1. BASHARAT AHMAD SHAIKH, J.---Appellant Urner Hayat filed a writ petition in the High Court for enforcement of the regional quota in respect of two posts of Mechanical Engineers in the Public Works Department of the Government. The writ petition has been dismissed by the High Court on the ground that quota is a rule of convenience, not a right, and that it is an exception to general rules of fair and open competition, not a rule itself. The appellant was granted leave to appeal.
2. Appellant Umer Hayat is a refugee from Baramulla. He was working as Mechanical Engineer on ad hoc basis when the Public Service Commission issued an advertisement inviting applications for two posts of Assistant Engineers (Mechanical) B-17 from male and female State Subjects. In the same advertisement, which is a consolidated advertisement, numerous vacancies belonging to eleven different departments of the Government were advertised. In all the other posts there was specific mention of the region, including refugees settled in Pakistan, from where recruitment was to be carried out. The two posts of Mechanical Engineers are the only exception where no region was indicated which had the implication that while filling in these two posts quota system was not to be applied. In view of this situation, the appellant filed a writ petition in the High Court on 16th September, 1997 praying that the advertisement mentioned above as well as examination being held by the Public Service Commission on 17th and 18th September may be cancelled to the extent of the two disputed posts on account of violation of quota system. It was stated that the disputed posts fell to the share of refugees settled in Pakistan and it was also prayed that the respondents may be directed to fill up the disputed posts from refugees settled in Pakistan and for that purpose the two posts may be re-advertised.
3. Gist of the averments made in the writ petition may be summarised thus. The appellant was appointed as Mechanical Engineer on ad hoc basis on 1st June, 1989 and continued till April, 1996.
4. Once again he was appointed to the same post on ad hoc basis on 30th May, 1997 and was holding the post when he filed the writ petition. The Public Service Commission advertised two posts of Mechanical Engineers on 25th May, 1997 inviting applications from State Subjects without indicating regional quota. During the ten preceding years six Mechanical Engineers in the Public Works Department were appointed through the Public Service Commission but not a single post was allotted to the Jammu and Kashmir refugees settled in Pakistan. It was a clear violation of the legal provision in which twenty five per cent. vacant posts have to be filled in from Jammu and Kashmir refugees settled in Pakistan. Thus, the recruitment under open merit was without lawful authority.
5. It is necessary to mention that the writ petition was filed on 16th September, 1997 while the examination for the two disputed posts was being held by the Public Service Commission on 17th and 18th September, 1997 alongwith the petition the appellant moved an application for interim relief. The case was taken up by a learned Judge in the High Court on 17th September. The learned Judge issued a notice to the respondents as to why the writ petition may not be admitted to regular hearing and on the application for interim relief the learned Judge ordered that status quo shall be maintained till further orders. It so happened that the status quo order issued by the High Court was not served within time with the result that the Public Service Commission proceeded with the examination. The appellant also appeared before the Commission. When subsequently the status quo order was served, the Commission decided not to declare the result of the disputed posts and to stay further proceedings. On 4th December, 1997 respondent Muhammad Latif Khan, a resident of Horna Mera, Tehsil Rawalakot, filed an application before the High Court that he may be impleaded as a respondent in the writ petition on the ground that he was one of the candidates who appeared before the Public Service Commission for the post of Mechanical Engineer and that he wanted to defend his rights. He stated that writ petition filed by Umar Hayat was without substance, and that the result of the examination had been held up causing concern and disappointment among the candidates. The application was accepted on 4th December and Muhammad Latif Khan was included as a respondent in the writ petition.
6. The status quo continued till dismissal of the writ petition on 2nd March, 1998. Thereafter, Umar Hayat filed petition for leave to appeal in this Court and also moved an application for interim relief. An ad interim ex parte injunction was issued on 12th March in terms that status quo was to be maintained till further orders. Notice was sent to the respondents in the stay matter and after hearing arguments on 20th March application for suspension of the impugned judgment of the High Court was dismissed. After vacation of the stay order the Public Service Commission forwarded the names of successful candidates to the Government. Consequently respondent Muhammad Latif Khan and Basil Siddique were duly appointed as Mechanical Engineers against the two disputed posts on 3rd April, 1998. Muhammad Latif Khan is impleaded as respondent No,4 in this appeal. Basit Siddique was given suo motu notice by this Court to appear in this Court and present his view point, but he has resigned from the post of Mechanical Engineer and has joined the Taxation Department.
