' Through this Constitutional petition, the petitioner calls in question the appointment of private respondent Mr. Javid Iqbal Awan as Librarian in the University of AJ&K, Muzaffarabad. The petitioner was inducted in the service of University as Laboratory Assistant on 10-12-1983. At the time of his appointment he was matriculate only however, he acquired further qualification and now he is graduate with diploma in library science. The private respondent was inducted in the service of University on 11-1-1984 as Library Assistant. He is graduate with certificate in librarian-ship. One Sardar Muhammad Ishaque Khan who was serving as Librarian in B-17 died consequently, the post of librarian fell vacant due to his death. Both the contestants strove against each other for appointment in place of deceased employee. The petitioner's case is that he was qualified to he appointed against the vacant post of librarian if the rules were followed by the University authorities. According to him, the said post was to be filled-in by direct recruitment and had it been done so he could avail the opportunity to contest for appointment as he was eligible to do so in view of his academic qualification. The qualification required for appointment as Librarian B-16 was graduate with diploma in library science and method of appointment as provided by the University rules was initial recruitment. The official respondents fell in connivance with the private respondent and, by violating the law on the subject did not advertise the post and recruited the private respondent on the recommendations of selection committee. This act of the official respondents offended the relevant law which needs its rectification as the petitioner and other eligible candidates had been deprived of their right of service, the petitioner claims.
2. On the other hand, the case of private respondents is that the method of appointment as provided by the relevant law is by initial recruitment or by selection and it was in the discretion of Vice-Chancellor of the University to determine by which method the vacant post was to be filled.
The Vice Chancellor approved the amendment in the rules for appointment of librarian in B-16 in the light of AJ&K Government Notification No, S&GAD/A-4(3)/138/90, dated 17-6-1990, according to which, the qualification/experience required for appointment against the aforesaid post has been provided as B.A. With diploma in library science or B.A. With certificate in library Science with three years experience. He was appointed against the said post in the light of amended law on 4-8-1993 i,e, the date of amendment in the rules. This act of the Vice Chancellor was confirmed by syndicate being Competent Authority in its meeting held on 30-11-1994. Therefore, according to the respondents, his appointment has been made by following the legal procedure available for such appointment. His further case is that the petitioner has not approached this Court with clean hands as he concealed or suppressed the fact of relevant rules available for recruitment as librarian. The method of recruitment and qualification! Experience for appointment against the said post was concealed by over-lapping it with a typed-paper as is evident from Annexure (URDU TEXT). Thus, according to the respondents, the petitioner was not entitled to equitable relief as he is found to have approached this Court with dirty hands. Even other-wise, according to respondents the present writ petition was not maintainable as an alternate and efficacious remedy in shape of appeal was available to him and without exhausting the same, he was precluded to invoke extraordinary jurisdiction of this Court. The petitioner, as contended by the respondents is not an aggrieved person because he is an employee of different department having different cadre and line of promotion.
3. The learned counsel for the petitioner submitted that the appointment of private respondent had been made by violating the rules of the University. According to him, the respondent was not eligible to be appointed as librarian for the reason that he was graduate with certificate in library science and, moreover, the method of appointment was initial recruitment. The qualification required for appointment as such was graduate with diploma in library science therefore, the said post was filled-in leaving aside the required qualification and method of recruitment provided by the rules of the University, the learned counsel maintained. It was further contended that the petitioner had approached this Court through a Writ of quo-warranto as such it was not necessary for him to be aggrieved and further-more no alternate remedy was available to him except to invoke the extra-ordinary jurisdiction of this Court through the present petition. This Court issued Rule Nisi asking the private respondent to show as to how and under what law he was holding this post but he failed to justify his appointment in the light of relevant law therefore, his appointment might be cancelled with the direction to the official respondents to fill-in the post by following the relevant law available for such appointment.
