' Raja Saeed Akram Khan, J.--This appeal has been directed against the judgment of the Shariat Court dated 25.09.2013, whereby while setting aside the judgment of the Additional District Court of Criminal Jurisdiction, Hajira the judgment of the trial Court has been restored.
2. The facts in brief are that Sardar Muhammad Zaman Khan, the complainant, lodged an F.I.R. At Police Station, Abbaspur on 8.11.1996, alleging therein, that his brother Sardar Ghulam Hussain Khan purchased a piece of land from Muhammad Aslam, the brother of Muhammad Afsar Khan, accused, in lieu of Rs, 4,00,000/-. Muhammad Aslam has handed-over the possession of land along with the house and crops over the land. Thereafter, he insisted to return the land whereupon, a panchayat' was convened and the matter was settled between them. Later on, Muhammad Aslam committed the breach of the decision of "panchayat" and forcibly took the possession of the land etc., and also hewed maize crop. It is further alleged in the F.I.R. That on 8.11.1996, at 5:30 p.m., the complainant's wife along with the wives of Sardar Ghulam Hussain and Sardar Muhammad Sadiq Khan went to ask the health of Muhammad Siddique's mother, where the wife of Muhammad Afsar, accused, called them inside the house. Meanwhile. Muhamamd Afsar armed with .12-bore rifle, Muhamamd Riaz and Said Akbar, armed with pistols, came there. The accused started firing on the spot. In the meantime, the complainant went at the spot to know that why the firing is being made but all the three accused beat him severely. On hearing hue and cry, when his brother Sardar Ghulam Hussain arrived at the spot, the accused Muhammad Afsar Khan caused a blow with the butt of rifle on his head. Muhammad Riaz, accused, pelted a stone, which hit on the face of Ghulam Hsussain and also caused blow of butt of the gun at his arm. Said Akbar, accused, with the intention to kill, fired a shot upon the complainant's wife, Mst. Musarrat Begum, which landed on the backside of her neck. Along with the accused, Muhammad Nazir, Gohar Nazir, Ghulam Haider, Latif, Rafique, Tahir, Nadeem, Saleem, Sherdil, Zaffar, Sagheer, Nisar, Afsar Jan and Muhammad Khaliq, armed with sticks were present at the spot. Muhammad Nazir caused blows, to the complainant and his wife with hockey, whereas, the other accused pelted stones and hurled abuses to the complainant ,party. The accused Ghulam Haider, Nadeem, Saleem and Khaliq also gave blows of fists and kicks to the complainant. Besides Khan Muhammad Khan and Muhammad Siddique, the occurrence was witnessed by many other people of the vicinity. On this report, a case under Sections 324, 337, 147, 148,149 and 506, APC was registered against the convict-appellants and others. After usual investigation, the challan was presented in Tehsil Court of Criminal Jurisdiction, Abbaspur against Muhammad Afsar, Said Akber, Muhammad Riaz, Muhammad Nazir and Muhammad Khaliq, whereas, the other accused were given benefit under Section 169, Cr.P.C. After conclusion of trial, the Tehsil Court of Criminal Jurisdiction, Abbaspur convicted the appellants, whereas, the other accused were acquitted of the charge vide its judgment dated 5.4.2003. The convict-appellants filed an appeal against the aforesaid judgment of the trial Court in the Court of Additional District Court of Criminal Jurisdiction, Hajira which was decided on 17.5.2005 and the case was remanded to the trial Court for decision afresh after recording the statements of the accused under Sections 342, Cr.P.C. On 30.5.2005, the aforesaid statements were recorded and the case was decided on 30.08.2005, through which the accused were again convicted. The convict- appellants challenged the aforesaid judgment in the Additional District Court of Criminal Jurisdiction, Hajira on 1.09.2005, which was decided on 8.11.2007 and the case once again was remanded on the ground that all incriminating material was not put to the accused. On remand, the trial Court again recorded statements of the accused under Section 342, Cr.P.C., on 18.3.2008 and after hearing arguments decided the case on 7.5.2009, whereby Said Akbar, appellant, was convicted and sentenced under Section 337-F(i) to one year's simple imprisonment along with Rs, 10,000/- as daman, which was to be paid to Mst. Musarrat Begum injured and in default of payment thereof, it was ordered to detain the convict in jail till realization of payment. Moreover, he was also sentenced under Section 13 of the Arms Act, 1965 for one year's simple imprisonment along with a fine of Rs, 2,000/- and in case of non-payment the convict has to go under further imprisonment for 1/4th period of the total imprisonment. Muhammad Riaz, appellant, was convicted and sentenced under Section 337-A(i) for six month's simple imprisonment along with Rs, 8000/- as Daman which was to be paid to Ghulam Hussain, injured and in default of payment it was ordered to detain the convict in jail till realization of payment. The aforesaid judgment was challenged by the convict-appellants, herein, in Additional District Court of Criminal Jurisdiction, Hajira on 8.5.2009, by way of appeal which was decided on 28.10.2009 and the convict-appellants were acquitted of the charge. Feeling dissatisfied, injured Ghulam Hussain challenged the judgment of the Additional District Court of Criminal Jurisdiction, Hajira 'before the Shariat Court.
