' BASHARAT AHMAD SHAIKH, J.---The appellant filed a writ petition in the High Court in which he prayed for issuance of an appropriate writ directing the Public Service Commission to recommend him against one of the two windfall seats which continue to remain vacant on account of failure of any candidate from Bagh and Kotli Districts to qualify in the competitive examination held by the Public Service Commission for filling up some posts of Assistant Commissioners. He also prayed that the Government may be directed to order the appointment of the appellant on the basis of the recommendation of the Public Service Commission. The High Court has dismissed the writ petition by holding that the Circular issued under the signature of the Additional Chief Secretary on 5th of July, 1972, on which the appellant relied, has no legal force behind it. The appellant was granted leave to appeal in view of the fact that a question of law of public importance was involved in the case.
' The controversy in the present appeal relates to the implementation of quota system which is in vogue in the service cadre of the Azad Government of the State of Jammu and Kashmir. We will be adverting to the different Government orders passed from time to time at the proper place but it may be stated here that there is no dispute about the fact that vacancies in the Government service have to be filled up in accordance with quota separately reserved for each of the districts and for Jammu and Kashmir refugees settled in Pakistan. The question which has arisen in the present case is that if no suitable candidate is available from a district the post reserved for that district shall be re-advertised or a successful candidate belonging to another district will be appointed on the basis of merit. As the facts are no candidate from Districts Kotli and Bagh was found suitable for appointment as Assistant Commissioner and it is claimed by the appellant, who hails from Pallandri (which was in Poonch District at the relevant time), that, after excluding those who have already been absorbed in service, he was on top of the merit list and should have been given appointment on the basis of merit.
' The history of introduction of quota system in the service begins from 16th March, 1971 when it was ordered that 10 per cent. Of the vacant . Posts under the Government shall be filled up from backward areas of Azad Jammu and Kashmir. The order of 16th March, 1971, which is not on the file, was subsequently superseded and the system of regional quota was introduced on 12th of March, 1972, on which date the following circular was issued:-- ' From the Office of Chief Secretary, Services and General Administration of Azad Government of the State of Jammu and Kashmir.
' No, Admin/4476-4526/27-S/72, dated 12-3-1972. To
1. All Secretaries to the Government
2. All Heads of Departments ' Sub: Regional Quota in Government Services.
' In light of Council Resolution No, 48/71 the following regional quota in Government services has been fixed:--
1. Jammu and Kashmir Refugees Settled in Pakistan 25%
2. District Mirpur 30%
3. District Poonch 25%
4. District Muzaffarabad 20%
2. Notification issued under No,Admin/3003-34/C.S/71, dated 16-31971 by which 10 per cent.
Representation in services was sanctioned for backward areas is cancelled in light of the Council Resolution mentioned above. They will be absorbed in the quota of their respective districts.
3. Recruitments in the District Offices shall be made from same district.
' This may please be acted upon in future.
(Sd.)
Additional Chief Secretary".
(Translated)
' Another Circular was issued on 5th of July, 1972 in which certain aspects about quota system were clarified. This is the Notification on which the appellant has based his claim. Translated in English the circular is worded as follows:-- "From the Office of Chief Secretary, ' Services and General Administration Department ' Azad Government of the State of Jammu and Kashmir.
' No, Admin/12666-12716/C.S./72, dated 5-7-1972. To
1. All Secretaries to the Government
2. All Heads of Departments Subject: Regional Quota in Government Services.
' The Government decision about district-wise representation in services has already been communicated to you. In continuation of that decision I am directed to state that whenever it is intended to fill up a vacancy the concerned Department shall be bound to indicate in the advertisement that the post would be filled up from the district specified therein against the reserved quota and only candidates from that district would be brought under consideration.
However, if a suitable candidate possessing the required merit is not available from that district, the appointment will be made from amongst suitable candidates from other districts.
' This principle would apply to all posts which are filled up through competitive examination and are gazetted. So far as non-gazetted and subordinate officials are concerned they will be recruited from within their respective districts. If a suitable candidate is not available from within the district in that case appointing authority will bring the matter in the notice of the immediate officer and would then make appointment from other districts.
