' The captioned writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby a direction is sought to the respondents to appoint the petitioner against any withheld post of Lecturer History (BPS-17). ,
2. Precise facts giving rise to Writ Petition No, 945/08 are that the petitioner being qualified as M.A.
History & Pakistan Studies with B.Ed, hails from District Bagh and in pursuance of advertisement No, 1/2008 she seeks direction for her appointment against the post of Lecturer History (BPS-17) on the basis of test/ interview conduced by Public Service Commission. It is claimed that prior to the advertisement 30 posts of Lecturer History (BPS-17) were vacant in the department, however, Respondents No, 2 to 4 in collusion with each other and with mala-fide intention have not sent the requisition of the above-mentioned posts. It is averred that 19 post of Lecturer History female cadre prior to the above-mentioned advertisement were vacant and occupied as a stop-gap- arrangement and in case of sending requisition of the said posts at least 4 posts were to be allocated to District, Bagh, as per bifurcation of quota p olicy. It is stated that private Respondents No, 5 to 8 have been appointed by transfer and on ad-hoc basis and the said posts were occupied by them. It is stated that official respondents with mala-fide intention have made ad-hoc appointments of Lecturers History Male and female in various colleges and requisition of the same have not been sent to the Public Service Commission. It is stated that similar controversy has been resolved by this Court in Writ Petitions No, 37/2007, 106/2007, decided on 08.09.2008, 209/2007 decided on 08.09.2008, 366/2004 decided on 09.12.2004, 199/2004 decided on 04.03.2005 and 8012004 decided on 08.03.2005, hence, on the basis which the recommendation of the petitioner may be sent to the Government for her appointment against any withheld post of Lecturer History female (BPS-17) by cancelling the ad-hoc appointments of private Respondents No, 5 & 6 and transferring back to Respondents No, 7 & 8 to in male colleges.
3. ' Writ petition was admitted for regular hearing vide order dated 09.04.2009 and notices were issued to the respondents for filing written statement, however, on request of the learned counsel for the official respondents comments were treated as written statement vide order dated 23.10.2013 wherein stand taken in the petition by the petitioner was repudiated.
4. The learned counsel for the petitioner reiterated the grounds of writ petition in written arguments and submitted therein that at the time of advertisement more than 30 posts were vacant in the department, however, the official respondents have advertised one post of Lecturer History (BPS-17) through advertisement No, 01/2008 against the quota of District Bagh whereas if the requisition of 04 posts was sent to Public Service Commission then the petitioner should have been appointed. It is submitted therein that the instant writ petition was filed on 26.12.2008 while one Saima Gillani filed a Writ Petition No, 1471/2009 on 23.11.2009 on identical point, which was accepted even she was falling at Serial No, 4 of waiting list whereas the petitioner is falling at Serial No, 1 of the said list. It is averred therein that the petitioner moved an application alongwith record pertaining to numerous withheld posts of the above discipline on 25.07.2011 but the respondents failed to object the same and thereafter the application was allowed vide order dated 21.03.2014. It is submitted therein that at the time of advertisement No, 01/2008, 04 posts were withheld as declared by this Court in Saima Gillani's case, therefore, Public Service Commission may be directed to send the recommendation of the petitioner against any withheld post for her appointment.
5. On the other hand the official respondents have filed written arguments wherein in it is stated that requisition of the available posts was sent to the Public Service Commission and successful candidates have been appointed. It is averred therein that the petitioner could not attain merit position in pursuance of advertisement No, 01/2008 and test/interview conducted by Public Service Commission, therefore, sh e is not entitled to be appointed against the post in question. It is stated there in that as per judgment titled Sarfraz Ahmed Khan vs. Azad Gout. & others decided by the apex Court, the petitioner has no case at all.
6. I have given my anxious attentions towards written arguments submitted by the parties and perused the available record minutely.