7. In the judgment under appeal a learned Judge in the High Court accepted the plea that observance of the quota was mandatory, but held that non observance of the quota would amount to violation of the relevant rules when a particular unit is given more representation than its quota. It was further observed that quota was rule of convenience, not a right. It will be useful to reproduce the relevant part of the judgment under appeal:- "5. After hearing the learned counsel for the parties, I have gone through the record of the case and the rules. The learned Advocates have rightly contended that the observance of the quota in view of the rules is mandatory, however, its non observance would amount to violation of the rules when the quota is allocated for one district or unit but not for others; or when one of the units is given more representation against the other on the basis of quota. When the posts are made open to every State Subject to compete for the service and the appointment is made by the Government on the recommendations of Public Service Commission on the basis of test held by the Commission, the violation of the rules regulating the quota does not arise. Under the Constitution it is a fundamental right of every State Subject to have equal opportunity in the service of the State and this opportunity can be available only when everybody is given chance to compete for a post which is required to be filled in by the Government. Quota is a rule of convenience not a right. It is an exception to general rules of fair and open competition not a rule itself. The explanation furnished by the respondents seems reasonable."
8. We have already noted that the High Court has expressed the view that the rules laying down quota for the districts of Azad Jammu and Kashmir and for Jammu and Kashmir refugees settled in Pakistan are mandatory, but has held in the portion of the judgment reproduced above that violation of the above rules would be actionable only if one region is given more representation than is provided for it at the cost of other regions. We regret to point out that view expressed by the learned Judge is not correct because once it is accepted that a provision is mandatory then all proceedings taken in violation of that provision are invalid. The settled principle of law is that a mandatory provision must be obeyed strictly while a directory provision may only be substantially complied with.
9. On this subject we may refer to "Maxwell Interpretation of Statutes" which refers to the principle that "an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially." This principle has been upheld by the Supreme Court of Pakistan and this Court in a large number of cases. Reference to Niaz Muhammad Khan v.
10. Mian Fazal Raqib (PLD 1974 SC 134) and Azad Government of the State of Jammu and Kashmir and 5 others v. Kashmir Timber Corporation, Muzaffarabad and 5 others (PLD 1978 SC (AJ&K) 42) should suffice.
11. Let us first advert to the legal position of quota system. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, brought to our attention the following provisions to establish that recruitment on the basis of quota system is mandatory. It is provided in section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976 that: "Appointments to a civil service of Azad Jammu and Kashmir or a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorised by it in that behalf. The word "prescribed" is, thus, defined in section 2 of the above Act: "prescribed" means prescribed by rules."
12. Sub-rules (4) and (5) of rule 3 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are relevant which are as under:-- "3. (4) The Government may, with due regard to the population, provide for the proper representation of the component units of Azad Jammu and Kashmir and the refugees settled in Pakistan in the services of Azad Jammu and Kashmir.
(5) All orders, notifications issued for determining the quota for the initial recruitment, in the services, shall be deemed to have been issued under sub-rule (4)."
13. The first Government order by which quota system was introduced was issued on 16th March, 1971 when ten per cent. of the vacant posts were reserved. for candidates from backward areas of Azad Jammu and Kashmir. This Government order was superseded on 12th March, 1972 and the following order, which is in the shape of a circular, was issued:- "From the Office of the Chief Secretary Services and General AdministratiOn of Azad Government of the State of Jammu and Kashmir.
14. No, Admin/4476-27-S/72, dated 12-3-1972 To
1. All Secretaries to the Government.
2. All Heads of Departments. Sub: Regional Quota in Government Services.
15. In light of Council Resolution No,48/71 the following regional quota in Government Services has been fixed:-
1. Jammu and Kashmir Refugees 25% settled in Pakistan.
2. District Mirpur.30%
3. District Poonch25%
4. District Muzaffarabad20%
(2) Notification issued under No, Admin/3003-34/C.S/71, dated 16-3-1971 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) Recruitment in the District Offices shall be made from the same district.
16. This may please be acted upon in future. (Sd.) Additional Chief Secreatry" (Translated)
17. Another circular was issued on 5th of July, 1972 in which certain aspects about the quota system were clarified. This is the circular on which the appellant has based his claim. Translated in English, the circular was worded as follows:- "From the Office of the Chief Secretary, Services and General Administration Department Azad Government of the State of Jammu and Kashmir.
18. Admin/12666-12716/C . S. /72, dated 5-7-1972.
1. All Secretaries to the Government.
2. All Heads of Departments.
19. Sub: Regional Quota in Government Services.
20. The Government decision about district-wise representation 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.
21. This principle would apply to all posts which are filled up through competitive examination and are gazette. So far as non-gazette and subordinate officials are concerned they will be recruited from within their 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.
