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Petitioner: MUHAMMAD BILAL KHAN VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIRHonorable Justice Muhammad Reaz Akhtar Chaudary and Khawaja Shahad AhmedMujahid Hussain Naqvi,Muhammad Noorullah Qureshi
2010 P L C (C
2010 P L C (C.S.) 1060
[Supreme Court (AJ&K)]
Present: Muhammad Reaz Akhtar Chaudary, C.J. and Khawaja Shahad Ahmed, J
MUHAMMAD BILAL KHAN
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others
Civil Appeal No.53 of 2005, decided on 2nd December, 2008.
(On appeal from the order of the High Court dated 8-4-2005 in Writ Petition No.469 of 2040.
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss. 42(11) & 44---Appeal to Supreme Court---Judgment recorded by the High Court was based on facts which were not argued at the stage of arguments when the record of the Public Service Commission was summoned after reserving the judgment-Superior courts were bound to record the judgments on the pleaded facts and arguments addressed at bar---Impugned judgment of the High Court was mainly based on its own conclusions which had been drawn after perusal of the record summoned, which procedure was disapproved by the Supreme Court--Impugned judgment of High Court, in circumstances, suffered from a legal fault.
1994 CLC 2339 and 1995 PLC (C.S.) 59 rel.
(b) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---
----Ss. 4, 9 & 22---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.10-A, 16 & 23---Ad hoc appointment---Nature---Entry into service, particularly of grade 17, had to be made by the competent Authority on the basis of recommendations of the Public Service Commission, which under law were to be recorded after test and interview--Ad hoc appointment did not create any right for regular appointment and it was a stop-gap arrangement which had to continue till a regular appointment was made; ad hoc appointment as far as legal position was concerned, would not confer any right whatsoever, irrespective of the period of such an incumbency; such appointment could be made for a limited period when the post was available and same was advertised by the Public Service Commission---If ad hoc appointments were regularized even by the Legislative Assembly, that piece of Legislation would be ultra vires the Constitution; and had to be removed from the Statute Book---Executive Government while exercising its powers under S.22 of Azad Jammu and Kashmir Civil Servants Act, 1976, if would regularize the appointment of an ad hoc appointee or exempted the incumbent from appearing before the Public Service Commission, the notification or order so issued, was to be sent to sleep forever---No right, in circumstances could be conferred on ad hoc appointee for regular induction without recommendations of the Public Service Commission--Ad hoc appointments would not ,create any right for regular appointment and only door/entry gate open for permanent induction in the government service was through respective Public Service 'Commission and Selection Committee---Ad hoc appointment was an appointment of a duly qualified person made in respective method of recruitment---Ad hoc appointment or stop-gap arrangement was a temporary measure for a particular period of time which did not confer any right on the incumbent for regular appointment or to hold it for indefinite period---Ad hoc appointment, by its very nature was transitory and would create no right with lapse of time---Appointing Authority could not also disregard rules and allow the incumbents to continue with the service-Government or for that matter any competent Authority, must realize that appointment in the public sector was a trust in the hands of public Authorities and they were not only bound by law, but also morally obliged to discharge their functions and take steps to make transparent appointments out of the candidates on merit and without parochial approach or political affiliations.?
Azad Government and others v. Muhammad Yunas Tahir and others 1994 CLC 2339; 1995 PLC (C.S.) 59; 1996 PLC (C.S.) 912; 2001 PLC (C.S.) 264; 1982 SCMR 408; 1984 PLC (C.S.) 211; 1983 PLC (C.S.) 673;1994 PLC (C.S.) 1078; Dr. Naveeda Tufail and others v. Government of Punjab and others 2003 SCMR 291; 200 SCMR 630; 1994 CLC 2339; Dehli Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630; Secretary to Government N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350, ref.
Mujahid Hussain Naqvi for Appellant.
Muhammad Noorullah Qureshi for Respondents.
Date of hearing; 14th November, 2007.
