AJK Public Service Commission Act, 1986

Comparative study of the Act enforced before July 2012 — the amended Ordinance and the preamble of amending Ordinance reveals that the amendments have been introduced to improve the education standard and to ensure the recruitment to teaching and administrative cadre of education service on merit in accordance with National Education Police 2009. S. 2, has been substituted through amending Ordinance — The definition of ‘service of Azad Jammu & Kashmir’ has been deleted — in new section the definition of ‘Act’, Education Service “Education Service Committee” and “prescribed” have been inserted. S. 3 — by amending this section the number of members of PSC has been increased from seven to ten — it has been provided that seven members shall be appointed from amongst retired civil servants or other outstanding persons having good reputation and education background of not less than graduation — three members shall be from amongst eminent educationist, or scholars having good reputation and experience of not less than ten years of teaching or administrative cadre or both — the Education Service Committee shall be comprised of three members including at least two educationist members. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (B)
Ss. 2, 7 & 7-A — function & scope of PSC — amending Ordinance — the definition of ‘Education Service’ and ‘Education Service Committee” provided in section 2 challenged — the function of PSC is to conduct test and interview for the service of AJ&K — PSC conducts tests and interviews and makes recommendations for appointment to the service of AJ&K including the post in connections with the affairs of AJ&K — the jurisdiction of P.S.C. extends to all civil services of AJ&K — specifically mentioning of ‘Education service’ and ‘Education Service Committee’ unnecessary — an amendment was introduced in Act, 1986 in the year 1991 whereby s. 7-A was added — which provides that the Chairman may, with the approval of Govt. make rules for regulating the conduct of business of the Commission — and such rules may provide for any of the functions of the Commission specified by it being performed by Committee composed of two or more members constituted by the Chairman — this provision already empowers the Chairman to constitute a committee which shall consist of not less than two members for conducting the business of the Commission and any of its functions — Observed: in presence of this provision, providing of ‘Education Service’ and ‘Education Service Committee’ appears surplus — preamble indicates that amendment is brought to improve the education standard and to ensure the requirement of teaching and administrative service on merits. Recruitment in service of Azad Jammu and Kashmir on merit is duty of PSC. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (K)
Amending Ordinance — challenge to — Ss. 2, 7 & 11 — contention that by deleting the words “service of AJ&K” and providing the definition of “Education Service” the functions of the PSC have been curtailed and confined only to the extent of education service — under section 7 — the functions of Commission are defined which postulates that P.S.C. shall conduct test and examination for recruitment to the civil service — under section 11 — the Commission has to advise the President in matters relating to qualifications for and method of recruitment to the services and posts referred to in clause (A) and any other matter — no amendment has been brought in section 7 and functions of PSC have not been curtailed—functions of P.S.C. have not been affected by deleting the definition of ‘service of AJ&K’ — the service of ‘Azad Jammu & Kashmir’ is defined in s. 2 of the Constitution Act, which provides that service of J&K means any service, post or office in connection with the affairs of Azad Jammu & Kashmir including the Council but does not include service as Chairman of the Council, President, Speaker, Deputy Speaker, Prime Minister, Minister, Federal Minister, Incharge of the Council Secretariat or Advisor appointed under section 21, Parliamentary Secretary, Advisor to Prime Minister or Member of the Assembly or Member of the Council — the functions of AJ&K P.S.C. are confined to ‘service of AJ&K’ and such post in connections with the affairs of AJ&K and not the Council, as such definition of ‘service of AJ&K’ provided in Constitution Act is fully applicable in the case — Held: the deletion of ‘service of AJ&K’ will not affect the Constitutionality or any Fundamental Rights guaranteed under section 4(4) of the Act. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (J)
S. 3 — amending Ordinance — challenged on the ground that the same is violative of Constitutional provision — in amending section 3, the number of members has been increased from seven to ten — this power was already available in section 3(1) of unamended Act, 1986 to the President that the President may increase number of members for such period as he may determine and may appoint one or more persons in the service of AJ&K to be member’s ex-officio for discharging such functions as he may determine — Observed: in presence of said provision, the amendment specifically for increasing the number of members from seven to ten seem surplus — however held: it is not in contravention of Ss. 48, 49 and 4(4) of Constitution Act. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (L)
