1. This is a writ petition under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Precise facts giving rise to the instant petition are that D.E.O. (female) Elementary Schools, Muzaffarabad, issued an advertisement for appointment of the Primary Teachers in daily Nawa-e- waqt on 19.12.2005. Besides others, three posts for Union Council Noukot and two for Union Council Bana-mula, Leepa Valley, were also advertised. The petitioner, herein, competed against the posts/quota of Union Council Noukot. After test and interview she was placed at Serial No, 03 of the merit list. She was to be appointed against the vacant post of Union Council Noukot but the department technically filled in the third post through transfer by transferring one Mst. Safina Kazmi, and vide order dated 18.3.2006 appointed the petitioner, herein, in Middle School Leepa, Union Council, Bana-mula. Zamurd Qayyum, performa Respondent No, 8, herein, challenged the appointment of the petitioner through Petition No, 89/2006 and resultantly, appointment of the petitioner, herein, was vacated vide judgment dated 4.4.2008 on the ground that she could not be appointed in another union council. Civil P.L.A. was filed against the judgment of this Court before the apex Court which was dismissed on 28.5.2008. The petitioner, herein, challenged the action of the respondents as well as appointment of the private respondents on two grounds. Firstly, her claim is that she was at Serial No, 3 of the merit list of union council Noukot, therefore, it was enjoined upon the respondents to follow the merit list and appoint her. Filling in the third post through transfer of performa Respondent No, 9 is mala fide & illegal. Secondly, two more posts become available during pendency of the petition and the respondents were bound to appoint the petitioner instead of appointing Respondents No, 6 and 7.
2. The respondents have contested the petition by filing written statement. Reply of the Education Department is of evasive nature and in a way claim of the petitioner has been admitted to the extent of merit and availability of the posts in the same union council, however, Respondents No, 6 and 7 have seriously contested the petition on account of res-judicata, laches etc. Their claim is that they have been appointed in view of their own merit, therefore, their appointments cannot be nullified while accommodating the petitioner. They prayed for rejection of this petition on the ground of laches as well.
3. Mr. Asghar Ali Malik, the learned Advocate for the petitioner, while referring to the advertisement, merit list and earlier judgment of this Court as well as that of the apex Court, contended that the merit of the petitioner neither has been denied by the official respondents nor by the private respondents. He further argued that in the earlier judgment of this Court it has not been ruled that the petitioner is not entitled to the appointment nor it was held that third vacancy was not available rather the appointment of the petitioner, herein, was set-aside technically on the ground that she could not be appointed in another union council. He also argued that this position has been clarified in the judgment of the apex Court of Azad. Jammu and Kashmir referred to hereinabove. He submitted that action of the department by filling in the third post through transfer is mala fide and is an arbitrary exercise of powers which tantamount to deprive of the petitioner from her livelihood. He contended that illegality committed by the department was liable to be rectified on availability of the additional post on which the candidates placed after her in the merit list either Respondent Nos,6 & 7 have been appointed. He submitted that plea of laches and resjudicata, as has been raised by the respondents, is not attracted because the petitioner has been litigating throughout and never compromised by her conduct or otherwise on her rights. He further argued that principle of res-judicata is also not attracted because the merit of the petitioner is not touched in earlier judgment nor the same was directly and substantially in question in the former petition.
4. Sardar K. D. Khan, the learned Advocate for the respondents has controverted the arguments advanced on behalf of the petitioner, and submitted that the petition has been filed in 2008, after a considerable delay, therefore, merits dismissal on account of laches without attending its merits.
5. He also argued that the matter has already been decided by judgment of this Court which has attained finality and cannot be reopened on any ground whatsoever. Referring to the documents appended with the written statement the learned Advocate contended that in-fact there was no third post available in union council Noukot at the time of advertisement and the claim of the petitioner is baseless. He argued that the petitioner was not B.Ed and the merit list is illegal. He maintained that the grant of relief to the petitioner tantamount to protect the ill gotten gains. Syed Tayyab Gillani, the learned Advocate for the respondents has addressed the Court in light of the departmental stand and has not seriously contested the merit of the petitioner. Sahibzada Mehmood Ahmed, the learned Additional Advocate General, has adopted the arguments of Sardar K.D. Khan, Advocate. I have taken into consideration the respective arguments of the learned Advocates representing the parties and perused the record of the case. A perusal of the record reveals that three posts were advertised by the Education Department for union council Noukot. It is also an admitted position that the petitioner, herein, is placed at Serial No, 3 of the merit list whereas Respondents No, 6 and 7 are placed at Serial No, 4 and 6 respectively.
