' M. TABASSUM AFTAB ALVI, J.--- The above captioned writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law are involved in the aforesaid writ petitions, therefore, I proposed to decide the same through this single judgment.
3. The summary of Writ Petition No,730/2011 is that petitioner Muhammad Javeid, is a first class State Subject, hails from District Kotli, who is qualified as B.A. And is a permanent employee of Information Department having more than 20 years service in his credit. According to Directorate General of Public Relations/Information Service Rules, 1994, substituted through notification dated 16.12.2006, for the post of Information Officer B-17, 60% quota is reserved for initial recruitment and 40% is allocated for Ministerial Staff. The petitioner being Junior clerk B-7 of Divisional Office Mirpur was granted an additional charge pertaining to the post of Information Officer B-17 vide notification dated 14.11.2008. He was later on appointed on 'current charge basis against the aforesaid post in District Kotli vide notification dated 12.02.2009. It is stated that working paper for promotion of petitioner on officiating basis against the post in question was submitted by Director Information Respondent No,3, to Secretary Information-respondent No,2, on 10.11.2010, however, needful was not done. Meanwhile he was posted as Information Officer Divisional Office Mirpur, on 12.01.2011. It is alleged that official respondents with ulterior motives have determined to fill in the disputed post by ad-hoc appointment through initial recruitment, hence, the instant constitution petition is filed for sending case of petitioner to respective Selection Board for his regular promotion against 40% allocated quota of promotion.
4. The writ petition has been resisted by official respondents through comments which were treated on request of their learned counsel as written statement vide order dated 12,12.2013. It is stated that petitioner is a Junior Clerk B-7 who was appointed on current-charge basis for 06 months as Information Officer B-17 which period was already expired. It is maintained that out of total 08 posts of Information Officer B-17, 03 posts were falling against 40% quota of promotion, against which three employees of Ministerial Staff namely Said Ullah Bhatti (Accounts Clerk B-09), Maqsood Ahmed Mir (Stenographer B-12) and Pervaiz Ahmed (Accounts Clerk B-09) were promoted, hence, quota of promotion was no more available. It is further stated that disputed post was advertised through Daily News on' 03.02.2011, for initial recruitment on ad-hoc basis and after obtaining test/interview conducted by the Public Service Commission, on the basis of merit summary was also submitted to Governments for appointment of eligible candidate. The aforesaid respondents also raised serious allegations of using high political influence for ill-gotten gain of promotion against petitioner and prayed for dismissal of writ petition.
5. The facts forming background of Writ Petition No,1424/2012 are that petitioner Nasir Mehmood, is a first class state subject, hails from District Sudhnooti, who is qualified as M.Sc. In Mass Communication. It is stated that against 60% quota of initial recruitment as visualized through Directorate General of Public Relations/ Information Service Rules, 1994, amended vide notification dated .16.12.2006, 01 post of Information Officer B-17 was published on open merit in Daily News by advertisement No,01/2011 dated 09.04.2011. Later on another post of Information Officer B-17 was also added for initial recruitment on open merit through amended advertisement dated 17.05.2011.
However, through notification dated 10.05.2012, requisition of 01 post was withdrawn by Government-respondent. The claim of petitioner is that out of ,total 08 posts of Information Officer B-17, at least one post was falling 'against allocated quota of District Sudhnooti, hence, craved that by setting aside amended advertisement dated 17.05.2011 and notification dated 10.05.2012, the said post be directed to advertise against reserved quota of his unit Sudhnooti.
6. The writ petition has been contested by official respondents Nos.1 to 5 through written statement, wherein, it is stated that no Information Officer has yet been appointed from Districts Poonch, Neelum, Hattian, Forward Kahuta and Refugees settled in Pakistan, although Raja Latif Hasrat, Information Officer B-17 was appointed from 'District Sudhnooti, who stood retired in the year, 2009.
