' MUHAMMAD AZAM KHAN, C.J.--- All the above captioned petitions for leave to appeal have been filed against different judgments of the Azad Jammu and Kashmir High Court, whereby writ petitions filed by the petitioners, herein, have been dismissed. Since' common question of law is involved in all the petitions, these are disposed of through this single order.
2. In all the petitions for leave to appeal, the petitioners filed writ petitions in the High Court alleging therein that they are M.A./M.'Sc. In different disciplines and have been appointed as Lecturers on ad hoc basis. The Education Department advertised the posts through advertisements Nos.1 of 2006, 1 of 2007, 1 of 2008, 3 of 2008 and 1 of 2009. They alleged that the Education Department, with mala, fide intention, failed to advertise all the posts which were available at the time of advertisements of the posts. The department withheld some posts with mala fide intention so that they could appoint some of their favourites. All the petitioners prayed for issuance of direction to the Education Authorities that since each of the petitioners has passed the test and interview, a direction be issued to them that they may appoint them against the posts withheld by the department against the respective district quota and in some of writ petitions it was prayed that if the post of respective district quota is not available, the candidate be appointed against the quota of any other district/unit. The learned Chief Justice in the High Court issued pre-admission notices to the respondents. The Education Department and Public Service Commission filed para-wise comments. It was categorically explained by the Education Department that all the available posts at the time of advertisements were advertised. No post was withheld. After hearing the arguments, the learned Chief B Justice in the High Court dismissed the writ petitions through impugned judgments on different dates.
3. Ch. Muhammad Latif, Advocate, while arguing on behalf of Sarfraz Ahmad Khan, Khizar Hayat and Shahzad Ikram, petitioners, who participated in the examination held by the Public Service Commission vide advertisement No, I of 2006, argued that the judgment of the High Court is not maintainable. The Education Department advertised only five posts while more posts were available at the time of advertisement. He referred to the notifications dated 14th May, 2010 and 24th September, 2008, whereby 9 Lecturers were appointed by the Government on ad hoc basis and in column No, 4 it was written that requisition has been sent for appointment against these posts. On the basis of this record, he argued, the department has withheld some posts.
4. Mr. Mushtaq Ahmad Janjua, counsel for Ejaz Maqbool, petitioner, argued that in paragraph 6 of the comments filed by the Public Service Commission, the Public Service Commission has taken the stand that the requisition of the posts was sent to the Public Service Commission, no other post of the subject of Economic is available. The other part relates to the Education Department. He referred to the reply of paragraph 6 of the comments filed by the Education Department and argued that in paragraph 6 the Education Department has taken the stand that 16 posts were available while only 10 posts were advertised. He further argued that in advertisement No,1 of 2009, some more posts have been advertised which means that some posts were available at the time of advertisement No,1 of 2008 and these were withheld with mala fide intention.
5. While arguing on behalf of Raja Sajid, petitioner, Ch. Muhammad Latif, argued that only 13 posts of Lecturers Chemistry were advertised while there were 20 posts of Lecturers Chemistry at the time of advertisement No,1 of 2008. The department withheld 7 posts with mala fide intention. This fact is proved from the record. He referred to an unreported judgment of this Court titled Azad Government and others v. Raja Muhammad Akram and others [Civil. Appeal. No,125 of 2010 decided on 16th April, 2011].
6. Mr. Mansoor Pervaiz Khan, counsel for Samina Naz, petitioner, argued that 12 posts of Lecturers Biology have been advertised vide advertisements Nos.1 of 2007, 1 of 2008 and 3 of 2008 while there were total 19 posts available. The department withheld some posts with mala fide intention. He referred to notification dated 161h May, 2011 whereby appointments of 27 Lecturers have been made on ad hoc basis or ad hoc period has, been extended. He argued that while issuing .Ad hoc appointment orders, in column No,4 it is laid down that the requisition of the posts has been sent to the Public Service Commission. 'It is a sufficient proof that the Education Department has withheld the posts.
