JUDGMENT: Mohammad Azam Khan, C.J. In response to an advertisement published in different newspapers on 25th June, 2012, apart from others, the appellant, herein, also applied for appointment against the post of Chowkidar/Naib Qasid in the Animal Husbandry Hospital, Pallandari. In the result of test and interview, he was placed at serial No.1 in the merit list and was appointed on 4th July, 2012.
Respondent No.1, herein, challenged the said order by way of a writ petition in the High Court. A learned single Judge in the High Court through the impugned judgment dated 10th October, 2013, accepted the writ petition and set aside the appointment order of the appellant on the ground that the post of BPS-1 falls within the limits of constituency No.5 and the appellant, herein, does not belong to the area of said constituency, therefore, he was not eligible to be appointed. This judgment of the High Court is subject of the instant appeal by leave of the Court.
3. Mr. Asghar Ali Malik, Advocate, the learned counsel for the appellant, submitted that the order passed by the High Court is against law and the record. The post of Chowkidar/Naib Qasid fell vacant in the Animal Husbandry Hospital at District Headquarter, Pallandari. The posts district headquarter cannot not be reserved only for the residents of the constituency concerned but the residents of the whole district are eligible to apply and be appointed against such posts. The learned single Judge failed to consider the same.
4. While controverting the arguments, Sardar Muhammad Habib Zia, Advocate, counsel for the private respondent, submitted that the post is of BPS-1 which fell vacant within the limits of constituency No.5. According to the notification dated 9th February, 1994, the posts of BPS-1 to 5 falling vacant or created within the constituency have to be filled in from the said constituency.
Admittedly, the appellant is not the resident of constituency No.5, therefore, he was not entitled to be appointed against the said post. He requested for dismissal of the appeal.
5. Mr. Mansoor Pervaiz Khan, Advocate-General, submitted that the judgment of the High Court is illegal and against law. The notification dated 9th February, 1994 is not applicable to the posts at district headquarter and central offices.
6. We have heard the learned counsel for the parties and perused the record. The post of Chowkidar (BPS-1) fell vacant in the Animal Husbandry Hospital at district headquarter, Pallandari/Sudhnoti. Apart from others, the appellant applied for the said post and was appointed as Chowkidar on the recommendations of the selection committee. Respondent No.1 by filing a writ petition in the High Court, challenged the appointment order of the appellant on the ground that the post falls within the limits of constituency No.5, whereas, the appellant, herein, is not the resident of the said constituency. In the light of the notification dated 9th February, 1994, the appellant is not entitled to be appointed against the post which is reserved for the residents of the constituency. For proper appreciation the notification dated 9th February, 1994 is reproduced as under:- {{ URDU TEXT }} A bare reading of the notification reveals that the posts of BPS-1 to 5 in constituency have to be filled in on merit from the residents of the constituency. Notification cannot be read in isolation, it has to be considered with the whole quota system.
The quota system was introduced for the first time in Azad Jammu & Kashmir through notification dated 12th March, 1972. The said notification is reproduced as under:- {{URDU TEXT}} The perusal of notification reveals that prior to issuance of this notification, a notification was issued on 16th March, 1971, whereby 10% seats in service were reserved for the backward areas.
Through the notification, the quota reserved for the backward areas was abolished and quota was fixed for the refugees settled in Pakistan, districts Mirpur, Poonch and Muzaffarabad as there were only three districts at that time. Para 3 of the notification provides that as a principle, the residents of a district shall be employed in the posts falling vacant or created in that district.
It has been observed in a case titled Azad Government & 2 others vs. Muhammad Naseer Chaudhry and 2 others [2010 SCR 186] that whole service structure of Azad Jammu & Kashmir is based upon quota system, it was observed in para No.7 as under:- "We may observe that the observance of district-wise quota in view of rules is mandatory. The whole service structure of Azad Jammu & Kashmir is based on district-wise quota." The district- wise quota was further clarified through notification dated 5th July, 1972, which is reproduced as under:- " {{ URDU TEXT }} In this notification it has been clarified that there are two categories of the posts; one gazetted and the other non-gazetted. The gazetted posts shall be advertised for the quota reserved for the said district and in the result if any candidate is not available on merit then a suitable candidate from the other districts can be appointed against the said post. For the non-gazetted posts, it is categorically laid down that the non-gazetted and lower grade posts shall be filled from the said district and if while filling in the post no suitable candidate is available then the competent officer shall consult the higher officer and suitable candidate from the other district can be appointed.