S. 4 — Civil Procedure Code, 1908, O.VI, R.2, O.VII, Rr.1, 7 — AJK High Court Procedure Rules, 1984, R. 32(2) — AJK Interim Constitution Act, 1974 — Writ petition — Pleadings — Relief — Adverse remarks made in Termination Notification had already been expunged by High Court — Reinstatement of appellants to their claimed position was impossible — Whether appellants were entitled for emoluments of remaining period of their fixed revenue or not? — Scope of controversy — Said controversy had to be judged from two angles; firstly that whether without specific prayer in writ petition said relief could be granted and; secondly whether in presence of statutory provision of the Act, 1986, the prayed relief was admissible? — Analysis — Statutory provision clearly speaks that although, the appointments of Chairman and the Member of the Public Service Commission shall be for a specific period but at the same time the legislature has empowered the government to terminate the services for the reason to be recorded, even before the expiry of period — Thus, it could be safely held that it is not a legal position that the services of Chairman and Members of the Public Service Commission could not be terminated before the expiry of their fixed tenure — Prayer clause of original writ petition and amended writ petition revealed that appellants had neither brought on record any detail of necessary facts to substantiate their argued prayer nor they had prayed for the grant of emoluments of the remaining period — Party who fails to bring on record the necessary statement of facts for a specific relief or fails to pay for such relief, the Court cannot grant the relief in vacuum merely which is sought at the time of arguments — Appellants despite knowledge of all facts and also availing opportunity to get amended their written statement had not felt at advised to bring on record the necessary facts or grounds and exact nature of the relief to claim the emoluments of the remaining period — Courts are not bound to grant relief merely on the basis of verbal request — Civil appeal dismissed. RELIEF (Pleadings) Since appellants had not prayed for the grant of emoluments of remaining period, the same could not be granted in writ petition. Supreme Court dismissed appeal. Muhammad Saeed Akhtar and 8 others v. AJK Govt 2013 SCR (SC AJ&K) 365 (B)
—Section 4—2^nd proviso— AJ&K Public Service Commission (Amendment) Ordinance 2016—AJ&K Interim Constitution, 1974–Art. 4(4)(19) —right to fair trial— removal of Member and Chairman PSC—challenge to—principle of audi alteram partem–Court observed that the allegations levelled against the respondents might be true, but the manner in which they have been removed does not carry the sanctity of transparency as their constitutionally guaranteed fundamental rights were snatched by not giving them the opportunity to respond to the allegations—if the reasons are of such nature involving basic rights, then proceedings shall be initiated in accordance with relevant law—without following due process of law, no one can be allowed to act in an arbitrary manner— the very requirement of assigning reason is to prevent unfairness or arbitrariness—this principle is based on jurisprudential doctrine that justice should not only be done, it should appear to be done as well–an order passed by a quasi-judicial authority or even administrative authority affecting the rights must be speaking one– “recording reasons” had reference to required evidently threshold– without fair trial and affording the opportunity of being heard, it cannot be established that the person against whom any allegation is levelled, is an accused or innocent. Azad Govt. & others v. Kh. Muhammad Saleem Bismal & others 2022 SCR 430 (F & G)
—Section 4—2^nd proviso— AJ&K Public Service Commission (Amendment) Ordinance, 2016 —removal of Members P.S.C and Chairman — challenge to—principle of audi alteram partem–violation of—P.S.C Act, provides a complete mode for removing Chairman or any Member on the ground of any misconduct—in such situation, a Judge of the High Court is appointed by the President and after completion of inquiry, proceedings for removal of any Member or Chairman, can be initiated—held: in presence of clear and conspicuous procedure, removal of respondents on the same day when Ordinance was promulgated, is beyond comprehension—if it is assumed that there were no statutory provisions, even then the principle of natural justice demands that order should be based on reasons and fairness—the doctrine of natural justice has been evolved and followed by the judiciary to protect the fundamental rights—at every stage of the proceedings, the essentials and principles of natural justice are kept in mind to prevent the miscarriage of justice—the doctrine of natural justice is so flexible that it changes itself to an extent where the rights of an individual are infringed—if an authority violates the principle of “natural justice in causa sua” then the order passed would be voidable but if any authority violates the principle of “audi-alteram partem” then the order would be regarded as “void ab-initio”. Azad Govt. & others v. Kh. Muhammad Saleem Bismal & others 2022 SCR 430 (H) 2014 SCR 1521 ref
S.4-A — provides for oath of the office — that Chairman before entering into office shall take oath before the President and member shall take oath before the Chairman — the only difference in both amended and unamended sections is that the definition of ‘service of Azad Jammu & Kashmir’ has been deleted and ‘education service’ and ‘Education Service Committee’ has been introduced — qualification of a member has been provided which was non-existent in the original Act and number of the members has been increased. Syed Mumtaz Hussain Naqvi & 9 others v. Raja Muhammad Farooq Haider Khan & 4 others 2014 SCR 43 (C)
S. 7 — It requires consultation with the Public Service Commission and not the Chairman. Chairman of the Commission and the Public Service Commission, have separate entities and are not interchangeable terms. Consultation which is required by law is with all the members, including the Chairman, and not with one of them. Azad Jammu & Kashmir Govt. v. Javed Iqbal Khawaja & another 1996 SCR 40
No person can be exempted from the requirement of going to the P.S.C. — If any person, as distinct from a post, has to be exempted from the requirements of the P.S.C. it can only be done by amending the P.S.C. Act and not otherwise. Azad Government v. Muhammad Youns Tahir & other 1994 SCR 341 (PP)
Functions prescribed by the Public Service Commission Act, have the same force as functions prescribed by the Constitutional itself — It is in pursuance of the command of the Constitution that Public Service Commission performs the functions assigned to it. Therefore these provisions are mandatory in nature and must be strictly followed. Azad Jammu & Kashmir Govt. v. Javed Iqbal Khawaja & another 1996 SCR 40 (N) 1994 SCR 297 relied.