It is maintained that due to 05 limited number of posts, it was not possible to allocate-unit wise quota, hence, the posts were advertised on open merit. It is stated that petitioner participated in test and interview conducted by the Public Service Commission but remained failed in the open competition. It is alleged that on Court order a requisition was withdrawn from the Public Service Commission through notification dated 10.05.2012, hence, submitted for dismissal of writ petition.
7. The private respondents Nos.6 and 7 also filed separate written statement claiming 40% promotion quota, narrating facts of Writ Petition No,730/2011, hence, craved for dismissal of petition.
8. The brief facts of Writ Petition No,1818/12 are that petitioner Qurat-ul-Ain, is first class State Subject, hails from District Muzaffarabad, who is qualified as M.Phil in Mass Communication. It is stated that through advertisement No,01/2011 dated.
09.04.2011, the Public Service Commission-respondent advertised 01 post of Information Officer B-17 on open merit, however, later on 01 more post was added through amended advertisement, in Daily Ausaf dated 17.05.2011. The petitioner being qualified applied for the same and after completing selection process, she was awaiting for appointment, however, 01 post of Information Officer B-17 was withdrawn from the Public Service Commission by Government-respondent vide impugned notification dated 10.05.2012. It is 'further averred that official respondents to promote one more favorite against promotion quota, withdrew the requisition of 01 post from the Public Service Commission for mala fide reasons, although promotion quota was already overflowed. It is maintained that petitioner after passing test and interview was falling at merit, hence, solicited from the Public Service Commission merit list, however, the same was not issued. It is alleged that due to issuance of the impugned notification dated 10.05.2012, fundamental right of petitioner regarding entry into service has been violated, hence, the instant constitution petition is filed for quashing the aforesaid notification and issuance of necessary direction of her appointment.
9. The writ petition has been resisted by respondents through written statement, wherein, it is stated that petitioner has got no locus standi to file the instant writ petition. It is claimed that 02 posts of Information Officer B-17 were advertised, however, later on requisition of 01 post was withdrawn on Court order in case titled "Muhammad Javid v. Azad Govt. And others", therefore, only 01 post was vacant for initial recruitment, hence, the candidate who was at top in the merit list was appointed. It is maintained that only 08 posts are available in Information Department and according to Statutory Rules 60% quota, is for direct recruitment, whereas 40% quota is allocated for promotion, therefore, 05 posts pertained to quota of initial recruitment and 03 posts for promotion. It is claimed that notification. Dated 10.05.2012, was issued in accordance with law and submitted for dismissal of petition.
10. The writ petition has been controverted by private respondent No,6 through separate written statement repeating facts of his Writ Petition No,730/2011, which are not repeated here for the sake of brevity.
11. Sardar Muhammad Habib Zia, the learned counsel for petitioner Muhammad Javeid, strenuously argued that disputed post of Information Officer B-17, pertains to 40% promotion quota as per Directorate General of Public Relations/Information Service Rules 1994, substituted vide notification dated 16.12.2006. He maintained that previously an additional charge of disputed post was given to his client vide notification dated 14.11.2008, who was later on appointed on current charge basis vide notification dated 12.02.2009 and presently is holding the said post on officiating basis. He further argued that although there are 08 posts of Information Officer B-17, however, later on two more .Posts became available, therefore, submitted that by issuing writ of mandamus, the matter pertaining to promotion of his client be referred to respective Selection Board and submitted for acceptance of writ petition of petitioner Muhammad Javeid and. Craved for dismissal of other petitions.
12. Mr. Sajid Hussain Abbasi, the learned counsel for official respondents strenuously argued that disputed post of Information Officer B-17 pertains to quota of initial recruitment. He submitted that in this regard a detailed report was submitted by Secretary Information before this Court on 14.01.2015, therefore, prayed for dismissal of writ petition.