' Public Service Commission will also be required to indicate in the advertisement inviting applications that the recommendation of the Commission will be formulated on the basis of district-wise quota, however, if a candidate of required merit is not available the Commission will recommend the most suitable candidate irrespective of the district to which he belongs.
' Please act upon the foregoing.
(Sd.)
Additional Chief Secretary".
' Yet another related order was issued on 24th of August, 1972, but it will be reproduced at a subsequent place. It was issued to clarify some matters connected with representation of refugees from occupied Kashmir.
' When Mirpur District was sub divided in two districts, namely, Mirpur and Kotli, the quota fixed for Mirpur was also divided by a Government order issued on 19th August, 1980. Similarly on 24th November, 1987 a Government order was issued in which percentage fixed for District Poonch was re-apportioned in new districts of Poonch and Bagh. These orders need not be reproduced.
However, it may be pointed out that these two orders are .e I s o in the shape of circulars, but were issued in the name of President of Azad Jammu and Kashmir. The High Court has highlighted the form in which these two orders were issued and has held that Government order is one which is issued in the name of President. In light of this principle of law, the High Court has held that the Notification issued on 5th July, 1972, which lays down that appointment to a post will be made on the basis of merit from other districts if no suitable candidate is available is not a Government Order. The High Court has also expressed that opinion that circular of 5th July, 1972 was issued by the Additional Chief Secretary under the direction of Chief Secretary and was not sanctioned by the Government.
' The High Court has rightly pointed out that executive authority of Azad Jammu and Kashmir under the Azad Jammu and Kashmir Government Act, 1970, which was in force when the two circulars under discussion were issued, was vested in the President and that Government orders were required to be issued in name of President. However, the High Court has not quoted any authority in support of the proposition that an order issued with ' the approval of the President shall be invalid if it has not been issued in the name of the President. In our view the correct legal position is that the order passed by the President under the Azad Jammu and Kashmir Government Act, 1970 or by any competent authority under the Azad Jammu and Kashmir Interim Constitution Act, 1974 will be valid and effective even if it is not expressed to be made in the name of the President. Different forms are used to promulgate an order passed by the President, Prime Minister or a Minister delegated to pass a Government Order. Sometimes it takes the form of a circular and sometimes it is issued in the form of a Notification. It is not always that the name of the President is mentioned.
The form of the Government Order is not material; what is material is that there should be the sanction of the authority which is competent to make an order. Therefore, the question of validity or otherwise of the Government Order should not be decided in light of the fact whether it has been issued in the name of President or not.
' To resolve this question we must first advert to the pleadings of the parties. In ground (a) of para. 8 of the writ petition it was averred that under Government Order No,AD/12666-12716/CS/72, dated 5thJuly, 1972 if no candidate from a particular district qualifies for the post reserved for that district the post shall be filed in merit from amongst the candidates belonging to other districts. A joint written statement was filed by both the respondents, namely, Azad Government of the State of Jammu and Kashmir and the Public Service Commission. The reply to ground (a) mentioned above was in the following words: "(a) the law referred to is pre-Constitutional and no more applicable."
' This reply recognizes that the order relied upon in the writ petition, i,e, the order of 5th of July, 1972, was a law. The Government and the Public Service Commission did not take up the position that the order mentioned above was invalid or that it had not been issued under the authority of the President. The position which was taken in the written statement by the respondents has been duly mentioned in para. 4 of the judgment under appeal wherein it is noted by the High Court that in the written statement respondents asserted that the law which was relied upon by the writ petitioner was no longer in existence. From the judgment of the High Court it appears that the point that order of 5th of July, 1972, relied upon by the present appellant, was not described as invalid even during the arguments before the High Court. It is well-settled that cases have to be decided in light of the pleadings of the parties. It was a question of fact whether order of 5th July, 1972 was issued without approval of the President. Such questions cannot be decided by Courts of Law unless they are pleaded. Therefore, it is clear that the High Court did not act in accordance with law by travelling beyond pleadings of the parties.
