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Petitioner: ABDUL SHAKOOR and others VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Ghulam Mustafa Mughal Title:ABDUL SHAKOOR and others vs AZAD GOVERNMENT OF THE STATE OF JAMMU
AND KASHMIR through Chief Secretary and others Case No.: Writ Petitions Nos.438 of 2002 and 90 of 2003 Date of Judgment:2003-06-09 Reported As: 2004 PLC (C.S.) 208 Result: Order accordingly Judgment ORDER ' The above captioned writ petitions, directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, involve common points of facts and law, hence, were heard together and are decided through the proposed judgment. ' In Writ Petition No,438 of 2002, filed on 24-12-2002, Abdul Shakoor, petitioner, has challenged the validity of an order of the Azad Jammu and Kashmir Public Service Commission (which shall hereinafter be referred as P.S.C.) issued on 21-12-2002 and also sought a direction for implementation of the Government Notification issued under No,S&GAD/A/R/ (149 XI of 2002, dated 12th December, 2002), whereas in Writ Petition No,90 of 2003, filed on 3-4-2003 on behalf of Mrs. Shamim Khalid, proceedings of the Public Service Commission regarding selection of respondent No,5, Abdul Shakoor (who is petitioner in Petition No, 438 of 2002) for the post of Civil Judge against the quota of- District Muzaffarabd, as well as Notification ' dated 12-12-2002, whereby the condition of minimum qualification has been relaxed in favor of respondent No,5, are challenged as being without lawful authority. A further direction is also sought against P.S.C. For making recommendation in favor of the petitioner, against the 'post of Civil Judge, falling to the quota of District Muzaffarabad. ' The necessary facts in Writ Petition No,438 of 2002 are that AJ&K P.S.C. Issued Advertisement No,1 of 2002, on Feb 22, 2002, whereby applications for various posts including the posts of Civil Judges, were invited. Out of these, one post was allocated to District Muzaffarabad, The P.S.C. In continuation of the said advertisement issued another notice in "Daily Jang", whereby some additional posts were advertised and out of them one post of Civil Judge was allocated to District
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Muzaffarabad, thus, number of posts for quota of District ' Muzaffarabad stood enhanced to two. The last date for filing the applications was fixed as 15-5-2002. The petitioner along with others, including Mrs. Shamim Khalid (Petitioner in Writ Petition No,90 of 2003) applied for the posts, against the quota of District Muzaffarabad. On 27-11-2002, the P.S.C. Intimated Abdul Shakoor, petitioner, about A his lacking the requisite legal practice and directed him to produce a certificate to this effect from the competent authority/Bar Council, before 20-12-2002, failing which he would not be allowed to participate in the exam. It appears that petitioner, Abdul Shakoor, moved the Government for relaxation of the prescribed qualification and got his application processed through the Rules Regularization Committee, constituted for the purpose, which culminated into a Government Notification dated 12-12-2002, whereby condition of two years legal practice in his favor was relaxed. It appears that thereafter he appealed against the letter dated 27-11-2002, before the AJ&K P.S.C. But his request was declined on 21-12-2002. He has filed the instant writ petition seeking the quashment of the action of the P.S.C. And a direction for implementation of the said Notification. It is alleged that petitioner has experience of legal practice as a pleader for eight months and six days and thereafter joined the Government service as Tehsil Mufti on 29-6-2001. It is claimed that the said period is liable to be counted as experience of legal practice keeping in view the nature of duty he performed. It is also claimed that the petitioner is LL.M. And a holder of this qualification is exempt from the legal practice for the purpose of licence of advocacy, therefore, condition of legal practice, as envisaged by the rules, on the basis of which the application of the petitioner is rejected, is without lawful authority and violative of the rules. It is further alleged that the Government, being competent authority, has relaxed the prescribed qualification through the Notification dated 12-12-2002 and the Public Service Commission is bound by law to implement the Notification by allowing him to participate in the test and interview being conducted for the post of Civil Judge. ' This writ petition has been resisted by the Government and Public Service Commission by filing written statements. The only material point taken in the written statement is that the Notification sought to be implemented is violative of the judgment of the Hon'ble Supreme Court and the petitioner does not possess the requisite experience of legal practice of two years, thus, is not qualified to compete for the post in question. However, during the pendency of the writ petition, this