' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby writ in the nature of mandamus is solicited against respondents to recommend and appoint petitioner against withheld post of Section Officer B-17 as a returned candidate of the Public Service Commission, pertaining to allocated quota of District Poonch.
2. The precise facts culminating into filing the instant writ petition are that petitioner is 1st class State Subject of Azad Jammu & Kashmir hails from Village Ghameer of District Poonch. The Public Service Commission-respondent No, 2 (hereinafter to be called as Commission) published four posts of Section Officers B-17 in daily News out of which 1 post was falling against quota of District Poonch, through advertisement No, 1/2009. The petitioner being qualified applied for the same against allocated quota of District Poonch and after obtaining test and interview the Commission placed him at serial No, 1 of the general waiting merit list. The petitioner, as per his claim, came to know through reliable sources that two posts of Section Officers B-17 which were requisitioned against reserved quota of District Flaveli and refugees of 1989, however, no eligible candidate could be returned for appointment against the said posts from the aforesaid units. It is averred that in case of non-availability of qualified candidates from any unit, the posts can be filled in from any other unit subject to the condition that in future a vacant post of latter Unit shall be re-allocated to the former Unit as per Government notification dated 18.01.2007. It is alleged that for mala fide reasons, petitioner could not be appointed by respondents, hence, he constrained to file the instant Constitution petition.
3. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioner is not an aggrieved party to invoke writ jurisdiction of this Court. It is further alleged that petitioner has not filed an affidavit in support of contents of writ petition, which has been filed contrary to High Court Procedure Rules, 1984 and submitted for dismissal of the same.
4. Barrister Humayun Nawaz Khan, the learned counsel for petitioner, strenuously argued that four posts of Section Officers B-17 were advertised by the Commission through proclamation No, 01/2009, out of which one post was falling against allocated quota of District Poonch, against which returned candidate who was at the top in the merit list was appointed, however, against two posts pertaining to District Haveli and refugees of 1989, no one could be succeeded in test/interview, therefore, on the basis of Government notification dated 18.01.2007, petitioner was entitled to be appointed against any of the aforesaid two posts. The learned counsel through an application dated 11.12.2014, also pleaded an additional ground that Services and General Administration Department, requisitioned sixteen more posts of Section Officers B-17 including two posts of District Poonch, through requisition dated 28.07.2010, (wrongly written as 08.07.2010), on the basis of which this Court on the same facts and grounds accepted writ petition No, 1118/2011 titled Syeda Sabeen Naz v. Azad Govt. & others decided on 01.01.2013. He maintained that petitioner can be directed to be appointed even against one withheld post of his own unit Poonch, on the basis of rule of law laid down by this Court in the aforesaid unreported case and prayed for acceptance of writ petition.
5. Sardar M.R. Khan, the learned Additional Advocate General, vehemently opposed the writ petition and submitted that against the posts pertaining to refugees of 1989 and allocated quota of District Haveli, petitioner cannot claim his appointment, although successful candidates were not returned from the aforesaid units, however, the said posts shall be filled in through fresh advertisement from the concerned units. He further submitted that requisition of sixteen posts of Section Officers B-17, was sent to the Commission for initial recruitment by Services and General Administration Department through requisition dated 28.07.2010, however, against earlier posts written test was conducted by the Commission from 27.7.2010 to 04.08.2010, hence, petitioner cannot claim appointment even against the aforesaid posts and craved for dismissal of writ petition.
6. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition and examined the appended documents with utmost care.
7. A glance perusal of record reveals that. Commission-respondent advertised four posts of Section Officers B-17 through proclamation No, 01/2009. It appears from the aforesaid proclamation that two posts were advertised against allocated quota of refugees of Jammu and Kashmir settled in Pakistan, one against District Poonch while one against reserved quota of District Kotli. The petitioner, therefore, wrongly stated in writ petition that one post pertaining to District Haveli and other relating to refugees of 1989 were vacant. It reflects from handout of the Commission dated 15.01.2011, that against two posts of refugees settled in Pakistan Nadia Sammie D/o Sardar Abdul Sammie Khan and Luqman Nasir S/o Nasir Iqbal were recommended by the Commission while against allocated quota of District Poonch one Kashif Niaz S/o Muhammad Niaz Khan whereas against unit of Kotli Shahid Hussain S/o Muhammad Yaqoob, were recommended for appointment.