The Shariat Court set aside the judgment passed by the Additional District Court of Criminal Jurisdiction, Hajira, dated 28.10.2009 and while upholding the judgment of Tehsil Court of Criminal Jurisdiction, Abbaspur maintained the sentence awarded to the convict-appellants by the trial Court. Hence, this appeal.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the convict-appellants argued that the learned Shariat Court while maintaining the conviction recorded by the trial Court failed to appreciate the evidence in a legal manner. He submitted that well reasoned judgment was passed by the 'Additional District Court of Criminal Jurisdiction, Hajira which has been disturbed by the Shariat Court without assigning any reasons. He contended that the learned Shariat Court also failed to take into account that the medical evidence does not corroborate the ocular account which creates a serious doubt, whereas, it is settled principle of law that the benefit of the slightest doubt must go to the accused being a favourite child of law. While referring to the medical report, he submitted that the nature and size of the injuries shown by the doctor cannot be caused as stated by the, prosecution. He added that the doctor while recording his statement as a witness, has also made the statement on different lines. He further added that according to the doctor's statement, the exit wound was found, whereas, the complainant stated in his statement that the bullet was recovered from the body in the hospital. He strongly argued that two injuries of the same nature/size cannot be caused by a single bullet, whereas, in the medical report entry and exit wound both have been shown as of the size of 2x2cm which creates a serious doubt. Admittedly, all the prosecution witnesses (PWs) are closely related to the complainant's party and their testimony cannot be relied upon without strong corroboration, whereas, no such corroboration is available on record. He further added that report of Forensic Science Laboratory has not been brought on record, moreover, no empties/cartridges have been recovered which makes the case further doubtful. He added that the stone through which the alleged injury was caused to one Ghulam Hussain has also not been taken into custody. He added that recovery of .32-bore revolver was made 5 days after the arrest of the accused which appears to be unnatural. He submitted that nothing is on record that whether at the time of recovery of revolver, the bullets/empties were found lying in it or not. He further added that 18 PWs were cited in the calendar of witnesses but only 11 were examined and 7 have been given up without assigning any reason. While referring to the statements of different witnesses, he stated that there are glaring contradictions in their statements which cannot be ignored lightly. He lastly submitted that there is a number of doubts in the instant case, whereas, it is recognized phenomenon of law that a single doubt is sufficient to acquit an accused. He has relied upon the case reported as Muhammad Aslam v. State 11999 SCMR 1721. Jan Aslam v. The State & others [2004 P.Cr.LJ 681, Muhammad Riaz & others v. The State 12008 P.Cr.LJ 3181 and Nazir Ahmed v. The State and others 12002 P.Cr.LJ 1491.
4. On the other hand, Barrister Hamyun Nawaz Khan. Advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convict- appellants. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He submitted that the impugned judgment has been passed by the learned Shariat Court after duly appreciating the evidence brought on record. He added that it is a case of direct evidence and the prosecution has succeeded to prove the case against the convict- appellants beyond any reasonable doubt. In this state of affairs, the other corroborative pieces of evidence have no value in the eye of law. He added that the place, manner, date and time of the occurrence are admitted as defence failed to cross-examine the prosecution witnesses on the material points. He submitted that all the PWs made the statements in line with each other and mere relationship cannot be made a ground for discarding their testimony when no enmity of the witnesses against the convict-appellants came on the record. The occurrence took place in a house and the presence of the PWs is natural one. While referring to the different portions of the statements of eye-witnesses, he submitted that they fully implicated the convict-appellants in the occurrence. The FIR was promptly lodged and all the accused were nominated in the FIR with their specific roles. He added that during the course of cross-examination, a suggestion was put by the defence that the complainant was aggressor. Whereas, the defence failed to substantiate the same through any evidence. However, on Court's query, the learned counsel for the complainant failed to satisfy, the Court regarding the delay in recovery of revolver and non-recovery of cartridges. He has relied upon the cases reported as Ishtiaq Ahmed & others v. The State and others IPLJ 2013 SC (AJ&K) 2311 and Muhammad Tahir Aziz v. The State & another 12009 SCR 711.
