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Petitioner: MUHAMAD HANIF KHAN VS Respondent: MUHAMMAD HALIM KHAN
2000 P L C (C
2000 P L C (C.S.) 171
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, J
MUHAMAD HANIF KHAN
Versus
Sardar MUHAMMAD HALIM KHAN and 4 others
Civil Appeal No. 16 of 1998, decided on 17th July, 1998.
(On appeal from the judgment of the High Court dated 19‑I1‑1997 in Writ Petition No. 387 of 1997).
(a) Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993‑‑‑
------Ss. 8(b), 9 & 17‑‑‑Cadet College Pallandri (General Conditions of Service) Rules, 1996, R. 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Civil service‑‑‑Permanent absorption of civil servant brought on deputation‑‑‑ Validity‑‑‑Civil servant employed on permanent basis in Accountant‑General Office as Senior Auditor in B‑15 was sent on deputation to Cadet College, for a period of three years‑‑ Principal of college absorbed civil servant as a permanent member of staff as Accounts Officer which absorption was challenged in Constitutional petition by private citizens of State who were interested in efficient management of Cadet College‑‑‑High Court accepting Constitutional petition found that civil servant had not been competently and legally absorbed on permanent basis and that he held said post only as a transitional arrangement ‑‑‑Validity‑‑ When civil servant was permanently absorbed by Principal, Azad Jammu and Kashmir Government Educational and Training institutions Act, 1993, was in force whereunder Board of Governors was sole Authority to order recruitment of officers and servants of Cadet College‑‑‑Principal of College, thus, was not competent to induct civil servant on‑ permanent basis‑‑‑High Court, in circumstances, had rightly found that civil servant was not legally and competently absorbed on permanent basis as Accounts Officer.
Syed Sajid Hussain v. Ch. Muhammad Latif and others 1992 SCMR 468; Syed Manzoor Hussain Gillani v. Sain Mullah PLD 1993 SC (AJ&K) 12 and Azad Government and others v. Sahibzada Ishaque Zafar and others 1994 MLD 2382 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44(2)(b)(ii)‑‑‑Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993, S. 8(b)‑‑‑Writ of quo warranto‑‑‑Permanent absorption of civil servant who was brought on deputation, made by Principal of Cadet College was challenged by private citizens in Constitutional petition before High Court on ground that it was incompetently made by Principal and at relevant time only Board of Governors was empowered to make said absorption under Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993, which was in force at that time‑‑High Court accepting Constitutional petition not only held that civil servant was illegally and incompetently absorbed on permanent basis, but also had directed that said post be filled up in accordance with relevant law‑‑‑Validity‑‑‑Petitioner did not challenge civil servant's right to hold disputed post as a transitional arrangement, but had challenged his permanent absorption‑‑‑High Court, in circumstances, could not declare that civil servant could not perform function in pursuance of a transitional arrangement‑‑‑Such directions of High Court were beyond scope of writ of quo warranto.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 44‑‑‑Writ of mandamus and certiorari‑‑‑Issuance of ‑‑‑Distinction‑‑ Aggrieved person‑‑‑Writ of mandamus could only be issued on application of an aggrieved person‑‑‑Petitioners who in their Constitutional petition had challenged permanent absorption of a civil servant (taken on deputation) in post of Accounts Officer in Cadet College, were citizens of State who were simply interested in efficient management of Cadet College‑‑‑Such claim of petitioners did not make them aggrieved persons for filing writ of mandamus or writ of certiorari.
Kh. Shahad Ahmad for Appellant. Ch. Abdul Aziz for Respondents.
Date of hearing: 17th April, 1998.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑A writ petition was filed by respondents Muhammad Shafique Khan and Muhammad Halim Khan, Advocate, to challenge the permanent absorption of the appellant, Muhammad Hanif Khan, as Accounts Officer in Cadet College Pallandri. They also sought a direction addressed to the Principal of the Cadet College, its board of Governors and Azad Government of State of Jammu and Kashmir. The High Court has accepted the writ petition and has held that the appellant has not been legally absorbed on permanent basis as Accounts Officer and that he holds the above post only as a transitional arrangement. A direction has been issued that appointment to the post of Accounts Officer Bursar in the Cadet College may be made in accordance with relevant law. Muhammad Hanif Khan was granted leave to appeal.
The writ petition filed by the respondent was one of mandamus and also of quo warranto in relation to the present appellant. It was stated by the respondents that they were interested in the efficient management of the Cadet College as citizens of the State.
