1. ' SARDAR ABDUL HAMEED KHAN, J.--- This writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. ' The precise facts giving rise to the instant petition are that the petitioner was appointed in Azad Kashmir Police Reserves as Constable vide order dated 9-10-1990 and due to additional qualification, he was attached to Central Police Office as Constable/Typist vide order dated 22-11- 1997. It is stated that during attachment the respondent No,1 changed the cadre of the petitioner from Constable to Junior Clerk and posted in Crimes Branch of Police vide its order dated 5-11-1999.
3. It is also stated that the respondent No,2 to accommodate his favouritee, re-changed the cadre of petitioner from Junior Clerk to Constable on the pretext that the petitioner will be adjusted against the post of Junior Clerk next coming in the Department and the petitioner was transferred to Reserves Police vide order dated 31-7-2001. It is also stated that the respondent No,1 attached the petitioner with Special Branch Police against the post of Stenographer and the petitioner is performing his duties uptill now and during the period, the petitioner was transferred from Reserves Police to Special Branch as Constable/Computer Operator. The petitioner submitted that after 31- 7-2001, the respondents Nos.1 and 2 adjusted; Muhammad Khalid Constable/Arshad Mehmood Constable, Muhammad Suleman Naib Qasid and Khaleeq Ahmed Constable No,379 in different Sections of Police Department. Now, the petitioner prayed that the respondents Nos.1 and 2 may kindly be directed to fulfil their obligations by acting upon their order dated 31-7-2001 regarding transfer and permanent absorption of the petition as Junior Clerk in Police Department w.e.f, 1-11- 2001.
4. ' Kh. Muhammad Naseem the learned counsel for petitioner argued that writ petition was filed on 28-7-2007 against respondents Nos.1 and 2, however, after induction of respondents Nos.3 to 6 and change of their cadre an application for amendment was filed and after grant of the application, an amended writ petition wherein respondents Nos.3 to 6 were also arrayed as respondents was filed before this Court, wherein the petitioner has sought a writ of mandamus against the respondents Nos.1 and 2 to fulfil their obligation by acting upon his order dated 31-7-2001 regarding transfer and permanent absorption as Junior Clerk in the Police Department w.e.f, 1-11-2001, which is date of transfer and permanent absorption and joining of constable of Reserves Police No,2241 named Muhammad Khalid/respondent No,3 along with all consequential service benefits under rules.
5. ' This writ petition was admitted for regular hearing on 28-3-2009 and after filing the amended writ petition, the respondents Nos.1 and 2 filed comments on amended writ on 1-6-2009 but none else filed the comments/written statement. That vide order dated 4-6-2009, on the request of the A.A.- G. these comments were treated as written statement and the case was fixed for replication and the same was filed. It was further contended that the respondent No, 1 filed comments on original petition on 5-11-2007 which were supported by an affidavit, however, after filing of amended writ petition, comments/written statement filed by respondents Nos.1 and 2 on 1-6-2009 are not supported by any affidavit in rebuttal.
6. ' The learned counsel for petitioner reiterated the facts narrated in the petition and submitted that the petition merits acceptance as the petitioner has been treated by the respondents by discrimination and has given punishment or his hard works and loyalty with the Department. The learned counsel vehemently argued that this is a unique example of discrimination and he submitted that the petitioner has been dealt with a phrase ' The learned A.A.-G. controverted the arguments of the learned counsel for petitioner and reiterated the grounds raised in the comments/written statement filed on behalf of respondent No,1 and prayed that these may be taken as written statement on behalf of all the respondents because all other respondents are subordinate of respondent No,1 who have filed the written statement in the light of rules and record, which need no further addition by the respondents. The learned counsel in response of the court direction placed on record update report signed by AIG (Legal) dated 12-9-2013 and argued that the employees of the Police Force are recruited under Police Rules, 1934 whereas the appointment of ministerial staff are made under the Rules of AJK Police Department Ministerial Establishment of Service Rules, 1983 and Civil Servants (Appointment and Conditions of Service) Rules, 1977. He further controverted the stance of the petitioner and maintained that there is no provision of change of cadre or absorption of a Police Constable against the post of ministerial staff. He contended that if a police constable desires an appointment in ministerial staff he has to undergo test and interview conducted in view of some advertisement as and when some posts are vacant. He also contended that the petition is hit by rules of laches as the petitioner is praying for implementation of order of respondents Nos.1 and 2 of year 2001 and has come to the court in year 2007. Lastly he prayed for dismissal of the petition.
7. ' I have heard the learned counsel for the parties and gone through the record of the case.
8. ' As earlier stated that only comments/written statement filed by respondents Nos.1 and 2 in the light of submission of learned A.A.-G. treated it as written statement of all the respondents. It is added that the same is not supported by affidavit in rebuttal. It is obvious from the contents of written statement of respondents that the respondents have not specifically denied the contents of petition and it is settled law that a evasive denial amounts to admission.