5. Ch. Shaukat Aziz, the learned Additional Advocate-General, also adopted the arguments advanced by the learned counsel for the complainant. While making addition, he added that no illegality has been committed by the Shariat Court while restoring the judgment of the trial Court as the convict-appellants actively participated in the occurrence and caused injuries to the complainant party. The statements of the injured witnesses are much reliable which cannot be ignored lightly.
6. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment with utmost care a caution. It is spelt out from the record that occurrence took place on 08.11.1996, at about 5:30 p.m. And the FIR was lodged after one hour of the occurrence i.e,, 6:30 p.m.. The role assigned to the convict-appellants is that at the time of occurrence they were armed with pistols. The convict-appellant, Said Akbar fired a shot which hit the neck of the complainant's wife, whereas, convict-appellant, Muhammad Riaz inflicted injury with a stone to the brother of the complainant, Ghulam Hussain due to which his teeth and lips were injured. Moreover, they also beat the complainant party. The learned counsel for the convict-appellants submitted that the medical report does not corroborate the ocular account which creates a serious doubt. To appreciate the argument, we have examined the medical report. According to the medical, report a fire-arm injury was found at the neck of the complainant's wife, moreover, the medical report also corroborates the other injuries inflicted to the complainant party as narrated in the FIR. In the occurrence, three persons were stated to be injured. The injured persons also appeared before the Court and recorded their statements as witnesses. We have examined their statements. It would be advantageous to reproduce here the relevant portions of their statements which read as under:-- ' The complainant, Muhammad Zaman, stated in his statement that: {{URDU TEXT}} ' The other injured witness, namely, Ghulam Hussain stated that: {{URDU TEXT}} ' The injured witness, Musarrat Begum, wife of the complainant stated in her statement that: {{URDU TEXT}} The juxtapose perusal of FIR, medical reports and the statements of injured witnesses, we do not find any substance in the argument of the learned counsel for the convict-appellants that the medical report does not corroborate the ocular account. The argument of the learned counsel for the convict-appellants that two wounds of the same size cannot be caused by a single fire, whereas, in the medical report I the entry and exit wound both are shown as 2x2 cm which makes the case doubtful, is also not convincing in nature. It may be observed here that it depends upon the angle of fire or movement of the body and there is no hard and fast rule that entry wound must be small as compared to the exit wound.
7. We have also scanned the evidence of the eye-witnesses but failed to find out any major contradiction in the statement of the witnesses. It may be observed here that the evidence of the eyewitnesses cannot be brushed aside until some gross-contradictions come on the record. In the instant case, the discrepancies pointed out by the learned counsel for the convict-appellants are minor in nature which can be ignored. The argument which has strongly been argued by the learned counsel for the convict-appellants before this Court, is regarding the non-production of some witnesses cited in the calendar of witnesses. It may be stated here that it is settled principle of law that the discretion lies with the prosecution to examine the witnesses of its own choice and the prosecution cannot be compelled to examine each and every witness cited in the calendar of witnesses. Even otherwise, the witnesses who have been forgiven or not examined are not the material witnesses. In a recent judgment titled Karamat Hussain vs. The State (Criminal Appeal No, 10 of 2012 decided on 16.05.2015) this Court while dealing with the proposition observed as under: "Although, 14 witnesses were cited in the calendar of witnesses, however 12 were examined and one could not be examined due to his death and the remaining other one was abandoned. There is plethora of judgments of this Court that it is not necessary for the prosecution to examine each and every witness cited in the calendar of witnesses. It is sweet-will of the prosecution to examine the witnesses of its own choice".