Some educational and training institutions set up by the Government were functioning without regulatory control. In order to manage and control the institutions an ordinance was promulgated on 27th April, 1992 which was subsequently replaced by an Act of the Assembly known as "The Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993" which came into force on 13th March, 1993. Cadet College Pallandri is one of the institutions to which the above law applies. It is provided in section 8 of the Act that the Board of Governors shall have full powers to administer and manage the above institution and shall have inter alia powers of recruitment of Principal and other members of the staff and also to determine their terms and conditions of service. The Board has been authorized to delegate powers to the Chairman, Executive Committee, Standing Committee, the Principal, the staff of the Institution and other officers and servants of the Board. The power to frame regulations for the conduct of business of the Board have also been vested in the Board but it is exercisable with approval of the Government. Section 17 lays down that the Government may make rules for carrying out the purposes of thus Act which may inter alia provide for the terms and conditions on which Government Servants may be transferred to the Board. It is provided in section 18 that, with the approval of the Government, the Board may frame regulations, inter alia, for the recruitment, tenures of office, terms and conditions of service of the Officers and servants appointed by the Board. In exercise of Powers of it the Azad Government of State of Jammu and Kashmir framed rules called "Board of Governors. Cadet College Pallandri Rules, 1996" Another set of rules called "Cadet College Pallandri (General Conditions of Service) Rules, 1996 was also framed in order, to lay down the service structure and other conditions of service of the officers and employees of the College.
The facts stated in the writ petition filed by respondents Nos. 1 and 2 were that the appellant, at the relevant time, was employed on permanent basis in the Accountant‑General's office as Senior Auditor in B‑15. On 20th July, 1991 he was sent on deputation to Cadet College Pallandri for a period of three years. He was to draw pay in his own scale but was entitled to draw deputation allowance. On 10th April, 1996 Principal/Project Director of the Cadet College issued an office order in which it was stated that the appellant had been absorbed as a permanent member of the staff as Accounts Officer Bursar with effect from 1st April, 1996. On 11th June, 1996, an order was also issued from the Office of the Accountant General terminating the lien of the appellant from the post of Senior Auditor with effect from 1st April, 1996, the date on which he had been permanently absorbed in the Cadet College.
In the writ petition filed by respondents Nos. 1 and 2, it was stated that the rules about the conditions of service relating to Cadet College Pallandri were framed on 31st July, 1996. Prior to that the Board of Governors was the sole authority to order the recruitment of officers and servants ;of the Cadet College and that Principal/Project Director was not competent on 10th April, 1996 to induct the appellant, herein, on permanent basis. In this connection reliance was placed on clause (b) of section 8 of the Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993 (the Act, for brevity). It was averred that in the rules subsequently framed on 31st July, 1996 known as the Cadet College Pallandri (General Conditions of Service) Rules 1996, the post of Bursar/Accounts Officer is in B‑17 and the appointing authority is the Board of Governors. According to the procedure laid down in the Rules, the post has to be advertised in at least two national dailies and a person has to be selected on merit on the condition that he fulfils the qualifications mentioned therein. It was stated that the respondents had not complied with the aforesaid conditions. It was submitted that the appointment being without jurisdiction, the post of Bursar/Accounts Officer may be declared vacant. In the written statement filed by the appellant and the Principal of the College the legal objections raised in the petition were contested. It was stated that the provisions referred to by the writ petitioners were not applicable to Government servants who had been appointed by transfer.
While accepting the writ petition the High Court has held that the power to appoint a member of the staff of the Cadet College was vested in a Board of Governors and the Principal/Project Director acted without jurisdiction in appointing the appellant on permanent basis. A learned Judge in the High Court has upheld the contention of the writ petitioners that clause (b) of section 8 of the Act applies to the matter. The learned Judge has also exhaustively discussed the system under which a civil servant van be appointed in light of section 49 of the Azad Jammu and Kashmir Interim Constitution Act and the Azad Jammu and Kashir Civil Servants Act. In this Connection copious reference has been made to judgment of this Court in Syed Sajid Hussain v. Ch. Muhammad Latif and others (1992 SCMR 468). With reference to that judgment it has been emphasized in the judgment under appeal that appointments to civil posts have to be made on the basis. of merit. It was brought to the notice of the learned Judge that the post of Bursar Accounts Officer was subsequently upgraded from B‑17 to B‑18 and Chairman of the Board had sanctioned B‑18 in favour of, the appellant. The learned Judge observed that this fact did not have any effect on the basic dispute about the validity of the appointment of the appellant, herein. It has been held that grant of B‑18 did not regularize the appellant's basic appointment.