Court vide order dated 24-12-2002 allowed the petitioner provisionally to appear in the test and interview. The petitioner competed for the post of Civil Judge. Vide order dated 14-2-2003 the Public Service Commission was directed to declare the result of the petitioner. As is evident from the hand out issued by the Public Service Commission on 7-3-2003, the petitioner was elected for the post of Sub-Judge. ' In Writ Petition No,90 of 2003, filed on behalf of Mrs. Shamim Khalid, primary facts of the case are the same. However, additionally the petitioner has challenged the process of selection of Abdul Shakoor, respondent No,5 8 who is petitioner in Writ Petition No,438 of 2002, inter alia on the following grounds:-- (a) That respondent No,5 did not hold the minimum qualification required for direct recruitment to the post of Civil Judge, as visualized by AJ&K Judicial Service Rules, 1999; (b) that the Public Service Commission did not have any jurisdiction to entertain the application of respondent No,5, as he was lacking necessary qualification prescribed for direct recruitment for the post of Civil Judge. The entire proceedings, therefore, right from entertaining the application of respondent No,5 till the issuance of the hand-out in his favor on 7-3-2003 is without jurisdiction and is violative of the relevant law and rules; (c) that the Notification whereby the minimum qualification is favor of respondent No,5 has been relaxed is without jurisdiction ultra vires of section 22 of Civil Servant Act, 1976 and the AJ&K Civil Servants (Appointments and Conditions of Service) Rules 1977;
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(d) that the impugned Notification is without reason and has been made applicable retrospectively which has partial effect on the fundamental rights a the petitioner, therefore, is liable to be ignored and decision of the Public Service Commission to this extent is justified and is in accordance with the dictum of the superior Courts. ' The respondents have filed written statement. Besides para-wise reply, respondent No,5 has also raised some preliminary objections. It is alleged that petitioner is not an aggrieved person, as visualized by section 44 of the Interim Constitution Act, 1974. It is also pleaded that the Notification under challenge was issued on 12-12-2002 and this fact was in the knowledge of petitioner but she kept mum till finalization of the result by. The Public Service Commission thus, has acquiesced in the matter and cannot now challenge the same. It is also claimed that the impugned Notification has been issued on the recommendation of the Hon'ble Chief Justice of the Shariat Court, and Rules Regularization Committee, thus, is not challengeable through the instant writ petition. It is also submitted that respondent No,5 in view of the facts stated in the counter-petition as well as in ground "D" of the written statement fulfils the condition of required experience of legal practice, therefore, even otherwise no relaxation was required. It is further claimed that Government has got the power to relax any rules in just and equitable manner, under section 22 of the Civil Servants Act, 1976 read with rule 24 of the AJ&K Civil Servants (Appointments and Conditions of Service) Rules, 1977 and this decision of the Government is based on sound reasons which have been, recorded on the noting side of the file and cannot be substituted in writ jurisdiction. ' In view of the agreement of the learned Advocates, Petition No,90 of 2003, filed on behalf of Mrs. Shamim Khalid, has been taken first; therefore, I am proceeding in the matter in view of the agreed position of the learned Advocates of the parties. ' Mr. Abdul Rashid Abbasi, the learned Advocate representing Mrs. Shamim Khalid, petitioner (hereinafter referred as the petitioner), raised the following submissions:-- (1) That the process of Public Service Commission commenced when applications were called through advertisement specifying the qualification and other conditions of the candidates. As respondent No,5, who is petitioner in Petition No,438 of 2002 (hereinafter referred as respondent No,5) was lacking the prescribed qualification for recruitment, therefore, it was enjoined upon the Public Service Commission to reject his application in view of Public Service Commission. (Procedure) Rules, 1994 and conditions of the advertisement. The Public Service Commission fell in error in entertaining the application of the petitioner when he was not eligible on the last date fixed for receipt of applications. Thus the whole process from entertaining the application up to issuance of the hand-out was without jurisdiction and is of no legal effect. The Notification dated 12-12-2002 could not be made applicable retrospectively from date of advertisement. The practical effect of the Notification is that it has enlarged the last date for receipt of the applications which had already expired on 15-5-2002; (2) that the Notification dated 12-12-2002, is