JUDGMENT
KHAWAJA SHAHAD AHMED, J.---The instant appeal by our leave is directed against an order passed by the High Court on 8-4-2005. The petition for leave appeal was filed in this Court by the appellant, herein. He prayed for interim relief by submitting that one of the posts of Assistant Engineers Electricity, out of two posts reserved for Muzaffarabad District and occupied by him, may not be filled in on the recommendation of Public Service Commission by the Government till decision of his appeal by the Supreme Court. Mr. Justice Kh. Muhammad Saeed, the learned Chief Justice of the time while granting leave to appeal, also allowed application for ad interim relief by directing as under:--
"....As the petition has been allowed, therefore, it appears appropriate to direct that one of the posts, presently occupied by the petitioner, shall not be filled in till the decision of his appeal by this Court."
2. This order was issued on 9-5-2005 and since then the appellant is holding the post of Assistant Engineer Electricity/SDO Electricity Department of Azad Jammu and Kashmir Government.
3. The appellant filed a Writ Petition No.469 of 2004 on 20-11-2004 with the following factual matrix and prayed for appropriate direction to the respondents-Government of Azad Jammu and Kashmir, Public Service Commission etc. while elaborating his case he submitted before the High Court that he is working as ad hoc appointee for the past 10 years but due to reason that no post was available in the District quota of Muzaffarabad, he could not be appointed on regular basis as postulated by rules. As two posts for District Muzaffarabad have been advertised, the appellant on account of age-limit is unable to compete for the post, therefore, on the strength of his long stay on ad hoc basis t.oupled with some legal reports from Pakistan jurisdiction, he solicited following relief from the High Court:--
"In view of above, it is humbly prayed that by accepting this writ petition, high prerogative writs of mandamus and others being necessary may kindly be issued, directing therein that in peculiar circumstances of the case in hand, the process of regularization of the petitioner through P.S.C. on the post of Assistant Engineer (B-17) held by him for the period of past 10 long years will be initiated forthwith and his case for regularization/confirmation shall be sent to the respondent No.4, separately on one man one post basis without tagging him with direct recruits or advertisement/publication of the post in the press etc. Of course, if the petitioner is not found suitable by the P.S.C. he may not be entitled to be retained in service later on. Any other relief which the humble petitioner is deemed fit to be awarded by this honourable Court in law, justice and equity is also humbly solicited on his behalf."
4. The writ petition was admitted for regular hearing by learned Judge of the High Court on 22-11-2004 and as far the application for. interim relief is concerned, the learned Judge also allowed the same after suspending the requirements of Rule 34 of the Azad Jammu and Kashmir High Court Procedure Rules and directed as under:--
"?..After considering the case of the petitioner in view of the judgment of the Supreme Court of Pakistan it is felt proper to allow this application. Respondents, therefore, are directed to maintain status quo till the decision of this petition. However, this order is subject to objections by the other side. The case shall come up for written statement on December 27, 2004."
5. The written statement with preliminary objections on behalf of the respondents was filed by Muhammad Noorullah Qureshi, Advocate, on 27-12-2004. It is enigmatic that it was categorically denied in the preliminary objections that requisition for recommendation from the Public Service Commission was not made by the concerned Electricity Department and as far a facsimile of requisition by the Electricity Department is concerned, the same was termed as forged document. In addition it was replied by the official respondents that the Public Service Commission conducted the required test/examination for the post of Assistant Engineer (B-17) but the petitioner could not qualify, therefore, on the basis of fake and fabricated documents and. for concealing true facts, a discretionary relief cannot be granted to him and entailed dismissal of his petition. On merits it was submitted that the appellant is not working against a permanent post rather he is continuing as Assistant Engineer Electricity on temporary basis against the vacancies caused due to absence or leave of other officers from time to time. In addition it was also submitted that no permanent appointment in grade B-16 or above can be made without advertisement and qualifying test/interview held by the Public Service Commission nor can the powers under section 22 of the AJ&K Civil Servants Act, 1976 be exercised for the purpose. As far the referred authorities by the Supreme Court of Pakistan are concerned, it was pleaded that the High .Court and the Supreme Court of Azad Jammu and Kashmir have held otherwise. On 3-2-2005 a replication was filed on behalf of the present appellant wherein it was inter alia contended that misstatement of facts has been made by the Electricity Department as through a proclamation in daily "Nawa-e-Waqt" on 12-1-2005, 17 posts of Assistant Engineers Electrical are to be filled in through direct recruitment and out of those posts 6 posts are available against the quota of District Muzaffarabad, which, according to the appellant, meant that at the relevant time permanent posts were available in the Department, including one which he was holding. It was also stated that stand of the Electricity Department that no permanent post was available against which the appellant could be appointed, was not correct according to the Department's own record.
