' SARDAR ABDUL HAMEED KHAN, J.--- All the above 3 writ petitions have been filed for the appointment against the posts of Assistant Sub-Inspector Police B-9 against quota of refugees 1989 and refugees Jammu and Kashmir settled in Pakistan in the light of recommendations of PSC, therefore, all the 3 petitions are being disposed off by this single order.
2. It is added that in Writ Petition No,1248 of 2009 initially there were 3 petitioners, petitioner Zafar Afsar was added as petitioner No,4 by the order of the Court date 5-3-2010, however, on the remand of the files by the Hon'ble Supreme Court of AJK the names of petitioners Nos.2 and 3 were struck off on the request of the petitioners vide order dated 10-9-2013 and petitioner Zafar Afsar was renumbered as petitioner No .2 .
3. The learned counsel, for petitioners jointly argued that the PSC advertised 53 posts of ASI B-9 out of which 9 were allocated against the quota of District Muzaffarabad vide advertisement No,1/2008.
It was further contended that after test and interview on 6/7 October, 2009, the PSC issued a handout through which 9 candidates were recommended against quota of District Muzaffarabad, however petitioners could not be recommended due to non-availability of the posts. It was further added by the learned counsel that 5 posts of refugees of 1989 and 2 posts of refugees settled in Pakistan were not filled in due to non-availability of candidates and non-qualifying of the contested candidates against the post of said units. Total 20 posts for refugees quota ware published vide advertisement annexure E and only 3 were recommended by the PSC. Hence 17 posts were still vacant at the time of institution of writ petitions. The learned counsel further contended that now the total 6 petitioners mentioned in all the 3 petitions are waiting for their appointments against the refugees quota under law. It was further contended that writ petition titled Muhammad Iqbal and others v. PSC has been accepted by the court and keeping in view the principle in that case, the appointments of petitioners are solicited. The learned counsel elaborated that 53 posts were advertised and test and interview and other proceedings were completed by the PSC whereas later on, the official respondents against the comments filed on their behalf taken contrary stand in their written statement and stated that 44 posts were advertised instead of 53 posts. The learned counsel vehemently argued that advertisement No,1/2008 was issued by the PSC wherein 53 posts were advertised, the detail of which is; Muzaffarabad 9, Mirpur 9, Kotli 3, Poonch 6, Sudhnooti 1, Bagh 4, Bhimber 1, refuges Jammu and Kashmir settled in Pakistan 15 and 5 for refugees 1989. The learned counsel for petitioners argued that the respondents violated fundamental rights and treated the petitioners by discrimination. The respondents have appointed candidate on merits passed, in case of non-availability of suitable candidates from any particular unit/District. That the High Court has been issuing direction when ever matter of discrimination was brought to the notice of the court. The learned counsel referred some unreported case titled Raja Babar Ali Khan v. AJKPSC decided on 9-11-2004, Nighat Ghulam Rasool v. AJ&K Government decided on 4-3-2005, Dr. Farah Ameen v. AJKPSC decided on 8-3-2005 and Badar Munir v. AJK Government decided on 31-8-2006 the learned counsel further argued that according to Government Policy dated 27-3-2003, coupled with Notification dated 18-1-2007, which was binding obligation on the PSC to recommend the petitioners against 25% quota reserved for promotion amongst constables having clean record, however, the failure to do so constrained the petitioners to file instant writ petitions. Lastly prayed for the acceptance of the writ petitions.
4. While controverting the arguments of the learned counsel for petitioners, the learned counsel for respondents argued that only 44 posts were available and advertisement of 53 posts by the PSC was mistaken on behalf of PSC as no posts other than 44 posts were available at the time of advertisement, hence the petitions are liable to dismissal. The learned counsel further argued that for advertisement on 15-7-2008, the PSC was informed that the PSC should undertake the test and interview for 44 posts. They also contended that first requisition was forwarded by the PSC on 11-3- 2008, wherein 44 posts were shown vacant and PSC at his own advertisement 53 posts. The learned counsel further contended that 44 posts have been filled-in the light of recommendations of PSC, in the light of court orders and against children quota of the police officials, hence no post is vacant, thus, the writ petitions merits dismissal. It was further contended that the petitioners have not attained the merit in their respective units, hence they cannot be appointed against the quota of refugees. On behalf of private respondents, it was contended that they are also constables and on the remaining posts they should be promoted under 25% promotion quota of the serving constables as laid down in the Police Rules as well as in the Police Act. It was contended on behalf of private respondents Nos.2 to 29 that the version of the respondents was considered by Honourable Supreme Court of AJ&K, wherein it was held that if 9 left over posts are filled-in in the result of acceptance of writ petitions, the respondents Nos.2 to 29 may be affected, hence they are necessary parties. Therefore, the private respondents are entitled to these posts. The learned counsel for official respondents further argued that as far as the promotion of head constables is concerned, 2 additional posts have been filled in against this quota and there is no post vacant against the promotion quota and the private respondents and the petitioners are stand at the same footing. The learned counsel relied upon 2002 PLC (C.S.) 714, 2012 SCR 367 and prayed for dismissal of all the 3 writ petitions.
