to respondents 2 and 3 reveals that the Prime Minister sanctioned the appointment of respondents 2 and 3 on the following note of the Secretary Information: ,11984-2-23 t^84/1174-88/t/J U? -ft -J? 1988-4-3 ^ (240)1- M,Jt2-itcJ1 f-~jy. 1W1f- Aw* (240)1- bV -tff ^ ifdV ^ -2J? Jl/ LjiW-u?J,.Us1988-4-3 J'j/fi/ ^ J* fa"
Ji1 j lj Mjt/ i/l {{urdu text]} The Chief Secretary objected to the appointment of the respondents for lack of their required qualification after the sanction of their appointments by the Prime Minister, but the objection of the Chief Secretary was over-ruled and it was again ordered by the Prime Minister that if the respondents could not be appointed in Grade-17, they be appointed in Grade-16. Consequently the respondents were appointed as Information Officer in B-16, Although the cadre of the posts was upgraded to B-17. The embargo of their being appointed in B-16. In accordance with the approval of the PSC against the upgraded post of B-17, by relaxing the rule prescribing the qualification of MA Journalism vide Govt order dated 12-6- 1993. Thus the respondents stand appointed in B-17 as Information Officer, by relaxation of rules, though they were approved by PSC /or B-16.
9. Appointments to the civil service in Azad Jammu and Kashmir are governed by AJ&K Civil Servants Act, 1976 and the rules made thereunder (hereinafter to be called as Act and Rules respectively). Section 4 of the Act reads as follows: "Appointments:- Appointments to a civil service of Azad Jammu and Kashmir or a civil post in connection with affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorized by it in that behalf"
The word "prescribed" is defined in Section 2(1) of the Act as: , "(l)'Prescribed ' means prescribed by rules"
10. The rules framed under the Act are known as the AJ&K Civil Servants (Appointments-and Conditions of Service) Rules, 1977. The relevant provisions of the rules regulating the initial appointment to the civil service are rules 3(3); and Part-Ill of the Rules which are reproduced here in below.
"3(3) The appointments shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Govt, from time to time"
PART III-INITIAL APPOINTMENT
16. Initial appointment to the posts in grade 16 and above except those which under the AJ&K Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission shall be made on the basis of examination or test conducted by the Commission.
17. Initial appointment to all posts in grades I and above except those filled under the 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 Newspapers, or in the manner to be determined by the Government.
18. (1) A candidate for initial appointment to a post must possess the prescribed educational qualification and experience and also, except as provided in the rules framed for the purpose of relaxation of age limit, must be within the age limit as laid down for the post.
Provided that experience, where prescribed, would include equivalent experience, to be determined by the Govt in a profession or in the service of an Autonomous or Semi-Autonomous Organization or a Private Organization.
(2) (i) Whereby recruitment is to be made on the basis of a written examination, age shall be reckoned as on the first of January of the year in which the examination is proposed to be held;and
(ii) in other cases, as on the last date fixed for submission of application ' for appointment.
19. (1) No person shall be appointed to a post unless he is a State Subject as defined in AJ&K Interim Constitution Act, 1974, provided that this restriction may be relaxed by Govt in suitable case.
(2) No person who has married a foreign national shall be appointed to a post:provided that this restriction may be relaxed by Govt in case of person who has married as citizen of India.
20. Vacancies in various posts shall be filled from person who are State Subjects in accordance with merit provided that some particular posts may be reserved for persons domiciled in a particular area as may be specified.
21. A candidate for appointment must. Be in good mental and bodily health and free from any physical defect likely to interfere with the discharge of his duties. A candidate who after such medical examination as Govt may prescribed is found not to satisfy these requirements shall not be appointed.
22. (1) No person, not already in Govt sendee shall be appointed to a post unless he produces a certificate of character from the principal academic officer of the academic institution last attended and also certificate of character from two responsible persons no being his relatives who are well acquainted with his character and antecedents.
(2) Notwithstanding anything in sub rule (1) an appointment by initial recruitment shall be subject to the verification of character and antecedents of the candidates or the persons appointed to. The satisfaction of the appointing authority".
11. A perusal of the above legal provisions reveals that only that person can be appointed against a post by initial appointment in B-16 and above, who:
(i) Possesses the minimum qualification prescribed for the post; and
(ii) Who is approved by the PSC for the post on the basis of examination or test conducted by it.
Besides above mandatory requirements, a candidate has to be: within the age limit;a State Subject; not married to a foreigner; in good mental and bodily health and of good character. The condition of State Subject; age limit and being married to a foreigner can be relaxed by the Government as the rules expressly say so. Rest of the requirements of law have to be complied with, and all must simultaneously exist. Once a rule laying down qualification has been made, Government cannot appoint anybody who does not possess those qualifications. Fulfilment of standard of qualification for a particular post is the sin quo non for acquiring or holding the post.
The affairs of the Govt and for that matter of the State, have to be rim by the Officers in the service of the Govt who are to assist their political basis in preparing and implementing the policies of the Govt in accordance with the legal system of the State. It is a particular officer in the Govt Deptt who is to formulate laws and rules for implementing the policies of the Govt and ensuring compliance with rules. That is why the educational qualification is prescribed for every post in the service of the Government World over, and no qualification is prescribed for being a Legislator or Prime Minister or Minister to the Govt in all most entire World and especially in the Subcontinent. It is against this background that the particular rule prescribing the qualification for a particular post is not qualified or appended with a relaxation proviso, while most of the other conditions provided by rules are made relaxable by the rule itself, subject to a particular standard. The argument of the learned Advocate General and the learned Advocate appearing for the respondents that Government has the power to relax any provision of the rules cannot be accepted in to, but to the extent permissible under rules and canons of justice.