6. The High Court through the impugned judgment dismissed the writ petition filed by the appellant, herein, after holding that the document attached with the writ petition was found fake, equitable relief could not be granted in favour of the appellant, herein. The High Court also considered the case of the petitioner so far as it relates to his continued ad hoc service but rejected the same by holding that in the year, 1997 four posts of Assistant Engineers (B-17) were requisitioned to the Public Service Commission. The appellant appeared for his selection but his appointment was not recommended in view of the merit order prepared by the Public Service Commission. The learned Judge for this purpose summoned the relevant record of the Public Service Commission admittedly after the arguments and based his findings by holding that four posts against the quota of District Muzaffarabad were available and those v ere filled in according to the merit order but as the petitioner/appellant was placed at serial No.14 of the merit list, he could not be recommended by the Public Service Commission. On the basis of misstatement by the appellant the High Court disallowed the writ petition and also refused equitable relief.
7. The learned counsel for the parties have addressed their respective arguments in detail with different law reports from Azad Jammu and Kashmir and Pakistan in support of their respective contentions. In addition to the arguments raised before the High Court and in their concise statement, an addition argument has been taken on behalf of the appellant that the High Court has travelled beyond pleadings of the parties when it summoned the record of the Public Service Commission after hearing the arguments of the parties, which exercise could not be undertaken by the High Court in view of admitted legal position that the judgments are to be based on the pleadings of the parties, documents and affidavits and the Court cannot base its order on some record which has not been summoned before hearing of the case.
8. Admittedly the appellant was appointed as Assistant Engineer (Electricity) in BPS-17 on 11-8-1994. This order, a facsimile of which is at page 16 of the paper book, also reveals that the requisition for appointment against this post had been sent to the Public Service Commission on the sane day. He was again appointed on ad hoc basis on 4-2-1998 and from that date onwards extension in his ad hoc appointment has repeatedly been ordered. Copies of the extension orders have been attached with the appeal. A copy of the recommendation by the Chief Engineer (Electricity) dated 28-8-2004 has also been placed on record, wherein it has been admitted that the appellant is working on ad hoc basis from 1994 and his performance as such is satisfactory, therefore, he is most suited for permanent induction. Through this letter, Secretary Electricity Department has been requested to forward the case of the appellant to the Prime Minister of Azad Jammu and Kashmir under section 22 of the Civil Servants Act, 1976. At page 29 of the paper book another attestation/certificate has been placed, which appears to have been issued by the Chief Engineer Electricity on 16-9-1996, wherein it has been certified that the appellant is working as Assistant Engineer Electricity since 23-8-1994 and he is performing his duties as such. Another certificate, a facsimile of which is at page 30 of the paper-book, has been issued by the Chief Engineer Electricity on 30-9-2004 wherein it has again been certified that the appellant has done his job to the best satisfaction of his seniors and that he earned/won appreciation of the senior officers for the remarkable performance in constructing Garhi Dupatta Feeder during his tenure as S.D.O. Garhi Dopatta. It has also been reconfirmed that he is a Gold-Medallist. The other side of the picture admittedly reveals that the appellant misstated certain facts in the High Court and in particular concealed the fact that when the Public Service Commission conducted test/interview in 1997 he could not find place in the merit list against the available posts reserved for District Muzaffarabad. It is, however, admitted by the respondents that he qualified the test/interview and was placed at serial No.14 in the list of successful candidates. He was appointed on ad hoc/temporary basis in 1994 and he is still working as ad hoc appointee on the strength of some Government orders and is holding the post at present under the. interim relief order issued by the Supreme Court in 2005, when the petition for leave to appeal was granted by this Court and his application that out of 2 seats reserved for District Muzaffarabad one may not be filled in through the Public Service Commission was allowed. In any case he is holding the post of Assistant Engineer Electricity on ad hoc basis, admittedly for the last 14 years. Admittedly, as well, he has crossed the upper age-limit to qualify and contest for regular appointment against the post under rules. We, therefore, proceed to decide as to whether any relief, particularly one claimed by the appellant can be granted?
