SYED MANZOOR HUSSAIN GILANI, J.---Through this petition filed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, the appointments of respondents 4 to 20 against different posts in the Social Welfare Department are challenged and a direction is sought to respondents 1 to 3 for making the appointments against the posts on the basis of merit-cum- fitness in accordance with law.
2. The facts which gave rise to the present petition as stated in the petition are that petitioner who is M.A. Social Work, on coming to know that the Government of Azad Jammu and Kashmir has planned to establish a full-fledged Department for Social Welfare, made an application for appointment as Assistant Director on 27-7-1992 before Mr. Riaz Ahmed Khan, the then Secretary of the Department. According to the petitioner. 5 posts of Assistant Directors in B-17 were created vide Notification of the Government, dated 25-4-1992 and subsequently vide another Notification of the Government dated August 8, 1992, 13 posts of Social Welfare Officers in B-17 were created. It is alleged that the Government without framing any rule for the posts and without advertising the posts, made appointment of respondents 4 to 20 against the posts. Respondents 4 to 7 were appointed as Assistant Directors in B-17 on ad hoc basis. The order of ad hoc appointment of respondent No.4 was issued from the Secretariat of Social Welfare on 23-6-1992, while the orders of ad hoc appointments of respondents 5 to 7 as Assistant Directors were issued on 5-8-1992 through separate notifications. Respondents 8 to 17 were appointed on ad hoc basis in B-17 through a single order issued by the Social Welfare Secretariat on 8-8-1992, while respondents 18 to 20 were appointed under the order of Government issued by Social Welfare Department on 13-8-1992.
3. The respondents entering into rejoinder objected to the maintainability of the petition on the ground that the posts of Assistant Directors and Social Welfare Officers fell in the quota of Districts Bagh, Poonch, Mirpur and Kotli, while District Muzaffarabad, to which the petitioner belongs, did not have any quota. It is further alleged in the written statement that it is the prerogative of the Government to appoint any person on any post. On facts, it is alleged that the petitioner had never applied for any of the posts against which the appointment of respondents 2 to 20 is made, neither could he be appointed, as no post fell in quota for District Muzaffarabad to which the petitioner belongs. It is further alleged in para. 10 of the written statement that the ad hoc appointments have been regularized through an enactment of the Assembly. The petitioner denied all the contentions raised in the written statement through replication.
4. We have heard the learned Advocates for the parties. The learned Advocate for the petitioner arguing the case, inter alia contended--- that the appointments to Grade-16 and above have to be made on the recommendations of Public Service Commission after advertising and conducting tests for the posts by the Commission: that no post in the service of Government can be filled in without rules: that the ad hoc appointment against the posts can be made only when the rules are framed and the posts are referred to the Public Service Commission.
All the above requirements are not fulfilled in the case of respondents 4 to 20.
It is further contended-- that the appointment of respondents 4 to 20 is mala fide and an outcome of favouritism and nepotism, as, according to the learned Advocate none of the respondents is qualified in the field7for which he/she is appointed: and that the posts of Social Welfare Officers were filled in on the same date when the posts were created.
The learned Advocate for the petitioner placed reliance under section 4 of the Civil Servants Act, 1976 (hereinafter to be referred as Act), rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointments and Condition of Service) Rules, 1977 (hereinafter to be referred as Rules), the Notification of the Government dated 20-6-1983 (hereinafter to be called as Notification), besides the cases reported as Azad Government and others v. Muhammad Yunus Tahir and others (1994 CLC 23391 = (1994 PSC 1198); Sheikh Manzoor Ahmed v. Azad Government and others (1995 PLC (C.S.) 59 = 1994 PSC 1198; 297 Muhammad Latif Khan v. Aliul Hussain Bukhari and others 1993 PLC (C.S.) 297; and an unreported judgment of the Supreme Court in Civil Appeal No. 66 of 1995 captioned as Dr. Mehmood Hussain Kiani v. Azad Government and others and 1995 CLC 476 = 1995 PLC (C.S.) 172.
5. Raja Muhammad Hanif Khan, Advocate argued the case on behalf of respondents and Sheikh Abdul Aziz and Additional Advocate --General relied upon his arguments. It is contended by the learned Advocate for respondents that the petitioner is not an aggrieved person, hence the petition is not maintainable. It is further contended that the petitioner has not filed the writ of quo warranto against the respondents, hence the arguments of the teamed Advocate for the petitioner on those lines do not merit consideration. It is further contended that the posts are temporary in nature due to conditions at the cease fire line, and the appointment against the posts on ad hoc basis is the prerogative of the Government, hence the petition is beyond the purview of the High Court. It is also contended that the rules for the posts have already been framed in 1993 called as "Azad Jammu and Kashmir Social Welfare and Women Development Service Rules, 1993'.
