1. BASHARAT AHMAD SHAIKH, J.---A writ petition filed by the appellant seeking a direction addressed to the Chairman of the Public Service Commission to hold test/interview for the post of Assistant Electric Inspector in accordance with the requisition sent by the Government has been dismissed by the High Court. The High Court has held that mere submission of application to the Public Service Commission does not vest any right in a person to be considered for the post advertised by the Public Service Commission. The petitioner was granted leave to appeal.
2. The appellant holds a degree in B.Sc. Electrical Engineering. He was appointed as Assistant Electric Inspector (B.17) on 5th October, 1989 on ad hoc basis. The appointment was extended from time to time till the enactment of the Civil Servants (Regularization of Ad hoc Appointments) Act 1992 which purportedly absorbed the appellant in the service of Azad Jammu and Kashmir on regular basis. However, the aforementioned Act was declared unconstitutional with the result that the appellant's absorption in service came to an end in 1994. The disputed post was then referred to the Public Service Commission and was duly advertised on 11th March, 1995. The appellant, Who fulfilled the requisite qualifications, applied to the Public Service Commission in response to the aforesaid advertisement. Call letters were issued to the candidates for interview which was fixed for 4th March, 1997. However, on 18th February, 1997 a letter was written by the Secretary of the Electricity Department addressed to the Deputy Director (Examinations) of the Public Service Commission in which he requested that the selection of Assistant Electric Inspector may be postponed. He stated in the letter that there was only one post of Assistant Electric Inspector in the Department and the Government wanted to fill in the post by promoting an old serving hands. It was further stated in the letter that the relevant rules were being amended to provide that fifty per cent of the posts of Assistant Electric Inspector will be filled in by promotion while fifty per cent posts will be reserved for initial recruitment. In the prevalent rules the ratio was twenty-five per cent. and seventy-five per cent respectively. The test/interview for the post of Assistant Electric Inspector was accordingly postponed. It is relevant to note that the Commission proceeded to hold test/interviews for other posts in the. Electricity Department.
3. Before proceeding further it seems necessary to notice the relevant provisions. The post of Assistant Electric Inspector forms part of the Electric Inspectorate of the Communications and Works Department and the relevant rules are known as the Azad Jammu and Kashmir Communications and Works Department (Electric Inspectorate) Service Rules, 1989. According to entry No,2 of the said Rules seventy five per cent. of the posts of Assistant Electric Inspector were to be filled in by initial recruitment while twenty-five per cent. posts were reserved for promotion.
4. However, the rules provided that the post could also be filled in by transfer of a suitable officer already working in B.17.
5. The appellant filed writ petition mentioned above on 3rd October, 1997 in which he raised various grounds, including the ground that interference in the working of the Public Service Commission was not warranted by law. The writ petition has been dismissed by the High Court on three grounds. The High Court has firstly held that an employee of the Electricity Department, respondent No,4 Aurangzeb Khan, was appointed against the sole post of Assistant Electric Inspector before filing of the writ petition on current charge basis but the writ petitioner suppressed this fact from the High Court which diset titled him from getting any discretionary relief in his favour. The Court has also held that the Government had the power to make the appointment by way of promotion and it cannot be said that the promotion of the respondent No,4 had been made without lawful authority. The High Court thirdly held that the Public Service Commission had only invited applications for the post and mere filing of application did not vest any right to be considered for the advertised post. The High Court observed that if any person from amongst those who applied for the post had been appointed then the writ petitioner could challenge the appointment but not in the present circumstances in which promotion has been given to a person from within the Department.
6. The learned counsel for the parties do not differ on any of the factual aspects of the case. The facts are that the disputed post was advertised, date for interview was fixed and call letters were dully issued. Meanwhile a letter was written by the Secretary Electricity Department on which interview for the disputed post was postponed. In his letter the Secretary intimated that the Government wanted to change the rules. The High Court has held that mere filing of applications did not vest any right in the appellant. However, this Court has in a recent judgment, announced about two weeks ago, held that if Departmental Rules are amended by the Government after sending the requisition to the Public Service Commission the amended rules will not apply to the advertised post. The Court has also held that if a post has been advertised candidates have a right to be considered according to the qualifications etc. laid down in the advertisement. This view was taken in Civil Appeal No,71 of 1998 titled "Muhammad Fayyaz and 4 others v. Shah Nawaz Khan and 29 others" (decided on 11-1-1999). Facts of the precedent case were that twenty three vacancies of Lecturers in English fell vacant and requisition was sent to the Public Service Commission which invited applications. At that stage the relevant rules known as the Azad Jammu and Kashmir Departmental Collegiate Rules, 1990 provided that a third divisionary M.A. English could only be considered for the post of Lecturer if second divisions were not available. An amendment was carried out in the said Rules after sending the requisition to the Public Service Commission to waive the condition so that third divisions could also be conditionally allowed to apply for the post of Lecturer in English. The Public Service Commission did not send call letters to the third divisions who filed two separate writ petitions in the High Court seeking a direction that they should be interviewed by the Public Service Commission. They were granted ad interim relief which enabled them to appear before the Public Service Commission subject to decision of the Court. Many of them were appointed on the recommendation of the Public Service Commission. Ultimately the High Court accepted the writ petition filed by the third divisoners. The second divisioners filed appeal before this Court which was accepted and the judgment of the High Court was set aside with the result that previous recommendations made by the Public Service Commission and appointments made on their basis were held to be without lawful authority and of no legal effect.