8. We have also considered the argument of the learned counsel for the complainant that on the material points the eyewitnesses were not cross-examined. For our satisfaction, we have examined the statements of the eye-witnesses from this angle. It transpires from the perusal of the statements of the eye-witnesses that the argument of the learned counsel has substance. It appears from the perusal of the statements that on the material points, the witnesses have not been cross-examined by the defence side even no question regarding the place, manner and time of occurrence has been put to the witnesses. It is settled law that if a portion of the statement is not challenged in cross-examination, the same is deemed to be admitted. In this state of affairs, it can safely be held that the manner, place and time of occurrence are not denied. The learned counsel for the complainant has rightly relied upon the case reported as Muhammad Tahir Aziz v. The State 12009 SCR 711, wherein, this Court has Observed as under: "18 His presence at the place of occurrence along with other witnesses was not disputed during the cross-examination. When there is no cross-examination on the aforesaid points, then the same will be deemed to be admitted because it is well settled principle of law that failure to cross-examine on a particular point shall be deemed to be admitted."
9. The argument of the learned counsel for the convict-appellants that the witnesses are related to each other, therefore, their evidence cannot be believed, is also not convincing in nature as there is plethora of judgments that mere relationship cannot be made a ground to discard the testimony of the witness until some ill-will or animosity of the witness against the accused comes on the record. In a recent judgment titled Ghazanfar Ali v. The State and others (Criminal Appeal No, 31 of 2011 decided on 13.04.2015) this Court has observed as under: "The argument of the learned counsel for the convict-appellant that all the witnesses are closely related to each other, therefore, their statements cannot be believed, has also no substance. It is settled principle of law that mere relationship is no ground for discarding the evidence of a witness.
Reliance can be placed on a case reported as Irfan Hussain v. Allah Din and others [2014 P.Cr.LJ 3121, wherein it has been held that: 'From the Survey of case law, it appears that "mere relationship is no ground for discarding the evidence of witnesses. It may be observed that a party may rope innocent persons in a crime along with a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person'."
' It is also spelt out from the record that occurrence took place in a house, therefore, the presence of the witnesses seems to be natural. Even otherwise, defence failed to bring any piece of evidence that the presence of the eye-witnesses at the time of occurrence is doubtful. The learned counsel referred to the statement of one Muhammad Yaseen while submitting that the said witness is shown in the calendar of witnesses as eye-witness but he stated in his statement that he has not seen the occurrence. We have also examined the statement of said witness. He statedin his statement that: ' The learned High Court after necessary proceedings through consolidated impugned judgment dated 19.6.2014 disposed off the writ petition as indicated in the preceding Paragraph No, 1.
3. Mr. Raza Ali Khan, Advocate, the learned counsel for the appellants, while arguing Appeal Na. 236 of 2014 titled Syed Khadim Hussain Bukhari and others vs. Imran Aziz Butt & others, submitted that the judgment passed by the High Court is against law and the facts of the case, which is not sustainable in the eye of law. He further contended that at the time of requisition, only one post which was held by Respondent No, 1, was available. He submitted that the other post became vacant due to resignation of Tahir Saleem Usmani, therefore, the claim of the respondent that the post which had been advertised was not the one which he was holding is totally against the facts and record. He contended that the respondent, while concealing the true facts from the High Court, succeeded to get the direction in his favour. The learned counsel contended that before completion of the process of selection in the Public Service Commission, the Government vide notification dated 21.12.2010 shifted one post of Assistant Director Mineral Resources to the Department of Industries, Commerce and Labour. He submitted that appellant No, 1 was appointed against the said post on promotion basis. He further contended that the respondent did not challenge the notification dated 21.12.2010 and after the promotion of appellant No, 1, there was no post available. The learned High Court erred in law while holding that two posts were available at the time of the requisition and one was withheld by the Public Service Commission/department. In this way, the learned High Court while accepting the writ petition issued the direction for appointment of the respondent is based on misconception. The respondent while filing writ petition in the High Court has not arrayed the appellants as party in the writ petition. The impugned judgment of the High Court has been passed against the interest of the appellants, therefore, they have been constrained to file the appeal before this Court. During the course of arguments, the learned counsel referred different documents available on the record, while submitting that all these documents escaped from the notice of the learned High Court, which resulted into wrong conclusion by the High Court while holding that there were two posts available in the department.
He further argued that the official respondents in their written statement categorically denied the requisition of the second post. He submitted that the respondent brought on record the fake documents which itself disentitled him to any sort of discretionary relief. The learned High Court while setting aside the notification dated 21.12.2010 regarding the shifting of the post also failed to take into account that the impugned judgment would affect the accrued right of the appellants.