6. It may be placed on record that the arguments in the case were heard on 26-6-1993 by one of us (author of the judgment) and the Advocate --General -was directed to place before the Court the appointment files of respondents 4 to 20. The Department of Social Welfare was again directed to place before the Court any other file with respect to the appointment of respondents if any, available with the Government. The files were sent and are before the Court. After receipt of the files from the Department, the file of the Court was referred to the learned Chief Justice for reconstitution of Bench or constitution of larger Bench for the reasons stated in the order of the Court dated 20-7-1993. Since then, the file remained pending for one reason or the other before the learned outgoing Chief Justices. The Bench was again reconstituted on 1-12-1994 consisting of myself and the learned (Retd.) Chief Justice. Arguments in the case could again not be heard till May 6, 1996 when the arguments were heard and the judgment was reserved.
7. After hearing the learned Advocates for the parties we have gone through the record of the case as well as the law cited by the learned counsel for the parties. In the instant case, the admitted facts are that the ad hoc appointments against the posts were made at a the when no rules existed for the posts, secondly that the posts were not referred to the Public Service Commission, neither they have so far been referred; thirdly that the rules for the posts for the first the were framed in June, 1993; and fourthly that the appointments against the posts on ad hoc basis have not been made in accordance with the procedure provided for ad hoc appointments and ten posts of Social Welfare Officers were filled in on the same date when these were created.
8. The legal position regarding the direct appointments to the civil posts has been settled by the superior Courts in Azad Jammu and Kashmir and there remains hardly any issue to be decided afresh, except as to whether the Government can keep on extending period of ad hoc appointment for indefinite period without referring the case for regular appointment to the Public Service Commission?
9. Under section 4 of the Act, the appointment to the civil service or to a civil post in connection with the affairs of the Government shall be made in the prescribed manner. The manner prescribed for appointment against the posts is provided by Rules, 1977. Under rule 16 of the Rules, initial appointment to the posts in B-16 to 20 has to be made on the basis of examination and test to be conducted by the Public Service Commission, except those posts, which are stated to be out of the purview of the Public Service Commission. Rule 23 of the Rules relates to the ad hoc appointments, which reads as follows: - "23.--- (1) When a post is required to be filled, the appointing authority shall- forward a requisition to the Selection Authority immediately after decision is taken to fill the post.
(2) After forwarding a requisition to .The Selection Authority the Appointing Authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the Selection Authority: Provided that--
(1) the vacancy is advertised properly in the newspapers;
(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the posts;
(3) the selection is made on the basis of merit determined by objective criteria;
(4) the appointment order certifies that a requisition has been sent to the Selection Authority; and
(5) the appointment is made subject to revocation at any the by the competent Authority: Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."
10. The Government has, through Notification, dated 20-6-1983 issued from the office of Chief Secretary, under No. Admn/A-27(46)/83 imposed upon itself further conditions regulating the ad hoc appointments. The said Notification is reproduced as follows:--
11. Before adverting to the merits of the case, the objections raised by the learned counsel for the respondents that the petitioner is not an aggrieved person etc. Have to be attended and disposed of. The petitioner is admittedly M.A. In Social Works, a qualification which is compatible with the posts in dispute and had applied for his appointment in the Department, as certified by the formal Secretary of the Department. Mr. Riaz Ahmed Khan. It is borne out from the record, placed on file by the respondents, that the petitioner had been striving for the job. Thus, by no stretch of imagination can it be said that the petitioner is not an aggrieved person. Notwithstanding the fact of his having applied for a job in the, Department, thus being directly an aggrieved person, he and every other State Subject has a right to seek employment in the service of the State if' qualified according to the rules and for that purpose, invoke the jurisdiction of the Court to direct the authority performing functions in connection with that employment in that branch of the service to do that which he is required by law to do, and seek declaration that proceedings taken by such authority against law be declared as without lawful authority and of no legal effect. The petitioner has also a right to ask any person holding or purporting to hold a public office in the affairs of Azad Kashmir to show under what authority of law he claims to hold that office. The petitioner thus, viewed from any angle is an aggrieved person and has rightly invoked the jurisdiction of the Court.