9. ' That para No,8 of amended writ petition is self explanatory which is reproduced Herewith for sake of connivance:--- "8. That after the order dated 31-7-2001 Annexure "C" many posts of Junior Clerks and Stenographers occurred and fell vacant in Police Department, but the respondents Nos.1 and 2 did not act upon their own order regarding petitioner's adjustment as per their commitment uptill now. And instead Muhammad Khalid Constable, Arshad Mehmood Constable, Muhammad Suleman Naib-Qasid/ Dak-Runner and Khaleeq Ahmed Constable No,379 whose dates of recruitment as constables/Naib Qasid as per seniority list of Junior Clerks of Police Department, copy attached herewith as Annexure "CC" are respectively 17-12-1996, 10-12-2001, 1-8-1989 and 3- 2-2000 were transferringly adjusted on permanent basis as Junior Clerks in different sections of Police Department. Which acts of the respondents being maliciously motivated badly jeopardized and adversely affected the vested service rights of petitioner. Copies of adjustment order of Muhammad Khalid and Khaleeq Ahmed Constables on Junior Clerks dated 1-11-2001 and 24-7- 2007 copies attached herewith as Annexures "DD" and "EE", would go a long way to prove that neither the above vacancies of Junior Clerks were advertised nor the appointments/adjustments were made through the departmental selection committee. Be that as it may, it cannot go without saying that the petitioner having been transferringly appointed/adjusted on the post of Junior Clerk in Crimes Section since 5-11-1999 annexure "B", and inspite of his repatriation as constable since 31-7-2001 Annexure "C", been continuously performing the duties of a full fledged Stenographer/Clerk in the Police Special Branch (reference order dated 11-10-2002 Annexure "D"), he had got the preferential right of permanent absorption/adjustment as Junior Clerk in Police Department by virtue of his comparative superior merits, better educational qualification and seniority (his date of appointment as Constable being 8-10-1990) vis-a-vis the above appointees as well the overall proficient and efficiency admitted by his superiors and immediate bosses. And the respondents Nos.1 and 2 in view of their pledges and commitments explicitly made vide order dated 31-7-2001 Annexure "C", were under bounden legal obligation to have permanently adjusted/absorbed the petitioner as Junior Clerk in the Police Department prior to the above four appointees as well any and everybody else after the above date in view of the equality protection clause of the Constitution. But instead of doing so and judiciously dealing with the case of petitioner an absolutely malicious attitude was demonstrated by the respondents by again issuing a futuristic commitment letter No,32287/CPO/Admin 2007 dated 3-10-2007, copy attached herewith as Annexure "FF", which was nothing more but making a mere mockery of the situation.
10. Anyhow, after reiterating the contents of Order No,11474-77/CPO/Admin/2001 dated 31-7-2001 Annexure "C" through their fresh communication dated 3-10-2007 Annexure "FF" the respondent have categorically admitted the entitlement of petitioner's adjustment against the post of Junior Clerk in the Police Department retrospectively. And his adjustment as such w.e.f, 1-11-2001 i.e, order of adjustment of a Junior Constable No,2241 Muhammad Khalid as Junior Clerk bearing No,16423- 28/CPO/Admin/2001 dated 1-11-2001 Annexure "DD" stands fully recognized as his righteous due."
11. ' In written statement of respondent while replying above para 8 of the petition it has been contended by the respondents "That under departmental rules neither there is any provision of individual recruitment nor cadre of police force can be changed to ministerial staff. It is added that after year 2001 all the posts of Junior Clerk B-5 and Stenographer B-12 have been filled in through advertisement and through Departmental Selection Board".
12. ' The reply of respondents to para 8 of writ petition it is found that the respondents version is approbation and reprobation. Moreover, the respondents have not specifically denied or replied to their orders and letters referred in para 8 of the petition. Hence court has no choice but to conclude that the version of the petitioner has neither been specifically denied nor the respondents specifically ruled out orders and letters referred in the para ibid. Thus it amounts to admission, as has been held time and again by the apex Court.
13. 'The objection of learned A.A.-G. regarding the laches is also repelled. It is revealed from the record of the case that from the order of respondent No,2 dated 31-7-2001, the petitioner has been waiting for fulfillment of obligation of respondents. However after 31-7-2001 respondents Nos.1 and 2 adjusted respondents Nos.3 to 6 as Junior Clerks who were the Junior Constables to the petitioner and last order of this series issued in favour of respondent No, 6 was issued on 24-7-2007 and the petitioner filed the instant petition on 28-7-2001 very vigilantly.
14. ' The bare reading of the last appointment/adjustment of respondent No,6 and the orders of other respondents from 3 to 5 are self speaking that the cases like petitioner have been adjusted/transferred, promoted, and absorbed as Junior Clerks out of constables. Some documents referred above which have been written by the respondents in favour of petitioner admitting his ability, eligibility and competency which speak very high of the petitioner, but all in vain. The petitioner is still waiting for his rightful adjustment/absorption. After waiting for 6 years, on issuance of last order of adjustment passed in favour of respondent No, 6, the petitioner without any delay knocked the door of the Court by invoking the constitutional jurisdiction of this Court. As earlier said that the version of the petitioner has not been rebutted by filing any affidavit in rebuttal.
15. The petition warrants acceptance. As for as the Police Rules and other Rules referred by the A.A.-G. are concerned, the pretext of the respondents is totally contrary to the practice and rules referred by the respondents. In the above circumstances the petitioner is an aggrieved person, who has approached the court vigilantly, who has been deprived of his fundamental right of equality before law and protection from any type of discrimination.
16. 'In the light of what has been stated above, the instant petition is accepted and the respondents Nos.1 and 2 are directed to adjust/transfer the petitioner and permanently absorb him as Junior Clerk in the Police Department from 1-11-2001 along with all consequential service benefits forthwith.