' MUHAMMAD AZAM KHAN, C.J.--- The instant appeal with leave of the Court arises out of the judgment of the High Court dated 8th September, 2008 whereby Writ Petition No,209 of 2007 has been accepted and a direction has been issued that respondent No,1 be appointed as District Sports Organizer against the quota of District Bhimber.
2. Respondent No,1, Muhammad Ramzan, domicile of District Kotli, filed Writ Petition No,209 of 2007 claiming therein that in response to advertisement No,1 of 2006, issued by the Public Service Commission for appointment on three posts of District Sports Organizers, male and female, B-16, each one of District Kotli, Bhimber and Sudhnuti respectively, applied for one of the posts. He qualified written test and a call letter was issued. According to hand out issued by the Public Service Commission on 7th May, 2007, one person from the quota of District Kotli, and one from the quota of District Sudhnuti, were recommended while the post of District Bhimber was ordered to be re-advertised because none of the candidate from District Bhimber qualified the test and interview.
He requested that a direction be issued to the Public Service Commission that it should recommend the petitioner against the post of District Sports Organizer B-16 falling in the quota of District Bhimber on the basis of merit and the order of the Public Service Commission for re- advertising the post may be quashed. A learned single Judge in the High Court, after hearing arguments in the writ petition along with two other writ petitions, issued direction to the Public Service Commission to recommend respondent No,1 for appointment on the post of District Sports Organizer in the light of notification dated 18th January, 2007, through the impugned judgment on 8th September, 2009.
3. Sardar Muhammad Resham Khan, counsel for the appellant, argued that the judgment of the High Court is not .Maintainable. Respondent No,1 cannot be appointed against the quota of District Bhimber on the seat of District Sports Organizer. He referred to the policy notification relating to quota and rule 12 of the Public Service Commission (Procedure) Rules, 1994 and argued that the district-wise quota has to be strictly adhered to. The learned counsel argued that in such like cases, where the number of posts is less than number of units, notification dated 18th January, 2007 is not applicable and the case is covered by notification dated 27th March, 2003. The learned counsel asserted the point and argued that at the time of advertisement of the posts, the District Sports Organizers in Districts Rawalakot, Muzaffarabad, Mirpur and Bagh were already appointed while no District Sports Organizer was appointed in Districts Sudhnuti, Kotli and Bhimber. Three posts were available. These posts fell in the quota of these three units and in the light of notification dated 27th March, 2003, only a single candidate can be appointed from one district/unit. The Public Service Commission was correct in initiating the case fqr re-advertising the post against the quota of District Bhimber. He referred to the judgment of this Court delivered in the cases titled Umar Hayat v. Azad Government and 3 others 1999 PLC (C.S.) 93 Khurshid-ul-Hassan v. Azad Government and another 1997 PLC (C.S.) 468, Azad Government and 2 others v. Muhammad Naseer Chaudhry and 2 others [2010 SCR 186] and Muhammad Ejaz Khan and 12 others v. Mushtaq Ahmad Khan and 10 others [2010 SCR 201]. He argued that instructions contained in notification dated 27th March, 2003 have been declared to have a weight of rules by this Court in a case titled Azad Government and 2 others v. Muhammad Naseer Chaudhry and 2 others [2010 SCR 186] and in presence of this notification, the notification dated 18th January, 2007 cannot be followed. The learned counsel further argued that it is the right of every person who is eligible to appear in examination/test and interview conducted by the Public Service Commission. He asserted that according to rule 4(3) of the Azad Jammu and Kashmir Public Service Commission (Procedure)
Rules, 1994, a candidate can appear in the examination held by the Public Service Commission for three times for a post but the appellant has appeared only once. He contended that if the domicile of other district is appointed against the quota of District Bhimber, the appellant will have no chance to participate in test and interview because there is only one seat of District Sports Organizer for every district/unit.
4. While controverting the arguments, Sardar Abdul Sammie Khan, counsel for respondent No,1, argued that the judgment of the High Court is perfectly legal. This Court in a number of cases while relying upon notification dated 18th January, 2007 has held that if a suitable candidate is not available from the quota of a district/unit, the candidate from other district/unit who has qualified test and interview can be appointed against the quota of that district/unit and the post shall be deducted from the quota of respective district when other posts are advertised. He referred to a judgment of this. Court delivered in the case titled Muhammad Shafique and others v. Azad Government and others [Civil Appeal No,19 of 2010 decided on 25-2-2010]. He further argued that the present appellant is not an aggrieved person because he could not qualify the test and interview. He referred to the case titled Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714. Lastly he argued that respondent No,1 was appointed on the orders of the High Court.
He is holding the post for the last three years and a right has accrued in him. His appointment cannot be set aside.
