' SARDAR ABDUL HAMEED KHAN, J.--- Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the petitioner has sought a direction to the respondents for her induction in service against the posts, withheld by the Department at the time of requisition of the posts.
2. Facts of the case, shortly stated are that Education Department advertised posts of Lecturers in English, Female Cadre in the year, 2010. The petitioner, being qualified and eligible for appointment applied and contested the examination conducted by the PSC. It has been claimed that the petitioner qualified the written examination and her name was placed at serial No,3 of the waiting list. It has been alleged that the department, at the time of requisition of the posts, withheld various posts and due to non-availability of posts, the petitioner could not be appointed. It has been stated that had the department advertised all the vacant posts, the petitioner would have been among the successful candidates and would have been appointed against one of the posts, definitely.
3. The petition has been contested by the respondents by filing written statement, wherein, the claim of the petitioner has been refuted in toto and it has been stated that no post was withheld by the Department at the time of requisition of the posts. It is further stated that the petitioner's name was placed at serial No,3 of the waiting list, whereas, only one post of the relevant discipline was lying vacant and the principal candidate was appointed in light of the merit list. It is claimed that the waiting list, according to rules was valid for a period of 6 months but the petitioner, after elapse of prescribed/subscribed period, being unsuccessful has knocked the door of this Court, who deserves no relief from this Court.
4. Barrister Adnan Nawaz Khan, Advocate, the learned counsel for the petitioner, repeated his version taken in the petition and stressed the point that the respondents, in order to accommodate their kith and kins withheld the posts and due to non-availability of posts, the petitioner could not attain merit position and resultantly could not be appointed. The learned counsel maintained that had the department advertised all the withheld posts, the petitioner must have been among the successful candidates. The learned counsel finally prayed for issuance of a direction for appointment of the petitioner.
5. Conversely, the learned AAG, appearing on behalf of the Education Department, refuted the claim of the petitioner, categorically and stated that the apex Court of Azad Jammu and Kashmir, after detailed scrutiny and inquiry has declared that no post was withheld by the department. The learned counsel submitted ad hoc appointment of some candidates does not mean that the post is vacant on permanent basis but ad hoc appointment is normally made in lien of some employee or for some other reason, therefore, it cannot be said that the posts were vacant and ad hoc appointments have been made. The learned AAG maintained that the petitioner's name falls at serial No,3 of the waiting list, therefore, she could not be considered for appointment. The learned AAG maintained that the waiting list, according to rules, remains valid for only six months ad during six months the petitioner could not be appointed and now she is not entitled to claim appointment on the basis of such waiting position. Finally, the learned counsel prayed for dismissal of the petition with heavy costs.
6. I have heard the learned counsel for the parties, gone through the record of the case and have also considered the law on the subject, with due care.
7. At the very outset of the case, it may be stated that the controversy regarding withholding of vacant posts, at the time of requisition to the PSC came under consideration of the apex Court and stood resolved in a case reported as "Azad Government and 2 others v. Muhammad Qadir Javed and another, [2014 PLC (C.S.) 1334]. Relevant observation of the apex Court situates at page 489 of the report, which reads as under:- 8.................................................................... ................................................................................
" These posts have been created/occurred after advertisement No,1/2009, therefore, it cannot be concluded that any other clear vacancy was available in the quota of District Muzaffarabad except the post advertised through advertisement No,1 of 2009. While dealing with the proposition in Sarfraz Ahmed Khan's case, (2012 PLC (C.S.) 755), this Court observed that all posts which are vacant at time of sending requisition, shall be requisitioned to the Public Service Commission and advertised accordingly by the Public Service Commission. If any clear vacancy was available at the time of requisition and it was withheld by the authorities with mala fide intention it is not permissible and withholding of such post is without lawful authority but the post which is subsequently created or the post against which the ad hoc appointment has been made in lien or for any other such reasons, it cannot be said that such vacancy was a clear vacancy. It was observed in para 21 of the judgment as under:-- "21 It may be observed that the posts are advertised through the Public Service Commission but it takes long time for conducting examination, test and interview and during this period some new posts are created by the Government or become vacant due to any other reason and ad-hoc appointments are made against these posts. The candidates take it as these posts were vacant at the time of advertisement. We want to make it clear that any post which was not available at time of advertisement or was subsequently created in new budget or is available due to retirement of any person or any other reason becomes in existence before the test and interview is conducted by the Public Service Commission, it cannot be said that the post was available at the time of advertisement and the department has withheld the same."