22. 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 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.)
23. Addl. Chief Secretary."
24. 'Mr. Abdul Rashid Abbasi added that Fundamental Right No,17 (Safeguard Against Discrimination in Services) visualises that Government jobs can be reserved on the basis of place of birth or domicile. There is force in this submission.
25. The legal provisions and Government orders reproduced above support the view taken in the judgment under appeal that reservation on the basis of regional quota is mandatory in nature and negative the other view that it is rule of convenience. For the latter view no reason has been recorded by the High Court. The learned counsel for the respondents also did not support the "rule of convenience" view and contested the appeal on technical grounds to which we will be presently adverting. We, therefore, uphold the opinion that the provisions under reference are mandatory in nature. It is, therefore, clear that all concerned functionaries are bound to implement them and any inconsistent order will be a serious illegality.
26. In opposition to the appeal only some technical points have been raised. It was contended by Raja Shiraz Kayani, the learned Advocate-General, that it is proved from the record that Mechanical Engineers were never appointed through Public Service Commission under the quota system, although the appellant, a refugee, was appointed on ad hoc basis. This is the plea which was raised in the written statement filed by the Government in the High Court. This plea does not have any merit because there is no provision or Government order that quota system would not be applicable to Mechanical Engineers. If on the previous occasions the posts of Mechanical Engineers were not filled in on the basis of regional quota it was an illegality which went unchallenged but, as is well-settled, there is no estoppel against law. It is specifically laid down in order of 5th July, 1972, reproduced above, that quota system will apply to all gazetted posts to be filled up through competitive examinations. The posts under dispute fell in this category and, thus, regional quota was fully applicable.
27. 'The learned Advocate-General as well as Sardar Rafique Mahmood Khan had contended that the appellant is not entith,d to any relief because he appeared in examination held for the two disputed posts. It was argued by the learned Advocate-General, Raja Shiraz Kayani, that the appellant cannot be allowed to blow hot and cold at the same time. Sardar Rafique Mahmood Khan pressed into service the principle of acquiescence against the appellant and submitted that acquiescence by conduct is fatal for invoking the Constitutional jurisdiction of the High Court. He cited some reported judgments in support of his contention which are as follows:-- This Court held in Ghulam Mustafa v. Azad Government and 2 others (1996 M LD 355) as follows:-- "9. Acquiescence even by conduct has been held to be fatal for invoking the Constitutional jurisdiction. In the instant case the appellant is not only precluded by his conduct to seek the Constitutional remedy but he practically participated in the subsequent allotment proceedings and with his consent an agreement arrived at between the allotted and the members of Allotment Committee the rescheduling in the initial site plan was done and allotments were Nagpur High Court observed in Miss Avi, J. Cama v. Banwarilal Agarwal and others (AIR 1953 Nagpur 81) as follows in para. 21:-- In a case reported as Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 114) the following view was expressed by Supreme Court of Pakistan:-- ... Such being the case it appears to us that the appellant instituted the second writ petition only after he had unsuccessfully completed in the second selection held by the Public Service Commission for five posts advertised by it in June 1967. By participating in this selection without protest of any kind, the appellant must be deemed to have waived his rights and grievances in respect of the first selection held by the Commission "(21)......
28. Shri R.V.S. Mani, Counsel for the petitioner, admitted before us that the petitioner did not raise any objection to the validity of the nomination paper of respondent No,1 before the Returning Officer as provided by Rule 4(5) of the Rules relating to the election of Councilors. She has not stated any reason why she did not take the objection. She has not averred that she was unaware of this provision. She is an advocate and must have read these rules before filing her own nomination paper and she had an opportunity of scrutinizing the nomination papers of respondent 1; yet, she did not promptly raise the objection but waited till she was defeated at the election."
29. The objection of acquiescence was not raised in the High Court and has been raised for the first time in this Court in the concise statement filed by the respondents. The record shows that both the parties filed their concise statements on the same day. It means that till the filing of his concise statement the appellant was not aware that an objection of acquiescence was being raised against him. Respondent Muhammad Latif had been, on his request, impleaded as a respondent before the High Court and he filed a written statement. He specifically mentioned in the written statement that Umar Hayat appeared as a candidate in the test and interview conducted by the Public Service Commission but did not raise the objection of acquiescence. He mentioned the fact of appearance of appellant Umer Hayat in the test and interview in another context, as will be seen from the reply which is reproduced below:-- "In fact during the last ten years only four posts have been filled in on the basis of merit. Out of the two present posts one vacancy has been withdrawn by the Government through Notification issued on 3rd December, 1997 and only one post is left vacant. Against this posttest and interview have been held on the basis of open merit in which the appellant and respondent No,4 have appeared."