The learned counsel lastly argued that the relief granted to the respondent is against the pleadings, which is otherwise against the settled principle of law.
5. On the other hand, Mr. Abdul Rasheed Abbasi, Advocate, the learned counsel for Respondent No, 1, strongly controverted the arguments addressed by the learned counsel for the appellants, while submitting that the judgment passed by the High Court is perfect and legal which is not opened to interfere with by this Court. He argued that the learned High Court has attended all the controversial questions and resolved the same while assigning strong reasons. He argued that two posts of Assistant Director, Mineral Resources, one at Muzaffarabad and the other at Mirpur were vacant in the department of Mineral Resources in the year 2006. He argued that two separate requisitions were sent to the Public Service Commission on 11.3.2006 and 4.11.2006, respectively. He argued that the appellants had already admitted in their comments that two posts of Assistant Director, Mineral Resources were requisitioned to the Public Service Commission. He submitted that the requisition sent to the P.S.C. Was never withdrawn with the approval of the competent authority.
The claim of the appellants that only one post of Assistant Director Mineral Resources was available with the department is against the record. He further argued that the appellants have been promoted against the post on officiating basis which does not confer any right, hence, they do not fall under the definition of aggrieved persons and their appeal is not maintainable even on this sole ground. He averred that the leaned High Court has rightly issued the direction to the Public Service Commission to send the recommendations of the respondent against the post of Assistant Director Mineral Resources held by the respondent.
6. Sardar Muhammad Rasham Khan, Additional Advocate-General, the learned counsel for the appellants, while arguing Appeal No, 237 of 2014 titled Azad Gout & others us. Imran Aziz Butt and another, adopted the arguments of Mr. Reza Ali Khan, Advocate, the learned counsel for the appellants in Appeal No 236 of 2014 titled Syed Khadim Hussain Bukhari and others vs. Imran Aziz Butt & others, while adding that only one post became vacant with the department agaist which the requisition was sent to the Public Service Commission for conducting test and interview. He argued that proforma-Respondent No, 2, being successfal candidate was appointed against the said post. He further argued that another post which fell vacant due to resignation of one Mr. Tahir Saleem Usmaui had been shifted to the Industrial Department in the year 2010 even before the institution of the writ petition of the respondents. He submitted that the learned High Court was not justified to accept the writ petition filed by the respondent, which is not sustainable in the eye of law.
7. Mr. Abdul Rasheed Abbasi, Advocate, the learned counsel for Respondent No 1, raised a preliminary objection regarding the maintainability of the appeal filed by the Azad Govt & others vs. Imran Aziz Butt & others, submitted that the petition for leave to appeal in the Supreme Court is governed under Order XIII, of the Azad Jammu and Kashmir Supreme Court Rules, 1978. The provisions of Rule 3 of the said rule are mandatory in nature, which provides that alongwith petition for leave to appeal, the copy of memo. Of appeal filed before the High Court is mandatory. The appellants Azad Govt. & others failed to annex with the petition for leave to appeal the memo. Of appeal titled Mehtab Munir Butt vs. Azad Govt. & others, Writ Petition No, 1274 of 2013. Thus, on the violation of this mandatory provision, the appeal is not maintainable. When the learned Additional Advocate-General, representing the Azad Govt. & others, is confronted with the preliminary objection raised by the counsel for Respondent No, 1, he contended that in Paragraph No, 2 of the memo. Of petition for leave to appeal, it has specifically been averred that the appellants, Azad Govt. & others only assailing the judgment to the extent of real respondent, i.e,, Imran Aziz Butt. He submitted that the Azad Govt. And others shall press the appeal only to the extent of Respondent No, 1.
8. After hearing the arguments on the preliminary objection raised by the counsel for Respondent No, 1, the appeal as per averment made by the appellants in ground 2 of the memo. Of petition for leave to appeal, we are of the view that the appeal is only maintainable to the extent of Respondent No, 1 and the judgment of the High Court to the extent of Mehtab Munir Butt attained finality.
9. We have heard the learned counsel for the parties and also perused the record of the case minutely. From the perusal of the record, it reveals that one Imran Aziz Butt, Assistant Director, Mineral Resources, who was serving on adhoc basis and Sardar Abdul Majeed Khan, Assistant Controller Weights & Measures, B-17 and the other officials serving in the Department of Industries, Commerce and Labour were shifted alongwith the posts to the Department of Mineral Resources vide notification dated 10th July, 2002. Sardar Abdul Majeed Khan, after shifting of the post in the Department of Mineral Resources was appointed as Assistant Director, Mineral Resources at Mirpur, whereas, Imran Aziz Butt, adhoc Assistant Director, Mineral Resources was appointed at Sharda.