Recommendation made by — Appointment as Deputy Director — Notification issued by University Grants Commission —‘Sanad’ issued by Tanzeem -ul- Madaras — Recognition of —Treated equal to M.A. Arabic/Islamic Studies for teaching Arabic and higher studies and not for employment. M. Saleem Chishti v. AJK PSC. and 2 others 1997 SCR 12 (A)
All services forming part of civil service including Police service are within the purview of the P.S.C. by virtue of section 7 of the Act — These posts cannot be taken out of the purview of the Commission except by amending the Public Service Commission Act — Held: Post of Assistant Superintendent of Police was within the purview of Public Service Commission and could not be filled in through High power Selection Board. Naeem Feroze v. Iqbal Rashid Minhas 2001 SCR 91 (B)
Writ — Requisition for appointment of Electric Inspector — Postponement of test/interview by the Public Service Commission on the basis of a letter issued by Secretary Electricity — Public Service Commission had commenced selection process by advertising disputed post and the appellant had duly applied for it — It is nobody’s case that the requisition was withdrawn by the Government — Thus a right has come to reside in the appellant that he should be considered for appointment to advertised post in light of rules prevalent at time when post was advertised. Muhammad Imtiaz Khan v. AJK Govt. & 3 others 2001 SCR 115 (A)
Contention that thirteen posts of lecturers (Math) were vacant when requisition was sent to P.S.C. — Petitioner (respondent) qualified the test but was not recommended by P.S.C. due to low merit position — Held: P.S.C. failed in performing its responsibility to send the result of all successful candidates in order of their merit to Government for its consideration and appointment of suitable persons against available posts according to quota — Held further: It was not prerogative of Public Service Commission to withhold the result of qualified candidates on the pretext that he does not fall in the merit list for the post of relevant district — It was for the Government to decide who is to be appointed from merit list sent by Public Service Commission against available posts in accordance with quota reserved for each district. Azad Government & 2 others v. Mudassar Hussain Qureshi 2009 SCR 467 (A)
No specific mode for appointment of Chairman and members of PSC is provided in the Act, 1986 or rules but the appointing authority is the President and orders have to be passed by the President. Syed Mumtaz Hussain Naqvi v. Raja M. Farooq Haider Khan & 4 others 2014 SCR 43 (X)
Rechecking of answer sheet — not authorised — under the Public Service Commission Act and Rules made thereunder, the Public Service Commission is authorized and empowered to hold test and examination — there is no statutory provision or policy authorizing it to take decision of rechecking of answer-sheets once checked and marked by the examiner. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (G)
The Public Service Commission cannot be directed to compile the result on the basis of marks awarded by the examiner relating to which it has formed the opinion that the marking is not in accordance with the required standard — Held: there is no other alternate except to direct the Public Service Commission for reholding the examination of the disputed papers. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (G) 1985 SCMR 1293 rel.
The examination of all the units has been simultaneously held and the result is to be compiled on the basis of uniform papers — but on one hand the act of rechecking of the answer-sheets has been found illegal and on the other hand the result finalized on the basis of such illegally rechecked answer-sheets has been protected merely on the ground that the handouts and recommendations have not been challenged — This situation calls for exercise of inherent powers vested in this Court u/s 42-A of the Interim Constitution Act, 1974 — Held: The declaration of recommendations of the PSC as valid on the basis of act which has been declared illegal for some units and direction for compiling the result of other units on different criteria, will amount to pollute the whole process, make the selection disputed, create doubt in the mind of candidates and also shake the confidence of public in such an important state institution. A. Baseer Tajwar v.AJK P.S.C. 2016 SCR 1599 (H)
The Public Service Commission cannot be forced for compilation of result on the basis of such rechecked answer-sheets which are now open secret being examined and passed through unconcerned hands and specially when the Public Service Commission has observed that the marking is sub-standard and against the spirit of competitive examination. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (J)
The matter of holding the examination and evaluation and checking of the answer-sheets exclusively falls within the domain of the Public Service Commission and no other institution including the Courts can substitute its opinion — The Courts can only determine whether an act is in accordance with law or not but they cannot perform the act by themselves rather they have to direct the concerned authorities to act according to law. Abdul Baseer Tajwar v. AJ&K P.S.C. & 2 others 2016 SCR 1599 (K)