' BASHARAT AHMAD SHAIKH, J.---Respondent Muhammad Asjad was appointed as Fire Officer in- B- 8 by Mayor Mirpur on 23rd January, 1996. Appellant herein and pro forma respondent Muhammad Meharban, who were already employed in the Fire Department of the Corporation, filed appeal against the said order before the Azad Jammu and Kashmir Local Government Board which accepted the appeal on 18th July 1996 and set aside the appointment order of Muhammad Asjad.
The following reasons were recorded by the Local Government Board in the said order:--
(i) The appointment was in violation of the quota according to which 25 per cent posts have to be filled in by initial recruitment and 75 percent by departmental promotion
(ii) The appointment was made without open competition because neither' the post was advertised nor the appointment was made on the recommendations of the Selection Board.
(iii) According to the relevant rules only a Matriculate having certificate of Fire Fighting Course could be appointed but Muhammad Asjad did not possess the said qualification.
(iv) The post should have been filled up from domiciles of Mirpur District while Muhammad Asjad was not a domicile of the said district.
2. Muhammad Asjad then filed a review petition which was dismissed and the Municipal Corporation was directed to fill in the post through the Selection Board. He again filed a review petition before the Chairman of the Local Government Board but he also upheld the decision made earlier vide order issued on 5th May, 1999. The respondent then filed a writ petition in the High Court which had been accepted. The High Court has held that the respondent was not afforded an opportunity of the hearing and for that reason all the orders passed against him were illegal. It was argued by the respondents before the High Court that the basic order of appointment of the respondent was illegal and for that reason it was not necessary to afford him an opportunity of hearing. They cited in the High Court a case titled Rehana Mahmood and 3 others v. Azad Government and 5 others (1997 MLD 2874) to support this submission. This plea was rejected as follows:-- "As the contention of the learned counsel for the non-petitioners is concerned that the basic order of the appointment of the petitioner was illegal, so, need not to hear him, it has no substance. I have gone through the written statement. Nowhere in the written statement, it was stated that how the basic order of the appointment of the petitioner, was illegal. It was the basic duty of the non- petitioners to state that how order was illegal."
3. The learned Judge in the High Court also took the view that even if the order was illegal it was duty of the appellate authority to hear Muhammad Asjad. The learned Judge held that the judgment of this Court mentioned above was not applicable because in that case the order was without jurisdiction which was not in the present case.
4. Abdul Rashid has filed this appeal by leave of the Court to challenge judgment of the High Court.
5. As pointed out by the learned counsel for the appellant, Ch. Muhammad Azam Khan, that the learned Judge fell in error in stating that it was nowhere stated in the written statement as to how the basic order was illegal. When we advert to the written statement we find that it was stated in para.b of preliminary objections that the appointment could only be made from the residents of district Mirpur and also that Muhammad Asjad was not qualified to be appointed as Fire Officer.
The relevant para reads as follows:-- "(b) That, according to the rules the appointment of Fire Officer can only be made from the residents of district Mirpur. The petitioner is not a resident of district Mirpur. He was not qualified to be appointed as Fire Officer. As such, he has no locus standi to file the writ petition. The writ petition is liable to be dismissed."
6. Apart from that, as noted above, four defects in the appointment of Muhammad Asjad were pointed out in the order passed by the Local Government Board while dismissing the appeal filed with it. The defects have been already reproduced above. The order of the Local Government Board was duly annexed by Muhammad Asjad as Annexure C with his writ petition and forms part of the record and should have been noted by the High Court.
7. The relevant rules are known as the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1989. Rule 5 lays down the procedure for initial recruitment. Sub-rule (1) deals with posts in Grade-11 to above while sub-rule (2) deals with posts carrying Grade-1 to 10. Sub-rule (2) laid down as follows:-- "(2) Initial recruitment to all posts in Grades 1 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."
Sub-rule (3) lays down that:-- "(A) A candidate for initial recruitment to a post must possess the educational qualification and experience and must be within the age limits as laid down for the post in the schedule."
8. As mentioned earlier it is stated in the decision of the Local Government Board that the post was not advertised and no test or interview was held. It is also mentioned therein that Muhammad Asjad did not possess the qualification for the post because he had not undergone training in firefighting. In the rules under references this qualification is duly laid down but in the writ petition filed by him (Muhammad Asjad) he did not challenge the statement that he did not possess the said certificate. It follows that his appointment was illegal in light of the record but the learned Judge failed to notice it.
9. Law has been settled by this Court that an illegal appointment cannot be restored in exercise of writ jurisdiction. There is plethora of case law on this point. We may mention the following cases. In Civil Appeal No,105 of 1999 decided on 12th May, 2000 titled Azad Government and others v.
Ashfaque Ahmad Hashmi it was held as follows:- "Another well-known principle which this Court is consistently following is that an illegal appointment cannot be restored in exercise of writ jurisdiction. In a number of cases this Court declined to restore to office persons who are wrongly removed from service but their basic appointments were illegal."
10. In Rashid Hussain v. Gul Afsar Khan and 3 others (1999 PLC (C.S.) 1248) this Court set aside the judgment of the High Court by which an illegal removal was set aside. This Court held that although the disputed termination was not in accordance with law the respondent could not be restored to service because his appointment was illegal. It was observed as follows:-- "It is well-settled principle of law that an illegal appointment cannot be restored in exercise of writ jurisdiction because one who comes to the Court to seek equity must come with clean hands. In a number of cases this Court declined to restore to office persons who were wrongly removed from service but their own appointments were illegal. The recent judgment on this point was delivered in Civil Appeal No,36 of 1999 titled Raja Abdul Razzaq v. Dil Khuram Abbasi and others decided on 7-4- 1999. We may reproduce the relevant portion below:- 'Consequently, we have reached the conclusion that appointments of the appellant as well as that of the respondent were made without the recommendations of the Selection Committee and without complying the other requirements of the rules on the subject. Thus, we are of the opinion that the judgment of the High Court, so far as the same pertains to the restoration of the service of the respondent is concerned, that is not sustainable. Therefore, the appeal is partly accepted and it is directed that the vacancy in question contested by the appellant and the respondent, Dil Khuram, would be deemed vacant and shall be filled in afresh by the concerned authority after complying with the requirements of the relevant rules.'
11. The result which follows is that the appointment of respondent Muhammad Asjad was illegal and the High Court fell in error in exercising its equitable jurisdiction by restoring it which has resulted in perpetuation of illegality. The appeal is, therefore, accepted and the judgment of the High. Court is set aside. Consequently, the writ petition filed by respondent Muhammad Asjad stands dismissed