5. Mr. Mansoor Pervaiz Khan, the learned counsel for respondents Nos.2 to 6 adopted the arguments of Sardar Abdul Sammie Khan and defended the judgment of the High Court. He argued that the High Court has correctly relied upon the notification dated 18th January, 2007. No candidate from District Bhimber could qualify the test for the post of District Sports Organizer, therefore, in the light of said notification, the High Court has passed a valid order for appointment of respondent No,
1. On Court's question, he replied that he has not gone through the notification dated 27th March, 2003.
6. We have heard the learned counsel for the parties and perused the record. At the outset, we may observe that civil service structure in Azad Kashmir is based on quota system. Apart from the notifications in respect of quota issued from time to time, right from 1971 to 1997 in respect of administrative units, rule 12 of the Public Service Commission (Procedure) Rules provides the unit- wise quota and protects the same. Rule 12 in unequivocal terms postulates that it is the duty of the department seeking recommendations from the Public Service Commission to determine the quota of each district on the basis of sanctioned strength of posts. This Court in a number of cases, including Umar Hayat's case 1999 PLC (C.S.) 93, Khurshid-ul-Hassan's case 1997 PLC (C.S.) 468 and Ejaz Khan's case [2010 SCR '201] has protected the quota system. While protecting the quota system, the Government has made a departure through notification dated 18th January, 2007, stating therein that when a suitable candidate is not available from a particular district/unit, a candidate next on merit from other district/unit can be appointed against the post of the said district/unit and when any other seat of that unit is advertised, it shall be deducted from the quota of that district/unit and it shall go to the iota of the district/unit against which a candidate of other district/unit was appointed.
7. We agree with the contention of the learned counsel for the respondents that when a suitable candidate is not available from the quota of one unit, a successful candidate from any other unit can be appointed, but the question in the case in hand is altogether different. There are different categories of services. For appointment of school teachers, lecturers, doctors, etc, every year a number of posts are created and the posts reserved for quota of each district are in a large number. If in the result of a particular advertisement, the seat of a teacher, lecturer, doctor or engineer from one district/unit goes to any other district/unit on the ground that no suitable candidate was available from the said district/unit, it shall have no harm because in the near future there is likelihood of creation of other seats/posts in the same discipline and one seat can go to the quota of a district/unit where a candidate of other district/unit was appointed but in some cases where the number of seats as compared to units is less, then the rule laid down in notification dated 18th January, 2007 is not applicable. For such like situation, the Government has formulated the policy and a policy notification was issued vide No,Admin.A.R.4/133/94 dated 27th March, 2003.
8. In the case in hand there is only one post of District Sports Organizer for each district. The District Sports Organizers were already appointed in Districts Muzaffarabad, Rawalakot, Mirpur and Bagh, but there were no District Sports Organizers in Districts Sudhnuti, Kotli and Bhimber. Three posts were created which fell to the quota of these three districts and were advertised for the candidates of these districts/units. If we apply the method laid down in notification dated 18th January, 2007, then the post will fall vacant after the retirement or promotion of any person appointed against the quota of other district/unit and if respondent No,1 remains posted against the post of District Bhimber, the post will become vacant when the person appointed against the quota of District Kotli is promoted or he retires, meaning thereby that the appellant shall be deprived of his right to participate in the examination as he may become over age. The proposition came under consideration of this Court in Naseer Chaudhry's case [2010 SCR 186]. The facts of the case were that three posts of Assistant Director Environment were advertised by the Public Service Commission through open merit. Naseer Chaudhry who was holding the post on ad hoc basis challenged the advertisement on the ground that he is holding the post. He qualified the test and interview. The record was destroyed during the earthquake, therefore, a direction be issued to the Government for appointing him on permanent basis. The learned Judge in the High Court dismissed the writ petition with slight variation of the order that before advertising the posts, quota of each district shall be determined. On appeal, this Court set aside the judgment of the High Court protecting the order of advertisement of Public Service Commission in the light of policy instruction of 27th March, 2003. It will be useful to reproduce the policy instructions:- {{ URDU TEXT }} {{ URDU TEXT }} ' These instructions were thoroughly examined by the Court. It was observed at page 195, as under:- -- "A perusal of instructions reveals that these instructions have been issued for the particular cases when the number of posts to be filled in is less as compared to the number of administrative units.
The instructions contain that if the number of posts is less than the administrative units, then the process of selection shall be completed on the basis of open merit and the candidates to come on merit shall be appointed. It is also laid down in the instructions that whenever a candidate on open merit is appointed, his seat/post shall be deducted from the quota of relevant district. The instructions further provide that if more than one candidates from one district have qualified the test and interview, only one candidate shall be appointed from the said district and the candidate in total merit, who comes next from any other district, shall be appointed for the remaining posts."
' It was further observed at page 198 asunder:--- "In the cases reported as Umer Hayat v. Azad Government and others 1999 PLC (C.S.) 93 and Raja Tariq Aziz v. Azad Govt. And others [2003 SCR 158] this Court has held that the Government order by which quota system was introduced was first time issued on 16th March, 1971. This order was superseded on 12th March, 1972 through subsequent notification. This Court has held that the Government orders regulating the quota system in service structure have binding force and in continuation of this notification rule 12 has been incorporated in Public Service Commission Rules, which provides that the quota fixed by the Government from time to time shall be strictly followed by the Government departments.
' The instructions further protect the quota system and these are not in contravention of the Government orders relating to quota and Public Service Commission Rules."
9. We reiterate our view expressed in the case cited above that where the number of posts is less than the number of units, then only one person from the said unit can be appointed against the post although more than one person has qualified the test and interview. If the appointments are made against the seats/posts of other district/unit in the light of notification dated 18th January, 2007, where the number of posts is less than the number of units, particularly when there is no likelihood of creation of any other post in near future, that unit will be deprived of its rights and it will be a sheer violation of quota system.
10. The result of the above discussion is that this appeal is accepted, the order of the High Court dated 9th September, 2008 is set aside with no order as to costs. The Public Service Commission is directed to advertise the post of District Sports Organizer falling in the quota of District Bhimber within 30 days from the receipt of judgment of this Court. The office is directed to send a copy of this judgment to the Secretary Public Service Commission.