1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This petition has been filed seeking leave to appeal to this Court against the judgment of the High Court dated 16-5-1996, whereby the writ petition filed by respondent No.1 was accepted by the High Court.
2. ' The brief facts giving rise to the present petition are that the Government of Azad Jammu and Kashmir established a full-fledged department known as Social Welfare Department, wherein quite a number of posts of Grade B-17 of different designations were created. The rules for filling in the said posts were not yet framed when the petitioners, herein, were appointed on ad hoc basis against the said posts. Subsequently, their appointments were regularised and protected by an Act of the Assembly known as Azad Jammu and Kashmir Civil Servants (Regularisation of the Ad Hoc Appointments) Act, 1992 (hereinafter shalrbe called as Regularization Act). The Regularization Act was challenged by filing a writ petition in the High Court by Javed Iqbal Khawaja and others in case reported as Javed Iqbal Khawaja and others v. Azad Government and others [PLD 1994 Azad J&K 26) wherein the said Act was held void being violative of the Interim Constitution Act. The High Court, while setting at naught the Regularization Act, observed that the ad hoc appointees would continue to hold their ad hoc appointments till the same are regularized under relevant law. The ad hoc appointments of the petitioner were challenged by respondent No.1 through a writ petition on 5-9-1992, inter alia, on the ground that the same were illegal as being violative of the relevant law.
3. The said writ petition remained pending and was disposed of by the High Court vide its judgment dated 16-5-1996 holding that the ad hoc appointments of the petitioners were violative of rule 23 of the Rules known as Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 (hereinafter shall be called the appointment rules); and because, the same were made before framing rules prescribing the qualification etc. As visualized under the Azad Jammu and Kashmir Civil Servants Act, 1976. However, the High Court observed that, if so advised, the Government may appoint the petitioners on ad hoc basis according to procedure laid down under rule 23 of the appointment rules and instruction issued by the Chief Secretary vide his Notification, dated 20-6-1983. The High Court, while giving the aforesaid verdict, relief upon a number of cases decided by this Court.
4. ' Kh. Shahad Ahmed, Advocate, the learned counsel for the petitioners, has argued that in view of the verdict in Javed iqbal Khawaja and others' case by the High Court and by this Court on appeal, the ad hoc appointment of the petitioners could not be set at naught by the High Court, irrespective of the provisions contained in rule 23 of the appointment rules and the instructions in that regard. The learned counsel has further submitted that in the present case, the writ petition was filed in year 1992 but thereafter the petitioners were re-appointed on ad hoc basis by subsequent notifications after the expiry of six months visualized under the relevant rules but the writ petition was not amended and the said notifications were not challenged by the respondent.
5. Thus, according to the learned counsel the writ petition filed by the respondent had become infructuous and entailed dismissal. The learned counsel has also contended that the High Court was not legally correct to give relief to the respondent by converting the writ of mandamus into a writ of quo warranto. According to the learned counsel the relief sought by the respondent could only be given in a writ of quo warranto and not in a writ of mandamus.
6. ' We have given our due consideration to the matter and alSo perused the impugned judgment of the High Court. It may be observed that while giving the impugned judgment, the High Court relied upon the following authorities of this Court in support of its opinion:-- "Azad Government and others v. Muhammad Yunus Tahir (1994 CLC 2339), Sheikh Manzoor Ahmed v. Azad Government and others (1995 PLC (C.S.) 59), Azad Government and others v. Javed Iqbal Khawaja and others (1996 PLC (C.S.) 155) and an unreported judgment of the Supreme Court entitled Dr. Mehmood Hussain Kiani v. Azad Government and others Civil Appeal No. 66 of 1995)
7. (1996 PLC (C.S.) 912). The learned counsel could not show as to how the principle laid down in the abovementioned authorities of this Court were not applicable to the instant writ petition. He has merely contended that after the judgment of the High Court given in Javed Iqbal Khawaja and others' case and the judgment on appeal by this Court, reported as Azad Government and others v.
8. Javed Iqbal Khawaja (1996 PLC (C.S.) 155), the petitioners were legally entitled to continue on the basis of their ad hoc appointment till their services are duly regularised. It may be stated here that the High Court did not hold that the Government cannot re-appoint the petitioners, herein, on ad hoc basis, the High Court merely held that the impugned appointments of the petitioners on ad hoc basis were contrary to the provisions contained in rule 23 of the appointment rules and instructions issued in that regard and, thus, set the same at naught. The High Court has specifically observed in the impugned judgment that the Government, if so chooses, may appoint the petitioners as ad hoc appointees afresh according to the provisions contained in the relevant law.
9. So far as the dictum of the High Court in Javed Iqbal Khawaja and others' case is concerned, the High Court merely observed as under:- ' The ad hoc appointments desired to be regulated by virtue of these provisions shall remain ad hoc appointment in nature and character.............................................................................................. Tt ' The above observation of the High Court does not mean that the appointments made on ad hoc basis in violation of rule 23 of the appointment rules would remain intact, no such question was involved in that case, the basic question involved in that case was as to whether the Regularisation Act was violative of right of equality before law' guaranteed by the Interim Constitution Act. Besides, the abovementioned observations of the High Court also cannot be interpreted to mean that an ad hoc appointee can continue as such for an indefinite period. Under law an ad hoc appointment validly made would be effective only for six months, unless, of course, the concerned ad hoc appointee is re-appointed as such after complying with conditions laid down on that behalf, the High Court could not lay down any principle contrary to rules, nor it did so. So far as the judgment of this Court on appeal in Javed Iqbal Khawaja and others' case is concerned, that does not contain any observation with regard to the ad hoc appointees in that case.
10. ' The learned counsel for the petitioners has also drawn our attention to the Government order dated 15-8-1992 and contended that the conditions laid down in rule 23 of the appointment rules were relaxed by the Government and, thus, it was not necessary to comply with the conditions laid down in the rule. It may be stated here that the extent and scope of the powers of the Government to relax the conditions laid down in appointment rules has been previously discussed and resolved by this Court in the authorities who have been referred by the High Court in its judgment. Suffice it to say here that the power of relaxation of the rules can be exercised in individual cases which are 'just and equitable' as stipulated under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 for sufficient reasons and wholesale order of relaxation of a service rule by the Government without giving reasons is not sustainable in law. Thus, we reiterate the principle laid down by this Court in some earlier cases, referred to by the High Court.
11. ' So far as the argument of the learned counsel for the petitioner that the relief to respondent No.1 could only be given in a writ of quo warranto is concerned, we do not subscribe to the contention of the learned counsel for the petitioners. It is nowhere laid down in section 44 of the Interim Constitution Act that for declaration of appointment of a civil servant as illegal only a writ of quo warrant is competent and, as such, an appointment of a civil servant cannot be declared as violative of law in a writ petition seeking a declaration and a writ of mandamus. The scope of writ of quo warranto and mandamus is different, inter alia, on the ground that a writ of mandamus can be filed only by an 'aggrieved person' whereas a quo warranto can be filed by any State Subject. The High Court has rightly held that respondent No.1 is an aggrieved person in the instant case and, thus, it is not necessary for us to dilate upon the question any further.
12. ' The argument of the learned counsel for the petitioners that the writ petition was not amended after the re-appointments of the petitioners and, thus, entailed dismissal, is not tenable because, no such point was either raised or decided by the High Court. The High Court has confined its findings to the notifications impugned before it and, thus, we see no reason to deal with a point which not raised and decided by the High Court.
13. ' In the light of what has been stated above, finding no force in this petition for leave to appeal, it is hereby dismissed. The application for stay order has become infructuous and the same also stands rejected.