' BASHARAT AHMAD SHAIKH, J.----This appeal has been filed against the judgment of the Single Judge of the High Court, dated 9th June, 2000 whereby, accepting two writ petitions filed by the respondent, the post of Assistant Superintendent of Police occupied by the appellant herein was declared vacant and advertisement made by the Home Secretary for filling in the said post was also declared without lawful authority.
2. The brief facts of the case are that two writ petitions were filed by respondent No,1 in the High Court, In the first writ petition he challenged the appointment order of the appellant, who is a former Army Officer, whereby he was appointed as Assistant Superintendent of Police in B-17 on ad hoc basis vide notification, dated 4th December, 1998 alleging that the appointment was in violation of Police Rules and even otherwise it could be made only after sending requisition to the Public Service Commission. It was also alleged that according to Police Rules there is no provision for making appointment on the post of Assistant Superintendent of Police on ad hoc basis. In the second writ petition it was contended that the advertisement got published in the newspapers inviting applications for filling in the vacancy occupied by the appellant herein, by the Home Secretary was violative of Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, because the post of Assistant Superintendent of Police could only be filled in through the Public Service Commission and through a Selection Board. The learned Judge in the High Court accepted both the writ petitions through a consolidated judgment as indicated above.
3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, has argued that the case of the appellant was governed by the policy known as Induction/Re-employment of Officers of Armed Forces in Civil Posts' issued on 22nd September, 1981 and the rules known as Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 whereby 10% quota has been reserved in Police Service for the officers of Armed Forces. He has argued that the High Court while passing the impugned judgment has ignored the aforesaid Rules and accepted the writ petitions on the incorrect assumption that Civil Servants (Appointment and Conditions of Service) Rules, 1977 were attracted to the case in hand. He contended that the High Court has not only ignored the Policy of 1981 and Rules of 1983 but also overlooked the fact that the appellant-respondent was not an aggrieved person, at least, so far as the writ petition assailing the advertisement issued by the Home Secretary was concerned. He has argued that admittedly the respondent was not an Army Officer and he could not challenge the process of induction of service of the appellant adopted by the High Power Selection Board which was constituted in pursuance of Policy of 1981 and the Rules of 1983. He has further submitted that the Home Secretary issued the said advertisement as Secretary of the High Power Selection Board. He also maintained that the High Court was incorrect in holding that ad hoc appointment of Assistant Superintendent of Police could not be made.
4. In reply, Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondent No,1, controverted the arguments advanced on behalf of the appellant. He has argued that the judgment of the High Court does not suffer from any legal infirmity. He has contended that irrespective of the Policy of 1981 and Police Service Rules of 1983, the appointment of the appellant herein as Assistant Superintendent of Police on ad hoc basis could not be made and that the post of the Assistant Superintendent of Police was to be filled in by the Public Service Commission and not by the High Power Selection Board.
5. We first take up the quo warranto writ which was filed by the respondent to challenge the ad hoc appointment of the appellant. It was contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, that the learned Judge in the High Court has wrongly held that appointment as Assistant Superintendent of Police could not be made on ad hoc basis. He submitted that the High Court fell in error in holding that ad hoc appointment as Assistant Superintendent of Police could not be made because there was no such provision in Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983. In our view this argument does not advance the case of the appellant because in the writ petition the appellant's appointment as Ad Hoc Assistant Superintendent of Police was invoked. In paragraphs 6 and 7 the writ petitioner specifically took the following pleas:--
(i) According to the judgments of the High Court and Supreme Court before an ad hoc appointment is made the post is to be advertised.
(ii) Ad hoc appointment will be made after test and interview of all persons who apply in response to the advertisement mentioned above.
(iii) Ad hoc appointment can only be made after sending requisition to the Public Service Commission and a certificate has to be appended with the appointment order that the case had been referred to the Public Service Commission.
6. These objections have not been met by the respondent. The only provision for appointment on ad hoc basis is contained in the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 wherein ad hoc appointments are dealt with in Part IV. The conditions No,(i), (ii) and (iii) mentioned above are clearly mentioned in the said part. It is well settled that any appointment made without fulfilling the said conditions is illegal. If any authority is needed on this point we may refer to A Azad Jammu and Kashmir Government and others v.
Muhammad Yubnus Tahir and others (1994 SCR 341 (391)) and Dr. Mahmood Hussain Kiani v. Azad Government and 26 others (1996 SCR 165 (169)). As is admitted the appellant was appointed without fulfiling the aforesaid conditions. Therefore the appointment of the appellant as Assistant Superintendent of Police on ad hoc basis was bad in law and has been rightly set aside by the High Court. The appeal is rejected with the result that the post held by the appellant shall become vacant on the pronouncement of this judgment.
