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Petitioner: MUDASSAR MANZOOR QURESHI and 19 others VS Respondent: AZAD JAMMU AND KASHMIR GOVERNMENT through Secretary Education, Azad Jammu and Kashmir, Muzaffarabad and 3 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi Title:MUDASSAR MANZOOR QURESHI and 19 others vs AZAD JAMMU AND KASHMIR
GOVERNMENT through Secretary Education, Azad Jammu and Kashmir, Muzaffarabad and 3 others Case No.: Writ Petition No,231 of 2006 Date of Judgment:2012-04-11 Reported As: 2013 PLC (C.S.) 171 Result: Petition dismissed Judgment ORDER ' M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by the petitioners:---. it is, therefore, prayed that:--- (i) the respondents be directed to treat petitioners as permanent civil servants duly appointed against the vacancies of Computer Instructors and allow them all the amenities attached with the said offices; (ii) the process of advertisement of the vacancies by the respondents be quashed with prohibition of any further step to be taken by them in that direction including the appointment of any other person against the said vacancies; (iii the respondents may also be directed to frame the Rules and service structure of the Information Technology Wing of the Education Department with chances of further promotion to the next higher grade/cadres which are compatible with the other similar Wings of technical nature in different departments; - (iv) if at all it is found that the petitioners are required under law to undergo the process of Public Service Commission, the same may be directed to be done on one man one seat basis instead of inviting public competition for the vacancies already held by the petitioners; (v) the respondents be directed to shift the Project of Information Technology on the normal budget of the Government along with its staff exactly in the same way as the other Projects have
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been shifted to normal budget of the Government; (vi) any other relief to which the petitioners are deemed entitled may also be granted graciously." 2. Precise facts giving rise to the instant writ petition are that certain vacancies of Computer Instructors B-17 were created by the Government-respondent under project known as Information Technology Board, which were advertised for induction on contract basis in daily "Jang" dated 16- 7-2002. The petitioners and few others applied for the same and on the basis of merit they were appointed as Computer Instructors B-17 on contract basis with fixed salary of Rs,10,000 each, however, on one pretext or the other the salary was circumcised to lesser amount of Rs,5,500 and Rs,4,800 to the different petitioneRs, It is stated that on the basis of certain illegalities in the above appointments of some un-qualified and un-approved persons the matter was taken by Ehtesab Bureau, however, the respondents having felt a threat constituted a Departmental Scrutiny Committee for the purpose. The above Committee re-assessed and scrutinized the recruitments made by the respondents and finally found that the petitioners were appointed on merit, while as many as 7 persons were found as unlawfully appointed who were accordingly removed from service while, appointments of the petitioners were upheld by the said Committee. It is claimed that it was decided by the Authority to shift the instant project to normal budget of the Government for which purpose the posts were created vide notification dated 12-12-2005. It is averred that after creation of the above posts and bringing the same on normal budget the petitioners were appointed on ad hoc basis as Computer Instructors B-17 instead of permanent appointments vide notification dated 6-5-2006. It is alleged that Government-respondent shifted numerous projects on normal budget along with working staff without any further process of recruitment through Public Service Commission while in matter of the petitioners the respondents determined to adapt different and indiscriminate method against norms of the Constitution. It is further stated that for the purpose of recruitment, promotion etc. No Departmental Statutory Rules were framed by the respondents; therefore, no induction can be made without framing Rules. It is alleged that after bringing the project on normal budget Government-respondent with mala fide intention re- advertised the disputed posts held by the petitioneRs, It is averred that the respondents were bound by promissory estoppel made by them in initial advertisement of the vacancies to adjust/appoint the petitioners against the same posts as held by them on the basis of merit as determined by initial recruitment/selection committee while the proposed action of re- advertisement of the disputed posts was violative of the commitment of the respondents. It is claimed that by any strength of law if it is required that the petitioners should pass the Public Service Commission examination, the same must be done without advertisement of the posts for open competition, on the basis of one man one seat principle. It is stated that the above practice was also approved and adapted by N. -W . F. P. Government. 3. After admission of writ petition the respondents were summoned for filing written statement who filed the same, wherein it is stated that appointments of the petitioners were made on contract basis by Information Technology Board, which were neither advertised nor made by the Education Department. It is averred that in accordance with provisions of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 coupled with precedents of the superior Courts no appointment on permanent basis can be made without recommendations of Public Service Commission that too on the basis of district-wise quota allocated by the Government. It is further stated that through Regularization of Ad hoc Appointment Act, 1992, about 486 persons appointed on ad-hoc basis were confirmed which was struck down by this High Court and upheld by the apex Court of Azad Jammu and Kashmir as being violative of fundamental rights enshrined in the Azad Jammu and Kashmir Interim Constitution Act, 1974. It is further claimed that the contract employees cannot be confirmed without advertisement of posts and recommendations of the Public Service Commission. It is averred that appointments of the