violative of the fundamental rights, and ultra vires of section 22 of the Civil Servants Act, 1976 read with rule 24 of the AJ&K Civil Servants (Appointments' and Conditions of Service) Rules 1977, therefore, has rightly been ignored by the Public Service Commission and cannot be implemented through the writ jurisdiction; (3) that no source of power is mentioned in the Notification nor any special reasons are recorded which persuaded the Government for relaxation of the prescribed qualification, thus, the Notification has been issued in a colourable exercise of power and is arbitrary and ab initio void; (4) that respondent No,5 admittedly has only 8 months legal 'Practice that too cannot be counted in his favor as he has no "ractical experience in the field and his service as Tehsil Mufti or Tehsil Qazi cannot be counted towards his legal practice. Alternatively it was submitted that the power of relaxation vesting in the Government under the Civil Servants Act and the Civil Servants (Appointments and Conditions of Service) Rules, 1977, can only be exercised in favor of civil
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servants. The contest of respondent No,5 for direct recruitment, therefore, cannot be regarded as being in the capacity of a civil servant for the aforesaid purpose and the rules cannot be relaxed to provide him an edge of qualification over the other candidates which in fact he is lacking, thus, the Notification under challenge is discriminatory, mala fide and is against the fundamental right of the candidates. ' The learned Advocate in support of his submissions placed reliance on 1999 PLC (C.S.) 1493, 1999 PLC (C.S.) 1007; 1995 SCR-162; 2001 SCMR 1806; 2000 YLR 1024; 1997 PLC (C.S.) 297; 2003 PLC (C.S.) 400; 2002 SCR 146; PLD 1967 Karachi-184 and 2003 PLC (C.S.) 419. ' In a case titled "Muhammad Fayyaz and five others. v. Shah Nawaz and 32 others" 1999 PLC (C.S.) 1493. It was opined that process of selection by the Public Service Commission commenced when the applications were invited through advertisement, specifying the qualification etc., of the candidates. Thus, the candidate had a right to be considered according to the qualification etc. Laid down in the rules existing at the relevant time for the matter which had been mentioned in the advertisement. It was further opined that the amendment in the existing law would be prospective until and unless it was otherwise provided by law giver. The same view was reiterated in Muhammad Imtiaz Khan's case 1999 PLC (C.S.) 1007. In the latter judgment the rules were amended after requisition was sent to the Public Service Commission and it was opined that the right to compete had already accrued to the appellant therein and subsequent amendment of rules would not operate retrospectively. In a case titled "Ghulam Muhammad v. Azad Govt. And two others" [1995 SCR 162], it was opined that power under section 22 of the AJ&K Civil Servants Act, 1976 should be exercised only in respect of a civil servant but not in favor of a person who has ceased to be a civil servant or aspires to be one. In Messrs Saraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806, it was concluded that rules cannot be construed in a manner which militate or render the provisions of an Act ineffective. In Muhammad Yasin Khan's case 2000 YLR 1024, it was opined that. Failure to record reason for withdrawing the requisition is an illegality which has the effect of vitiating the order. In Miss. Azra Hafeez's case 1997 PLC (C.S.) 297, it was ruled that power of relaxation of rules can be exercised in individual cases on "just and equitable" grounds as stipulated under section 22 of the AJ&K Civil Servants Act, 1976 for sufficient reason and a wholesale order of relaxation of service rules by the Government without giving reason is not sustainable in law. In "Rana .Tariq Shoukat and 634 others v. Government, of Punjab through Secretary, Civil Secretariat Lahore and 2 others" (2003 PLC (C.S.) 4000), it was opined that the Chief Minister was empowered to relax the rules under rule 23 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 but only in an individual case of hardship by giving special reasons. At page 419 of the same report a Division Bench of the Hon'ble Quetta High Court dismissed the petition wherein the petitioner was not possessing one year agro tech training. In a case titled "Abdul. Haq Mughal v. Muhammad Nusreen Usmani (2002 SCR 146), it was opined that it is an established principle of law that if an act is required to be performed in a particular manner the act must be performed according to the prescribed manner or not at all. In a case titled "Commissioner of Income Tax v. Messrs Adam Jee and Sons" (PLD 1967 Karachi 184), it was opined that "it is a settled principle of law that subordinate delegate authority cannot make rules or issue Notifications under a statute, so as to give a retrospective effect to them, unless the statute itself grants such power." ' Mr. M. Tabassum Aftab Alvi, the Advocate for Abdul Shakoor, respondent No,5, controverted the arguments of Mr. Abdul Rashid Abbasi, the learned Advocate representing Mrs. Shamim Khalid, petitioner. The learned Advocate strenuously argued that in written test, conducted for the post of Civil Judge, the petitioner was placed at serial No, 10 of the merit list and it is impossible that subsequently she could have been placed at serial No,3 of the merit list. The learned Advocate added that in absence of any material on the record it is impossible to believe that the petitioner
