KHAWAJA MUHAMMAD SAEED, J.-- The above titled two appeals are directed against the judgment passed by the High Court on 10.1.2001, whereby the writ petition filed by respondent No. 1 was accepted. As the identical questions of fact and law are involved in both the appeals, therefore, these were heard together and disposed of through this consolidated judgment.
2. Relevant facts, briefly stated, are that Sajjad Anjum, respondent No. 1, herein, filed a writ petition in the High Court on 26.6.2001 in which he challenged the appointments of the appellants Riaz Ahmed Khan and Mumtaz Ahmed Khan as Patwari through two separate orders on the ground that in the approved list for Patwaries of District Poonch his name was entered at serial No. 3 ash compared to Riaz Ahmed Khan and Mumtaz Ahmed Khan who were entered at serial Nos. 7 and 10 of the said list, therefore, their appointment orders were bad in law and liable to be set aside. He also sought a direction that instead of them he be appointed as Patwari as he figures ahead of them in the list of approved candidates for Patwaries of District Poonch. After taking necessary proceedings the learned Chief Justice of the High Court allowed the following relief in his writ petition:-- "in view of the above, accepting the petition it is directed that the respondents shall consider for the appointment the petitioner and those who are ahead to respondents Nos. 6 and 7 for the post of Patwari and the post held by respondents Nos. 6 and 7 are hereby declared as vacant. No order as to cost.'
3. On 20.9.2001 the pro-forma respondent No 7 Mumtaz Ahmed Khan, the present appellant, alongwith one Iftikhar Ahmed Khan, Patwarl, filed a writ petition in the High Court in which they claimed that they were deputed for Patwar Course which they successfully completed and on the basis of the list of seniority maintained by the department they were appointed as Patwari on 12.2.2001, 15.1.1999 and 20.7.1998 respectively. They are performing their duties as Patwari but the Collector District Poonch Rawalakot has constituted a Committee for conducting the test and interview of the candidates entered in the approved list of -Patwaries which was beyond his competence as they were appointed according to the seniority list maintained by the department of the approved candidates of Patwaries. This writ petition after taking necessary proceedings by the High Court was ultimately dismissed -vide judgment dated 16.4.2002 inter alia on the ground that the candidates who are entered in the approved list of Patwaries for District Poonch were eligible to contest on merits for their appointment against the vacant posts. The merits of such candidates could be ascertained through test and interview conducted "by the departmental Selection Committee and according to the High Court no illegality was committed by the Collector District Poonch in constituting a Selection Committee for conducting the test and interview of the eiigible candidates in order to ascertain their merit for their induction in the Revenue Department as Patwari against the vacant posts. The above-referred judgment passed by the learned Chief Justice of the High Court dated 10.1.2002 is under challenged before this Court in the above-titled two separately filed appeals.
4. Sardar Muhammad Habib Zia and Sardar Muhammad Sadiq Khan, the learned Advocates appearing for the appellants, contended that their clients were selected for Patwar course.
Subsequently they were deputed for training as required under the relevant rules. On 1.11.1995, 26.11.1995 and 21.1.1996, their clients successfully completed the Patwar course and were entered in the seniority/merit list prepared by the Collector District Poonch in accordance with the Departmental Service Rules. According to the learned counsel their clients were placed at serial Nos. 3 and 9 in the said list and subsequently were appointed as Patwari. They further argued that on the report of Sadar Qanoongo the Collector District Poonch Rawalakot constituted a committee for conducting the test and interview of the candidates whose names were entered in the seniority list which, according to them, was not justified in the light of the relevant law. The reliance was placed by both the learned counsel on the Azad Jammu and Kashmir Revenue Department Patwari, Qanoongo, Naib Tehsildar Service Rules, 1991 (hereinafter to be referred as the Rules of 1991). They further argued that the judgment of the High Court is contrary to the spirit of these rules as their clients were appointed against the vacant posts of Patwaries on the basis of their seniority contained in the merit list prepared by the Revenue Department. There was no justification for the High Court to consider their appointments as temporary and declaring their posts as vacant.
5. On the other hand Mr. Lmdad All Malik, the learned counsel for the respondents, and Raja Ibrar Hussain, the learned Advocate-General, strongly supported the judgment under challenge.