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petitioners were made on contract basis by Information Technology Board who after bringing the posts on normal budget vide notification dated 12-12-2005 were appointed on ad hoc basis by the Government-respondent for six months vide notification dated 6-5-2006 and for permanent induction the posts were requisitioned to the Public Service Commission which had already been advertised. It is further stated that for the disputed posts Departmental Statutory Rules were already framed on the basis of which ad-hoc appointments of the petitioners were made and the posts were requisitioned to the Public Service Commission for permanent induction. 4.A perusal of record reveals that the petitioners obtained adinterim injunction from this Court on 29-8-2006 and they are holding the posts in question on ad hoc basis made for 6 months vide notification dated 6-5-2006 due to the above ad-interim injunction. For the purpose of prolonging the instant case the petitioners did everything what they could do. For the purpose of addressing arguments in the case the following order was passed by the Court on 21-3-2012:--- "Yesterday one of the petitioner was present before the Court who was directed to argue the case positively today. However, Mr. Muhammad Rafiq Kiyani, Advocate today appeared, has filed power of attorney on behalf of the petitioners and requested time. The adjournment is opposed by the learned counsel for the respondents that petitioners being stop-gap arrangement employees obtained interim injunction and writ petition is subjudice since 2006, hence, arguments may be heard. In the interest of justice, however, last opportunity is provided to the learned counsel for the petitioners to argue the case on next date failing which after perusal of record the case shall be decided. The office is directed to place the case at top of cause list after cases of preliminary arguments. To come up for arguments on 26-3-2012." ' However, before reaching the above date, 26-3-2012 the petitioners Nos.1, 3, 6, 7, 10, 12, 13, 15, 18 and 19 moved an application for change of bench through Mr. Saqib Javed, Advocate without any allegation, hence, the same was placed along with the case on the date already fixed for arguments i,e, 26-3-2012 and the following order was passed on the above application:--- "The learned counsel for petitioners Nos.1, 3, 6, 7, 10, 12, 13 to 15, 18 and 19, Mr. Saqib Javed, Advocate appeared before the Court and stated at bar that he does not want to press application for change of bench, therefore, the same is hereby dismissed and consigned to record." After dismissal of the above application, again the following order was passed on the given date i,e, 26-3-2012:--- "On previous date i,e, 21-3-2012, Muhammad Rafiq Kiyani, Advocate appeared before the Court on behalf of the petitioners, filed Vakalatnama and obtained adjournment. It was observed in the above order that in case of failure of addressing arguments, the case shall be decided after examining the record. Today, Mr. Sadaqat Hussain Raja, Advocate filed Vakalatnama on behalf of petitioners Nos.1 to 10 and requested time for addressing arguments. If he desires and counsel for other petitioners may file written arguments positively till 28-3-2012. Judgment is hereby reserved." After the above, petitioners Nos.1 to 10 moved an application for withdrawal of writ petition with permission to file fresh one, hence, following order was passed on 29-3-2012:--- "The learned counsel for the petitioners were directed to file written arguments and judgment was kept reserved vide order dated 26-3-2012. However, the learned counsel for petitioners 1 to 10 moved an application for withdrawal of the instant writ petition with permission to file fresh one on 27-3-2012 which has been placed before me today. In this regard statement of petitioner No,1 has also been recorded. It deems appropriate to issue notices to the learned counsel for the respondents to file objections, if any, on the application. To come up for the purpose along with case titled "Imran Maqbool Abbasi v. Azad Government and others on 3-4-2012. On 3-4-2012 the following order was passed by the Court:- "The learned counsel for the respondents has filed objections on application for withdrawal of writ petition and also argued the case on merit. The learned counsel for the petitioners may' file
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written arguments within two days. The office is directed to issue notice to the learned counsel for petitioners for the purpose. Order reserved." 5. The learned counsel for petitioners Nos.l to 10, Mr. Sadaqat Hussain Raja, Advocate has filed written arguments on 5-4-2012, wherein it is averred that the petitioners were appointed as Computer Instructors B-17 after advertisement of posts, test and interview, on recommendations of respective selection committee, therefore, on the basis of rule of law laid down by the apex Court of Pakistan in case titled "Dr. Naveeda Tofail and others v. Government of Punjab and others" 2003 SCMR 291 the respondents may be directed for confirmation of the petitioneRs, It is also submitted that so many projects were brought on normal budget by the respondents along with staff working in such projects, hence, after bringing the project in question on normal budget it was enjoined upon the respondents to appoint the petitioners on permanent basis. It is further submitted that Government of Balochistan regularized the employees of identical project and even the Government of Azad Jammu and Kashmir also regularized the employees of the project from school side. It is also submitted that certain employees of the project of Local Government were also regularized against which a writ petition was filed before this Court which was dismissed vide order dated 12-3-2012. In support of the above contentions, the learned counsel for petitioners Nos.1 to 10 also relied upon the following case-law:--- (i) "Secondary (Schools) Government of Punjab Education Department v. Yasmeen Bano" [2010 SCMR 739]; (ii) an unreported judgment passed by the Lahore High Court in Writ Petition No,2010 of 2006 titled "Irshad Ahmed and 16 others v. Secretary M/o Education on 2-4-2008; and (iii) an unreported judgment of this Court passed in Writ Petition No,10 of 2011 titled "Muhammad Anwar Khan v. Azad Government and others" on 6-6-2002. In case titled Secretary (Schools) Government of Punjab and others supra it was held as under:- "It is contended by the learned Advocate-General