Later on, vide order dated 5th March, 2005, Sardar Abdul Majeed Khan, Assistant Director, Mineral Resources was promoted on officiating basis as Assistant Director, Licensing/Monitoring, B-18. On 22.11.2005, one, Tahir Saleem Usmani, on the recommendations of the Public Service Commission was appointed as Assistant Director Mineral Recourses against the post occupied by Imran Aziz Butt, Respondent No, 1 on adhoc basis. After the appointment of Tahir Saleem Usmani, Imran Aziz Butt, Respondent No, 1, was appointed on adhoc basis against the post of Assistant Director Mineral Resources, which fell vacant due to the promotion of Sardar Abdul Majeed Khan. The department vide letter ,dated 11.3.2006 sent the requisition to the Public Service Commission for the appointment against the post of Assistant Director, Mineral Resources, B-17 falling vacant at Mirpur, which was occupied by Respondent No,
1. It was provided that the said post which is falling vacant at Mirpur and occurred on 7.3.2005 shall be filled up through initial recruitment. During the correspondence between the Public Service Commission and the Department regarding the clarification of the requisition sent on 11.3.2006, Tahir Saleem Usmani, who was appointed as Assistant Director, Mineral Resources, B-17 at Muzaffarabad resigned from the office on 4.11.2006. On this, Respondent No, 1, Imran Aziz Butt, Assistant Director, Mineral Resources was transferred land appointed against the post, which fell vacant due to resignation of Tahir Saleem Usmani on 5.4.2008. The post of Assistant Director, Mineral Resources, B-17 requisitioned on 11.3.2006 by the Department, was advertised by the Public Service Commission on 20.3.2007. After advertisement of the post of Assistant. Director, Mineral Resources, B-17 in the advertisement No, 1 of 2007, the department also requisitioned another post of Assistant Director, Mineral Resources, Muzaffarabad held by Imran Aziz Butt, Respondent No, 1, at Muzaffarabad. In the requisition, the date of occurrence of the vacancy is shown as 4.4.2006, which is the date when the incumbent of the post resigned from the office. The requisitioned post was not advertised by the Public Service Commission. The department of Industries, Commerce and Labour vide letter dated 15th October, 2010 initiated the process for transferring back the post of Assistant Controller, Weights & Measures, the nomenclature of which was changed as Assistant Director, Mineral Resources. After completion of the process, the post by sanction of the Government was transferred back to the Department of Industries, Commerce and Labour.
10. To resolve the controversy, we have to resort the relevant statute dealing with the subject, i.e,, AJ&K, Public Service Commission Act, 1986 and the AJ&K Public Service Commission Procedural Rules, 1994 made thereunder. Rule 3, sub-rule (2) of the AJ&K Public Service Commission (Procedural Rules, 1994) is relevant, which is reproduced as under:-- "3.(1) ..................................
(2) Once post has been advertised by the Commission, the administrative Secretary shall not be competent to withdraws/requisition or reduce number of posts without the orders of the Government stating reasons therein."
It is evident from this provision that once post has been advertised by the Commission, the administrative Secretary shall not be competent to withdraw the requisition or reduce the number of the posts without the orders of the Government stating reasons therein.