9. The facts mentioned hereinabove in paragraph No.8 bring us to the unrebuttable conclusion that the judgment recorded by the High Court has been recorded on the basis of facts which were not argued at the stage of arguments when the record of the Public Service Commission was summoned after reserving the judgment. This Court in repeated judgments and time-honoured findings of the superior Courts of Sub-Continent has held that even the superior Courts are bound to record the judgments on pleaded facts and arguments addressed at bar. The reliance in this respect can be placed on some of the judgments of this Court, especially 1994 CLC 2339 and 1995 PLC (C.S.) 59.
10. We may also add it here before adverting to legal position and law reports that the Department and even all the respondents in their written statement have categorically, stated that the appellant appeared before the Public Service Commission but could not qualify. It, however, has been accepted that the appellant is working as Assistant Engineer on temporary/ad hoc basis. The fact that the appellant appeared before the Public Service Commission unfolded when after hearing the arguments on 30-3-2005 the learned Judge on 31-3-2005 summoned the record of the Public Service Commission but no further date was fixed as on 30-3-2005 the judgment in the case had been reserved. Finally the impugned judgment was announced on 8-4-2005 as stated above. It, therefore, follows that the judgment of the High Court is mainly based on its own conclusions which have been drawn after perusal of the record summoned, which procedure has repeatedly been disapproved by this Court. The impugned judgment, therefore, suffers from a legal fault, necessitating the remand of the case to the High Court, which order we do not propose to pass in view of the peculiar set of circumstances of this case. The appellant in his writ petition has clearly prayed for an appropriate writ for a direction to the official respondents for process of regularization of the appellant through Public Service Commission on the post of Assistant Engineer (B-17) held by him for a period of over one decade. It was also prayed that his case for regularization/confirmation be sent to the Public Service Commission separately on the one man, one post basis without tagging him with fresh graduates or advertisement of the post and in case the appellant is not found suitable by the Public Service Commission, he may not be retained in service. In presence of this prayed relief the High Court could not, in our considered view, dismiss the writ petition on the ground that the appellant/petitioner has not come to the Court with clean hands as he had pleaded some facts which were found to be against the record. Similarly the High Court was not justified to hold that equitable relief cannot be granted to the appellant on account of his filing writ petition in the High Court with unclean hands. The High Court, in our view, should have addressed the prayer clause by holding that the case of the appellant cannot be referred to the Public Service Commission for determining of his suitability and that the legal reports relied on behalf of the appellant could not be followed. Similarly when the Government functionaries were stopped through the stay order to advertise one of the posts, the High Court should have recorded a specific finding in this respect. Admittedly the appellant is in the service of Azad Jammu and Kashmir Government in the Electricity Department for the last 14 years, drawing his monthly pay from the exchequer and enjoying the status of Assistant Engineer Electricity (B-17) along with other perks and privileges without a regular appointment order at his back. It also appears a clear violation of the codal provisions laid down in repeated authorities of this Court postulating that entry into service, particularly of grade 17, has to be made by the competent authority on the basis of recommendations of the Public Service Commission, which under law are to be recorded after test and interview. In this view of the matte we propose to dispose of this appeal ourselves and settle the controversy once for all.