The aforesaid candidates were later on also appointed by the Government-respondent on the basis of recommendations of the Commission. Therefore, claim of petitioner for appointment against any of the aforesaid vacant posts of allocated quota of District Haveli or refugees of 1989, is accordingly belied from the record.
8. The petitioner, however, through an application dated 11.12.2014, pleaded an additional ground that Services and General Administration Department, sent requisition of sixteen more posts of Section Officers B-17 including two posts of District Poonch, on 28.07.2010 (wrongly written as 08.07.2010). The aforesaid requisition was not controverted by respondents through their objections dated 20.01.2015. A perusal of handout dated 15.01.2011, reveals that candidates who passed written examination pertaining to four posts of Section Officers B-17 referred through advertisement No, 01/2009 were interviewed by the Commission from 10th January to 13th January, 2011. However, through requisition dated 28th July, 2010, sixteen additional posts including two posts of Section Officers B-17 from District Poonch were referred by Services and General Administration Department to the Commission for initial recruitment. As per rule 9 of the Azad Jammu & Kashmir Public Service Commission (Procedure) Rules, 1994, it was enjoined upon the Commission to issue an amendment in previous advertisement regarding the aforesaid sixteen additional vacancies, which speaks as under:--- "9. If the requisitioning authority intimates additional vacancies to the Commission of test/examination interview is fixed, keeping in view the time factor, a fresh advertisement/amendment to the previous advertisement shall be issued and fresh application shall be invited. The candidates, who had already applied in response to the original advertisement, may not be required to apply again."
' A bare reading of rule supra makes it abundantly clear that if requisitioning authority intimates to the Commission about the additional vacancies before the date of test/ examination or interview is fixed for earlier vacancies, keeping in view the time factor, the Commission shall issue fresh proclamation pertaining to amendment to the previous advertisement. However, in the given case, the Commission violated its own mandatory procedure although subsequent requisition for additional vacancies was sent to it on 28.07.2010, much before date of interview conducted for the posts earlier advertised through proclamation No, 01/2009. The interview was conducted by the Commission regarding the aforesaid posts on 10th to 13th January, 2011. In view of the above-stated position issue of time frame was also not involved. 'Had' these sixteen posts been included in earlier requisition, the petitioner would have been in successful candidates. It is well-settled principle of law that no person can suffer from an unlawful act of the concerned authority, which is bound to pass an order strictly in accordance with law. The aforesaid proposition came under consideration before the apex Court in case titled Syed Imdad Ali Shah and 59 others v. Azad Govt. & 8 others (2003 SCR 95), wherein at page 104 of the report, it was held as under:--- "The arguments of the learned counsel for the appellants in Civil Appeal No, 112 of 2002, carries weight that the induction of untrained teachers in service was conditional because only from such areas untrained persons could be appointed as Primary Teachers from where trained candidates were not available. No person at the relevant time challenged the appointment order of any untrained teacher on the ground that despite the available trained person he was appointed as Primary Teacher. This shows that in order to meet the requirement of the Primary Teachers in various Primary Schools, the Government was constrained, in the absence of trained candidates, to keep the rules of 1994 in abeyance whereby a person Matric 2nd division having PTC or equivalent qualification was held entitled to apply for the post of Primary Teacher. The appellants who were only Matric 2nd division but were not in possession of PTC qualification were, therefore, allowed to appear before the departmental selection committee for determining their merit against vacant posts of Primary Teachers. There must be consistency in the policies of the Government. The Government cannot penalize any person for the under committed by it."
