1. ' AZHAR SALEEM BABAR, J.--- Through the above titled writ petitions filed under Section 44 of the AJ&K Interim Constitution Act, 1974, petitioners are contesting for the post of Health and Nutrition Officer B-17 in the Health Department.
2. ' Facts of the case are that a post of Health and Nutrition Officer B-17 was advertised by the P.S.C. In the Health Department, whereupon petitioner, Sadia Mir D/o Farooq Ahmed Mir from District Muzaffarabad, was recommended and was thereafter appointed vide notification dated 02.07.2011. The petitioners have laid their claims that 03 posts of Health and Nutrition Officer B-17 exist in the department but the department has advertised only one post out of mala fide intention. Shabnam Shazadi, petitioner, has challenged the merit position of Atia Azad for the reason that Atia Azad does not hold the requisite academic qualification for the job in question, so, she has been placed on the merit list against law. It is the version of the petitioners that if all the 3 posts of Health and Nutrition Officers B-17 were advertised, the petitioners would have been appointed on regular basis against the posts withheld by the Department against law.
3. ' I have heard learned counsel for the parties and perused the record in the light of departmental rules. A post of Health and Nutrition Officer B-17 was advertised by the P.S.C. In the Health Department, whereupon Sadia Mir D/o Farooq Ahmed Mir from District Muzaffarabad was recommended and was thereafter appointed vide notification dated 02.07.2011. The petitioners claim that there exist 03 posts of Health and Nutrition Officer B-17 in the department but the department has advertised only one post out of mala fide intention. In this context, couple of orders of ad hoc appointees have been relied upon. However, Shabnam Shazadi, petitioner, has challenged the merit position of Atia Azad for the reason that Atia Azad does not hold the requisite academic qualification for the job, so, she has been placed on the merit list against law. Learned counsel appearing on behalf of Shabnam Shazadi has contended that according to Departmental Rules, a Master's Degree in Nutrition is required for the job of Health and Nutrition Officer B-17 and Shabnum Shazadi, petitioner, holds the same qualification. A degree of Master of Science Honours in Agriculture in the subject of Human Nutrition has been attached by the petitioner in support of her version. A perusal of Departmental Rules of 2009 reveals that M.Sc. (2nd Division) in Food and Nutrition from a recognized Institute or M.Sc. (2nd Division) with Nutrition as major subject from a recognized University is the qualification for the job in question. In the light of mentioned rules, it transpires that Atia Azad holds a degree of M.Sc. By in Bio Chemistry. It has been claimed by Atia Azad that her master's degree includes nutrition as major subject has been attached and her version is supported by an affidavit. The stance of Atia Azad towards disqualification of Shabnum Shazadi is, therefore, weightless.
4. ' A perusal of written statement filed by the department shows that according to departmental rules, 50% quota for the post of Health and Nutrition Officer B-17 has been reserved for departmental promotion and 30% quota exists for initial recruitment. It has been verified by the department that as many as 03 posts of Health and Nutrition Officer B-17 exist in the department but according to department, only one post falls within the quota reserved for initial recruitment whereas rest of the 2 posts fall within the departmental promotion quota. It may be reiterated that one Saida Mir has already been appointed as Health and Nutrition Officer on recommendation of P.S.C. Against the single advertised post. If claim of the rival petitioners is examined in view of the departmental rules, it transpires that according to Health Services Rules, 2009, 50% quota for the post of Health and Nutrition Officer B-17 has been reserved for initial recruitment whereas rest of 50% quota has been reserved for promotion on the basis of seniority. Cum fitness amongst the officers of B-16 with experience in the department having requisite qualification. It is worth mentioning that the rules have been amended in the Jan, 2015 and according to amended rules, the posts of Health and Nutrition Officers B-17 are to be filled in 100% by initial recruitment. However, requisition of the post in question was sent to the PSC in the year 2010 and PSC conducted examination for the said post in the same year. The PSC sent recommendation to the Secretary Health Department for the post on 26.04.2011 and recommend of P.S.C. Was appointed on 02.07.2011.
5. So, case of the petitioner would be examined in the light of previous rules.
6. ' I do not agree with the argument that because all the three posts of Health and Nutrition Officer B- 17 had been occupied by the ad hoc appointees, so, all the posts belong to direct quota. In this regard, the department has explained that the Govt. Has made ad hoc appointments against the 2 posts reserved for departmental promotion as temporary arrangement. As stated earlier, the departmental rules of the year 2009 show that quota for direct recruitment and for departmental promotion has been divided half and half between the two segments, so, the rules would prevail and an ad hoc appointment against a post reserved for departmental promotion would not create a right to the petitioner for regular job.
7. ' As a principle of law, if a candidate for direct recruitment and a candidate claiming promotion to a particular job simultaneously contest for the job, the candidate claiming promotion would be given priority. There are 3 posts of Health and Nutrition Officer B-17 in the department for which 50% quota has been provided for departmental promotion and 50% has been reserved for initial recruitment. In the light of afore-stated principle, if all the 3 seats are divided between the 2 components, it is the right of the person claiming promotion to be considered on priority and the second post would go to the quota reserved for direct recruitment, in the same way, 3rd post again would go to the departmental promotion. In such a situation, out of 3 posts, 2 would fall in favour of the quota reserved for departmental promotion and 1 post would fall for the quota reserved for initial recruitment. This view finds support from 1989 PLC (C.S.) 546, Federal Service Tribunal, wherein it has been laid down that posts reserved for departmental promotion are to be filled in first before making direct recruitments. This view has further been strengthened by the Supreme Court of Pakistan in a judgment reported as 1993 SCMR 2258. While dilating upon by ESTACODE, 1983, their lordships held that as per general principle of seniority, promotion should be first filled in before filling in the quota of direct recruitment.
8. In view of the above circumstances, it is evident that out of 3 available posts of Health and Nutrition Officer B-17, there was 1 post available for initial recruitment according to Health Services Rules, 2009. The post was rightly requisitioned by the Health Department and after due process of law, one Sadia Mir has been appointed against the C advertised post on recommendations of PSC Obviously, rest of 2 posts fall within the quota reserved for departmental promotion, so, the petitioners have no bone of contention to fight upon. All the above titled writ petitions being devoid of force are hereby dismissed with no order as to costs.