11. As for the general powers of relaxation prescribed by rule 24 of the rules which is as follows: "Govt may, for special reasons, relax any of the rules in any individual case" is concerned, it is not of universal application. Its application is controlled and guided by the particular provisos appended with rules themselves, which precede rule 24. A rule which permits relaxation, may be relaxed to the extent not provided by the rule itself under the general powers vested in Govt under rule 24 of the Rules, but where no room is left for relaxation in a particular provision, which finds place amongst the other provisions permitting the same, the general power of relaxation does not extend to that extent and it cannot be imported from Rule 24. The word "shall" in Sec 4 of the Act, and the words "must" and"unless"in rules 18, 21 and 22 of the Rules, leave no room for exercising the powers otherwise. If the arguments of the learned Advocates for the respondents that the Govt can relax any rule is accepted under the above referred power, then the power of Government, to relax the rule providing for a good mental and bodily health free from any physical defect likely to interfere with the discharge of duties of a candidate and his being of a good character and antecedents, shall also have to be conceded, because the general power given in the above referred rule embarrasses the entire rules. But this power cannot be read out from rule 24. It is therefore, duty of the Courts to give sense to the power and accept the exercise of powers to the extent permissible under the general scheme of laws, rules, common sense and Fairplay, and refuse to accept the power which is not compatable with the general scheme of law and consensus of Fairplay. The question as to whether the general power under rule 24 which confers upon the executive or administrative authority unguided and uncontrolled discretionary powers is constitutional or not, is left open, as it is not specifically argued before the Court. The power of relaxation is generally contained in the rules with a view to mitigate undue hardship or to meet a particular situation in a just and equitable manner, thus the rule itself is not bad and it if the circumstances of a case justify the exercise of power, the same cannot be held to be illegal or arbitrary.^ut when the material available on record does not justify the exercise of powers or when the power exercised is found to be for oblique purposes, or mala fide, the Court must strike down the same. When a duly and highly qualified candidate is ignored and a candidate of lesser or lower qualification is selected against an office by relaxing the higher qualification prescribed for the office the enabled candidate shall be deemed to have been conferred with the degree of higher qualification and the other one as being penalized for possessing the higher qualification. The exercise of relaxation power under such circumstance cannot be accepted as just and equitable exercise of discretion. It is sheer violation of the Quranic Injunctions that: {{urdu text missed}} "Lo I Allah commen deth you that ye restore deposits to their owners, and if ye Judge between mankind that ye Judge Justly (Sura NISA : Verse No. 58) besides being against the spirit of the rule. Same was the view of learned Chief Justice in "laved Iqbal Khawaja Vs. Azad Govt and others" in Writ Petition No. 91/92, decided on 24-3-1994 which is upheld by the Supreme Court in appeal decided on 26-7-1994.
12. As stated above, the posts advertised by the PSC for appointment carried Grade-16, but when the test for the posts was conducted the cadre was upgraded to B-17 and qualification stood also changed, and same was the qualification at the time of their appointment. The proper course for the authorities was to readvertise the posts in view of the changed rules or again down grade the post to enable the selectees of the PSC in B-16 to be appointed or to appoint the persons against the post who fulfilled the requirement of the amended rule and were also approved by the PSC, as the petitioner. The selection by the PSC for a particular grade on the basis of a particular qualification does not confer a right for appointment against upgraded post, which required higher qualification. The respondents were appointed against the posts of Information Officer in B-16, while no post on B-16 was available under rules at the time of their appointment. The eligibility of the respondents for appointment had to be evaluated at the time of their appointment and the recommendations of the PSC were to form the basis for appointment provided the requirements of rules, prescribing the qualification were fulfilled.
13. The petitioner was the only candidate who was MA Journalism when the respondents 2 and 3 were appointed against the posts of Information Officer which required the qualification of MA Journalism under the rules, while the respondents were only BA. The condition of qualification i.e. MA Journalism was relaxed for them, while the academically qualified petitioner was ignored without any lawful excuse. The power thus exercised is arbitrary and illegal.
14. As for the respondent No.4 is concerned, he was appointed on ad hoc basis on 13-8-1992 and his services were latter on deemed as regularized under AJ&K Regularization of Ad hoc Appointments Act, 1992. The Act under which his ad hoc appointment was regularized is declared as un-constitutional by the High Court and so held by the Supreme Court in Appeals Nos. 39, 41 to 44 of 1994 against the Judgment of the High Court in writ petitions Nos.91,89 85 and 91 of 1992. His services have, therefore, come to an end by operation of law.
15. The objection of the learned counsel for the respondents that the petition is hit by laches cannot be accepted for the reason that the petitioner had been deligently fighting his case before the administrative authorities and it was on the failure of the executive to do Justice to him that he resorted to the Court of law. The authority reported as PLD 1993 SCAJ&K-12 referred by the learned counsel for the respondents 2 and 3 is of no help to the respondents as the facts, circumstances and the points involved in that case were totally different from the one in hand.
16. In view of above the petition is accepted and the appointments of respondents 2 to 4 being against the law are set aside and their officers are declared vacant. Respondent No. 1 is directed to process the case in accordance with law from Mar 03, 1989, when the appointments of respondents 2 and 3 were ordered on the recommendations of the Public Service Commission.