4. Conversely, the .Learned counsel representing the respondents argued that the appointment had been made quite in accordance with law as the Vice Chancellor amended the relevant rules on 4-8-1993 and his action was later on confirmed by the syndicate therefore, the private respondent was eligible and qualified to he appointed against the said post. It was further submitted that the method of recruitment as librarian in B-16 was by direct appointment or by selection and it was up-to Chancellor to determine by which method the vacant post was to be filled in. The Vice Chancellor opted to fill-in the post by the selection therefore, the private respondent was appointed on the recommendation of selection committee as such no violation of the relevant law wets found to have been committed by the official respondents. The petitioner did not deserve equitable relief from this Court on the ground that he was not found to have knocked at the door of this Court with clean hands as he had suppressed the fact of relevant law by over- lapping the same with a typed-paper showing different qualification with different method of recruitment as against exact position of law on the subject.. An alternative and efficacious remedy in shape of appeal before University authorities was also available to the petitioner therefore, in view of requirement of section 44 of AJ&K Interim Constitution Act, 1974, this writ petition was not tenable in the eye of law.
5. The Ist point which needs resolution by this Court is to see the validity of appointment of private respondent No,3. Initially, the qualification required for appointment of librarian B-16 in the University was graduate with diploma in library science. However, later on the Vice Chancellor approved an amendment in qualification/experience for librarian B-16 as B.A. With diploma in library science or B.A. With certificate in library science with three years experience. This amendment was approved on 4-81993 and on the same date the private respondent was appointed against the said post. This action of the Vice Chancellor stood confirmed by the syndicate on 30-11-1994. The qualification of respondent No,3 is B.A. With certificate in library science alongwith his experience more-than three years. If the amendment approved by the Vice Chancellor and confirmed by the syndicate is Accepted as a legal action then the private respondents cannot be disturbed however, the position here is quite different.
6. No doubt, the Vice Chancellor is competent to appoint an employee of the University up to grade-16 but the appointment is required to be made in accordance with law or rules holding field at the relevant time The appointment of private respondent has been made by making a new rule through amendment.. The Vice Chancellor vide his order, dated 4-8-1993 amended the rules already existing for appointment of librarian B-16 and thus, made the disputed appointment. The question therefore, arises as to whether the Vice Chancellor was competent to amend the law or rule. The answer is in negative. The reason being that under section 27 (Chapter-V) of The AJ&K University Act, 1985" (hereinafter shall be referred an Act), the rules can only be made by Authorities or any other body prescribed by the Statute regulation or rules. The Authorities of the University are specified under section 17 of (Chapter-IV) of the Act and the Vice Chancellor is not included in that The Vice Chancellor is one of the officers of the University as specified under section 7 (Chapter-III) of the Act. Therefore, the Vice Chancellor not being an Authority or body prescribed by law to frame or amend the rules was not competent to make a law for induction of private respondent as he was not eligible to be appointed in view of law holding field then. The learned counsel for the respondents attempted to cover this legal flaw in the appointment order of the private respondent by having resort to section 11(3) read with S.19(X) of Chapters III and IV of the Act. To have a correct perception of law, the relevant provisions are re-produced as under:-- "(11). Powers and Duties of the Vice Chancellor: (1).
(2).
(3) The Vice Chancellor may, in any emergency, which in his opinion requires immediate action, take such action as he may consider necessary and shall, as soon thereafter as possible, report his action to the Authority or other body, which in the ordinary course would have dealt with the matter".
"(19). Powers and Duties of the Syndicate.
1) .....................................................................
(2) ...............................................
(3) ....................................................................
(4) ...................................................
(5) ..................................................................
(6) ....................................................................
(7) ....................................................................
(8)......................................................................
(9) ....................................................................
(x) to delegate any of its powers to an Authority or officers or sub-committees; and
(Y) to perform such other functions as have been assigned to it by the other provisions of this Act or may be assigned to it by the Statutes".
7. Section 19(x) of the Act provides that syndicate being rule making Authority is competent to delegate any of its powers to any other Authority, officer or sub-committee. Nevertheless, the fact remains that the Syndicate never delegated its / rules making powers to Vice Chancellor. This fact stands admitted by the Syndicate itself when they confirmed the action of Vice Chancellor on 4-8- 1993. Had there been any delegation of powers in this respect there would have arisen no need to confirm the action of Vice Chancellor as in case of delegated powers the Vice Chancellor himself was competent to amend the rules not to subject confirmation by the syndicate. However, for my own satisfaction I asked Mr. Farooq Hussain Kashmiri Advocate representing the University before the Court to verify this fact from the University Authorities. He placed on record different notifications showing delegation of powers in certain other matters but no notification showing delegation of powers regarding amendment of rules is shown to have been issued.