6. It is also correct that earlier this Court has vacated the appointment of the petitioner on the ground that she has been appointed in another union council. What happens that the department has filled in the 3rd post through transfer which was advertised for union council Noukot, therefore, this action of the department was totally illegal and mala fide. The department, if at all, wants to accommodate some one else, it can do so after appointing the petitioner herein. The action of the department is not only arbitrary and against the law but also militates against the good governance. The petitioner has suffered for the failure of the respondents to perform their duty in accordance with law. In fact the respondents have deprived of the petitioner, herein, from her lawful adjustment in her native union council. She, has been appointed by them in the other union council in order to make a room for transfer of performa Respondent No, 9 which is mala fide and violative of the Government Notification dated 9.2.1994. This view lends support from a case reported as Mst. Naziran Bibi v. Director General Health and 2 others [2001 PLC (CS) 400], wherein their lordship have examined the scope of the Notification stated above, which makes it obligatory to appoint the teachers in their union council. Para Nos,4 and 5 of the report are as under:-- "4. We have examined the respective contentions of the learned counsel for the parties. The Government Notification of 9th February, 1994 runs as follows:-- "No, Admn/SC/6/1111-1261/94. The President Azad Jammu and Kashmir has approved the following:- - Employees in Pay Scales 1 to 5 shall be recruited from the respective Constituencies on the basis of merit. However, in female section of the Education Department Primary Teachers shall be recruited from the relevant local council instead of the constituency. If suitable candidate is not found from relevant local council suitable candidate selected on merit shall be appointed from the adjoining local council."
5. The Government order reproduced above, being of general application, has binding force.
7. Therefore, the official respondents fell in error in terminating the services of Mst. Rashida Akhtar to make room for reinstatement of Mst. Naziran Bibi. Mst. Naziran Bibi admittedly belongs to Kham Dhrang which falls in Muzaffarabad constituency. It is not disputed that Mst. Rashida Akhtar is the junior most Midwife in Muzaffarabad district but this was not a valid ground for terminating services. Clearly the appointment of the junior most Midwife from Muzaffarabad Constituency should have been terminated in order to reinstate Mst. Naziran Bibi." It may be stated that earlier this Court has nowhere stated that 3rd post was not available in union council Noukot or the petitioner, herein, has not obtained the merit position. Despite setting aside her appointment made in union council Bana-mula, neither 3rd post is vanished nor her merit stood cancelled. Where appointment is set-aside on technical grounds, the merit position obtained by the candidate still remains intact and she should have been appointed on availability of the post. Moreover the authority in such like cases has jurisdiction to undo the wrong. Law is well settled that a party should not be made to suffer for action or inaction of an authority who was obliged to follow the law and responsible for taking an appropriate action. A reference can be made to a case titled Sardar Asif Mehmood Raza v. Abdul Khamid and 7 others [2004 SCR 298], wherein the apex Court observed that lapses committed by the competent afthority at the time of induction cannot be allowed to take away the right which had vested in a person. A reference can also be made to a case titled Sajjad Ahmed Javed Bhatti v. Secretary Establishment Division- Islamabad and 11 others [1996 PLC (CS) 652]. Facts of the case were that the petitioner, therein, was considered for promotion in grade B-19 but was not approved. The other contestants were approved. The petitioner, therein, was also approved by the central selection board and was promoted to grade B-19. He contested for seniority and his representation was dismissed. His appeal and review were also dismissed up to the apex Court of Pakistan. In the second round of litigation his petition for leave to appeal was rejected observing therein that previous judgment of the Service Tribunal and the Supreme Court will not prevent him from getting the relief from the authority because the petitioner has been deprived of on the basis of fraud and mistake of the concerned selection board. Thus, in the present case the petitioner has also suffered due to an arbitrary act and maladministration on the part of the official respondents, therefore, earlier decision of this Court even otherwise will not stand in her way. In the interest of justice order of adjustment of the petitioner should have been passed while deciding the earlier case filed on behalf of Zamurd Qayyum. As this aspect of the case escapes the notice of the learned , Chief Justice, therefore, there is no harm in granting relief to this petitioner because an act of the Court should not prejudice to anyone [PLD 1984 SC (AJK) 150].
8. The contention of Sardar K. D. Khan, the learned Advocate for the respondents that no 3rd post was available is devoid of any force because advertisement is clear enough which reveals that three posts for union council Noukot were advertised. The petitioner admittedly is at Serial No 3 of the merit list but she has been deprived of by posting Respondent No, 9 through transfer. The question of lathes is not attracted in this case because the petitioner has to suffer due to the arbitrary action of the department. Moreover, she has, been prosecuting her right diligently. The question of res- judicata is also not attracted because in the earlier case appointment of the petitioner, herein, has been technically set-aside. She now seeks a direction for her appointment on the third post. The petition is, therefore, accepted with costs and it is ordered that the petitioner shall be appointed forthwith on the third post of union council Noukot advertisement on 19.12.2005, in daily Nawa-e- Waqt. The petitioner shall be accommodated in every case. So far as the request for giving retrospective effect to the order of the petitioner is concerned i,e, the job of the appointing authority who shall consider the same in accordance with law after appointing the petitioner.
9. Respondents No, 6 and 7 have been appointed on newly available posts, therefore, they will not be disturbed: The contention of Sardar K. D. Khan, the learned Advocate for the respondents, that the petitioner was not B.Ed, at the time of interview, does not find support from the record. Nobody has challenged the merit position of the petitioner, therefore, to this extent the matter has become past and closed transaction which cannot be allowed to be agitated at this stage. The needful shall be done within a period of 30 days and the compliance of the judgment shall be reported to the Registrar High Court.