7. Sardar Karam Dad Khan, counsel for Naseer Haider, petitioner, argued that only 13 posts of Lecturers Botany, have been advertised vide advertisement No,1 of 2008. In fact there were 19 posts available. The Education Department withheld the posts with mala fide intention. He referred to ad hoc appointment orders of different dates and argued that in column No,4 it is written that requisition has been sent for filling in the same but a number of posts were vacant.
8 Sardar Karam Dad Khan, Advocate, while arguing on behalf of Farhat Yasmin, petitioner, argued that at the time of advertisement No,1 of 2009, there were 4 posts of Lecturers Psychology vacant but the department with mala fide intention advertised only 2 posts. Had the department advertised the other posts, one more post becomes available in the quota of District Bagh. The petitioner has already passed the test and interview conducted by the Public Service Commission, she was to be appointed. The High Court failed to consider this aspect of the case.
9. Raja Sadaqat counsel for Syed Abdul Hakim Shah, petitioner, argued that the petitioner was appointed as Lecturer Islamyat on' ad hoc basis on 3rd December, 2004 and his ad hoc appointment is being extended from time to time. The respondents want to terminate his service.
He requested that the High Court has not considered his case in true perspective. A restraint order be issued against the respondents that they shall not terminate his services.
10. Mir Sharafat Hussain, counsel for the respondents, argued that Syed Abdul Hakim Shah, petitioner, has been relieved of service vide notification dated 2nd December, 2010 and one Dilshad Ahmad has been appointed as Lecturer at his place on 2nd December, 2010. He defended judgments of the High Court on all counts in, all the petitions for leave to appeal and argued that no post was withheld. The judgments of the High Court are perfectly legal. No case is made out for grant of leave.
11. On the last date of hearing, we summoned the Secretary Education Department and sought details of the posts which were available at the time of advertisements. We also ordered to Secretary Education (Colleges) that he shall provide the details whether any post which was available in the relevant subject was withheld at the time of advertisement. The Secretary Education has presented detailed report in the Court. After hearing the learned counsel for the parties, we have also perused the record with utmost care and considered the arguments of the counsel for the parties. The only question which needs resolution by this Court is whether any post in the relevant subject was withheld by the department which was available at the time of advertisements and the allegation of the petitioners that some posts were withheld is proved from any record or not.
12. Three petitions for leave to appeal filed by Sarfraz Ahmad Khan, Khizar Hayat and Shahzad Ikram, pertain to the subject of Political Science. The posts of Political Science were advertised vide advertisement No,1 of 2006. These three petitioners have relied upon notifications dated 14th May, 2010 and 151h May, 2010, and prayed that they have passed the test and interview and on the direction of the High Court, the Public Service Commission has forwarded their result to the Secretary Education Department and some appointments in .Different subjects were made on 15th November, 2010. In para-wise comments, the department categorically took the stand that no post was ever withheld. All the available, posts at the time of advertisement No,1 of 2006 were advertised. The department has sent the details of the posts. It is appropriate to reproduce the same as under:- {{ URDU TEXT }} 01/2006 {{TABLE}} ,./.0,- /1.A; L':. ,E.f?
',) e L-7 4 3S6) 'VI 1.4:1111j.,/, 4; C):1" .
4. IS 4:1'4.) I..., L- 7',11:11,4.;3 A 4.1:: tf"LL S Withheld j`11.5L-7i41 B ,,)?1,-7 4 /i0I...".1.,-1;1,:'' c L)1.;-Al.--7 7 18.
19.20 -j...'1 .L...--GeL4)144--7 D 4.)VL-7 IS JVI,C)Y. {{TABLE}} From the detail, it is evident that 4 posts were advertised through advertisement No,1 of 2006. Four posts were in lien and 7 posts were reserved for direct quota of grades B-18, B-19 and B-20. Only four posts were available for filling in through the Public Service Commission which were advertised. The petitioners failed to bring on record any other material wherefrom it could be ascertained that any post which was available was not advertised. The petitioners have been acting in misconception that seven posts which were reserved for direct induction in grades B-18, B-19 and .B-20 were also available for advertisement. Their assertion is that vide notification dated 15th November, 2010, some appointments were made by Government. This notification was issued on 15th November, 2010 and the advertisement was issued in the year 2006. After a lapse of more than four years, how it can be said that the posts filled in 2010 were available in year 2006 at the time of advertisement.