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attained 3rd position in the- final selection, made by the Public Service Commission. The learned Advocate further contended that the impugned Notification was issued on 12-12-2002 and the writ petition has been filed in April, 2003. The issuance of Notification as well as qualification of respondent No,5 was in the knowledge of the petitioner, thus, her petition merits dismissal in view of the known principle of laches. The learned Advocate by referring to the various documents and writ petition as well as written statement, vehemently contended that the petitioner has a legal practice of more than five years as a pleader, as a Tehsil Mufti and as a Tehsil Qazi. Alternatively it was submitted by Mr. M. Tabassum Aftab Alvi, that LL.M. Degree-holders are not required the legal practice, thus, on the same analogy the petitioner hardly required any practical legal experience for the permanent recruitment. The learned Advocate submitted that keeping in view the nature of the duty, the service rendered by respondent No,5 in different capacities could be treated as legal practice and leaving aside the Notification, rejection of his application by the Public Service Commission was without lawful authority. The learned Advocate also vehemently contended that the Government was competent to issue the impugned Notification in view of section 22 of the Civil Servants Act, 1976, read with rule 24 of the AJ&K Civil Servants (Appointment and Conditions of Service) Rules 1977. Moreover, according to the learned Advocate, the competency of the Government cannot be disputed in view of rule 4 of the Judicial Service Rules 1999. Whereby the provision of the AJ&K Civil Servants (Appointments and Conditions of Service) Rules, 1977, have been made applicable. The learned Advocate also objected to the maintainability of the writ petition on the ground that neither the Hon'ble Chief Justice of the Shariat Court, on whose recommendation the case of the petitioner was referred to the Regularization Committee nor the Committee has been arrayed as a party in the writ petition, therefore, the writ is liable to be dismissed for not having impleaded the necessary party. The learned Advocate also stated that respondent No,5 is a civil servant and in that capacity applied through the proper channel and it is wrong to contend that rule 24 of the AJ&K Civil Servants (Appointments and Conditions of Service) Rules, 1977 is not applicable. The learned , Advocate is of the view that as rule 24 referred hereinabove does not contain the word "Civil Servant", therefore, relaxation can be ordered in favor of any person irrespective of the fact whether he is or not a civil servant. The learned Advocate also contended with .Vehemence that all the documents have been placed on the record with the replication filed on behalf of the petitioner, Mrs. Shamim Khalid, and replication is not a part of the pleading nor the documents appended therewith can be considered. The learned Advocate supported his viewpoint by placing reliance on 1993 SCR 327, 1998 PLC (C.S.) 153, 2002 SCR 128, AIR 1990 SC 857, 1990 PSC 1033, 1997 PLC (C.S.) 297 Black's Law Dictionary page 1172, 1993 CLC 81, 2000 YLR 1011 and 1988 SCMR 169. ' In Gul Bahar's case (1993 SCR 327), it was laid down that the principle of laches is to be seen in the peculiar circumstances of each . Case. In 1998 PLC (C.S.) 153, it was opined that the Committee who has recommended the appointment of the candidate in case of challenge of appointment was a necessary party but the controversy therein was not decided on this sole ground. In Khalil Ahmed Aqeel's case (2002 SCR 128), it was opined that Selection Committee was a necessary party and no order can be passed against a person without providing an opportunity of hearing. In "J.C. Yadav and others v. State of Yaryna and others." (AIR 1990 SC 857), the Government in exercise of power available to her under rule 22 of PWD (Public Health Branch) Rules, 1961, relaxed the experience of 8 years for meting out a particular situation and the apex Court of India held that in the given circumstances no illegality has been committed by the Government. In "Anayatullah Chaudhry v. Azad Govt. And five Others." (1990 PSC 1033), it was concluded that the Government has the power to make any just and equitable order in case of civil servant under section 22 of the Civil Servants Act, 1976. In case titled "Muhammad Mazhar v. Chairman Federal P.S.C. And two others." (1993 CLC 81), the Enrolment Committee of Bar Council had determined the seniority of the