7. The other writ petition was filed by the respondent to challenge the advertisement published in the newspapers by the Additional Secretary Home inviting' applications for the post of Assistant Superintendent of Police from serving or retired Army Officers to be inducted in service under the Army Officers Induction Policy, 1981. It was contended before the High Court that the advertisement was without lawful authority because the post of Assistant Superintendent of Police has to be filled in through the Public Service Commission. It was contended that it was only Public Service Commission which could advertise the post and call applications. This plea was accepted by the High Court inter alia on the ground that it had been held in the case titled Sardar Aftab Ahmad and 5 others v. Maj. (Retd.) Muhammad Aftab Ahmad and 3 others (1999 MLD 187) that a serving or retired Army Officer can be inducted in Police Service on the basis of examination and test to be held by the Public Service Commission. In the aforesaid case the post was of Superintendent of Police while in the present case the post is Assistant Superintendent of Police but that difference does not alter the result. The above view was taken by this Court in Aftab Ahmad's case in light of section 48 of the Azad Jammu and Kashmir Interim Constitution Act, the Azad Jammu and Kashmir Public Service Commission Act, 1986 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. These provisions inter alia lay down that whenever there is a recruitment to a civil service of Azad Jammu and Kashmir the appointment has to be made through the Public Service Commission. This proposition stands settled in various judgments of this Court particularly the case reported as Azad Jammu and Kashmir Government v.
Javed. Iqbal Khawaja' and another (1996 PLC (C.S.) 155) in which it was held that all posts forming part of a civil service in Azad Jammu and Kashmir, including Police Service, are within the purview of the Public Service Commission by virtue of section 7 of the Public Service Commission Act and no post belonging to a civil service can be taken out of the purview of the Public Service Commission except by amending the Public Service Commission Act. We may usefully reproduce the relevant portion which is as follows:-- "In my opinion the matter already stands resolved in the judgment of this Court in Shaikh Manzoor Ahmad's case mentioned above. It is laid in section 7 of the Public Service Commission Act that Public Service Commission shall hold test and examinations for initial recruitment of civil service of Azad Jammu and Kashmir. Thus it is a requirement of the Act that recruitment to civil services shall be made through the Commission. In exercise of powers under section 23 of the Azad Jammu and Kashmir Civil Servants Act, the Azad Government of the State of Jammu and Kashmir has constituted a large number of services such as:-- .
(1) Azad Jammu and Kashmir Secretariat (Section Officers) Service Rules, 1978.
(2) Azad Jammu and Kashmir Secretariat Service Rules, 1992.
(3) Azad Jammu and Kashmir Deputy Secretaries Recruitment Rules, 1978.
(4) Azad Jammu and Kashmir Management Group (Composition and Promotion) Rules, 1980.
(5) Azad Jammu and Kashmir Extra-Assistant Commissioner (Recruitment and Promotion) Rules, 1980.
(6) Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983.
(7) Azad Jammu and Kashmir Food Department Service Rules, 1984.
(8) Azad Jammu and Kashmir Health Department Service Rules, 1984.
(9) Azad Jammu and Kashmir Cooperative Department Service Rules, 1990.
(10) Azad Jammu and Kashmir Local Government and Rural Development Department Service Rules.
(11) Azad Jammu and Kashmir Zakat and Ushr Department. Service Rules-, 1985.
(12) Azad Jammu and Kashmir Industries, Commerce, Sericulture, Labour and Mineral Development Department Service Rules, 1984.
' All these services are "Civil Service" within the meaning of section 7, therefore, all posts forming part of these and other services have been brought within the purview of the Commission by virtue of section 7 of the Act. In light of the rule laid down in Sh. Manzoor Ahmad's case these posts cannot be taken out of the purview of the Commission except by amending the Public Service Commission Act."
' It follows that the post of Assistant Superintendent of Police under dispute was within the purview of the Public Service Commission and could not be filled in through the High Power Selection Board.
Thus the judgment of the High Court is unexceptionable.
8. The learned counsel for the appellant raised an objection that the respondent was not an aggrieved person and therefore, could not file a writ of certiorari in respect of the advertisement by which applications were invited. A perusal of the petition for leave to appeal shows that this point has not been taken in the memorandum of appeal and has also not been included in the concise statement. It is well settled that a new point cannot be raised during arguments. This point was argued before the High Court and was duly repelled but has been abandoned in this Court.
' Thus we find no force in the appeal and order its dismissal.