13. The case of Farhat Yasmin is that she is appointed as ad hoc Lecturer in the subject of Psychology. She has passed the test and interview of the Public Service Commission. The department has advertised only two posts of Lecturers Psychology and one post was withheld with mala fide intention. It will be useful to reproduce the details furnished by the department relating to the subject of Psychology as under:-- {{ URDU TEXT }} {{TABLE}} ,..).? L- 7 2 jr-JI.;)1.1X,r,/,....4,;(,;,k4JScA)V le T:Vg1 1;1 A 62 6/2,,...Yrs Withheld 4,54-1,c1./rStrlf B SL, ( 1 Ji .01)V le1;1); C j6-7 I 18. ..,-- , 19, 20 --t,;;.)...:Y=.--liell:L,I.Tel,.-7 D )V -' 4 LArL'reit'.' {{TABLE}} ' A perusal of the report reveals that in all there were 4 posts of Lecturers Psychology at the time of advertisement No,1 of 2009. One post was reserved for direct induction in grades B-18, B-19 and B-20. One post was in lien and two posts were vacant which were advertised through said advertisement. Furthermore, the department has conveyed that the petitioner could not attain the merit. She is serving as ad hoc Lecturer against the post of B-18. The petitioner failed to bring on record any other record contrary to the one produced by the department. It appears that the petitioner was of misconception that one post which was reserved for direct induction in grades B-18, B-19 and B-20 is vacant and was not advertised.
14. In the case of Ejaz Maqbool, the department has furnished the detail that in all there were 22 posts of Lecturers Economics available at the time of advertisements No,1 of 2007, 1 of 2008 and 3 of 2008. Six posts were in lien, 16 posts were available which were advertised through three different advertisements. The appointments of only 9 candidates were made on the recommendations of the Public Service Commission while the appointments on 7 posts were not made due to the stay order issued by this Court in case titled Hussain Khan v. Azad Government. It is further informed by the department that no post was withheld. The petitioner could not attain merit position. His case for appointment cannot be considered. The detail furnished by the department is reproduced as under:--- {{ URDU TEXT }} {{TABLE}} L,J1...-17)1,4; .0-:a.47 iV".2 LAr L-7 16 L31:131./ill:/%11,764:. CP:4.J kieLii,L,-7L,1,,; A Nill j:1:1 fs Withheld L)g:-...Jl,-TL3.1kr B LAAL-- 6 )cCAjleL-rilt C LA.,1.-7 Nil 18, 19. 20 4.;./.4./(1....,-H.0.4LAAL-7 D L,)?L-7 22 J e'L-Q)lie. {{TABLE}}
15. The case of Samina Naz, petitioner, relates to the subject of Biology. Her claim is that there were 19 posts of Lecturers Biology.
Only 12 posts were advertised through three different advertisements Nos.1 of 2007, 1 of 2008 and 3 of 2008 and remaining posts were withheld with mala fide intention. She has filed ad hoc appointment orders of different Lecturers issued in the year 2010. The department furnished details of the posts which were available at the time of aforesaid three advertisements in the subject of Biology and Zoology ladies cadre. According to detail furnished by the department, the available posts of Lecturers Biology and Zoology were 19 in all. One post was reserved for direct induction in grades B-18, B-19 and B-20 while 6 posts were in lien. Only 12 posts were available at the time of these advertisements in both the subjects which were advertised. It is further explained by the department that out of 12 posts appointments against ten posts have been made on the basis of recommendations of the Public Service Commission while the appointments against, the two posts have not been made due to the stay order issued by this Court in case titled Hussain Khan v. Azad Government. The detail furnished by the department is reproduced as under:- {{ TABLE }} 6) ir L-- 7 12 ISJ Le-. !IX:v.4c c,,:14. Lci:A.,) l.... L- L; 1.4; A Nill ,..,:r1cr_fLr Withheld 4,5117:-ji./ILW B L)1-'1.--7 6 )."*Cf')? Lel; I); C jl, 7 1 18.
