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Petitioner: IQBAL AHMAD SHAH VS Respondent: AZAD GOVERNMENTHonorable Justice Syed Manzoor Hussain GilaniKh. Muhammad Naseem and Kh. Farooq Ahmed,Addl. A.-G. and Asstt. A.-G.
2003 P L C (C
2003 P L C (C.S.) 439
[Azad J&K]
Before Syed Manzoor Hussain Gilani, CJ
IQBAL AHMAD SHAH and others
Versus
AZAD GOVERNMENT and 9 others
Constitutional Petitions Nos. 220, 232, 251 and 629 of 200(), decided on 21st March, 2002.
(a) Azad Jammu and Kashmir Directorate of School Rules, 1989‑‑‑-
‑‑‑‑‑Items Nos. 15 & 19‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44‑‑‑Writ‑‑‑Appointment of primary teachers‑‑‑Minimum qualification‑‑‑Abeyance of Rules‑‑‑Effect‑‑‑Rules regulating method and qualification for appointment as primary teachers enforced on 24‑9‑1989, provided that minimum qualification for post of primary teacher eras Matric with P.T.C. or its equivalent‑‑‑Said Rules were amended through Notification issued in 1990 whereby untrained persons were also held eligible for appointment if trained teachers were not available‑‑‑Subsequently original Rules whereby minimum qualification for post of primary teachers was fixed as Matric with P.T.C. were repromulgated, on 18‑‑5‑1994, but only after about one month, such repromulgated Rules were kept in abeyance through Government Notification dated 14‑6‑1994‑‑‑Appointments of petitioners were made during said period of abeyance and after about four years re‑promulgated Rules were revived‑‑‑Petitioners had claimed that as they had been appointed during period when Rules requiring minimum qualifications as Matric Second Division with P.T.C. were kept in abeyance, their appointments were in accordance with Rules and they could not be removed from service by retrospective operation of any rule or notification‑‑ Validity‑‑‑Abeyance of repromulgated Rules was merely suspension or in operation of Rules for the time being and those were neither repealed nor cancelled under abeyance notification, abeyance of said Rules thus would not tantamount to repeal or amendment‑‑‑Since re‑promulgated Rules which were still on the statute book, remained in force despite abeyance Notification, though were not acted upon being in a state of abeyance, appointments made during that period including that of petitioners, were without lawful authority and could not derive force from any prescribed manner‑‑ Authority, however, to meet ends of justice was directed that petitioners who had completed required qualification till date of order, would not be removed from service, and confirmation orders could be issued to them.
Syed Sajid v. Chaudhry Latif and others and State v. Chaudhry Latif 1992 SCMR 468; Azad Jammu and Kashir Government v. Muhammad Younus Tahir and others 1994 CLC 2339; Rasheed Hussain v. Gul Afsar and 3 others 1999 PLC (C.S.) 1248; Secretary for the Prime Minister Secretariat v. Muhammad Aslam and others PLJ 2000 SC 16; Bashir Ahmed Khan v. Custodian and another 1992 SCR 149 and Manzoor Ahmed v. Muhammad Sabir and 2 others 2001 PLC (C.S.) 50 ref.
(b) Words and phrases‑‑‑--
‑‑‑‑'Abeyance', meaning, connotation and scope.
Anuradha v. Santosh Nath AIR 1976 Delhi 246: 78 Punj LR 53 (Delhi) ref.
(c) Civil service‑‑‑
‑‑‑‑Appointment‑‑‑No appointment could be made unless rules were made for the post and its requirements were fulfilled‑‑‑If any appointment was made contrary to rules, same would be without lawful authority and no notice would be required if such appointment was withdrawn, recalled or cancelled and Court also could not grant any relief to retain such illegal appointments.
Kh. Muhammad Naseem and Kh. Farooq Ahmed for Petitioners (in Writ Petition No.629 of 2000).
Kh. Shahad Ahmad, Sardar Shahid Hameed and Sardar M.R. Khan for Petitioners (in Writ Petition No.251 of 2000).
Khawaja Farooq Ahmed for Petitioner (in Writ Petition No.232 of 2000).
Kh. Shahad Ahmed for Petitioner (in Writ Petition No.220 of 2000).
Addl. A.‑G. and Asstt. A.‑G. for Respondents.