Later on, due to creation of new districts further notifications were issued for reserving the quota for the newly created districts. The notification dated 9th February, 1994 which has been reproduced herein above was issued for meeting two eventualities for the posts of BPS-1 to 5. The posts of BPS-1 to 5 shall be filled in from the residents of constituency on merit and posts of primary teacheresses in the Education Department shall be filled in on local council basis and not on the constituency basis. There is wisdom behind this notification that the employees of lower grade shall be appointed within their constituency and primary teacheresses shall be appointed within their local councils so that they may serve near to their residence. There is no ambiguity in the notification.
The said notification has been issued for facilitating the lower grade civil servants.
The effect of notification dated 9th February, 1994 has been considered in a recent judgment of this Court titled Faisal Iqbal vs. Deputy Director Commercial & 5 others [2014 SCR 553], wherein a post fell vacant in the Electricity Division Mirpur, it is clarified that the status of Electricity Division is not like that of the Revenue Administrative Division. In Electricity Department Division is established at constituency level, it was observed that notification dated 9th February, 1994, posts of BPS-1 to 5 are reserved for the residents of the relevant constituency. In the said report, it was observed as under:- "According to the notification dated 9th February, 1994, the posts of B-1 to B-5 have been specifically reserved for the residents of the constituency, wherein the posts fell vacant or created.
If a post falls vacant in the territorial limits of any particular constituent, only a person from the said constituency can be appointed against the said posts and none else. The wisdom behind the notification is that the persons in lower grade may be appointed near to their homes station. This notification has been issued to facilitate the employees of the lower grade so that they can be appointed near to their home station. The notification No.S&GAD/R-4/(347)-99, dated 26th May, 2003, through which 20% quota for the children for disable servants of grade B-1to B-5 either serving or retired is reserved does not override or supersede the provision of notification dated 9th February, 1994. The former notification shall be acted upon in the light of notification dated 9th February, 1994, which reserved the posts of grade B-1 to B-5 for the residents of the relevant constituency. The children of serving or retired civil servants B-1 to B-5 are entitled to avail 20% quota in their respective constituencies."
7. While considering the above reproduced notifications, it is to be seen that whether the posts of BPS-1 to 5, like chowkidar, Qasid, Naib Qasid and like posts in the offices at district headquarter are reserved only for the residents of the constituency where such offices are situated or the candidates of whole districts are eligible to apply. Similarly, the posts of BPS-1 to 5 in offices, at Secretariat, Special institutions, the High Court, the Supreme Court and autonomous bodies, whether, only the candidates from the constituency where these offices are situated, can apply or the candidates from whole of the Azad Jammu & Kashmir are eligible, needs resolution. A combined study of the notification dated 12th March, 1972, 5th July, 1972 and 9th February, 1994 makes it clear that there is no ambiguity in the quota notifications. The non-gazetted posts in a district have to be filled in from the residents of a district. The notification dated 9th February, 1994 carves out a special situation, where a right to apply and be inducted against the posts of BPS-1 to 5 in the constituency and for the primary teacheresses in the union council has been provided.
Such posts can only be filled in from the residents of the constituency and the union council.
8. The posts in offices at district headquarter, despite the notification dated 9th February, 1994 cannot be reserved for the constituency because the right to service in a district headquarter is not a right of only the resident of the said constituency at district headquarter. The residents of whole district have a right to the posts in offices at district headquarter like, the district administration, district education offices, the district headquarter hospital, district health offices, colleges, the district Courts, animal husbandry etc. Every resident of the district is entitled to apply against the posts at district headquarter. It may be clarified that the posts of BPS-1 to 5 in the institutions, the nature of which is not that of district level post, like the post in a primary school or in a high school and such like offices has to be filled in from the residents of constituency where the district headquarter is situated.
9. The same principle is applicable to the posts of BPS-1 to 5 in any of the offices situate in the capital, like the Secretariat, the Supreme Court, the High Court, attached departments, special institutions, autonomous bodies, the residents of whole of Azad Jammu & Kashmir and refugees settled in Pakistan are entitled to apply against such posts. These posts are not reserved for the residents of constituency.
The result of above discussion is that this appeal is accepted, the judgment of the High Court is set-aside. Resultantly, the writ petition filed by the respondent No.1 is dismissed with no order as to costs.
The judgment has been signed. It shall be announced by the Registrar in the presence of the counsel for the parties after notice.