' The aforesaid view was reiterated by the apex Court in case titled Sardar Asif Mehmood Raza v.
Abdul Khamid & 7 others (2004 SCR 298). At page 304 of the precedent case it was opined as follows:- "The whole exercise of the official respondents cannot be termed as bona fide. If at the time of induction of respondent in service the post was not advertised who is to be blamed for this lapse.
The answer definitely is that the respondent cannot be blamed as he had not to advertise the post. The competent authority has .Been guilty of making irregular appointments, therefore, it cannot be allowed to turn round and terminate the service of the respondent after inducting him in service on permanent basis particularly when his appointment was not challenged in time by any other desirous person. The competent authority in the light of peculiar facts of this case was not vested with the powers to remove him from service on the ground that his induction in service was not regular. The benefit of lapses committed by the competent authority at the time of induction of the respondent in service cannot be allowed to take away the right of service which had vested to respondent as order of his appointment was given effect and in furtherance to the same he served the department as Driver."
' The same point came under consideration before the Lahore High Court, in case titled Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore and another (PLD 1994 Lah. 3), wherein at page 8 of the precedent case, it was observed as under:--- "It is an established proposition of law that no one can suffer on account of the act of the authority, who has to pass an order or who has taken some action. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would not have been snatched away from him if successful he could have been declared to have passed the said examination in The first attempt, and, therefore, depriving the petitioner of the opportunity of passing in the 1st Annual Examination is, definitely an act which is illegal and without a lawful authority. Therefore, the petitioner is entitled to be restored to the same position as of right to the maximum possible extent and hence is entitled to be given a full opportunity to appear in the subject of Maths, and on the basis .Of result thereof is also entitled to be declared to have passed the examination in the 1st Annual Examination and not in parts. There is no doubt that the loss or the injury which the petitioner has suffered cannot be 100% compensated but this Court has jurisdiction to put the petitioner to the same position in which he was entitled to be put to whatever extent it is now .Possible. Although the Rules of the Board are silent and do not cover the situation in question yet this Court is not powerless to do complete justice in the cases where there is no prohibition to adopt a particular course."
' As in the given case the Commission-respondent violated its mandatory procedure laid down in the Azad Jammu & Kashmir Public Service Commission (Procedure) Rules, 1994, hence, on the basis of ratio-decidendi laid down in the aforesaid cases, solicited relief can be extended to petitioner against withheld posts of Section Officers B-17 which has been proved through requisition dated 28.07.2010. Therefore, as per my humble view, the petitioner cannot be penalized for an unlawful act of the Commission. This Court on similar facts and grounds extended relief to another candidate in case titled Syeda Sabeen Naz v. Azad Govt. & others (Writ Petition No, 1118/2011) decided on 01.01.2013. The aforesaid Syeda Sabeen Naz, also applied for the post of Section Officer B-17 and appeared on the basis of same advertisement No, 01/2009 against allocated quota .Of District Kotli, who earned 521.25 marks and was appointed by the Government- respondent on the basis of. Court order supra vide notification dated 29.04.2013. The petitioner who applied against allocated quota of District Pooneh, obtained 536.55 marks, as is crystal clear from handout of the Commission dated 15.01.2011, therefore, he is entitled for solicited relief accordingly.
9. The assertion of respondents in written statement that petitioner has not filed an affidavit in support of contents of writ petition is fallacious. A perusal of record reveals that writ petition is duly supported by an affidavit, therefore, the aforesaid objection is baseless which is overruled.
10. The crux of above discussion is that by accepting the instant writ petition, the Commission- respondent No, 2 is directed to recommend petitioner against one withheld post of Section Officer B-17, pertaining to allocated quota of District Poonch, requisitioned by Services and General Administration Department through script dated 28.07.2010. The other respondents are directed to appoint petitioner on the basis of recommendations -of the Commission within two, months from the receipt of the instant judgment. However, due to peculiar facts of the case the parties shall bear their own costs.