In support of the appeal Kh. Shahad Ahmad reiterated the arguments that the appellant had been granted B‑18 after upgradation of the post of Bursar/Accounts Officer and, therefore, tile dispute about recruitment of the appellant in B‑17 was not longer a live issue. He vehemently contended that the appellant was a deputationist to whom Rules framed in 1996, after appellant's appointment, did not apply. He contended that the appellant's case was protected by rule 3 of the Rules mentioned above. Kh. Shahad Ahmad, Advocate also raised the point that in a writ of quo warranto a post can be declared vacant but the orders passed by the learned Judge in the High Court are entirely different. The orders passed in the judgment under appeal are as follows:‑‑
" 14. The above discussion leads me to conclude that appointment of respondent 1No.4 in the Cadet College Pallandri remains transitional arrangement under section 9 of the Act, which has to be followed by a regular appointment in accordance with the provisions of section 8(b) of the Act and rules of 1996.
15. The respondents are, therefore, directed to make the appointment against the post of Bursar in accordance with the Act and the rules regulating the appointment against the post in the manner stated above arid proceed in administering the affairs of the Cadet College in accordance with the law and rules."
From the phraseology used in paragraphs 14 and 15 reproduced above Kh. Shahad Ahmad has built an argument that the learned Judge has issued a writ of mandamus and certiorari while there was no application from an aggrieved party before High Court.
The arguments of the learned counsel for the appellants were vehemently opposed by Ch. Abdul Aziz, Advocate. He submitted that rule 3 of the Rules of 1996 did not protect the recruitment of the appellant. He also put forward the argument that appointment by transfer is always to a post carrying the same scale which was not the position in the present case because the post of Bursar/Accounts Officer was, at the relevant time, in a higher grade than the pay scale in which the appellant was holding appointment in Accountant‑General's office. Another reason advanced by Ch. Abdul Aziz was that the appointment by transfer could only be made by the competent Authority in the Accountant‑General's Department from where the appellant went to the Cadet College and not by an authority of the Cadet College. He explained that the petition accepted by the High Court was a writ of quo warranto to which the doctrine of laches does not apply. He filed on Syed Manzoor Hussain Gillani v. Sain Mullah (PLD 1993 SC (AJ&K) 12) and Azad Government and others v. Sahibzada Ishaque Zafar and others (1994 MLD 2382) in which it was held by this Court that a writ of quo warranto cannot be dismissed on the sole ground of laches.
After due consideration we have reached the conclusion that the view taken by the High Court that clause (b) of section 8 of the Act gives the powers of recruitment of members of staff to the Board and, therefore, the Principal/Project Director was not competent to order the appointment of the appellant. It has already been seen that rules known as the Cadet College Pallandri (General Condition of Service Rules, 1996), were framed on 31st July, 1996 after the disputed appointment of the appellant. The relevant provision of law before coming into force of the said Rules was the Act itself. The Act provides for the constitution of the Board of Governors and lays down its powers in section 8. It is as follows:‑‑
"8. General Powers of the Board.‑‑Subject to the other provisions of this Act, the Board shall have full powers an institution and in particular in respect of the following matters:-
(a) . .. .. ..
(b) Recruitment and determination of the service of the Principal and other member institution and of other officers and servants of the institutions and of other officers and servants of the Board.
(c) .. . ..
(d)
When the permanent absorption of the appellant was ordered no qualification in respect of the post in dispute had been prescribed but the basic fact remains that the power for recruitment was vested in the Board of Governors which did not exercise it. We may now advert to the argument of Kh. Shahad Ahmad that the recruitment of the appellant was given protection by rule 3. Rule 3 is in the following terms:‑‑
"Extent of Application.‑‑(1) Except‑ as otherwise provided, these rules shall apply to all employees of the Board.
(2) These rules shall not apply in whole or in part to:
(i) Government servants transferred to serve under the Board who were recruited on or before the application of these rules.
(ii) an employee appointed on contract
(iii) an employee or a class of employees specially ,excluded by the competent Authority from the application of the whole or part of these Rules.
(3) Person in category (2)(i) above shall be governed by the terms and conditions determined by the Government and (ii) and (iii) shall be governed by the specific conditions of their appointment or contract of service."
We agree with Kh. Shahad Ahmad that the Cadet College Pallandri (General Conditions of Service)‑Rules, 1996 do not apply to Government servants transferred to serve under the Board who were recruited on or before the application of these rules, Rule 3 reproduced above seems to lay down that the procedure for appointment given in the said Rules and the qualification etc. would not apply to a Government servant who has already been recruited. Rule 3, in our opinion, incorporates the general principle that rules do not apply retrospectively. However, rule 3 does not advance the case of the appellant because what rule 3 lays down is only that the rules do not apply to him. But the Rules are not being pressed into service to challenge the appellant's recruitment. His recruitment was made at a time prior to the enforcement of the Rules. Therefore, as is well‑settled, the law as it existed at the time of recruitment has to be applied. Rule 3 does not say that if a person has been recruited illegally his recruitment will stand validated. We are doubtful whether a set of rules can validly do that but suffice it to say that recruitment of the appellant was not given protection by the said rules.