19. 20 -L,i.l..):J.z..,-1.02i,..)?l,-T D L)i../ L-7 19 L)?1,7:)1/. {{ TABLE }} ' The detail furnished by the departments relates to both the subjects of Biology and Zoology, ladies cadre. It appears that the petitioner has been calculating the posts under the misconception that six posts are only of subject of Biology while six were in fact in the two subjects. Moreover, the petitioner relies upon ad hoc appointment orders of different candidates which have been issued in the years 2010 and 2011. The posts were advertised in the years 2007 and 2008. During this period three budget sessions have passed and the Government has created new posts. The posts filled in by ad hoc appointments in the years 2010 and 2011 cannot be, said to be vacant in the years 2007 and 2008.
16. The claim of Naseer Haider, petitioner relates to subject of Biology. His grievance is that at the time of advertisement No,1 of 2008, 19 posts were available but only 13 posts were advertised and 6 posts were withheld with mala fide intention. For proving his case, ad hoc appointment orders of different persons issued in the years 2010 and 2011 have been brought on record. We have summoned the record from the department. The detail furnished by the department is reproduced as under:--- {{ TABLE }} ') if-^ le 7 13 Lijl,-.14---ti,,/,,,,4.- ,!--:),C.LI6A,,j14"1,--7',,?-11,4;* A Nill ,,f1, C Withheld 6?.--'6,c le iii.-r B ,,A.,-'1,-- 7 2 01)1 L- 7,1,4; C L,1 I A L.- 7 4 18.
19. 20 , , ...i.;.:;)..t.i.,,-:.--Ifekt,)?l,--7 I) ,),':-.L,-7 19 '.) e Le ie):: {{ TABLE }} ' It is evident from the detail furnished by the department that in all 17 posts in the subject of Biology were available at the time of advertisement No,1 of 2008. Four posts were reserved for direct induction in grades B-18, B-19 and B-20 while 2 posts were in lien. There remain only 13 posts and requisition to the Public Service Commission against these 13 posts was sent. It is further explained by the department that no post was withheld by the department. The department has further explained that out of 13 posts, appointments against ten posts have been made while the appointments against the remaining seats have not been made due to stay order issued by this Court in the case titled Hussain Khan v. Azad Government. Furthermore, the petitioner could not attain merit position, therefore, he was not considered for appointment.
16. The case of Raja Sajid Khan, petitioner, relates to the subject of Chemistry. His stand is that he applied for one of the posts in response to advertisement No,1 of 2008. 20 posts of Lecturers Chemistry were available but the department has withheld 7 posts and only 13 posts were advertised. The argument that some Lecturers have been appointed on ad hoc basis in the years 2010 and 2011 against some posts is a proof that the department has withheld some posts is misconception and without any foundation. It will be useful to reproduce the detail furnished by the department for the subject of chemistry which is as under:---
17. {{ TABLE }} ..4." 13 ilSi..)L-/1/k.:::6,- V.-4:.'::*".";?-"Ii3i.:%...q.Et,-73.411-4; A Nill ,./..17(1,c_jo c,a--- ,. - I ( ,- Withheld ,, ,,)1,-10/lz B ,)?L-7 7 ,i .01,1? 1,4;i C Nill 18.
19. .
20 0 ,1 , D ..)?1,-7 20 L)VL,TOX {{ TABLE }} ' It is evident from the detail furnished by the department that in all 20 posts of Lecturers Chemistry were available at the time of advertisement No,1 of 2008. Seven were in lien and 13 posts were available at the time of advertisement and requisition was sent to the Public Service Commission for filling in these posts.