7. This Court examined a good number of judgments from different jurisdictions in 'reaching the following conclusion:-- 11Thus, in our opinion, the moot point in this case is as to how the amendment in the Rules of 1990 would affect the case of the respondents. It is well-settled principle of law, as is also evident from the authorities cited by the learned counsel for the parties, that an amendment in existing law would be prospective until and unless it is otherwise provided by the law-givers. In the instant case the amendment in the Rules of 1990 has not been made operative retrospectively. It is also not controverted that the advertisements inviting applications had already been published in May, 1997 when the unlamented Rules of 1990 held the field. The contention of the learned counsel for the respondents that despite the fact that amendment in the said Rules was made after the publication of the advertisements, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively. The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualifications etc. laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisements."
8. The Principle of law laid down above is fully applicable to the present case. The Public Service Commission had commenced the selection process by advertising the disputed post and the appellant had duly applied for it. It is nobody's case that the requisition was withdrawn by the Government. Thus, a right had come to reside in the appellant that he should be considered for appointment to the advertised post in the light of the rules prevalent at the time when the post was advertised. Thus, the view taken by the High Court is not correct.
9. Apart from that there are two other important aspects of the matter which strengthen the appellant's case. The letter on which the interview for the disputed post was not conducted was filed in the High Court by the office of the Public Service Commission. The letter was written on 18th February, 1997 while the requisition was sent to the Commission in 1994. The letter was addressed to the Deputy Director (Examinations) of the Azad Jammu and Kashmir Public Service Commission.
10. It was stated therein that a proposal had been sent to the Services Department that the Departmental Rules may be amended so that fifty per cent. of the posts may be filled in by direct recruitment and the remaining fifty per cent. by promotion from the Department. It was further stated in the letter that the requisition sent to the Public Service Commission was being withdrawn and it was hoped that Government order to that effect would be issued soon. Contents of this letter clearly show not only that the rules had not yet been amended but also that Government had not yet taken any decision to amend the rules; it is only the Electricity Department which had put up a proposal which was initially to the Services Department. The letter also shows that the Government had not decided to fill up the post through departmental promotion or to ask the Commission to postpone the test/interview. It is, therefore, clear that the letter was written with the approval of Secretary of the Electricity Department who is not competent to take the aforementioned decisions. It followed that so far as the Government is concerned the requisition sent to the Public Service Commission in 1994 remained operative. It may be mentioned that the rules were amended on 6th June, 1998, sixteen months later. Thus, we conclude that case of the appellant is on stronger footings than the appellant in Muhammad Fayyaz's case.
11. Coming to the view taken by the High Court that respondent Aurangzeb Khan had meanwhile been promoted on current charge basis against the disputed post and the promotion could not be termed as without lawful authority, we may observed that the High Court fell in error in construing that respondent Aurangzeb Khan was promoted against the disputed post. The High Court has itself noted that Aurangzeb Khan has been appointed on current charge basis but failed to note that appointment on current charge basis is not a promotion and is only a stop-gap arrangement.
12. Appointment on current charge basis is provided for in rule 10-B of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which may be reproduced below:-- "(10-B) Appointment on current charge basis.---(1) where a post is likely to remain vacant for a period of less than six months and the appointing authority does not consider it expedient to make an appointment on ad hoc basis it may appoint a civil servant, who is eligible for promotion under Rules, to that post on current charge basis.
(2) An appointment made on current charge basis shall come to an end on appointment of a person on regular basis for on the expiry of six months whichever is earlier."
