ARIF HUSSAIN DAR Versus BOARD OF REVENUE through Secretary

ORDER

1. This writ petition under section 44 of the Azad J&K Interim Constitution Act, 1974, has been filed to challenge the appointment of respondents Nos. 5 and 6 made on 22‑5‑2001, by respondent No. 1.

2. The facts necessary for the disposal of this petition are that the petitioner claims to have appeared in the test and interview for appointment to the post of "Patwari", on 21‑3‑1999. According to the merit list prepared by the respondent No.3, Commissioner Settlement, the petitioner qualified the test and interview and was placed at S.No.18 whereas respondents Nos. 5 and 6 were placed at S.Nos.7 and 8 of the same. It is averred that previously the Revenue Department had appointed Abdur Rashid and Arif Mughal, candidates as "Patwaris" on 23‑8‑2000 and 25‑8‑2000. These orders were challenged by the petitioner through a writ petition on 13‑9‑2000 which was accepted by this Court on 26‑3‑2001 and appointment order of these persons, was vacated. The respondents instead of following the order of the High Court dated 26‑3‑2001, appointed the respondents Nos.5 and 6 without lawful authority. Moreover, the impugned appointments have been made during the. ban imposed on recruitment by the Government and contrary to Government Order dated 9‑2‑1994.

3. The respondents have filed their written statement and controverted the facts stated in the writ petition.

4. Mr. Muhammad Yaqoob Mughal, learned counsel for the petitioner vehemently contended that the appointment of respondents Nos.5 and 6, is in violation of the judgment of the High Court dated 26‑3‑2001. According to the learned counsel, the impugned appointments are also contrary to the Government Notification/Policy dated 9‑2‑1994. It is further contended by the learned counsel for ‑the petitioner that the impugned appointments are mala fide as at that time the Government had imposed a ban on recruitments in all its Departments vide Notification dated 3‑5‑2001. He disputed the appointments on the ground that the posts on which the respondents were appointed, fell vacant in Sub‑Division Authmuqam, therefore, in lime with the policy of the Government, only the petitioner could have been appointed, as according to the learned counsel, he was not only on merit but also hails from the locality.

5. The arguments advanced by the learned counsel for the petitioner, were repudiated by Kh. Muhammad Nasim, Advocate appearing for respondents Nos.5 and 6. The learned counsel referred to the Azad Jammu and Kashmir Revenue Department (Patwaris, Qanoon Goh, Naib Tehsildar, Tehsildar) Service Rules, 1991 and submitted that the Rules require that a seniority list is to be maintained by the authorities of the approved candidates I of ' Patwari' in the District. The appointment could have been made only according to that seniority list, keeping in view the merit. The learned counsel by referring Annexure ' A' appended with this petition, submitted that respondents Nos.5 and 6 are at S. Nos.7 and 8 of the merit list whereas the petitioner is at S.No.18, therefore, the appointments should have been made keeping in view the rule of merit. The learned counsel further contended that the Notification/Policy of the Government dated 9‑2‑1994 nullify the statutory rules framed under section 23 of the Civil Servants Act, 1976. The contention of the learned counsel is that the policy of the Government can only be adapted by amending the relevant rules, therefore, in case of conflict between the Government Notification/Policy, the Statutory Rules are to prevail. The learned counsel also submitted that the appointments of the respondents have been made after obtaining relaxation from the Government, in this regard, an order of the Government dated 13‑3‑2001 has also placed ,on record. It is also submitted by the learned counsel that the petitioner in fact is resident of Muzaffarabad. Some documents including the voter list as well as a verification from the Municipal Corporation, Muzaffarabad, are also made available on record.

6. I have heard the learned counsel for the parties and have gone through the record made available with this petition.

7. The merit list appended with the writ petition is not disputed by the parties. According to .the merit list, the petitioner is placed at S.No.18 8 whereas the respondents Nos.5 and 6 are placed at S.Nos.7 and 8 of the same. The contention of the learned counsel for the petitioner that as the posts in dispute fell vacant in Tehsil Authmuqam, therefore, keeping in view the Policy/Notification of the Government dated 9‑2‑1994, the petitioner should have been appointed by the respondents, is misconceived. Under the Scheme of Rule referred to hereinbefore it is enjoined upon the authority to conduct test and interview for the posts of Patwari and prepare merit list for the whole District. This list is to be followed, as and when any such post is required to be filled. The Policy of the Government referred to and relied upon by the learned counsel for the petitioner, appears to have been made for the Education Department only. Be that as it may, the Policy or the Notification cannot override the Statutory Rules framed by the Government under a Statute.

8. As stated above, the Rules relied upon by the parties, were made in exercise of the powers under section 23 of the Civil Servants Act, 1974, therefore, in my estimation, these Rules are to prevail. A reference may be made to Civil Appeal No. 138 of 2001, titled "Azad Government and another v. Saif Ali Mughal and others", decided on 15‑10‑2001.