The appellant produced before t e High Court a copy of an office order issued on 15th August by the Project Director and relied on it in support of his contention that he had legally been inducted in the service of the College. The letter reads as follows:‑‑
"Mr. Muhammad Hanif Shaikh had been posted to Cadet College, Pallandri (A.J.K) project by the A.‑G. from his department on deputation for a period of three years. His period of deputation to the College came to an end on 30‑6‑1994. He applied to the Prime Minister AJ&K, Chairman Board of Governors, Cadet College, Pallandri for permanent retention at Cadet College. The Prime Minister vide Letter No. 94/6683 dated 29‑6‑1994 ordered for his permanent absorption at the College. The A.G. A.J.K was approached by the undersigned to take necessary action in the light of the above quoted order. The A.‑G. has issued a No Objection Certificate.
All the project staff is working in a purely temp purely capacity and Mr. Muhammad Hanif Shaikh is also placed in the same category w.e.f., 1‑7‑1994 in the Cadet College set up. After the completion of the Cadet College project the case of all employees will be reviewed for permanent absorption."
Office order reproduced above clearly states that the appellant was working to a purely temporary capacity and that the case of all the employees will be reviewed for permanent absorption after the completion of the project. However, there is another recital in the office order reproduced above that the Prime Minister had ordered that the appellant may be permanently absorbed and for that purpose no objection certificate had also been issued by the Accountant‑General: We notice that the Prime Minister was not the competent Authority because the powers of recruitment were vested in the Board of Governors. The direction given by the Prime Minister was, in any case not implemented by the Board of Governors and even by the Project Director.
From the above discussion, it is clear that the appointment of the appellant was illegal and that he is holding the post of Bursar/Accounts Officer on permanent basis without lawful authority.
We may now turn to the objection that in a writ of quo warranto a post can be declared vacant but in the present case the High Court has passed a different order which has been reproduced above. As already seen the appellant was holding the disputed post as a transitional arrangement which continued for many years. The writ petitioners did not challenge the appellants right to hold the disputed post as a transitional arrangements but challenged his permanent incumbency. Therefore, the High Court could not perform functions in pursuance of a transitional arrangement. What is commonly known as Writ of quo warranto is provided for in section 44 (2) (b) (ii) of the Interim Constitution Act in the following words:‑‑---
"(2). Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by a law:‑‑
(a) ........ ........ ........ ........
(b) On the application of any person, make an order.
(i) ........ ........ ........ ........
(ii) requiring a person [ ..] holding or purporting to hold a public office in connection with the affairs of Azad Jammu and Kashmir to show under what authority of law he claims to hold that office; or
(c) ........ ........ ........ .
Under the provision reproduced above a writ is filed to challenge the authority of law under which a person holds an office. What is in fact in dispute is the warrant of appointment which is under challenge. In our opinion if a person is holding an office in pursuance of a transitional arrangement such as deputation, ad hoc appointment etc. a writ is maintainable to challenge that appointment but no challenge was thrown to the said arrangement. What was challenged was the permanent incumbency of the appellant which has been found unlawful. The result is that the disputed post is available for a permanent incumbent and in that sense it is vacant. This part of the judgment of the High Court is, therefore, within the parameters of a writ of quo warranto.
The High Court has also issued directions that the appointment against the post of Bursar/Accounts Officer may be made in accordance with the Act and the Rules. The direction, which is contained in para. 15 of the judgment of the High Court, was vehemently contested by the learned counsel for the appellants by stating that it was beyond the scope of a quo warranto writ. As already seen, the writ petition filed by the respondents was also for mandamus and it is in pursuance of a prayer made in the writ petition that the High Court has given the above direction. We find force in the submissions made by Khawaja Shahad Ahmad, the learned counsel for the appellant, that a writ of mandamus can only be issued on the application of an aggrieved party but the respondents were not so. In their writ petition the respondents stated that they were interested in the efficient management of the Cadet College as Citizens of the State. This claim does not make them aggrieved persons for filing a writ of mandamus or a writ of certiorari. It follows that the direction given in para. 15 is not justified in law. It should go without saying that the pro forma respondents will fill in the post of Bursar/Accounts Officer in accordance with the relevant law, but the direction under reference is hit by the technicality of law and is, therefore, vacated.
With the above modification, the appeal fails and is dismissed without any order as to the costs. The result is that the appellant may continue to hold office on transitional basis but it would be deemed that he has not been permanently appointed.
H.B.T./417/SC(AJK) Appeal dismissed.