No post was withheld. It is further explained by the department that out of 13 posts appointments on 9 posts have been made while 4 posts could not be filled in due to the stay order issued by this Court in the case titled Hussain. Khan v. Azad Government. The department has further explained that the petitioner applied in response to advertisement No,1 of 2008 and he could not pass the examination. His name does not exist in waiting list of advertisements Nos.1 of 2007, 1 of 2008 or 3 of 2008. The claim of the petitioner that since any ad hoc orders have been issued in the years 2010 and 2011 in column No,4 it is held that posts have been requisitioned is not worth consideration because we have to see the relevant date on which the advertisement was issued.
18. Syed Abdul Hakim Shah, petitioner, claims that he is holding the post on ad hoc basis since 2004. He seeks direction that a restraint order be passed against the respondents that they may not terminate his services and he be permanently inducted in service on the strength of Bilal's case. The record reveals that his services have been terminated vide order dated 2nd December, 2010 and one Dilshad Ahmed has been appointed against his place. When he is already out of service, the grant of leave will be of no use to him. In a case titled Mst. Tan weer Ashraf and others v.
AJ&K Government and others (Civil Appeal No,35 of 2007 decided on 25-5-2011 we have already declined to follow the rule of law laid down in Bilal's case.
19. All the petitioners claim to have been appointed on ad hoc basis on different dates. As hoc appointment is made under rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which provides that when a post is required to be filled in the appointing authority shall forward a requisition to the selection authority immediately and after requisition is sent to ale selection authority, the appointing authority, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months. It is regrettable that there is a general practice in Azad Kashmir that ad hoc appointments are extended years and years instead of adopting due process. The Constitution guarantees that all State Subjects are equal before law and are entitled to equal protection of law. Instead of providing an equal opportunity to the eligible candidates of fair competition for filling in the posts by selection through Public Service Commission, ad hoc appointments are made. Arbitrarily on political 01 other considerations in violation of law. The laws of the State shall equally apply to all the citizens. It is the requirement of the law that all the posts which are vacant at the time of sending the requisition to the Public Service Commission shall be requisitioned and the posts be advertised/published in newspapers of mass circulation. If any post is available at the time of sending the requisition to the Public Service Commission, and it is not sent or withheld, it is a mala fide action and such action is liable to be declared as without lawful authority. This view finds support from a case titled Azad Government and others v. Raja Muhammad Akram and others (Civil Appeal No,125 of 2010 decided on 16-4-2011), wherein it has been held as under:- "Another aspect of the matter, which needs proper attention of the Education Department, is that almost after every advertisement, a common grievance of the candidates is noticed that the Education Department is not requisitioning all the posts, which are available at the time of requisition, rather many posts are withheld by the department and against the said posts, ad hoc appointments have been made, which is against the norms of justice. By not requisitioning the vacant posts, the canvas broadens, for the reason that after that many new candidates become qualified for the posts and competition becomes more tough and tight which adversely affects the right of those candidates who were qualified at the earlier stage. This practice of withholding the available posts must come to an end."
20. The petitioners have specifically alleged that the posts have been withheld by the department.
They failed to bring on the record any proof to substantiate their claim. Initially the burden of proof is on the party who alleges the fact. If the party discharges the burden, then it shifts on the other party. The petitioners failed to substantiate their claim from the record that the posts have been withheld by the department and from the perusal of the record produced by the Education Department, we are satisfied that at the time of relevant advertisements no posts were withheld by the department.
21. It may be observed that the posts are advertised through the Public Service Commission but it takes long time for conducting examination, test and interview and during this period some new posts are created by the Government or become vacant due to any other reason and ad hoc appointments are made against these posts. The candidates take it as these posts were vacant at the time of advertisements. We want to make it clear that any post which was not available at the time of advertisement or was subsequently created in new budget or is available due to retirement of any person or any other reason becomes in existence before the test and interview is conducted by the Public Service Commission, it cannot be said that the post was available at the time of advertisement and the department has withheld the same.
The result of the above discussion is that finding no force in all the above titled petitions for leave to appeal, these are dismissed with no order as to costs.