12. The other objections that the petitioner has not filed the writ of quo warranto, thus cannot seek that writ by way of arguments in the Court. The form forum or nature of a writ is not specified by the Constitution under section 44. Writ is a direction or order of the High Court against an authority performing functions in connection with the affairs of Azad Kashmir to do an at in accordance with law or refrain from doing something which is not allowed by law or declare an action as without lawful authority etc. The nature of the direction may vary from case to case and Court is competent to issue writ in any form it deems proper in the circumstances of a case. Granting of relief is the power of the Court and it can grant any relief which flows from the pleadings of the parties, notwithstanding the relief asked by a party. It is in fact the duty of the Court to enforce the law of the land and pass such orders and in such form as give effect to the provision of law and thereby ensure the rule of taw. The only exception which can inhibit the Court in doing so is that the order of the Court should not perpetuate injustice, The superior Courts are the Courts of justice and have to do justice for the nation, the subject or the applicant incidentally gets the relief, while the machinery of the State gets the guidance for future adherence on the subject. Thus, the objection is not tenable under law.
13. Last objection that the posts are temporary and created due to conditions at cease-fire line and that it is the prerogative of the Government to make appointments against them is misconceived under the law. The authority of the Government to make ad hoc appointments against the posts is not disputed at all, but the Government is bound to make the appointments in accordance with law. It is the violation of law in making the impugned appointments, which gave cause of action to the petitioner. The appointments have nexus with the conditions at the cease-fire line, neither has any explanation been furnished in pleadings or at Bar. It may be slogan for political consumption but cannot be digested in the Court of law when rule of law is sought to be enforced.
14. As stated in para. 7 above, there were no rules regulating the impugned appointments at the the when the ad hoc appointments were made; Government has not forwarded the requisition to the Public Service Commission uptill now; no reason is on record to state as to what public interest necessitated the Government to make the ad hoc appointments without having rules for them and without forwarding them to the Public Service Commission: the posts have never been advertised.
The above state of facts do not justify the appointments and all the appointments having been made against the provisions of law regulating the ad hoc appointments, the action is without lawful authority and of no legal effect. It will be proper to make reference to the following dictum of the Supreme Court of Azad Jammu and Kashmir, laid down in "Dr. Mehmood Hussain Kiani v. Azad Government and others"
(Civil Appeal No.66 of 1995): "The reading of the rule provides that even the ad hoc appointment is to be made in the interest of public and for a limited period of 6 months and must be made on the basis of merit and the same can only be made after requisition has been sent to the Public Service Commission. The first step to be taken in this regard is to forward a requisition to the Selection Authority and then under sub-rule
(4) the appointment order should contain a certificate that a requisition has been sent to the Selection Authority. We regret to point out that the and again despite the observations of this Court, ad hoc appointments are made in flagrant violation of law and contumacious disregard of the relevant rules. This practice is highly deplorable and has to be deprecated. In the instant case the appellant before us has not specifically challenged the method of ad hoc appointment of respondents Nos. 2 to 21. There is a general allegation that the appointments have not been made in accordance with the relevant law and rules. Whether the ad hoc appointments were made keeping in view the provisions of Rule 23 of t1ie Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and whether the persons appointed were duly qualified or their selection has been made on the basis of objective criteria or that the requisition has been sent to the selection authority are all questions of fact which cannot be gone into while exercising the appellate jurisdiction but at the same the we want to observe that in future the Government must ensure that even the ad hoc appointments are made strictly in conformity with the relevant rules and any departure or deviation from the relevant provisions of law would tantamount to perpetuating a grave injustice to those candidates who have the requisite qualification but unfortunately have no political backing or background. Indeed the discretion for making ad hoc appointments vests with the Government but the discretion must be exercised in accordance with the provisions of relevant rules or law and it must appear to be just and equitable."