5. Mr. Muhammad Yaqoob Khan Mughal, Advocate who was seconded by other counsel for petitioners in rebuttal, argued that first advertisement was issued by the PSC in daily Jang on 8-2- 2008 and amending advertisement was sent to the newspaper on 4-4-2008 and the documents referred by the counsel for official respondents is an afterthought and bogus one and have been maneuvered just to accommodate 3 sons of deceased police officers appointed as ASI and to accommodate their some other favourites. The learned counsel by making arithmetic calculation in the light of record concluded that total posts were 53 out of which 11 were appointed on the court order, 1 was appointed on the vacation of stay order and after accommodating 3 sons of police officers and 30 posts were filled in on PSC recommendations, 2 posts for expected quota and even then, 6 posts are still vacant in the light of advertisement issued by the official respondents and the petitioners are 6 who are waiting their appointments. It was further argued that in the light of previous judgments of this court the petitioners may very kindly be ordered to be appointed.
6. I have heard the learned counsel for the parties, gone through the record of the cases and given my utmost muse to respective contentions and submissions of the parties and resolves as under.
7. In the first round of litigation, the writ petitions were decided on 5-3-2012 and this order of the court was set aside on 28-11-2012/ 5-12-2012 on the appeal of respondents Nos .6 to 29 by the apex court with the direction to decide afresh with the following direction:-- "14. The result of the above discussion is that both the appeals are accepted. The judgment of the High Court in all the three writ petitions is set aside. The writ petitions are remanded to the High Court for decision after summoning and seeking written statement from all the respondents. The appellants in the appeal titled Mir Mushtaq Ahmed and others v. Syed Sharafat Hussain Naqvi and others are allowed to join as respondents in all the writ petitions, if so advised. There shall be no order as to costs.
' Before parting we may observe that the cases wherein the Government Departments/Government is the party are not properly conducted with due care and in certain cases the correct position is not brought on the record. In the instant writ petition the functionaries of the Department have filed para-wise comments not only against the law but also against the facts and interest of the Departments. A copy of the order shall be communicated to the Secretary Law, Justice, Parliamentary Affairs and Human Rights Department."
8. After adhearing the direction of honourable Supreme Court, needful was done and the necessary parties were arrayed as respondents in wall 3 petitions. It is further added that the petitioner No,2 in Writ Petition No,1248 of 2009 was added on 5-3-2010 and amended writ petition was filed on 20-5-2010, and a new para 8(a) and clause (b) in prayer clause was added whereby the petitioners prayed for direction to reserve the 25% quota for the post of ASI through Police employees having clean record as mentioned in Article 7 of Police Order, 2002 on the basis of Punjab parity.
9. A glance perusal of overall merit list dated 12-2-2010 (Annexure "PH") appended with Writ Petition No,813 of 2010 and Annexure "H" with the Writ Petition No,1248 of 2009 reveals that names of the petitioners in Writ Petition No,1248 of 2009 i.e, Syed Sharafat Husain Naqvi is placed at Serial No,41, while name of the petitioner No,2 Zafar A Afsar is not inserted in the above merit list. However, the Roll No,176 of petitioner No,2 is existing in Annexure "F" Handout/Press Release dated 25-7-2010, which is photo copy, but in the final merit list the name of petitioner is not included. The names of petitioners Aaqib Ali Qureshi, Afraz Ahmed and Mehtab Muzaffar the petitioners in Petition No,368 of 2010, are also existed at serial Nos.13, 19 and 16 respectively, whereas, name of Saqib Rashid Awan petitioner in Petition No,813 of 2010 inserted at serial No,23 of the merit list. Therefore, except petitioner No,2 Zafar Afsar Writ Petition No,1248 of 2009 all other petitioner's have qualified the Public Service Commission, therefore, on the basis of notification dated 18-1-2007 are entitled to be appointed. It is pertinent to observe here that respondents have admitted in their written statement about advertisement of 53 posts in daily news vide advertisement No,1/2008. A perusal of record reveals that 30 candidates were appointed on the basis of recommendations of Public Service Commission vide order book No,459 dated 24-11-2009 while 10 were appointed on direction of this Court vide order book No,91 dated 10-3-2010. The record shows that 13 posts have not been filled in by the respondents on the basis of overall merit of Public Service Commission dated 12-2- 2010.
10. As for as the prayer clause (b) of the petitioners is concerned, the version of the petitioners has been negated by the respondents in their written statements, wherein it is averred that there is no reserved quota for promotion of Constables as ASI and the Police Order, 2002 has not yet been adopted/is not applicable. In this situation no order is passed on clause (b) of prayer of the petitioners.
' In view of above, all the 3 writ petitions are hereby accepted and the official respondents are hereby directed to issue appointment order of petitioners as ASI, except petitioner No,2 (Zafar Afsar) in Writ Petition No,1248 of 2009 in the light of inter se merit forthwith. A copy of this order shall be placed on each file.