JUDGMENT
Above captioned Constitutional petitions raise common questions of facts and law hence are heard together and decided through the proposed judgment.
2. It is alleged by the petitioners that they are appointed as primary teachers on different dates through different orders in Education Department from 1995 to January 30, 1998. Petitions Nos. 220 and 251 relate to appointment of teachers in District Bagh while Petitions Nos.232 and 629 relate to appointments in District Muzaffarabad Azad Kashmir.
3. The case of the petitioners is that the rules regulating method and qualification for appointment as primary teachers were enforced on 24‑9‑1989 through which minimum qualification for the post of primary teacher was fixed as Matric with PTC or equivalent. These rules, according the petitioners, were amended through Notification dated 15‑7‑1990 Whereby it was provided that untrained persons will also be eligible for appointment if trained are not available. The rules were repromulgated by ;mended on 18‑5‑1994 wherein minimum qualification was provided as Matric 2nd Division with PTC or equivalent qualification. The Rules of 1994 were kept in abeyance through Government Notification dated 14‑6‑1994 and all appointments including those of the petitioners were made during the period when the rules remained in abeyance. This abeyance notification was withdrawn on 1‑1‑1998, whereby Rules of 1994 were revived. Another notification was issued by the Government on 22‑12‑1999 whereby lifting of abeyance of the rules was given effect from 1‑2‑1998 instead of 1‑1‑1998. It is stated that in view of above‑referred notifications of the Government, requirement of Matric 2nd Division and PTC trained was not in force, hence appointments of non‑P.T.Cs. made during the period do not suffer from legal infirmity. The petitioners apprehending their removal from service have filed the above‑referred petitions for a writ of prohibition against respondents claiming that as they are appointed. during the period when the rules requiring minimum qualification of primary teacher as matric, or matric Second Division, with PTC were kept in abeyance, their appointments are, therefore, in accordance with Rules, and they cannot be removed from service by retrospective operation of any rule or notification. A directive of the Government dated November 4, 2000' issued under No.200 is also called in question in Petition No.629 of 2000.
4. The respondents, in their written statement have stated that the appointments of the petitioners have been made contrary to Rules, against g merit and without advertising the posts, hence these are without lawful authority and not entitled to be protected.
5. The learned Advocates appearing for the petitioners contended that the Rules regulating method of appointment and qualification as primary teachers were kept in abeyance through notification of the Government referred above. According to the learned Advocates, effect of keeping in abeyance the rules through Government notification is that the requirement of trained teachers with second division matric was not the rule' and the appointment of untrained or non‑second division: teacher is not contrary to Rules. It is further contended that a Notification was issued on 1‑7‑1999 by the Government specifying different categories of the appointments to be cancelled under the guise of a judgment of Supreme Court in the case of Nisar Akhter v. Secretary Education. According to the learned Advocates this notification of the Government is without lawful authority as the condition of Matric II Division with PTC was waived or kept in abeyance.
6. Additional Advocate‑General, appearing for the respondents contended that under the Government Notification dated 13‑5‑2000, the Rules of 1994 (dated 18‑5‑1994) are restored from the date of their abeyance and all notifications issued from time to time in that behalf are recalled. According to him, after this notification the appointments of the teachers, which are contrary to Rules, have to be recalled. According to him, these notifications have been declared by the Service Tribunal to be of no legal effect in the case of Nisar Akhter v. Secretary Education and others and the order is upheld by the Supreme Court.
7. After hearing the learned advocates for the parties, I have gone through record, notifications placed on the files of the Court and the Rules regulating induction in Educational Department. Most of the notifications to be referred in this judgment find place on file namely Iqbal Ahmad Shah and 85 others v. Azad Government.
8. The exact point for determination of the Court in these petitions is as to whether the appointment of non trained petitioners as teachers in view of the Rules being kept in abeyance is in accordance with Rules, and if not, whether they can be removed from service?
