' This writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, calls in question the orders passed by respondents Nos. 1 to 3, whereby the conditions pertaining to appointments of respondents Nos. 4 to 11, were relaxed.
2. The facts giving rise to the present writ petition, briefly stated, are that the petitioner, a State Subject of Azad Jammu and Kashmir, was appointed as Municipal Magistrate in BPS-17, on ad hoc basis. Meanwhile, applications for permanent appointment of Municipal Magistrate were invited.
The petitioner also applied for the said post. The services of the petitioner were terminated and respondents Nos. 4 to 11 were appointed on ad hoc basis. The Government of Azad Jammu and Kashmir relaxed the conditions for appointment against the aforesaid posts, under section 25 of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service)
Rules, 1990, as laid down in section 5(1) of the aforesaid rules. The aforesaid exemptions have been challenged through this writ petition.
3. Ch. Muhammad Azam Khan, the learned counsel for the petitioner raised the following points in support of the writ petition:--
(i) That the Government of Azad Jammu and Kashmir was not competent to exempt the said post from general publication; .
(ii) that under section 5(1) of the aforesaid rules, the order of exemption in respect of respondents Nos. 4 to 11, was illegal;
(iii) that under section 5(1) of the aforesaid rules, the initial recruitment to the posts in Grade-11 and above was to be made on the basis of the result of a competitive examination conducted by the Board or the Selection Committee, whereas the Government exempted respondents Nos. 4 to 11, from the examination; and
(iv) that the relaxation order was against the fundamental rights guaranteed by the Constitution. It was explained that all the State Subjects are equal before law but the action taken by the Government offends the basic rights, as such, is illegal and not maintainable.
4. Ch. Muhammad Mushtaq, Additional Advocate-General, Sardar Ghulam Mustafa and Mr. Liaqat Ali Khan, the learned counsel representing the respondents, while controverting the arguments addressed by the learned counsel for the petitioner, argued in the following manner:--
(i) That the matter relates to the terms and conditions of the service, as such, it can only be lawfully adjudicated upon by the Service Tribunal. The jurisdiction of the High Court stands ousted in the circumstances. Therefore, the writ petition is liable to be dismissed on this sole ground;
(ii) that the petitioner had got an alternate remedy, as such, the writ petition is not maintainable;
(iii) that the petitioner is not an aggrieved person; and
(iv) that the Government of Azad Jammu and Kashmir was fully empowered to relax the terms and conditions of service. The order of relaxation was made under rules which could not be challenged in writ jurisdiction.
5. I have heard the learned counsel for the parties and also gone through the record. Respondents Nos. 4 to 11, were initially appointed on ad hoc basis, but were held to be confirmed by the Government of Azad Jammu and Kashmir, respondent No,1 while relaxing the condition of rule 5(1) of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service)
Rules, 1990, under section 25 of the aforesaid rules, through Government Notification issued on December 15, 1993. The relevant posts, through another Notification, were exempted from publication on September 15, 1993, Annexure 'A'.
6. The petitioner has challenged the validity of the orders of appointments of the aforesaid respondents and also prayed for issuance of a writ of quo warranto, against the aforesaid respondents, to ask them to explain that under what authority of law they are holding the offices and to declare the same as vacant. The learned counsel for the respondents in course of their arguments, raised an objection that the matter relates to the terms and conditions of service, as such, the jurisdiction of this Court stands ousted, but have failed to satisfy as to how the jurisdiction of this Court is barred. It would suffice to mention that the proposition stands settled by the Supreme Court of Azad Jammu and Kashmir in Zubaida Begum's case (1998 SCMR 137 = 1998 PLC (C.S.) 161 that a person not in the service of Azad Jammu and Kashmir can lawfully invoke the writ jurisdiction for the redressed of the grievance arising out of the terms and conditions of service.
Therefore, the point does not require any elaborate discussion.
7. The other point raised by the learned counsel for the respondents that the petitioner is not an aggrieved person, is also not found to have any substance in it as the petition for issue of writ of quo warranto has been filed and for filing the petition in the nature, does not require the petitioner to be an aggrieved person. It is necessary to mention that the following conditions may be satisfied for issuance of a writ of quo warranto:--
(1) In order to maintain a petition for quo warranto, the petitioner has to satisfy that the office in question must be of public nature that is, it involves a delegation of some of the sovereign functions of the Government, executive or judicial, to be exercised by him for public benefit.
(2) It is essential for issue of a quo warranto that the respondent must be holding the office.
(3) That the office must have been of substantive in, character i,e, must be an independent and not one discharging duty or like servant at will.
(4) That the respondent must not be legally qualified to hold that office or to remain in office or the has not been appointed in accordance with law or is a usurper.
(5) Every subject has an inherent right in seeing that public duties are performed by those who are competent to exercise them. The relator though having no personal interest in the matter can maintain writ of quo warranto. He must not do so mala fide or instrument of others.