that 1,25,000 school teachers have benefited from the above notification as their services have been regularized. However, his attention was drawn towards the rules mentioned in paragraph 3 of the above notification specially according to rule 18 mentioned in above para a person who has crossed the required age limit would only be entitled to remain in the service subject to grant of age relaxation according to rules. The Secretary Education, Punjab, however, undertakes that all those persons who have crossed the upper age limit shall stand regularized. Mr. Muhammad Akram Sheikh, appearing as amicus curiae, stated that para 5 of the Notification is also detrimental. In this behalf the Secretary Education and learned Advocate-General explained that the school teachers who had already been receiving 30 per cent pay above their salary as social security benefit, would be entitled for pension from the date of regularization. The explanation so offered on behalf of the Advocate- General seems to be reasonable. There are cases of some of the teachers i,e, Nazia Rafique, etc. Who have stated that they have not been regularized for lame excuses. On this, Secretary Education, Punjab stated that let all these teachers through their three representatives approach him with application in his office in Lahore on 30th October, 2009 when he will be hearing them and shall redress their grievances. Since the petitioners serving on contract basis have been regularized, notice issued to the Chief Secretary, Punjab in the listed petitions, stand discharged." In case of Irshad Ahmed and others, Lahore High Court observed as follows:--- "Arguments heard and documents perused. The petitioners have been rendering valuable teaching service on daily wages for a considerable period and unless some form of regularization is made they will loose interest and subsequently the students will suffer. In my opinion we must encourage teachers at all levels. Therefore, in view of the above, the respondents are directed to consider the qualified petitioners/teachers for regularization, irrespective of their categorization,
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ad-ho'c, on daily wages or on contract basis, taking into consideration their previous length of service, against regular posts at the earliest opportunity available. No order with regard to costs." In case of Muhammad Anwar Khan ibid it was held by this Court as follows:--- "6. The above referred judge-made law suggests to say that when a substantive right has accrued to a person, it cannot be snatched by a Government notification or by any other executive order by giving it retrospective effect. However, to remove discrimination and to give a right to a person is a separate matter. Here in this case, the moment the post of D.1.-G. Was up- graded in Punjab, the petitioner stood vested with his right to be benefited by up-gradation of the post by following Notification dealing with rule of parity. He was refused a right which, under law, could not be refused. Not only this, the petitioner has been discriminated through an other Notification bearing No,P-3(4) dated 10-7-2011 through which posts of D.1.-Gs. Have been up- graded by following rule of parity. Therefore, the legal and logical consequences which follows is that it was enjoined upon the respondents to up-grade the post as. And when it was up-graded in Punjab. However, the rule of parity was followed by the respondents but unfortunately with discrimination. To be brief it may safely be observed that any Government notification or administrative order resulting into discrimination particularly with reference to service matter can be given effect retrospectively in order to allow a right to a person to whom it was refused without any legal justification. The post of D.I.-G. Was up-graded to B-20 in Punjab Pakistan on 1-8-1989 when the petitioner was in native service of Police Department of AJ&K Govt. As D.I.-G. He was retired from service on 24-6-1992 after attaining the age of superannuation. The notification through which Government of AK adopted the principle of parity was very much in existence with all its bearings when the post of D.1.-G. Was up-graded in Punjab. Therefore, when the counterpart of the petitioner was up-graded in Punjab, the up-gradation of post of D.I.G. In AK to B-20 was the legal consequence and the Government of AK was legally obliged to act accordingly as the notification regarding rule of parity demanded so. 6. The learned counsel for the other petitioners did not bother to file written arguments, however, as case of petitioners Nos.1 to 10 and the other petitioners is one and same, hence, I treated the arguments of petitioners Nos.1 to 10 as arguments of all the petitioneRs, 7. The learned counsel for the respondents vehemently argued that petitioners were appointed as Computer Instructors B-17 on ad hoc basis for six months vide notification dated 6-5-2006 who cannot be confirmed against the aforesaid posts without advertisement and recommendations of the Public Service Commission. The learned counsel pressed into service that the instant writ petition was filed by the petitioners with unclean hands for extending their ad hoc appointments made for six months which were liable to be terminated without notice at any time with further contents that due to the above-mentioned ad hoc appointments no right for regular induction would be claimed and permanent appointments shall be made on recommendations of the Public Service Commission, hence, writ petition merits dismissal. In support of their contention, the learned counsel for the respondents referred to and relied upon precedents (i) Mst. Tanveer Ashraf and others v. Azad Government and others [2011 SCR 528] and (ii) an unreported judgment of the apex Court titled "Hussain Khan and 57 others v. Azad Government and 9 others" dated 18-11-2011. 8. First of all I take application moved for withdrawal of the instant writ petition with permission to file fresh one dated 27-3-2012. It is stated in the application that:--- (i) some new grounds in support of claim of the petitioners which were not available at the time of filing writ petition are created; (ii) some incumbents who were appointed with the petitioners were regularized while they were deprived from regularization; (iii) the Department processed for regularization of service of the petitioners and a committee was also formulated in that regard.