30. Since this point was not raised in the High Court the appellant never had an opportunity of explaining his position as to why he appeared in the test. In our view no adverse inference can be drawn against the appellant in absence of an opportunity to explain his position. It cannot be assumed that the appellant was aware that his participation in test and interview in the circumstances of the case can be treated as objectionable. It was held in M/s. Globe Textile Mills (O.E.) Limited v. Textile Commissioner, Ministry of Industries, Government of Pakistan. Karachi and 2 others (1993 SCM R 900) that acquiescence as legally understood does not take place where its roots and basis are based on unawareness of ones rights. Even otherwise the objection of acquiescence cannot be sustained in the present case as will be presently seen.
31. The ordinary meanings of the word "acquiescence" as assigned in Wharton's Law Lexicon are: "consent, either expressed or implied". The meanings of this word in Black's Law Dictionary are as follows:-- "Acquiescence. Conduct recognizing the existence of a transaction, and intended, in some extent at least, to carry the transaction, or permit it to be carried, into effect. It is some act, not deliberately intended to ratify a former transaction known to be voidable, but recognizing the transaction as existing, and intended, in some extent at least, to carry it into effect, and to obtain or claim the benefits resulting from it, and thus, differs from 'confirmation' which implies a deliberate act, intended to renew and ratify a transaction known to be voidable. De Boe v. Prentice Packing and Storage Co.172 Wash. 514, 20 P.2d 1107, 1110, Passive compliance or satisfaction; distinguished from avowed consent on the one hand, and on the other, from opposition or open discontent. Pul v.
32. Western Distributing Co. 142 Kan. 816, 52 P.2d 379, 387. Equivalent to assent inferred from silence with knowledge or from encouragement and presupposes knowledge and assent. Imports tacit consent, concurrence, acceptance or assent. Natural Soda Products Co. v. City of Los Angeles, Cal App., 132 P.2d 553, 563. A silent appearance of consent. Failure to make any objections. Submission to an act of which one had knowledge. Exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right, Yench v. Stockmar, C.A.. Colo., 483 F.2d 820, 834.
33. It is to be distinguished from avowed consent, on the one hand, and from open discontent or opposition, on the other."
34. In "Law Dictionary of Words and Phrases Judicially Defined" by Dr. A.R. Bisaws, defines this word as follows:-- ' Acquiescence.' Acquiescence is used in two senses. Sometimes it is used to denote conduct which is evidence of an intention by a party, conducting himself, to abandon an equitable right, sometimes it denotes conduct from which another party would be justified in inferring such an intention. Krishan Dev v. Ram Piari, AIR 1964 Him. Pra. 34.
35. There can be no acquiescence where both parties are unaware of their rights in the disputed property and both are laboring under some mistake about their respective rights. Abdul Khair v.
36. S.M. James, AIR 1957 Pat. 308: 36 Pat. 362.
37. If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain. That is the proper sense of the word acquiescence'. Duke of Leeds v. Amherst, 2, P.124."
38. The case relied upon by Sardar Rafique Mahmood Khan also do not lay down any different principles.
39. It is difficult to summarize in a few words all the shades of the meaning of the acquiescence as defined and interpreted in the judgments and the celebrated works mentioned above, but it can be safely stated that there can be no acquiescence unless two ingredients are present. Firstly, there should be express or implied, abandonment of a right or failure to enforce it. The second ingredient is that the act by which acquiescence is inferred should be inconsistent with the right. In the present case, both these factors are absent. So far as inconsistency is concerned, it needs to be emphasized that the appellant's contention never was that the Public Service Commission had no authority to hold test and interview for the disputed posts. His contention was that test should be restricted to refugees settled in Pakistan. His appearance in the failure to get it cancelled was not an inconsistent conduct because being a refugee himself he was entitled to appear in the test.
40. We have already noted the facts which show that the appellant filed a writ petition to challenge the violation of quota system and he has all along been fighting for his claimed rights and at no stage consented to its violation. The appellant did appear in the examination, when he failed to get it postponed, but he continued to pursue his writ petition and subsequently moved this Court and applied for a stay order which was initially issued but was subsequently vacated. If the stay order had not been vacated the appeal would have been decided without declaration of result by the Public Service Commission and nobody could have come to know as to who had succeeded in the examination. We find that the appellant has been consistent in his efforts throughout and at every stage he tried that Public Service Commission should not hold examinations. In these circumstances test and interviews were held not with his consent but against his endeavours. The principle of acquiescence might have been applicable if the appellant had appeared in the examination and would have filed a writ petition after having failed to get an appointment.