' Now we turn to the legal position. We have already reproduced two circulars which were issued respectively on 12th of March, 1972 and 5th of July, 1972. The High Court has held that order of 5th of July, 1972 had not been issued with the approval of the President. Apart from the fact that it was never pleaded that it was so, the fact is that original order issued on 12th of March, 1972, by which the quota system was introduced, is in the same form as the order of 5th of July, 1972. In both of them the authority under which these were issued is not disclosed. The order of 12th of March, 1972 fixed quota for respective regions in light of the Council Resolution No,48 of 1971. It means that quota system was approved by the Council Resolution but the break down of different regions was laid down by this order. In paragraph 2 of this order the Notification of 16th of March, 1971 by which 10% quota had been reserved for backward areas of Azad Jammu and Kashmir was also cancelled although the latter was admittedly issued in the name of the President. In that way the Circulars of 26th of March, 1972 and 5th of July, 1972 stand at the same legal pedestal. It may be noted that Circular of 5th of July, 1972, reproduced above, begins with these words "You have already been informed about the decision of district-wise representation in services. In continuation of that decision I am directed to " These words demonstrate what is being communicated through this circular is the decision of the Government which has been in continuation of the earlier decision.
' The status of these two orders stands clarified beyond any doubt by third order, referred-above, issued on 24th of August, 1972. It runs as follows:-- "Azad Government of the State of Jammu and Kashmir Services and General Administration Department Muzaffarabad.
' No, Admin/16424-6364/C.S./72, dated 24-8-1972 Notification: ' Orders No, Admin/4476-4526/C.S./72, dated 12-3-1972 and No,Admin/12666-12716/C.S./72, dated 5-7-1972 have already been issued for district-wise representation in services. Since a question has arisen about the entitlement of refugees vis-a-vis territorial districts the President of Azad Jammu and Kashmir Government has passed the following orders:
1. A person who has settled in Azad Kashmir after leaving any part of the occupied Kashmir will be treated as a local and domicile of the district where he is settled.
2. A person which has settled in Pakistan after leaving any part of Occupied Kashmir will be treated to be a refugee, even if he subsequently starts residing in Azad Kashmir in connection with service, business or for any other reason.
3. 1965 refugees will be treated as belonging to Azad Kashmir till they are rehabilitated.
(Sd.) Addl. Chief Secretary."
(Translated)
' This order is in the shape of a notification and has been issued in the name of the President. There is no doubt that it is a Government Order. This order refers to the two earlier orders issued of 12th of March, 1972 and 5th of July, 1972 and it is said about them that a question has arisen in light of the aforesaid two orders which the President had resolved in paragraphs 1 to 3 of the said Notification.
This order clearly shows that both the orders mentioned therein are recognised as valid orders. It is, therefore, not possible to hold that the order of 12th of March, 1972 introducing quota system was issued with the approval of the President but the order of 5th of July, 1972, which was issued in continuation of order of 12th of March, 1972 with a view to clarify and lay down certain matters ancillary and incidental to the orders of 12th March, 1972, was not issued with the approval of the President. The Notification of 24th of August, 1972 admittedly issued with sanction of the President clearly recognises that both the orders issued earlier were Government Orders. It is, therefore, not possible in law to hold, as has been done by the High Court, that the Order of 5th of July, 1972 was not an order issued with the approval of the President.
' We have already seen that it was not pleased by the Government that the Order of 5th of July, 1972 was not a Government Order. As noted above, what was pleaded was that the order was a pre-constitutional order and was no longer effective. This has clear reference to the Constitutional changes brought about in 1974. In 1972, when all the three orders discussed above were issued, the Government was being run under the Presidential system as envisaged by Azad Jammu and Kashmir Government Act, 1970. In 1974 Parliamentary System of Government was introduced in Azad Jammu and Kashmir by adopting the Azad Jammu and Kashmir Interim Constitution Act, 1974 which came into force on 24th of August. With the coming into force of the Constitution Act, the Azad Jammu and Kashmir Government Act, 1970 stood repealed as is provided in section 59 of the Constitution Act. By stating that the order of 5th of July, 1972 was a pre-constitutional, hence, no more applicable, the Government and the Public Service Commission seem to have taken the position that with the repeal of the Azad Jammu and Kashmir Government Act, 1970 order of 5th July ceased to be operative. Apart from legal position to which we will be presently adverting, it seems anomalous that the Government has taken this position. If, as the Government pleaded, the Order of 5th of July, 1972 ceased to have effect on the repeal of the Government Act, 1970, how could then the order of 12th of March, 1972 be still operative to enable the Government to fill up seats on quota system rather than on open merit. The Government failed to keep in mind that the quota system introduced by order of 12th of March, 1972 was being consistently adhered to in spite of the repeal of the Government Act, 1970.