13. Rule 10-B reproduced above is in sharp contrast to rule 9, providing for appointment by promotion or transfer on the recommendation of the appropriate Selection Board, rule 10-A, which lays down that a senior most civil servant in a cadre who is eligible for promotion but does not possess specified length of service may be appointed to the higher post on acting charge basis on recommendation of the Selection Board, and rule 13, which makes provision for promotion on officiating basis subject to confirmation by the selection authority. The appointment on current charge basis is not made on the recommendation of Selection Board but is only an appointment till the appointment of a person on regular basis or the expiry of six months whichever is earlier. It follows that respondent Aurangzeb Khan was not promoted but was only appointed as a stop-gap arrangement. It also follows from the above that the disputed post of Assistant Electric Inspector was vacant for all practical purpose and the appointment on current charge basis of respondent Aurangzeb Khan created no hurdle in appointment on regular basis of a person to be selected by the selection authority as it did not bring about any material change. Therefore, the view taken by the High Court that the disputed post is no longer vacant is not correct.
14. The fact that the appointment of Aurangzeb Khan on current charge basis was not mentioned in the writ petition has also given rise to an observation by the High Court that this suppression was a conduct which disentitled the appellant from setting any discretionary relief in his favor As already discussed above, respondent Aurangzeb Khan has not been promoted against the disputed post and the post still continues to be practically vacant. Therefore, the stop-gap arrangement made by the Government was not such a material fact which should have been mentioned by the appellant in his writ petition. It may also be pointed out that there is nothing on the record to show that the appellant was aware of the appointment of respondent Aurangzeb Khan. The appointment was made on 1st October, while the writ petition was filed on 3rd October. As contended by the learned counsel for the appellant, Mr. M. Tabassum Aftab Alvi, there is no allegation that the appellant knew about the aforesaid appointment when he filed the writ petition.
15. We note that according to the writ petition the appellant lives in Dhanni Baqalan in Tehsil Hattian while the appointment under reference was made at Muzaffarabad.
16. It was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel for respondent Aurangzeb Khan, that a direction cannot be issued to the Public Service Commission in the present case because the Public Service Commission is not arrayed as respondent in the writ petition and only Chairman of the Commission is a respondent. This argument is met by Mr. M. Tabbasum Aftab Alvi by submitting that no action or order of the Public Service Commission has been challenged in the writ petition. He submitted that the postponement of the test/interview for the post of Assistant Electric Inspector was an administrative measure which is within the exclusive power of the Chairman. He, therefore, contended that the Public Service Commission was not a necessary party and it could not be said that the writ petition was not properly constituted. In order to resolve this controversy we have to advert to the pleadings. In para. 10 of the writ petition the appellant stated that Secretary of the Electricity Department wrote a letter to the Chairman of the Public Service Commission that the test/interview for the disputed post may be postponed. In the same para. it was stated that test/interview was consequently postponed. This averment has not been disputed by the respondents. In para. 12 it was stated that an application was made to the Secretary of the Electricity Department that copy of letter addressed to the Chairman Public Service Commission may be supplied to him but not only the Secretary but even the Chairman of the Public Service Commission did not issue the copy. In para. 13 it was stated that the letter, written by the Secretary Electricity Department and the consequent postponement of the test and interview was without lawful authority and of no legal effect. The prayer clause of the writ petition reads as follows:-- "In view of the foregoing circumstances it is respectfully prayed that a writ of mandamus may be issued against non-petitioner No,2, Chairman Public Service Commission, that he should hold test/inrerview for the post of Assistant Electric Inspector." (Translated)
17. From the perusal of the writ petition as a whole it is clear that no action of the Public Service Commission has been challenged nor any direction is sought against the Commission. The direction for holding test/interview is prayed for against the Chairman who postponed it. From the file it is clear that the postponement of the test/interview is purely administrative matter which has dealt with by the Chairman of the Commission and not members of the Public Service Commission. In these circumstances the writ petition filed by the appellant cannot be thrown out on the insubstantial ground raised by the respondents. In any case we are not issuing any direction to the Public Service Commission as a whole.
18. In light of the foregoing discussion the judgment of the High Court is set aside and the writ petition filed by the appellant is accepted by holding that the impugned letter written by the Secretary of the Electricity Department is without lawful authority and of no legal effect. Consequently the postponement of the test/interview was also without lawful authority. We direct the Chairman of the Public Service Commission to hold test and interview for the post of Assistant Electric Inspector which was scheduled to be held in first week of March, 1997 by ignoring the letter of the Secretary Electricity Department as well as the amendment in Departmental Rules. It is further held that the Rules as enforced in 1989 will be applicable to the present case. However, we make no order as to costs.