9. The Rules regulating appointment of primary teachers which are relevant for the purpose of these petitions were first enforced on September 24, 1989 called as Azad Jammu and Kashmir Directorate of School Rules, 1989 (Rules of 1989). Minimum qualification under Item No. 19 of the Rules for the post of primary teacher was provided as "Matric with PTC or equivalent. These Rules were amended through Notification dated July 15, 1990 providing that untrained will be eligible if trained are not available. The Rules of 1989 were substantially amended on 18‑5‑1994 (Rules of 1994) substituting Item No. 19 of Rules of 1989 with Item No. 15 providing minimum qualification for the post of Primary Teacher as Matric Iind Division with PTC or equivalent". The Rules of 1994, therefore, superseded the Rules of 1989 alongwith the notification dated 15‑2‑1990 to the extent of qualification. Thus the Rules in field at the relevant time were of 1994. The Government issued a Notification on 14‑6‑1994 keeping in abeyance the Rules of 1994 till further orders. Another Notification was issued on 1st of January, 1998 lifting the abeyance of the Rules made through notification dated 14‑6‑1994. This ‑notification was again amended on December 22, 1999 stating that lifting of the abeyance of the Rules shall take effect from 1st of February, 1998 instead of January 1, 1998. The petitioners, from perusal of the record appear to have been appointed during the period when the Rules of 1994 were kept in abeyance.
10. It appears from perusal of the record that a notification was issued on May 13, 2000 appointing different Committees to examine illegal and irregular appointments made in the Educational Department in view of large scale protest against appointments. This notification was amended through another Notification dated September 6, 2000 providing examining the appointments made during 18‑5‑1994 to 1‑2‑1998 under Rules of 1989 and from 2‑2‑1998 till the date of notification under Rules of 1994. It also appears from perusal of the record that a notification was issued by the Government on May 13, 2000 directing that the Rules dated 18‑5‑1994 are restored with effect from their abeyance and all notifications issued keeping the Rules in abeyance are cancelled.
11. A directive was issued under No. (13)7 20 dated 4‑11‑2000, that those untrained teachers who are appointed contrary to Rules be removed and the posts be filled according to Rules. Another notification was issued by the Government on July 14, 2001 stating that on the basis of the report of Committee of inquiry appointed through notification dated May 13, 2000, eight hundred fifty six teachers who have been appointed contrary to Rules dated 18‑5‑1994 untrained are removed from service and consequently the appointments against the posts, vacated by them, shall be made from the merit list prepared by Selection Committees for the posts and ban. imposed by the Government on appointments is also relaxed through this notification.
12. Above background of the case reveals that the appointments of the petitioners and many others were made during the period when the Rules were kept in ILTIVA. The Notification of the Government dated 14‑6‑1994, under which the rules were kept in ILTIVA may be reproduced here for true perception of the problem:‑‑
13. The word ILTIVA, according to Urdu Dictionary URDU LUGHAT TARAQI compiled by Urdu Board Karachi means;.
According to FEROL‑ULLUGHAT Urdu Dictionary, the word ILTIVA means;
In the Dictionary LUGHAT‑E‑KISHVARI, the word ILTIVA means;
And in the Dictionary ILMI URDU LUGHAT the word ILTIVA is defined as;
14. The word ILTIVA as translated in Urdu‑English Dictionary by Feroz Sons Revised Edition, means "postponement; deferred; delay; holding in abeyance; adjournment".
15. In Urdu‑English Dictionary by Dunkin Forbes published by Alkamran Publishers Urdu Bazar Lahore 1986, the word ILTIVA is translated as "hanging back, procrastinating, deferring".
16. The words 'abeyance', 'defer or deferring' appears to be the closest I equal to the word ILTIVA. The 'abeyance' is defined in Black's Law Dictionary 5th Edition as "condition of being undetermined or in a state of suspension or inactivity". In the Oxford English Dictionary Vol.I, the word abeyance is defined as "expectation or contemplation of law; position of waiting for or being without claimant or owner and a state of suspension, temporary non‑existence or inactivity; dormant or lated condition liable to be revived at any time." "In the New Lexicon Webstor Dictionary Vol.I the word abeyance is defined as "temporary suspension, usually of custom rule or law". In the Aiyer's Manual of Law Term and Phrases 7th Edition the word is defined as "legal term used when there is uncertainty as to whom the rights belong. Rights of action are in abeyance till the actions are begun or abandoned. Typical cases are claims to peerages, ownership of manorial rights and right of presentations to livings. An estate is said to be in abeyance when there is no person in esse in whom it can vest abide". In the Shorter Oxford Dictionary Vo1.I, the word is defined as "expected or contemplation of law; posting of being without owner; a state of suspension; dormant condition", in the Aiyer's Judicial Dictionary 10th Edition, the word is given meaning as follows:‑‑
"Abeyance. Legal term used when there is uncertainty as to whom the rights belong. Rights of action are in abeyance till the actions are begun or abandoned. Typical cases are claims to peerages, ownership manorial rights. An estate is said to be in abeyance when there is no person in case in whom it can vest and abide.