10-A. Admittedly a chain of authorities of this Court and umpteen number of judgments of the Supreme Court of Pakistan have settled the proposition of law that ad hoc appointment does not create any right for regular appointment and that it is a stop-gap arrangement which has to continue till a regular appointment, as postulated by the Civil Servants Act, 1976 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, is made. Similarly an ad hoc, appointment, as far legal position is concerned, does not confer any right whatsoever irrespective of the period of such an incumbency. The ad hoc appointment can be made for a limited period when the post is available and the same is advertised by the Public Service Commission. If ad hoc appointments are regularized, even by the Legislative Assembly, the piece of legislation is ultra vires the Constitution and has to be removed from the Statute Book. Similarly the executive Government while exercising its powers under section 22 of the Civil Servants Act, 1976, if regularizes the appointment of an ad hoc appointee or exempts the incumbent from appearing before the Public Service Commission, the notification or order so issued to be sent to sleep forever. Thus, no right can be conferred on an ad hoc appointee for regular induction without recommendations of the Public Service Commission, is the law. Reference in this respect can be made to the cases reported as 1994 CLC 2339 and 1995 PLC (C.S.) 59. In addition the cases reported as 1996 PLC (C.S.) 912 and 2001 PLC (C.S.) 264 can be referred.
11. In Pakistan the proposition remained under active consideration of the Federal and Provincial Governments and was seriously adhered to by the Supreme Court of Pakistan. The Federal and some of the Provincial Governments have enacted regularization of ad hoc appointments through the legislative bodies and even by notification but the view of the Supreme Court of Pakistan remains the same as in Azad Jammu and Kashmir that ad hoc appointments do not create any right for regular appointment and that the only door/entry gate open for permanent induction in the Government service is through respective Public Service Commissions and Selection Committed. A reference in -this respect can be made to some of the judgments recorded by the superior Courts of Pakistan, particularly the following:
(i0) 1982 SCMR 408, (ii) 1984 PLC (C.S.) 211, (iii) 1983 PLC (C.S.) 673, and (iv) 1994 PLC (C.S.) 1078.
12. This may, however, be mentioned here that the appellant has not claimed a right of regularization on the basis of his continuous appointment on ad hoc basis. He challenged the advertisement of two posts reserved for District Muzaffarabad with a prayer that one of the posts may not be advertised particularly which he is holding and that his case to the exclusion of all others be sent to the Public Service Commission for determining the suitability and in case he fails, his services be terminated. In support of his contention and prayed relief he relied upon two judgments of the Supreme Court of Pakistan reported as 2003 SCMR 291 and 2004 SCMR 630. Before adverting to these two judgments it is pertinent to mention here that the Federal Government of Pakistan and some Provincial Governments regularized the appointments of many of the ad hoc employees and they are working on regular basis as far as our own study of the legal reports from Pakistan jurisdiction reveal. The position in Azad and Jammu and Kashmir is different and the regularization Act of ad hoc appointees has been set aside by this Court in the case reported as Azad Government and others v. Muhammad Younas Tahir and others 1994 CLC 2339 wherein the findings of the High Court striking down the Regularization Act of 1992 have been approved and the appeals filed by the Azad Jammu and Kashmir Government and many other ad hoc appointees were dismissed. Therefore, admittedly the service of the appellant cannot be regularized by the Government or the competent authority, on the basis of legislative enactment or a notification or order issued by the Government under section 22 of the Civil Servants Act, 1976. Similarly the High Court or for that matter even this Court cannot regularize his service and the prayer to that extent, stands rejected. On the contrary the fact recorded with concern is that the Government of Azad Jammu and Kashmir or for that matter, the Electricity Department is keeping the appellant in service for the last 14 years despite repeated judgments recorded by this Court. Similarly this Court cannot allow non-implementation of its judgments particularly where a point of law has been enunciated. In this view of the matter it appears appropriate for us to address the grievance of the appellant in the light of the judgment relied upon by him in the High Court as well as before this Court. We may also add it here that there are some of the judgments recorded by the Azad Jammu and Kashmir High Court and this Court in some cases where it was…
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