11. The official respondents have taken the stance in the cross appeal that the post which fell vacant due to the resignation of Tahir Saleem Usmani, Assistant Director, Mineral Resources on 4.11.2006 was shifted back to the Department of Industries, Commerce and Labour from the department of Mineral Resources vide notification dated 21.12.2010. To resolve the controversy, whether the post requisitioned through requisition dated 11.3.2006 was shifted to the Department of Industries, Commerce and Labour or the post which fell vacant on 4.11.2006 due to resignation of Tahir Saleem Usmani, we have to resort to the notification dated 10.7.2002 and the summary submitted for shifting back of the disputed post. The relevant portion of the notification dated 10.7.2002, is reproduced as under: ' Whereas, the relevant portion of the summary dated 15.10.2010 submitted for re-shifting of the post is reproduced as under: {{URDU TEXT}} {{URDU TEXT}} ' The juxtapose perusal of the notification dated 10th July, 2002 and summary dated 15.10.2010 Show that-on 10.7.2002, a post of Assistant Controller, Weights and Measures, B-17 was shifted to the Department of Mineral Resources and the nomenclature of the same was changed and the post was designated as Assistant Director, Mineral Resources, B-17. The summary submitted on 15.10.2010 shows that the post of Assistant Controller Weights and Measures B-17 which was shifted through notification dated 10.7.2002 was requested to be shifted back to the Department of Industries, Commerce and Labour. It has clearly been mentioned in the summary dated 15.10.2010 that the post of Assistant Controller, Weights and Measures, B-17 and the nomenclature of which was later on changed to Assistant Director, Mineral Resources B-17 be shifted back to the Department of Industries, Commerce and Labour. Thus, the juxtapose perusal of the notification dated 10th July, 2002 and the summary dated 15.10.2010 show that the post which was shifted back to the Department of Industries, Commerce and Labour through notification dated 21.12.2010 was the same post which was occupied by Sardar Abdul Majeed Khan at the time of shifting of the posts.
The argument of the counsel for the department that the post Shifted back from the department of Mineral Resources to the Department of Industries, Commerce and Labour was the post which fell vacant due to resignation of Tahir Saleem Usmani on 11.4.12006 and not the post which was shifted through notification dated 10.7.2002, is not convincing in nature.
12. Now we advert to the other point argued by the learned counsel for Respondent No, 1 that the post which fell vacant on 4.4.2006 and requisitioned to the Public Service Commission for advertisement on 18.11.2006 has not been advertised rather the same has been withheld. As under law the post which fell vacant on 4.4.2006 should have been advertised alongwith the post requisitioned for advertisement on 11.3.2006. It is pertinent to mention here that the post of Assistant Director, Mineral Resources, B-17 requisitioned through letter dated 11.3.2006, was pending for advertisement with the Public Service Commission when the other post which fell vacant on the resignations of Tahir Saleem Usmani on 4.4.2006 was also requisitioned for advertisement on 18.11.2006. It is also pertinent to mention here that the post requisitioned to the Public Service Commission on 11.3.2006 was advertised through advertisement No, 1 of 2007 on 23.7.2007 but the post requisitioned on 18.11.2006 was not advertised through advertisement No, 1 of 2007, which according to the version of the respondent falls in the ambit of withheld post. Rule, 9 of the AJ&K Public Service Commission (Procedure) Rules, 1994 is relevant to deal with the situation, which reads as under:- "9. If the requisitioning authority intimates additional vacancies to the Commission before the date of test/examination or 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 perusal of Rule, 9 of the AJ&K Public Service Commission (Procedure) Rules, 1994 shows that if the requisitioning authority sends the requisition of the additional vacancy to the Public Service (Commission before the date of and 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. It is pertinent to mention here that the requisition sent by the department on 11.13.2006 was still in waiting for advertisement when the additional post falling vacant at Muzaffarabad, was requisitioned on 18.11.2006 as the post requisitioned on 11.3.2006 was advertised on 23.7.2007. The rule clearly provides that if the requisitioning authority sends an additional post then the Public Service Commission is under obligation keeping in view the time factor, if the date of test and interview was not fixed, to amend the previous advertisement. Even otherwise, for the sake of arguments, if it is presumed that, the post requisitioned on 11.3.2006 was advertised and later on the additional, post was requisitioned then under law, it was obligatory for the Public Service Commission to issue the amended advertisement or issue fresh advertisement. In this case the post was advertised through advertisement 1 of 2007 and the test and interview was conducted in the year 2013. If it is assumed that the post requisitioned on 11.3.2006 was advertised even then a sufficient time was available with the Public Service Commission to advertise the additional post requisitioned later on, but in the instant case, both the posts have been requisitioned before the advertisement of 1 of 2007, therefore, under rules, the Public Service Commission had to advertise both the posts through advertisement No, 1 of 2007. If for the sake of arguments, it is admitted that the post requisitioned for advertisement on 11.3.2006 was shifted back to the Department of Industries, Commerce and Labour, even then an hurdle remains in the way as the High Court through the impugned judgment categorically concluded that Mehtab Munir Butt, proforma-respondent, shall be adjusted against the post which was requisitioned for advertisement on 11.3.2006, as to this extent the findings have attained finality because the Azad Govt. & others have not challenged the findings recorded in the writ petition titled Mehtab Munir Butt vs. Azad ,Govt. & others in which these specific findings were given by the High Court as is evident from the preceding Paragraph.