Hindu law does not recognize an estate in abeyance. An estate in abeyance is called an estate in germis legis (in the bosom of the law)
The word 'abeyance' is equivalent to suspension which means 'temporarily withholding', temporary forced withdrawal. The words suspend and 'suspension' imply that the suspension is for a temporary period. [Anuradha v. Santosh Nath AIR 1976 Delhi 246; 78 Punj LR (Delhi) 53]
Abeyance in relation to a post, means, according to Oxford English Dictionary, "a state of suspension, dormant condition; a position of being without an owner."
17. The word Defer or Deferring in 'Shorter Oxford Legal Dictionary Vo1.I means, "to carry apart; put off; to put on one side; to put off to some later time; to delay; postpone." The New Lexicon Webster Dictionary Vol. 1, the word defer means; "to. put off taking action". And in Black's Law Dictionary, it means as "Delay put off; postpone to a future time. The term does not have, however, the meaning of abolish".
18. The meaning of the word ' ILTIVA' , as deduced from above, appears that the Rules of 1994 were in a state of suspension or temporary cessation or withdrawal; withheld; inactive or inoperative, but not abolished or having ceased to exist". This leads me to hold that the Rules were not meant to be in force or inaction for the time being; or not complied with. if deemed to be in force by any stretch of imagination, till the period these were revived through notification dated 1st January 1998, which was later on given effect from 2nd of February, 1998 though notification dated December 2, 1998. It means that the appointments during the period were not made according to the prescribed manner.
19. The question as to whether the Rules of 1989 revived or came into force during the period the Rules of 1994 were kept in abeyance or not. A comparative study of Rules of 1989 or 1994 reveal that the Rules of 1989 were not repealed or replaced as a whole. Some of the items of the Rules of 1989 were re‑enacted with modifications which includes the item relating to qualification, directly relevant in these cases.
20. Under section 8 of the General Clauses Act, 1897, the reference to the Rules would mean the re‑enacted items of the Rules, not the rules or any part thereof which has been submitted by the amendment, as there is no mention of revival of items of Rules of 1989 in the abeyance notification. Under section 7 of the General Clauses Act, 1897, when an amending or amended enactments is repealed wholly or partially, the enactment inforce earlier to it does not automatically revive unless it is specifically stated in the amending enactment. The abeyance notification does not state that the Rules of 1989 would revive or hold filed during abeyance, it can therefore, not be said that Rules of 1989 revived during the period. Moreover, the Rules of 1994 were neither repealed, nor cancelled under the abeyance notification. Hence the revival or applicability of earlier rules is out of question as the abeyance of rules is merely suspension or in‑operation of the Rules for the time being, which is not tantamount to repeal or amendment. The Rules of 1994 remained on the statute book but were not acted upon being in a state of abeyance, hence the appointments made during the period did not derive force from any prescribed manner.
21. The position regulating induction in the service of Azad Jammu and Kashmir is settled under Constitution and Law. Under subsection (1) of section 49 of Azad Jammu and Kashmir Interim Constitution Act, 1974, appointments of persons to, and terms and conditions of service of persons in, the service of Azad Jammu and Kashmir, are to be regulated under law'. The law regulating the services is called as Azad Jammu and Kashmir Civil Servants Act, 1976. Under section 4 of this Act, 'appointments to Civil Service of Azad Jammu and Kashmir or a civil post in connection with the affairs of the Government, shall be made in prescribed manner by the Government or by a person authorized by it in that behalf'. The manner for the purpose is regulated by Azad Jammu and Kashmir Civil Servants (Appointment and Conditions) Rules, 1977. Sub‑rule (3) of rule 3, and rules 16 to 20 of Part‑III of the Rules of 1977 which, are relevant for the purpose, are reproduced below:
"3(3). The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time."
16. Initial appointment to the posts in Grades‑16 (to 20), except those which under the Azad Jammu and Kashmir Public Service Commission (Functions) Rules, do not fall within the purview of the Commission or which are specified to be filled without reference to the Commission, shall be made on the basis of examination or test conducted by the Commission.