6. We have considered the respective arguments of the learned counsel for the parties in the light of law and the record made available by them. Admittedly Mumtaz Ahmed Khan, appellant, who was appointed as Patwari on 27.1.1996, is an approved candidate for Patwaries and was entered in the list of approved candidates of Patwaries for District Poonch at serial No. 6, whereas the other appellant, Muhammad Riaz Khan, is entered at serial No. 9 in the same list. The grievance of the appellants is that on the basis of their entry in the seniority of approved candidates of Patwaries for District Poonch, there is no need to conduct any test and interview before appointing them as Patwari as any such test and interview would be against the Rules of 1991 wherein the appointment of Patwari is to be made by initial recruitment or according to the seniority out of approved Patwari candidates of the District. This argument of the learned counsel for the appellants is totally misconceived. In the year 1948, in the liberated part of the State the disputes relating to the terms and conditions of civil servants were. Regularized by K.S.R. In the year 1976 the Azad Jammu and Kashmir Civil Servants Act, 1976 (hereinafter to be referred as the Act of 1976) was promulgated and in sub-clause (2) of Section 1 of the said Act it was laid down that it shall apply to all the civil servants wherever they may be. This Act was promulgated under the command of Section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which provision for the sake of reference is reproduced below:- "The Services.-- ( 1 ) Subject to this Act, the appointment of persons to, and the terms and conditions of service of persons in, the service of Azad Jammu and Kashmir may be regulated by law.
(2) Until an Act of the Council in respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such persons employed in connection with the affairs of the Government, makes provision for the matters referred to in sub-section (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be amended from time to time by the Council or, as the case may be, the Government."
7. The Revenue Department is functioning under the control and executive authority of the Government, therefore, in exercise of the powers conferred by Section 23 of the Act' of 1976 the Government framed the Rules of 1991. Section 4 of the said Rules being relevant is reproduced below:-- "The provisions of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and the Azad Jammu. And. Kashmir Civil Servants (Efficiency and Discipline)
Rules, 1977 issued vide Notification No. S&GAD/8216-8300, dated 8.5.1977 and No. S&GAD/R-80/77, dated 30.11.1977 respectively, shall apply mutatis mutandis in addition to the aforesaid departmental rules."
8. From the perusal of this provision it becomes clear that the provisions contained in the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred as the Rules of 1977) which are relevant for the resolution of the controversy raised in these appeals, have been made applicable. Under Section 3 of the Rules of 1977 the appointment to a post is required to be made either by promotion, transfer or through initial recruitment as may be prescribed by the Government.. Under sub-rule (2) of rule 3 of the said rules it is laid down that initial recruitment in the service of Azad Jammu and Kashmir shall be made in accordance with Part-Ill of the Rules which part contains rules 16 to 22 whereby a mode for appointment is specifically provided. Rule 16 is in respect of posts from grade 16 to 20 whereas Rule 17 is in respect of posts from grade 1 to 15. As the appointments of the appellants as Patwari are under debate in the present appeals, therefore, we would like to reproduce only rule 17 of the said Rules, which reads as follows:- "Initial appointment to all posts in .Grades I and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers or in the manner to be determined by the Government."
9. It is the requirement of this rule that appointment is to be made on the basis of the merit determined, by. The .Departmental Selection Committee by conducting test and interview of the approved candidates for the post of Patwari. The argument of the learned counsel for the appellants is not weighty that there is no need to conduct any test and interview as on the basis of successful completion of Patwari Course the department has prepared the seniority list on the basis of dates when Patwar Course was completed by those who were deputed for it by the department. In the Rules of 1991 the minimum qualification prescribed for the post of Patwari is matriculate/holder of secondary school certificate beside being qualified Patwar Examination from a Patwar School established in accordance with the Land Records Manual or the successful completion of settlement and other training as prescribed by the Board of Revenue. The candidate is to be appointed out of the approved Patwar candidates of the district. Now the question arises that there are more candidates than vacant posts how the candidates shall be inducted in the service. The answer is very simple that all approved candidates shall compete for their merit by appearing before the Selection Committee for test and interview in the light of Rule 17 of the Rules of 1977, which have been made applicable mutatis mutandis. If the arguments of the learned counsel for the appellants is adapted then the provisions contained in the Rules of 1977 shall become redundant which would be contrary to the established principles laid down for the interpretation of law.
10. The irresistible conclusion, therefore, is that the vacant post of Patwari shall be filled in through initial recruitment on merits out of those entered in the list of approved candidates. The merit is to be determined by the Selection Committee of the Department by conducting the test and interview of the approved candidates in accordance with the provisions contained in the Rules of 1977. The Deputy Commissioner, therefore, committed no illegality by constituting a departmental committee to conduct the test and interview for determining the merit of the approved candidates. .