8. The action of Vice Chancellor, dated 4-8-1993 is two-fold. He amended old law and made the appointment of private respondent simultaneously. The appointment order of the respondent needed no confirmation by the syndicate had it been .Made in accordance with old law as it was the sole prerogative of V.C. To make appointment of University employee up to BPS-16. However, the controversy arose due to amendment in the relevant rules. Under old law Librarian B-16 could be appointed out of those candidates who possessed qualification as B.A. With diploma in library science and the method of appointment through initial recruitment or by selection. It was up to the Vice Chancellor to adopt any of two modes provided for appointment. The private respondent was not qualified under old law therefore, the rule was amended by the, Vice Chancellor for his appointment. The rule making powers vest with the syndicate and such powers were never delegated to Vice Chancellor as stated earlier.
9. Now let us see whether section 11(III) of Chapter 3rd of the Act is attracted in the instant case. It is not so, because this provision of law is enacted to meet the emergency cases which in the ordinary course could be taken by the relevant Authority. The action under this provision of law is qualified with the state of emergency and not otherwise. The intention of the legislation appears to authorize Vice Chancellor to take such exective steps or actions which are necessary for smooth running of business of the University. It, in the opinion of this Court, does not give legislative powers to Vice Chancellor. Here in this case, there was no emergency to induct the respondent in the service of University by amending the law. The Vice Chancellor could easily fill the post by adopting method of direct recruitment in case there were no eligible persons + amongst University employees as the old law authorised him to do so. Therefore, induction of private respondent in the service of University by amending the relevant law smakes of foul play without jurisdictional competence.
Hence the appointment order of private respondent, dated 4-8-1993 is coram-non-judice because neither Vice Chancellor himself was competent to amend the rules nor powers to do so were delegated to him by the syndicate.
10. The next question is as to how this action of Vice Chancellor could be rectified. This was possible only by way of a writ of quowarranto. The learned counsel standing for respondents contended that the present writ petition was not a writ of quo-warranto. This objection when seen in view of memo of writ petition it cannot be allowed to sustain. The petitioner is found to have approached this Court with a prayer to issue writ of quo-qarranto as it is clear from the body of the petition. It is correct that there is no specific mention in the prayer clause of the petition however, the pleadings are to be seen as a whole to arrive at a just and right conclusion. The present writ petition when tested on these criteria is definitely a prayer for writ of quo-warranto. H Under section 44 subsection 2(b)(ii) of Azad Jammu and Kashmir Interim Constitution Act, 1974, it is not necessary to be an aggrieved person in case of a petition with prayer to issue writ of quo-warranto. Another objection about alternate remedy raised by the learned counsel for the respondent was also considered. It may be observed that this objection is also devoid of force because the petitioner being employee of a different department in the University having different cadre and line of promotion was not competent to file any appeal or representation in case of appointment on the recommendations of selection committee. The petitioner is not contesting for his own interest or appointment but he only seeks to ask from the respondent as to under what authority of law he is holding this disputed post. The point of laches was also considered. As stated, the appointment of private respondent has been made without jurisdictional competence therefore, the objection regarding laches or delay is immaterial in the given situation. Moreover, the writ petition is not found to have been actuated with any malice.
11. It is correct that if a person is found to have approached the Court with dirty hands no equitable relief could be granted to him. Here in this case, both the candidates being University employees have K appended certain documents showing noting side of the file pertaining to appointment of private respondent. Through these papers it transpires that University Authorities while processing the file for appointment of respondent noted-down the same rule showing qualification and method of appointment as the same relied-upon by the petitioner through a typed-paper affixed on annexure (URDU TEXT). This act of the petitioner, per estimation of this Court, has not been done with intention to conceal something from the Court but it is the noting side of the file which made the petitioner to believe rules as correct as indicated by the University Authorities on the noting side of the file. This act of the petitioner does not suggest arriving at an irresistible conclusion that he has not come in the Court with clean hands while invoking extra-ordinary jurisdiction for equitable relief.
12. The result is that by allowing this petition, the order of appointment of private respondent, dated 4-8-1993 being coram-nonjudice is set aside. The post of librarian B-16 is declared to be vacant.
The respondents are directed to make the appointment against this post by following relevant law.