41. It was lastly argued by learned counsel for respondent No,4 Muhammad Latif Khan that the appellant did not amend his writ petition so as to seek a relief that the appointment of his client may be annulled. He, therefore, submitted that no order can be passed against the said respondent. This argument has been countered by Mr. Abdul Rashid Abassi by relying on the principle that if a mandatory condition for exercise of jurisdiction is not fulfilled then the entire proceedings which fall and became illegal. In this connection he relied on Mansab Ali v. Amir and 3 others (PLD 1971 SC 124).
42. We do not find force in the submission of Sardar Rafique Mahmood Khan. We have found that the basic step taken by the Public Service Commission was illegal being inconsistent with the mandatory provision about quota system. It is well-settled that in such a situation all subsequent actions will automatically be rendered illegal and need not be separately challenged. On this point we may refer to Civil Appeal No,81 of 1995 titled Syed Iftikhar Hussain v. Azad Government and 6 others (decided by this Court on 16-6-1996) in which Syed Iftikhar Hussain, a civil servant, was proceeded against for embezzlement etc. and was dismissed from service. It was also ordered that embezzled amount may be calculated and be recovered from him. Subsequently a separate notification was issued in which it was ordered that embezzled amount, as calculated, was to be recovered from him. Syed Iftikhar Hussain only challenged the dismissal order and did not challenge the subsequent notification before the Service Tribunal. The Service Tribunal accepted the appeal filed against the dismissal order and declined to set aside the subsequent order for recovery of embezzled amount on the ground that no appeal had been filed against him. This order was challenged and, by majority view, the appeal was accepted and the order for recovery of embezzled amount was set aside after holding that it was a consequence of an illegal order and it was not necessary to challenge it separately. We may reproduce the relevant portion of the judgment:-- It is settled principle of law that an order passed or a structure raised on an illegal order would also be illegal. Thus, if basic order is found to be violate of law, any subsequent orders passed on the basis of first order would be, ipso facto, illegal and of no legal consequence; and any structure raised on an illegal order would dash to the ground on the cancellation of the original order. Thus, after the annulment of the Notification dated 6-1-1994 by the Service Tribunal, no recovery could be made from the appellant on the basis of the second Notification dated 7-2-1994 and, therefore, even if no appeal would have been preferred by the appellant against the subsequent notification, the relief regarding the subsequent notification should have been given to the appellant by the Service Tribunal, as it is a legal consequence of the annulment of the Notification dated 6-1-1994. It may be also be pointed out here that the Service Tribunals possesses all the powers of Civil Court for disposing of an appeal before it and, thus, it also possesses inherent powers which vest in a Civil Court under section 151, Code of Civil Procedure. Therefore, it cannot be said that the hands of the Service Tribunal were tied and it could not give any relief to the appellant with regard to the Notification dated 7-2-1994."
43. In light of the aforementioned principle it is obvious that the subsequent appointment being result of an illegal action automatically stands annulled. This appointment was even otherwise subject to decision of this appeal and is liable to be vacated.
44. Now we come to relief. In the writ petition it was prayed that:
(a) advertisement issued by the Public Service Commission may be cancelled;
(b) the test and interviews fixed for 17th and 18th September, 1997 may be cancelled;
(c) the respondents may be directed to re-advertise and fill in the two disputed posts on the basis of regional quota; and
(d) any other relief which may advance the ends of justice may also be granted.
45. Subsequent to the filing of the writ petition tests and interviews have been held and merit list has already been finalised. All those who were desirous of appointment as Mechanical Engineers, including Jammu and Kashmir refugees, were invited to submit their applications. It will be, therefore, wasteful to order de novo proceedings. Only a new merit list has to be freshly prepared on the basis of regional quota. This relief will not only advance the ends of justice but will also save time, energy and expenditure which would have been involved in de novo proceedings.
46. Consequently it is ordered as follows:-
(1) The appeal is accepted, the order of the High Court is set aside and writ petition filed by the appellant is accepted in terms to follow.
(2) Secretary Works/Secretary Services are directed to inform the Public Service Commission the region or regions from which two Mechanical Engineers are to be recruited.
(3) On receiving the information, the Public Service Commission will prepare fresh merit list on the basis of regional quota on the basis of tests and interviews already conducted by the Commission.
(4) The whole process will be completed within one month.
47. Respondent Muhammad Latif Khan may continue to hold office for a period of one month.
48. There will be no order as to costs.