14-A. A paradoxical part of the impugned appointments is revealed by the perusal of the personal files of the respondents. The appointment of none of the respondents on ad hoc basis is sanctioned by the appointing authority, be it the Prime Minister or Minister Incharge even on the simple applications of the appointees. In case of respondent No.4, the Minister Incharge of the Department has simply ordered on 3-6-1992 as: In case of respondent No.5, the Minister Incharge on the application of respondent has simply written on 4-6-1992 as: In case of respondent No. 6, the Prime Minister has written on her application as:" IS PAR KARVAI KI JAY E " and Minister Incharge has written " AD HOC TAQURRARI KI TAJWEEZ MURATTAB KAR KE IRSAL KAREIN " In case of respondent No.7, the Minister incharge on 4-6-1992 has ordered on her application: In case of respondents Nos. 8, 9, 10, 12, 13 (photocopy); 14 and 19, the Prime Minister has ordered on 2-8-1992 (before creation of posts): In case of respondent No.20, no date is written under the signatures of the Prime Minister, but it contains same order i.e.: In case of respondent No. 11, the Prime Minister has ordered on 5-8-1992 (before creation of posts)
The personal file of respondent No. 15 does not contain even application for appointment nor any formal order on the Noting side. The application for appointment finds place in the personal file of respondent No. 16, but without any further order or note thereon. Similarly, the personal file of respondent No. 17 does neither contain the application for appointment nor any Note or order by any competent Authority. The personal file of respondent No. 18contains application with a Note thereon that : " KHALI ASAMI PAR TAQURRARI KI MANZOORI DI JAYE " beneath the Note, the word "WAZEER-E-AZAM" are written, but without signatures of the Prime Minister. No further order or note is written in this file.
15. The Department has, along with the personal files of the respondents referred above, sent the personal files of Sajad Mahmood, Muhammad Anwar Javed and Syed Sajjad Hussain Shah. The appointment of these persons has not been challenged and they are not respondents before the Court, hence these are not discussed, but there cases are also not different from those discussed above.
16. The above state of affairs in making the appointments to the civil service is a fraud upon the Constitution, judgments of the Supreme Court as well as the law regulating the civil service. It is highly deplorable that the appointments are made in a way, which speak of the mockery of the system.
17. As stated somewhere above, the legal position stands settled by the judgment of the superior Courts in Azad Kashmir that no appointment in the civil service can be made in Grade-16 and above without the posts being referred to the Public Service Commission, if not otherwise out of the purview of the Public Service Commission. All the posts, which the respondents Nos.' 4 to 20 are holding, are the posts carrying Grade-17 which have to be filled in by the competent Authority after a requisition having been forwarded to the Selection Authority i.e. Public Service Commission and only in public interest, that to for six months only.
18. A perusal of the orders of the some of the respondents reveals that the rules regulating the ad hoc appointments requiring the forwarding of the requisition to the Public Service Commission advertising the posts etc. Have been relaxed. Rule 24 of the Rules, authorizing the relaxation reads: "Government may for special reason, relax any of the rules in any individual case."
19. The Rules have been framed by the Government under the authority of the Act. No provision of the Act authorizes the Government to relax the rules for enabling a person to be appointed in the Government service. Section 23 of the Act, authorizes the Government to frame the rules to carry out the purpose of the Act. This power does not include in itself to frustrate the provisions or the purpose of the Act. The purpose of rule 24 referred above seems only to carry out the spirit of section 22 of the Act, which enables the Government to remove hardship in case of a civil servant, not to enable it to make wholesale appointments by relaxing the rules. The individual cases are exceptions and exceptions are always rare. Thus, the relaxation of rules for making the appointments is also without lawful authority.
20. As stated hereinbefore, all the posts occupied by respondents Nos. 4 to 20 have not only been illegally filled in, but are also against the spirit of the following judgments of the Supreme Court reported as "Azad Government and others v. Muhammad Yunus Tahir and others" 1994 CLC 2339 = 1994 PSC 1198: 'Sheikh Mamoor Ahmed v. Azad Government and others "(1994 SCR 297) = 1995 PLC (C.S.) 59; "Azad Government and others v. Javed Iqbal Khawaja and others" (1996 PLC (C.S.) 155 an unreported judgment of the Supreme Court referred above i.e. Dr. Mehmood Hussain Kiani v. Azad Government and others (Civil Appeal No. 66 of 1995) (1996 PLC (C.S.) 912).
21. In view of above, following the dictum laid down in the case of "Muhammad Latif Khan v. Aliul Husnain Bukhari and 41 others" (1993 PLC (C.S.) 297), the posts occupied by respondents Nos. 4 to 20 are declared vacant.
22. As the rules for the posts have been placed on record during the course of arguments by the learned Advocate for the respondents, the Government is at liberty to fill the posts on ad hoc basis if public interest so warrants, after forwarding the requisition to the Public Service Commission, and advertising the posts in accordance with rule 23(2) of the Rules and the Notification No.ADMN/A- 27(46)/83, dated 20-6-1993, besides fulfilling the requirements of the dictum of the Supreme Court laid down in Civil Appeal No. 66 of 1995 (1996 PLC (C.S.) 912 referred above.
23. The petition is accepted with costs.