Mian MUHAMMAD SHAFIQUE Versus SECRETARY AZAD JAMMU AND KASHMIR LEGISLATIVE ASSEMBLY MUZAFFARABAD

M. TABASSUM AFTAB ALVI, C.J.---- The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, a direction in the nature of mandamus is solicited against Assembly-respondent to pay monthly salary to petitioners with effect from their date of appointments with all emoluments admissible under law.

2. The precise facts forming background of the instant writ petition are that Deputy Secretary (Admin) Legislative Assembly, inter-alia, advertised 02 posts of Reporters B-16 and 04 posts of Computer Operators B-12, through "Daily Dunya" dated 28.01.2015. The petitioners applied for the aforesaid posts and qualified test and interview. The petitioners Nos. 1 and 2, on the basis of merit and recommendations of respective selection committee were appointed as Reporters B-16, whereas, petitioner No. 3 was appointed as Computer Operator B-12, vide even dated orders 09.02.2015. It is maintained that petitioners are continuously performing their duties against the posts supra from the date of appointments, however, respondents failed to pay them salary, hence, they constrained to file the instant constitution petition.

3. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioners have got, no locus standi to file the instant writ petition. It is further submitted that petitioners failed to point out any violation of law and rules on the subject. The other contents of writ petition have also been refuted.

4. Messrs Mushtaq Ahmed Janjua and Nasir Masood Mughal, the learned counsel for petitioners submitted that their clients were appointed after advertisement of posts, merit and recommendations of respective selection committee vide even dated orders 09.02.2015, against newly created posts, who are continuously performing their duties, hence, it is binding obligation of respondents to pay them salary. They further contended that petitioners have been appointed after due process of law, and it was responsibility of Assembly-respondent to fulfill all requirements, while creating aforesaid posts, hence, petitioners cannot be penalized for the fault of authority, if any, therefore, submitted for acceptance of writ petition. The learned counsel in support of their contentions referred to and relied upon the following case law:- i. Syed Khadim Hussain and 2 others v. Imran Aziz Butt and 6 others (2015 SCR 1528). ii. Robina Khatoon v. Director Education and 7 others (2009 SCR 525). iii. Vice-Chancellor Azad Jammu and Kashmir University and 2 others v. Muhammad Ishtiaq and 83 others (2007 SCR 208).

In case of Khadim Hussain, Ibid, it was held by the Apex Court that no one can be penalized for the fault of the authority.

In Robina Khatoon's, case, supra, the aforesaid view was reiterated.

In case of Vice-Chancellor, ibid, it was held by the Apex Court that Students who could not appear in examination for the financial year 2005-06 cannot be penalized for the act/wrong of the authorities.

5. Messrs Raja Ayyaz Ahmed, Assistant Advocate-General and Asghar Ali, Malik, Advocate, appearing on behalf of respondents submitted that petitioners were appointed against newly created posts of Reporters B-16 and Computer Operator B-12, after due process of law, however, the aforesaid posts were created without concurrence of Finance Department, therefore, under law, salary cannot be released against the said posts. The learned counsel finally craved for dismissal of writ petition.

6. We have perused the contents of writ petition, examined the appended documents made available with utmost care and have given our earnest thought to the points raised by the learned Advocate for parties.

7. Admittedly, petitioners Nos. 1 and 2 were appointed as Reporters B-16, whereas, petitioner No. 3 was appointed as Computer Operator B-12, after advertisement of posts, merit and recommendations of respective selection committee through even dated orders 09.02.2015. It is also an admitted fact that petitioners are continuously performing their duties against the said posts however, they have not been paid salary since their joining on the ground that the posts supra were created without concurrence of Finance Department. As per our considered view, Assembly is an autonomous body and according to subsection (2) of section 4 of the Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment, Terms and Conditions) Act, 1976, the Speaker enjoys wide powers to create posts in all grades, temporarily or permanently, provided that no post in grade 17, or above shall be created for a period exceeding six months, except after consultation with Finance Committee. The aforesaid Section is reproduced as follows:--

"4. Strength and composition of the Secretariat .-(1) The Secretariat shall have

(a) Such number of permanent post as may be prescribed; and

(b) Temporary posts as may be prescribed and such other temporary posts as may from time to time, be sanctioned

(2) The powers to create posts in all grades, temporarily or Permanently, shall vest in the Speaker:

Provided that post in grade 17 or above shall be created for period exceeding six months, except after consultation with finance Committee.

(3) The Speaker may prescribe that the power under subsection (2) may subject to such conditions, if any, as may be laid down, be exercised by the Secretary."

(Underlining is ours for emphasizing)

As per Article 30-B of the Interim Constitution, 1974, the expenditure of the Assembly within authorized appropriation shall be controlled by the Assembly acting on the advice of Finance Committee. The Finance committee shall consist of Speaker, Finance Minister and such other members as may be elected thereto by the Assembly. The Finance Committee may make rules for regulating its procedure. The aforesaid Article speaks as follows:-

"30-B. Finance Committee .-(1) The expenditure of the Assembly within authorized appropriation shall be controlled by the Assembly acting on the advice of the Finance Committee.

(2) The Finance committee shall consist of the Speaker, the Finance Minister and such other members as may be elected thereto by the Assembly.

(3) The Finance Committee may make rules for regulating its procedure."

According to Rule 178 of the Azad Jammu and Kashmir Assembly Rules, 1975, there shall be a Finance Committee for duration of Assembly, consisting of a Speaker, the Finance Minister and 03 others members to be elected by the Assembly. The committee shall approve the annual and supplementary budget estimates of the Assembly and its Secretariat, which shall respectively be included in Annual Budget Statement and Supplementary Budget Statement by the Government. The aforesaid rule is also reproduced as under:-

A combine reading of the aforesaid provisions make it abundantly clear that Assembly is an autonomous body, which has its own Finance Committee for duration of Assembly, consisting of a Speaker, the Finance Minister and 03 others members, to be elected by the Assembly. The committee shall approve the annual and supplementary budget estimates of the Assembly and its Secretariat, which shall respectively be included in Annual Budget Statement and Supplementary Budget Statement by the Government. The Speaker of Assembly, therefore, enjoys full powers to create posts in all grades, temporarily or permanently. The embargo as per subsection (2) of section 4 of Legislative Assembly Secretariat (Recruitment, Terms and Conditions) Act, 1976, is that no post in grade 17 and above shall be created for a period exceeding six months, except after consultation with finance committee of Assembly. Therefore, concurrence of Finance Department, was not essential, hence, the stance of respondents is against Statutory Law, which is turned down.

8. A contemplate perusal of file reveals that petitioners have been appointed after advertisement of posts, merit and recommendations of respective selection committee, therefore, a valuable right has been accrued in their favour, which cannot be snatched. An identical proposition came under consideration before the Apex Court in case titled Azad Government and 4 others v. Dr. Syed Abadain Haider and 8 others (2000 PLC (C.S.) 9) page 11 of the report, it was opined as follows:-

"After hearing the respective contentions of the learned counsel for the parties and perusing the record, we are of the view that after having qualified the test and interview in accordance with the advertisement issued by the Public Service Commission and the Hand out issued by it for their success a valuable right had accrued in favour of writ petitioners, which could not have been taken back by a subsequent action "

The petitioners, therefore, on the basis of their regular appointments made after due process of law are entitled to salary admissible under law.

9. The nub of above discussion is that by accepting the instant writ petition, Secretary Assembly-respondent is hereby directed to pay salary to petitioners since the date of their joining forthwith. The writ petition is accepted in the manner as indicated herein above, with no order as to the costs.

ZC/26/HC (AJ&K) Petition allowed.