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learned Advocates by counting the period of his service rendered by him in the Ministry of Law as Assistant. A Division Bench of the Lahore High Court dismissed the writ petition on the grounds that the findings of the Enrolment Committee Who has exclusive jurisdiction in the matter can not be challenged in the extraordinary jurisdiction. In Zahid Mehmood's case (2000 YLR 1011), it was opined that a judgment has to be based on the pleading of the parties and the Court or Tribunal cannot travel beyond pleadings. ' Raja Muhammad Hanif Khan, the learned Advocate appearing for the Government has supported the arguments of the learned Advocate representing the petitioner and submitted that legal practice was a condition precedent for appearing in test and interview which cannot be relaxed in any case. The learned Advocate further argued that word "legal practice" has not been defined in a single term in any dictionary, however, in view of different dictionary meanings the word 'legal practice', could only be construed with reference to the rules on the subject. According to the learned Advocate while interpreting so the petitioner's service cannot be regarded as a substitute of the legal practice, The learned Advocate referred to and relied upon 1995 PLC (C.S.) 59; 1996 PLC (C.S.) 155; 1985 CLC 974 and 1216; 2000 SCMR 367; PLD 1991 SC 546 and 2001 SCR 109. ' In a case titled "Azad Kashmir Government v. Javed Iqbal Khawaja" (1996 SCR 40), it was opined that giving any weightage to a candidate for his past experience and departmental training violates the fundamental right of equality before law. In 1993 CLC 1165, it was concluded that where a statutory provision is unhappily worded for want of skill of drafting it will not go to the root of the matter nor will affect correct interpretation of the statute. In 2002 SCR 329, it was opined that a Government Notification cannot operate retrospectively. ' I have heard the learned counsel representing the parties and perused the case-law referred to and relied upon by them. I have also perused the record appended with these petitions, with my utmost care. ' After a profound analysis of the pleadings of the parties and arguments of the learned,Advocates, I am of the view that the following points need resolution, in both the writ petitions:-- (i) as to whether the Public Service Commission fell into error in entertaining the application of respondents No,5, in view of rule 4(1) of the AJ&K Public Service Commission (Function) Rules, 1994, as he was lacking the prescribed qualification on the last date fixed for receipt of the applications; (ii) as to whether the Notification dated 12-12-2002 has competently been issued by the Government? And refusal on part of Public Service Commission for implementation is without lawful authority. If the answer is in negative then as to whether the service rendered by respondent No,5 as Tehsil Mufti etc. Can be counted 'to his legal practice; (iii) as to whether the petitioner is not an aggrieved person; (iv) as to whether the writ petition filed by the petitioner (Mrs. Shamim Khalid) merits dismissal on the ground of laches. ' So far as the first point is concerned, in AJ&K the Public Service Commission has been established in view of section 48 of the AJ&K Interim Constitution Act, 1974. The functions of the Public Service Commission have been regulated through an act of AJ&K Assembly known as "AJ&K Public Service Commission Act, 1986." Its functions are listed in section 7 of the aforesaid Act, which are as under:- "7. Functions of the Commission.----The functions of the Commission shall be:- (a) to conduct test and examinations for recruitment to the civil services of Azad Jammu and Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under section 11; (b) to advise the President on matters relating to qualifications for, and method of recruitment to the services and posts referred to in clause (a); and (c) any other matter which the President may refer to the Commission."
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' For carrying out the purpose, the AJ&K Public Service Commission (Functions) Rules, 1978 and AJ&K Public Service Commission (Procedure) Rules, 1994 have been framed (hereinafter be referred as Function Rules, 1978 and Procedure Rules, 1994 respectively). Under rule 4(1) of the Procedure Rules 1994 eligible candidates are required to file their applications within the period fixed for the purpose. For proper appreciation of the matter it will be useful to reproduce rule 4 of the Procedure Rules, 1994 which is as follows:-- "4. (1) An eligible candidate may submit an application to the Commission on a prescribed form before the last date fixed by the Commission. The application received after the last date shall stand rejected:…
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