7. ' A perusal of record of case shows that 03 posts of Lecturer History (BPS-17) were published through advertisement No, 01/2008 each against quota of District Poonch, Sudhnoti and Bagh. The petitioner qualified test/ interview and was placed at Serial No, 1 of waiting merit list, however, this fact has not been denied by the official respondents and record placed before the Court also supports the claim of the petitioner. The petitioner has appended various notifications and record pertaining to ad-hoc appointments from Annexure "G" to "J/7", which have not been denied by the respondents specifically in comments, which thereafter were treated as written statement. It is very astonished to see the file that comments were filed on behalf of the respondents on 18.8.2009 and writ petition was admitted for regular hearing on 04.09.2009 whereas comments were treated as their written statement vide order dated 23.10.2013 in which after elapsing more than five years approximately many of appointments have been made by them, which have been proved by the petitioner by filing an application alongwith plethora of record of ad-hoc appointees during pendency of the case on 25.07.2011. On this application, after elapsing 2 year and 8 moths no objections have been filed, therefore, vide order dated 21.03.2014, the same was allowed. The respondents have failed to deny the assertion of the petitioner as incorporated in writ petition specifically, which seems to be evasive nature.
8. From perusal of written statement and written arguments it transpires that the respondents cannot take contradictory stand and go beyond the pleadings even they want to take hot and cold air in one breath, hence, evasive denial seems to be admitted. On this point, in a case titled Qurban Hussain us. Mst Bashir Beim and 6 others [PLD 1986 SC (AJ&K) 109], the apex Court has observed that:-- "(a) Civil Procedure Code (V of 1908) -- ----O.VIII, R. 5--Specific denial--Every allegation of fact in the plaint, if not denied specifically or by necessary implication in written statement, shall be taken to be admitted by defendant-- Defendant must deal specifically with each allegation of fact of which he does not admit the truth- -If defendant fails to do so, it can legitimately be said that fact pleaded in plaint has been admitted by defendant."
(c) Civil Procedure Code (V of 1908) -- ----0. VIII, R. 5--If allegation of fact contained in plaint is not specifically or by necessary implication denied in the written statement, it may be taken as admitted, in the discretion of the Court."
9. The main contention of the learned counsel for the petitioner in written arguments is that the petitioner has participated in test/interview and got merit position in waiting list at Serial No, 1, which was not denied by the respondents and she filed writ petition on 30.12.2008 whereas on identical point, after 11 months approximately, another writ petition titled Saima Gillani us. Azad Gout & others was filed on 23.11.2009 in which direction has been given for her appointment even she was falling at Serial No, 4 of the said list. Similar proposition has been resolved by the apex Court in a case titled AJK Government and 3 others vs. Fehmida Abdul Hussain and 8 others [2001 SCR 368] wherein it has been observed that:- "(a) Remedy avail well in time -- --Those who availed the remedy well in time and otherwise deserve relief must be given preference--The High-Court had granted relief to the respondents that they deserve their induction on preferential basis--By allowing this relief no error appears to have been committed by the High Court."
10. No doubt the petitioner has sought the remedy well in time and has a preferential right to be appointed against the withheld posts as crystal clear from Saima Gillani's case that some posts of the said discipline were withheld by the Education Department. An identical view has been expressed by the apex Court in Appeal No, 125/10, titled AJ&K Government and 3 others vs. Raja Muhammad Akram and another, in the following manner:- "8. 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, adhoc appointments have been made which is against the norms of justice."
It is crystal clear from Sub-rule (1) & (2) of Rule 23 of the Azad Jammu & Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977 that if the post is required to be filled then its requisition must be forwarded to the selection authority. For proper perception of the matter here I would like to reproduce the above rule, which reads as under:-- "23. (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.
(2) After Forwarding a requisition to the selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on adhoc basis for a period not exceeding six months pending nomination of candidate by the selection authority."
11. Even otherwise, the law is well settled that a successful candidate from one unit shall be appointed against the vacant post of another unit subject to adjustment of quota. Provided, if a suitable candidate from the said unit is not available. The respondents failed to comply with the directions of the apex Court laid down in Basharat Hussain's case decided on 21.02.2009 as well as Rue 12(2) of the Azad Jammu & Kashmir Public Service Commission (Procedure) Rules 1994. The case law referred to and relied upon by the learned counsel for the respondents in written arguments is distinguishable, hence, the same is not applicable due to peculiar circumstances of the instant case.
12. In the light of what has been discussed above, the instant writ petition is accepted and the official respondents are hereby ordered to recommend the petitioner for appointment forthwith against any withheld post of Lecturer History (BPS-17) available in female cadre on a preferential basis reserved for District Bagh.