' Turning to the legal position the learned counsel for the appellant has rightly relied on section 51 of the Azad Jammu and Kashmir Interim Constitution Act which provides continuance of the existing laws, Notifications and other legal instruments issued before coming into force of the Constitution Act. Section 51 may be usefully reproduced: "51. Continuation of existing laws.--Subject to the provisions of this Act, all laws which, immediately before the commencement of this Act, were in force in Azad Jammu and Kashmir shall continue in force until altered, repealed or amended by an Act of the appropriate authority.
Explanation.-- In this section,--
(a) ' law' includes Ordinances, Orders, rules, bye-laws, regulations and any notifications and other legal instruments having the force of law; and.
(b) in force' in relation to any law, means having effect as law whether or not the law has been brought into operation."
' This section provides complete answer to the plea taken by the Government.
As a result of the foregoing analysis we have reached the conclusion that Notification of 5th of March, 1972 continues to be valid. The portion of the notification which has bearing on the out come of the present appeal is that if no suitable candidate from a particular district is available then the Public Service Commission will recommend a person on the basis of open merit.
' In the writ petition it was averred in para. 4 of the writ petition that 15 candidates qualified the written examination and were then interviewed and that no candidate from districts Kotli and Bagh qualified the written test and two posts of Assistant Commissioners remained unfilled. It was stated in para. 5 that name of appellant, Khurshid-ul-Hassan, was placed at No,3 in the merit list while another candidate from District Poonch, to which the appellant belongs, was placed at No,2. It was further stated that he applied for a copy of merit list but Public Service Commission refused in writing to issue the copy. The original letter of the Public Service Commission dated 24th of August, 1995 was attached with the writ petition. The appellant supported his averments by filing an affidavit. In the written statement para.4 was admitted as correct while reply to contents of para. 5 was not admitted as correct. It was stated that there was only one post reserved for District Poonch against which the Public Service Commission recommended a candidate according to merit. No affidavit was filed in support of the written statement. Since there is no other material to the contrary we have to assume correct that the appellant Kurshid-ul-Hassan was placed at No,3 in the merit list while another candidate from District Poonch was at No,2 of the list. It follows that the person at Serial No,2 was adjusted against the seat reserved for district Poonch. It also follows that after adjusting the candidates on district-wise quota the appellant is on the top, of the merit list. D He, therefore, has a right to be adjusted against one of the seats reserved for Kotli and Bagh districts because no suitable candidate was available from there.
' It has been pleaded in the written statement filed before the High Court that the Public Service Commission performed its duties under the Public Service Commission Procedure Rules, 1994.
There is a provision in rule 12(1) of the said Rules that quota fixed by the Government from time to time shall be strictly followed by the Commission. This provision upholds the quota system enforced by the Government through orders which have been discussed in the earlier part of this judgment. It is not upto the Commission to implement one part of the order and to deviate from the other part of those orders. Therefore, the Commission has to follow the scheme of the quota system that if a suitable candidate is not found from a particular region the post will not be left unfilled but a person will be selected on merits from outside that district.
As an upshot of the foregoing discussion we set aside the order of the High Court and order that the writ petition filed by Khurshid-ul-Hassan shall stand accepted in terms that the Public Service Commission shall recommend the name of the appellant in accordance with the merit list drawn up by it for appointment against a post of Assistant Commissioner out of the quota reserved for Kotli and Bagh districts. It is further , directed that the Government shall, after receiving the recommendation of the Public Service Commission, act in accordance with law for the appointment of the appellant. Costs throughout will follow the result of this appeal.