(7) The prayer in quo warranto generally is to call upon the alleged usurper of public office to show or to prove his authority to hold the same and issue injunction to the person not to act there and declare his office as vacant."
' The condition to be an aggrieved person for filing the writ petition is not required for the purpose of filing a writ petition in the nature of quo warranto under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Therefore, in the present case, the point also merits no consideration.
8. Under Rule 5(1) of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990, the initial recruitment to the posts in Grade-11 and above are to be made on the basis of the result of a competitive examination, test and interview conducted by the Board or the Selection Committee, constituted by the Board for the purpose, while the initial recruitment to all Posts in Grades-I to 10 is to be made on the basis of test and interview conducted by the Selection Committee of the Local Council constituted under Local Council Business Rules, 1981, under rule 5(2) of the aforesaid rules. The candidate is to possess educational qualifications, experience and requirement of age-limit as laid down for the relevant post in the Schedule, under rule 5(3). The Government of Azad Jammu and Kashmir may, for the reasons to be recorded in writing and after consultation with the Board, relax any rule in an individual case if satisfied that the strict application of that rule would cause an undue hardship to the individual concerned.
The relevant rules, i,e, 5(1), (2) and (3) and 25 are reproduced below:- - "5. Initial recruitment.---(1) Initial recruitment to the posts in Grade-11 and above shall be made on the basis of the result of a competitive examination, test and interview conducted by the Board or by Selection Committee constituted by the Board for this purpose.
(2) Initial recruitment to all posts in Grades-I to 10 shall be made on the basis of the result of a test and interview conducted by the Selection Committee of the local council constituted under Local Council Business Rules, 1981.
(3) A candidate for initial recruitment to a post must possess the educational qualifications and experience and must be within the age-limits laid down for the post in the schedule.
25. Relaxation.---Any of these rules, may for reasons to be recorded in writing and in consultation with the Board, be relaxed by Government in an individual case, if Government is satisfied that ,strict application thereof would cause undue hardship to the individual concerned."
9. In the present case, the Government of Azad Jammu and Kashmir through an order exempted the respondents's posts holding on ad hoc basis, from advertising those and through another Notification, exempted the application of rule 5(1) for conducting test and interview and, thus, confirmed from the date of their appointments, under section 25 of the aforesaid rules. The respondents in this case, have failed to bring anything on record which may support the order of relaxation made in writing or otherwise with the consultation of the Board, giving reasons for causing undue hardship in the case of any individual. It implies that the Government did not record any reason in writing for being satisfied that the strict application of any rule would cause undue hardship to any individual. Therefore, it follows that the order of relaxation made in respect of respondents Nos. 4 to 11 and, thus, declaring them appointed under the rules from the date of their appointments, is illegal and not justified in law, particularly when the order has been made for all the appointees mentioned therein, apart from the fact that the order is inconsistent with the fundamental rights as well as the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules. A similar matter came under consideration before the Supreme Court of Azad Jammu and Kashmir in the famous case, ' Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others (1994 CLC 2339), wherein following observations were made:-- "-Persons holding posts on ad hoc basis as well as holding discretionary posts were treated to have been regularly appointed---The said statute was struck down as being inconsistent with Fundamental Rights Nos. 15 and 17 as well as to the Civil Servants Act, P.S.C. Act and Rules made thereunder.--- ' Fundamental Rights Nos. 15 and 17---Right No,15 guarantees that all State Subjects are equal before law and are entitled to equal protection of law. Right No, 17 provides safeguard against discrimination in services.---- ' S. 48---read with Public Service Commission Act and the P.S.C. (Function) Rules require that the merit and suitability of the candidates must be judged by the P.S.C.---These functions cannot be performed by any other authority--In the present case, this job has been performed by the Legislature through the impugned Act which declared them' validly selected' without going through the selection procedure."
10. In view of the law settled by the Supreme Court of Azad Jammu and Kashmir in the above referred case, it can safely be held that the Government was not competent to relax the conditions provided in the aforesaid rules and thus declaring the respondents to have been regularly appointed under the aforesaid rules, being illegal and without jurisdiction. The respondents have not been able to show any authority of law under which they claim to hold their respective offices and in view of the matter we take, they have no right to enjoy those offices. Their offices are, therefore, declared vacant and shall be filled in accordance with law, by accepting the writ petition.
11. It would be necessary to mention that during the perusal of the file, it was found that an application to amend the written statement to the effect that the petition was filed after an inordinate delay, as such was hit by laches, was moved on behalf of the respondents through Sardar Ghulam Mustafa, Advocate who, at no occasion, either before or at the time of final arguments, pressed the same or otherwise brought to the notice of the Court. Therefore, it appears that the respondents did not want to pursue the relevant application, as such, the same shall be deemed to be dismissed.