13. It was obligatory for the Public Service Commission to advertise both the posts requisitioned through letter dated 11.3.2006 and 18.11.2006 but the concerned department failed to proceed under law, therefore, for the fault of the authority, the respondent or any other person cannot be penalized. It is settled law that no one can be penalized for the fault of the authority. Reference may be made to a case reported as Nasreen Akhtar & 3 others v. Sameena Bilqees & 3 others [2006 SCR 3121, wherein it has been observed as under: "....Even Otherwise, for the sake of argument, if it is accepted that the advertisement dated 25.7.2006 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."
14. The argument of the learned counsel for the appellants, i.e,, the department that the post requisitioned to the Public Service Commission through letter dated 18.11.2006 was shifted back to the Department of Industries, Labour and Commerce, has no force. As we have observed in the preceding Paragraph that the summery dated 15.10.2010 submitted by the Department of Industries, Labour and Commerce for shifting back the post clearly shows that the post which sought to be shifted back is of the post which was withheld by Sardar Abdul Majeed Khan and on the promotion of the incumbent was requisitioned through letter dated 11.3.2006 for advertisement.
Moreover, as we have held earlier that once the post is requisitioned for advertisement, the requisition of the same; cannot be withdrawn by the Administrative Secretary except obtaining approval of the Government stating reasons therein. All the proceedings conducted for shifting back of the post to the Department of Industries, Labour and Commerce are regarding the post which was requisitioned through letter dated 11.3.2006 but the requisition of the same has not been withdrawn, therefore, we concluded that the High Court has rightly held that Respondent No, 1, who secured merit position No, 2 in the merit list is entitled to be appointed against the post which fell vacant on 4.4.2006 due to the resignation of Tahir Saleem Usmani, the requisition of which to the Public Service Commission is sent on 18.11.2006. Even otherwise, the requisition of the post sent to the Public Service Commission on 18.11.2006 for advertisement remain withheld as the requiition of the same was never withdrawn by the department. Thus, to this extent we find no illegality in the impugned judgment.
15. Now, we advert to the appeal filed by Syed Khadim Hussain Bukhari & others us. Imran Aziz Butt & others. It is alleged by the appellants, that after shifting of the post, i.e,, Assistant Director Mineral Resources to the Department of Industries, Commerce and Labour, they have been promoted against the post. Thus, they are aggrieved and no order can be passed adversely affecting their terms and conditions of service. It may be observed that these appellants are holding the posts on officiating basis and the officiating promotion does not confer any right for regular induction against the post. As we have discussed in the earlier Paragraphs of the judgment that to the extent of the post which was requisitioned through requisition date' 11.03.2006, the department has not filed any appeal to that extent and the department has filed an appeal to the extent of real respondent, herein, who was declared by the High Court to be appointed against the post which fell vacant due to resignation of Tahir Saleem Usmani on 11.4.2006 and with held by the department. Moreover, we have concluded in the preceding Paragraphs that the department has submitted summary for shifting back the post which was sent to the Public Service Commission through requisition dated 11.03.2006 and not the post which fell vacant due to resignation of Tahir Saleem Usmani dated 11.4.2006. We have also concluded that if the post was validly shifted but under the statutory, provisions, the requisition has not been withdrawn by the concerned Secretary, therefore, the post shall not be deemed to be shifted validly. Thus, on this score it may be concluded that no post from the department of Mineral Resources was shifted to the Department of Industries, Commerce and Labour. On this score the appellants even have no locus standi to file the instant appeal. Moreover, if any post is available or falls vacant in the Department of Industries, Commerce and Labour, the appellants may approach the concerned forum for their promotion under law. Mere holding of posts on officiating basis which was declared not validly shifted to the Department of Industries, Commerce and Labour does not confer any right to the appellant to file the instant appeal. Thus, on this score the appeal of the appellants merit dismissal.
' In the light of what has been discussed above, we are of the view that the High Court has rightly passed the direction while accepting the writ petitions filed by Imran Aziz Butt and Mehtab Munir Butt. We failed to find any illegality or infirmity in the judgment passed by the High Court, therefore, we decline to interfere with. Resultantly, both the appeals are dismissed with no order as to costs.