9. In the aforesaid case, the proposition was of similar nature. The dispute was that all the appointments of the Private Secretaries and Personal Assistants, were to be made under the Statutory Rules known as Private Secretaries and Personal Assistant Rules, 1983. The Government issued a Notification on 30‑12‑1999 whereby a ban was imposed in the manner that the Ministers could only appoint the Private Secretaries already serving in the Secretariat, on the discretionary posts. The dispute was resolved by the Apex Court that the Notification of the Government cannot override the said statutory rule. Relevant paragraphs are as under:‑‑

10. "7. Even if it is assumed for the sake of argument that the High Court had the jurisdiction in the instant case to entertain the writ petition, the fact remains that in view of rule 3(a) of the Rules of 1983, the High Court was not legally justified to hold that the concerned authorities were bound to post the respondents as Private Secretaries and Personal Assistants to the Ministers and others by giving them preference over others. For elucidating the matter, it would be expedient to reproduce below rule 3(A) of Rules of 1983 and the Notification dated 30‑12‑1999:‑‑

11. Rule 3(a) reads as under:‑‑

12. "3. Methods of Recruitment:

(a) (i) Appointments to the posts, detailed in the Part I of Schedule shall be made, as the case may be, at the discretion of the President, Prime Minister/Chief Executive, Ministers, Advisors and the Presidential Assistants out of the regular service of Azad'lammu and Kashmir. These 'appointments shall be purely on temporary basis and the appointees shall, on the President, Prime Minister/Chief Executive, Minister, Advisor or Presidential Assistant, on whose discretion they were appointed, ceasing to hold such office. be reverted to their parent cadres, if the successor no longer requires their services, or if there is no successor.

13. (ii)............. ..

14. (b)

15. Notification reds as under:‑‑

URDU

16. It is evident from the rule that under rule 3(a) the Private Secretaries and Personal Assistants are o be appointed from regular service of the Government. Therefore, no embargo could be placed on "rule 3(a) of the said Rules by the notification dated 30‑12‑1999, ''which has been interpreted by the High Court to mean that m first instance the Private Secretaries and Personal Assistants Ministers etc. must be appointed from the cadre of the re dents such a restriction being contrary to the statutory rules would no legal effect."

17. The proposition also came under consideration in a case reported as PLD 1980 Karachi 166. The Division Bench of Karachi High Court observed we have perused the letter produced in this behalf by the petitioner in Petition No.1432/78 which merely refers to the latest Government Policy which required that the detenu Mir Muhammad was to complete 14 years substantive sentence excluding remissions, Besides any Policy decision contrary to the Remission Rules which have been framed under the provisions of the Statute, cannot be held Board of Revenue (Ghulam Mustafa Mughal, J) to have been amended by an inconsistent Policy decision. If the intention of the Government was to amend the Rules by the so called Policy decision, the necessary amendment could have been made in the Rules. We cannot, therefore, attribute to the Government.any intention that the Policy decision was intended to alter or amend the existing Rules. Be that as it may, even if the decision rely upon is regarded as having the effect of amending the Rules, clearly the amendment in the Rules extending the minimum period of actual substantive sentence to be undergone by the life convicts from 10 years to 14 years, cannot be given retrospective effect so as to operate against the detenus in these petitions, as already held by us. "

18. The consensus, therefore, is that the executive instructions and policies cannot amend the Statutory Rule. The Lahore High Court has also E adapted the same view in the case of "M.D. Tahir, Advocate v. Federal Government through Secretary, Cabinet Division Pakistan, Islamabad and 2 .others." PLD 2000 Lahore 251. I would like to reproduce para. 5 of the judgment which is as under:‑‑

19. "5. It is interesting to notice that the Notification whereby the Khidmat Committees were set up does not even mention the source of power under which it was being issued. A reading of the Notification shows that Members of the Khidmat Committees were given wide and sweeping powers and they could interfere in the functioning and affairs of the Government and its offices. A parallel system of administration if not envisaged by the Constitution nor could it be set up. Even otherwise we are unable to understand the rationale in setting up such Committees when the local councils comprising elected representative of people were already functioning."

20. In view of above discussions, I have no hesitation in holding that the policy of the Government/Notification dated 9‑2‑1994 does not affect the appointment of respondents Nos.5 and 6.

21. The contention of the learned counsel for the petitioner that appointments of the respondents have been made during the ban imposed by the Government, is also devoid of force, as a Notification dated 13‑3‑2001 placed on record indicates that relaxation before the appointments, had duly been obtained by the relevant authority. The other point regarding the residence of the petitioner as raised by the learned counsel for the respondents, need not be dilated upon as the same is a question of fact which cannot be gone into in exercise of writ jurisdiction.

22. The contention of the learned counsel for the petitioner that respondents were bound to appoint the petitioner in the light of the judgment of the High Court is also without substance. The High Court had not. issued such a direction in its earlier judgment.

23. The nutshell of the above discussion is that finding no force in the lF writ petition, it is hereby dismissed with costs. h.B.T./27/AKJ Petition dismissed.