8. In para 9 of the report it was observed as under:- "9. The respondent claimed that he was at serial No,1 in the waiting list of the quota reserved for District Muzaffarabad in the subject of Chemistry, therefore, he was entitled to be appointed on the basis of said waiting list against any vacancy which occurred subsequently. Rule 13 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 deals with the preparation of waiting list and appointment from the said list. For proper appreciation the rule is reproduced as under:- "13.(1) A person appointed on the recommendation of Commission fails to join the service or is declared medically unfit, a candidate next in the merit list from the waiting list shall be recommended, on the request of the department concerned, and for this purpose the Commission shall prepare a waiting list.
(2) The waiting list prepared under sub-rule (1) shall remain valid for 180 days from the date of selection of the candidate.
(3) The waiting list shall not be valid in case of fresh vacancies referred to Commission just after test and interview of the previous vacancy."
' From the plain reading of rule it appears that when a candidate appointed against a post on the recommendation of the Public Service Commission, fails to join the service or he is declared medically unfit, then the department shall request the Public Service Commission to recommend the candidate for appointment next in the merit list from the waiting list prepared by the Public Service Commission in the result of test and interview. It is further provided in the rule that the waiting list shall remain valid for 180 days from the date of selection of the candidate and sub-rule
(3) makes it clear that this waiting list shall not be valid in case of fresh vacancy requisitioned to the Commission if the test and interview have already been conducted for the previous vacancies.
The wisdom behind the rule is that the Public Service Commission has jurisdiction to conduct test and interview only for the vacancies which were available at the time of advertisement and requisitioned to it by the concerned department. The candidates who applied for requisitioned vacancies can only be appointed against the said posts but not against the vacancy which would become available in future. The appointments on newly created posts in the result of test and interview conducted by the Public Servibe Commission in a previous advertisement will deprive of such candidates from participating in competition who were not qualified or could not apply due to any reason, at the time of previous advertisement. Thus, it can safely be concluded that the candidate placed by the Public Service Commission in the waiting list in the result of test and interview conducted in response to advertisement issued by the Public Service Commission on the requisition of the department, can only be appointed against the post if the candidate who was appointed on the recommendations of the Commission fails to join the service or he is declared medically unfit and department requested the Public Service Commission to recommend the candidate next in the merit list from the waiting list prepared by the Public Service Commission and this merit list shall remain valid only for a period of 180 days. No candidate who has qualified the test and interview and is placed in the waiting list can be appointed against the post which becomes available after the test and interview have been conducted by the Public Service Commission in response to previously advertised vacancies."
9. After having a careful consideration of the relevant rule and dictum of the apex Court of Azad Jammu and Kashmir, I am of the view that nothing remains to be attended and decided by this Court.
10. So far as the objections raised by the respondents regarding filing of the petition after expiry of the waiting list is concerned, in this regard, Sub-rule (2) of Rule 13 of the Azad Jammu and Kashmir Public Service Commission, (Procedure) Rules, 1994 clearly postulates that the waiting list become invalid and ineffective after 180 days of the selection. In the instant case, the hand out was issued by the Public Service Commission in 2010, whereas, the instant writ petition has been filed on 18.07.2013, which means that at the time of filing of the instant writ petition, the impugned waiting list was nowhere, in the field, therefore, the petition was incompetent at the relevant time.
11. So far the question of withholding of vacant posts is concerned, the controversy has also been resolved by the apex Court of Azad Jammu and Kashmir by rendering detailed observations, therefore, no further explanation or inference is required at the point.
12. The epitome of the above discussion is that, the instant writ petition is hereby dismissed for having no substance.
13. Order announced. The file shall be consigned to record after due completion.