13. Mr. Asghar Ali Malik, the learned counsel for petitioner Nasir Mehmood, has filed written arguments, wherein it is stated that father of petitioner was not appointed on the basis of District wise-quota as District Sudhnooti, was established in the year' 1995, whereas father of petitioner entered in service on recommendations of the Public Service Commission in 1980. He submitted that disputed post was unlawfully taken back from the Public. Service Commission vide notification dated 10.05.2012, which may be directed to advertise against allocated quota of District Sudhnoti, hence, submitted for acceptance of the aforesaid writ petition.
14. Ch. Shoukat Aziz, the learned Additional Advocate General, submitted that there are 08 posts of Information Officer B-17, out of which 3 posts pertains to promotion quota, whereas, 05 posts allocated to quota of initial recruitment. As the aforesaid 05 posts could not be distributed amongst all units of Azad Jammu and Kashmir, therefore, claim of petitioner Nasir Mehmood, that disputed post be directed to be 'advertised against quota of District Sudhnooti is baseless. He also defended. Notification dated 10.05.2012, whereby 01 post of Information Officer B-17, was withdrawn from the Public Service Commission and submitted for, dismissal of all the three writ petitions and prayed for advertisement of post on open merit afresh.
15. Ch. Muhammad Manzoor, the learned counsel for petitioner Qurat-ul-Ain, pressed into service that 01 post of Information Officer B-17, was referred to the Public Service Commission for initial recruitment on open merit vide advertisement No,0-1/2011 dated 09.04.2011 and again through an amended advertisement dated 17.05.2011, second post was also advertised on i7.05.2011. The petitioner being qualified applied for the same and after obtaining test and interview' she was placed at Sr.No,2 of the merit list. He emphasized that against 01 post topper candidate was appointed, however, for mala fide reasons the requisition of second post was recalled vide impugned notification dated 10.05.2012. He further argued that as petitioner after obtaining test and interview is falling at the Sr. No,2 of the merit list, therefore, necessary direction for her appointment is demand of law and justice.
16. After hearing the learned counsel for parties, I have perused the contents of writ petitions, examined the appended documents with utmost care and have given my earnest thought to the points raised by the learned Advocates for parties.
17. According to the Azad Jammu and Kashmir Directorate Generalof Public Relations and Information Service Rules, 1994, substituted vide notification dated 16.12.2006, for the post of Information Officer B-17, 40% quota is reserved for promotion and 60% is allocated for initial recruitment. The relevant extract speaks as under:-{{TABLE}} S . # Name of the Department Functional Unit Name of the Post with Grade. . Appointing Authority 1 " 2 3 4 5 1 Directorate General of Public Relation Administration Information Officer B-17 Govt.
Qualification for ' Method of Recruitment Age for initial recruitment Examination / Training and other condition for confirmation Initial Recruitment Promotion. Min Max 6 7 8 9 10 M.A. Journalism (2nd Div.) Graduate (2nd Div) i) 40% by promotion on the basis of seniority- cum- fitness from amongst officials holding the post "of Officers "B-16 or Ministerial Staff in the Department with 12 years service as such and qualification as per col.
7. 22 38 Selection through AJK PSC as per Syllabus prescribed for the post of ASP/AC/SO. ii) 60% by initial recruitment as per col. 6. iii) By transfer from any Govt.