17. Initial appointment to all the posts in Grades‑1 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.
18 (1) A candidate for initial appointment to a most pust possess the prescribed educational qualifications and experience and also, except as provided in the rules framed for the purpose if relaxation of age limit, must be within the age limit as laid down for the post;
Provided that experience, where prescribed, would include equivalent experience, to be determined by the Government in a profession or in the service of an Autonomous or Semi‑Autonomous Organization or a Private Organization.
(2) (i) Where requirement is to be made on the basis of a written examination, age shall be reckoned as on the first of January of the year in which the examination is proposed to be held; and:
(ii) in other cases, as on the last date fixed for submission of applications for appointment.
19(1) No person shall be appointed to a post unless he is a State Subject as defined in the Azad Jammu and Kashmir Interim Constitution Act, 1974, provided that this restriction may be relaxed by Government in suitable cases.
(2) No person, who has married a foreign national shall be appointed to a post; provided that this restriction may be relaxed by Government in case of person who has married a citizen of India.
(3) No person shall be appointed to a post unless he makes before the appointing authority an oath in form set out in the Schedule.
(20) Vacancies in various posts shall be filled from persons who are State Subjects in accordance with merit provided that some particular posts may be reserved for persons domiciled in a particular area as may be specified.
22. In view of above mentioned and legal position the appointment to a post in the service of Azad Jammu and Kashmir can be made by a competent Authority in accordance with the Rules regulating the qualification and method of recruitment on the basis of merit evaluated by holding examination or test of candidates who possess prescribed qualification and experience through Appropriate Committee or Board after advertisement of vacancies.
23. Superior Judiciary of Azad Jammu and Kashmir has touched almost every aspect of service law and no iota of doubt is left regarding manner and method of appointment in the service.
24. In the case reported as 1992 SCMR 468 (Syed Sajid v. Chaudhry Latif and others) and (State v. Chaudhry Latif), in which a dispute regarding appointment by promotion to the post of Secretary to the Government in the absence of the rules for the post of a Secretary was under discussion before the Supreme Court, the Hon'ble Court felt pleased to hold that;
The learned counsel for the appellant has contended that the Tribunal has wrongly held that the post of Secretary cannot be filled up unless rules for the purpose of laying down necessary qualifications for that post are framed. The view framed by the Service Tribunal on this point is based on the Rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. As is clear from the opening paragraph of these Rules, these rules have been framed under rule 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 which empowers the Government to make such Rules as may appear to be necessary or expedient for carrying out the purpose of that Act. It is provided in section 4 of the Civil Servants Act that appointment to a civil service or a civil post shall be made in the prescribed manner by the Government, or by a person authorized by it in this behalf. The word 'prescribed' is defined in section 2 of the Act to mean 'prescribed by rules'. The scheme of Civil Servants Act shows that if a person is promoted to a post this is termed as an appointment by promotion. In the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 (hereinafter to be referred to as the Rules of 1977), rule 3(1) provides in specific terms that an appointment to a post shall be made by promotion, transfer or initial recruitment. Sub‑rule (2) of this rule reads as follows:‑‑
"(2) Appointments by promotion or transfer shall be made in accordance with Part II and by initial recruitment in accordance with Part II of these Rules."
It may be noted that the word 'shall' has been used in this sub‑rule which signifies that the procedure laid down in Part II of the Rules has to be followed for appointment by promotion. Part II begins with rule 9 and ends with rule 15. Sub‑rule (1) of rule 9 in clear terms lays down that:‑‑
"(1) Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board. "
Rule 10 lays down that:
"10: Only such person as possess the qualifications. and meet the conditions laid down for the purpose for promotion or transfer to a post shall be considered by the Selection Authority."
Post is defined in the Rules of 1977 to mean a post in connection with the affairs of the Government. Rule 10 thus clearly provides that no person shall be promoted etc., unless he possesses the qualifications and meets the conditions laid down for that purpose. The rule in fact prohibits the Selection Authority from even considering the case of such a person. This rule is followed by rule 12 which is, to the following effect:
"12. Until the Rules laying down the qualifications and other conditions for the purpose of promotion are made no person shall be promoted to a post in a higher grade on regular…
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