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' The above application for withdrawal was opposed by the respondents through objections dated 3-4-2012. It is averred in the objections that the instant writ was filed by the petitioners for mala fide reasons when the judgment was kept reserved. It is stated that the petitioners obtained stay order in 2006; therefore, for prolonging the matter the application for withdrawal was filed. It is also averred that no reason was inserted in the application for withdrawal of writ petition while application for regularization was already rejected by the Prime Minster of Azad Government of the State of Jammu and Kashmir, hence, by rejecting the withdrawal application the case may be decided on merit. 9. A glance perusal of application for withdrawal reveals that no formal defect was pointed out by the petitioners for filing fresh writ petition. The point with regard to some incumbents who were appointed in similar manner were regularized by the respondents was already taken in the writ petition, whereas ground of regularization on the basis of committee formulated by the respondents was rejected by the Prime Minster vide letter bearing No,3391-92/2012 dated 19-3-2012. Even no any fresh, ground was pointed out in the above application. 10. The relevant law for withdrawal of suits and to bring a fresh one is prescribed under Rule 1, Order XXIII, C.P.C. It postulates that at any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim, when the Court is satisfied (a) that a suit must fail due to some formal defect; or (b) that there are other sufficient grounds to allow the plaintiff to institute a fresh suit for the subject matter of the suit or part of a claim. Unless no prayer for permission to bring a fresh suit was made the plaintiff was precluded from instituting any fresh suit in respect of same subject matter or part of it. It is evident that in order to bring a fresh suit in respect of the subject of dispute, permission of the Court was a condition precedent. Moreover, the Court was enjoined upon to accord such permission on the satisfaction that the suit under consideration would fail due to some formal defect or withdrawal of the suit was justified in the light of the circumstances placed before the Court. As the petitioners failed to point out any formal defect in the writ petition already filed and ex-facie the application filed for withdrawal looks to be mala fide for prolonging litigation on the basis of stay order, therefore, the same is hereby rejected. 10. A contemplate perusal of record reveals that the petitioners were appointed as Computer Instructors B-17 purely on ad hoc basis for six months vide notification dated 6-5-2006 which is reproduced as under:--- {{URDU TEXT}} 11. The petitioners solicited relief for their regularization without advertisement of the posts and recommendations of the Public Service Commission. As per law, no appointment can be commanded without advertisement and recommendations of the Public Service Commission. The service in Azad Jammu and Kashmir is regulated by an Act of the Assembly, which has been promulgated on the strength of section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976 postulates that the appointment against 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 authorized by it in that behalf in the prescribed manner. Section 23 of the said Act authorizes the Government to make rules for carrying out the purpose of abovementioned Act. In exercise of these powers, the Government has made rules known as The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Part II of these rules prescribes the method and manner of appointment to the post in various grades whereas rules 16 and 17 Part III, prescribe the manner for initial appointment to the posts in Grade 16 and above. Rule 23 Part IV, of the aforementioned rules postulates the manner of making ad hoc appointments. For proper appreciation of controversy, it would be useful to reproduce the above rule which is as under:---
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(I) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post. (2) After forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the selection authority. Provided that; (1) the vacancy is advertised properly in the newspapers; (2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post; (3) the selection is made on the basis of merit determined by objective criteria; (4) the appointment order certifies that a requisition has been sent to the selection authority; and (5) the appointment is made subject to revocation at any time by the competent authority; Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will be counted towards seniority in the grade. ' A perusal of the above rules makes it clear that even ad hoc appointment cannot be made in an arbitrary manner. The first condition for making an ad hoc appointment is that the same shall be made in the public…
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