Department ' A perusal of record reveals that there are 08 posts of Information Officer .B-17 in the Information Department. However, as petitioner Muhammad Javeid, disputed about strength of 02 more posts, therefore, as per agreement between the learned counsel for the parties, in this regard a report was solicited from Secretary Information, which was duly tiled before the C6urt on 14.01.2015. The aforesaid report is reproduced as under:-{{URDU TEXT}} ....7-7 /c;r*.,4 0.; /.A.X.iI3 ,...-1, .1, &t II); 3 s, ry 2 X U.-Z),(1 2 ),1.4.1 1 X je...471.>""fr(2 r)11 x 1 3 1./.) j'0.4b 1 49)1'. 2 rid x . 1 vvvr:41 1 tA., 3 r):( 1 x. . Jt:,,L41,,,, 1 Lk, 4 x 1 h.14:4% fr . 1 .4.441,1) 5 {{URDU TEXT}} {{TABLE}} ' After examining record and report of Secretary Information, I have no hesitation to hold that there are 08 posts of Information Officer 13-17. It is an admitted fact that against 40% promotion quota 03 employees from Ministerial Staff were already promoted on regular basis as Information Officer B-
17. However, against 60% allocated quota of initial recruitment, out of 5 posts, 03 candidates were appointed on recommendations of the Public Service Commission. Thereafter, 01 post of Information Officer B-17 was advertised by the Public Service Commission for initial recruitment through advertisement No,1/2011 dated 08.04.2011. Later on through amended advertisement, 01 more post of Information Officer B-17 was also added for initial recruitment on open merit through "Daily Ausaf" dated 17.05,2011. The petitioner Qurat-ul-Ain, being qualified as M.Phil, in Mass Communication applied for the said posts. After obtaining test and interview the candidate who was topper in the merit list was appointed on. Recommendations of the Public Service Commission, hence, 4th post was also filled in through initial recruitment. The requisition of 2nd advertised post was, however, withdrawn by the Government-respondent vide impugned notification dated 10.05.2012. Now the question, arises that whether after advertisement of post and completion of selection process the Government-respondent could have withdrawn requisition of the post in question. As per my humble view, after advertisement of the disputed post test and interview were taken by the Public Service Commission, hence, there was no any valid justification to recall the requisition of 2nd post at the belated stage. An identical point came under consideration before the Apex Court, in case titled "Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Govt. Through Chief Secretary and 03 others" [1999 PLC (CS) 1007]. 'At page 1010 of the report, it was opined as under:- "The learned counsel for the parties do not differ on any of the factual aspects of the case. The facts are that the disputed post was advertised, date for interview was fixed and call letters were dully issued. Meanwhile a letter was written by the Secretary Electricity Department on which interview for the disputed post was postponed. In his letter the Secretary intimated that the.
Government wanted to change the rules. The High Court has held that mere filing of applications did not vest any right in the appellant. However, this Court has in a recent judgment, announced about two weeks ago, held that if Departmental Rules are amended by the Government after sending the requisition to the Public Service Commission the amended rules will not apply to the advertised post. The Court has also held that if a post has been advertised candidates have a right to be considered according to the qualifications etc. Laid down in the advertisement."
The Apex Court in case of Muhammad Imtiaz Khan, supra quashed withdrawal order of a post of Assistant Electric Inspector B-17 from the Public Service Commission when the same was advertised, date for interview was fixed and call letters were issued; while in the instant case after taking interview selection process was finalized by the Public Service Commission, when Govt.
Notification dated 10.05.2012, was issued through which the disputed post was withdrawn which action is accordingly bad in law.
18. A reading of the impugned notification dated 10.05.2012, reveals that by showing the disputed post as temporary and till decision of this court requisition was withdrawn. The post was never shown as temporary in advertisement dated 17.05.2011, therefore, so called justification of temporary post falsified from record. As petitioner Quratul-Ain, after test and interview was placed at Sr. No,2 of the merit list, therefore, a right has accrued in her favour and she cannot be deprived of her fundamental right pertaining entry into service. The aforesaid .Proposition was considered by the Apex Court in case titled Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others. [2006 SCR 312]. At page 320 of the report, it was held as under:- "So for as the appellants Nasreen Akhtar and others are concerned, it is an admitted fact that they appeared in the light of advertisement dated 25.07.2004, before the selection committee and passed the test and interview. Under law they are entitled to be appbinted against the vacant posts for which they contested. Even otherwise they were not party before the High Court and the judgment under challenge has been passed at their back. The Education Department should have issued their appointment orders in the light of merit list but unfortunately they were dragged in the litigation which is the fault on the part of officials of Education Department. Even otherwise only the notice dated 02.08.2004 was challenged by Sameena Bilqees in the High Court and the learned Judge of the High Court only declared the notice as being illegal and without jurisdiction, whereas the appellants Nasreen Akhtar and others appeared for test and interview before the Selection Committee in the light of advertisement dated 25:07.2006 and passed the same. The respondent Sameena Bilqees did not challenge the aforesaid advertisement. She only challenged the notice dated 02.08.2004 and the learned Judge of the High Court only declared the notice as without lawful authority, therefore, the judgment of the High Court was not binding on the appellants. As the appellants Nasreen Akhtar and others have secured positions in the merit list, therefore, a right has accorded in their favour and they cannot be deprived of their rested right.
Even otherwise, for the sake of argument, if it is accepted that the advertisement dated 25.07.2006 was issued without lawful authority, even then that was the fault of the department, not the appellants. No person can be penalized for the fault of the department."
19. The stance taken by the official respondents in written statement dated 15.01.2013, in case of Nasir Mehmood, that on the basis of order of this Court dated 04.04.2012, requisition was recalled from the Public Service Commission is also falsified. The Court through the aforesaid order never directed to the official respondents for withdrawal of the disputed post from the Public Service Commission, therefore, withdrawal ex-facie seems as malicious to promote one more employee from Ministerial Staff.
20. As per record petitioner Muhammad Javeid, was granted charge of disputed post of Information Officer B-17 vide Government notification dated 14.11.2008. He was later on appointed on current charge basis against the said post vide notification dated 12.02.2009. Therefore, the aforesaid petitioner was appointed as a stop-gap arrangement against the allocated quota of initial recruitment, hence, his claim that the disputed post be filled in against 40% promotion quota is baseless.
21. It appears from record that petitioner Muhammad Javeid, failed to challenge advertisement dated 17.05.2011, through which the disputed post was published for initial recruitment. He also failed to challenge selection process of the Public Service Commission, hence, he is not entitled to solicited relief even from this angle.
22. The claim of petitioner Nasir Mehmood, that the disputed post of Information Officer B-17, related to unit Sudhnooti is misconceived. As there were only 05 posts pertaining to quota of initial recruitment, hence, Information Department could not distribute the aforesaid posts amongst all .Units of Azad Jammu and Kashmir. At the time of advertisement there were Ten Districts of Azad Jammu and Kashmir, besides two more units of refugees settled in Pakistan and refugees of 1989. It is by now settled law that when number of posts will be less than administrative units, then the posts shall be advertised on the basis of open merit. The proposition was resolved by the Apex Court in case titled Azad Government and 2 others v. Muhammad Naseer Chaudhry and 2 others (2010 SCR 186). At page' 199 of the report, it was held as 'under:- "In the case in hand the number of posts of Assistant Director, Environment was only three. The number of administrative units at the time of advertisement of posts was stated to be eight, therefore, it was not possible for the department to determine the quota of districts. In that case the method provided in aforesaid instructions was correctly adopted by the department while sending the requisition to the Public Service Commission for advertising the posts on open merit basis."
23. The petitioner Nasir Mehmood, in view of settled law ibid is, therefore, also not entitled to solicited relief as such.
24. The gist of above discussion is that finding no substance in Writ Petitions Nos.730/2011 and 1424/2012, therefore, the same are hereby dismissed with costs. However, Writ Petition No,1818/2012 is accepted and impugned notification dated 10.05.2012, through which requisition of the disputed post of Information Officer B-17 was recalled by Government-respondent is quashed as without lawful authority and is of no legal effect. Consequently, the Public Service Commission-respondent is directed to issue recommendations in favour of petitioner Qurat-ul-Ain and rest of official respondents are directed to appoint her against the aforesaid post within two months from the receipt of the instant judgment.