1. The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. 2.As common questions of facts and law are involved in the instant writ petitions, therefore, I proposed to decide the same through this single judgment.
3. 3.The precise facts forming background of Writ Petition No. 1056/2013 are that petitioner Shazia Kousar, is first class State Subject, hails from District Sudhnoti, who is qualified as B.A. & B.Ed. It is stated that petitioner being eligible was appointed as Junior Teachress on contract basis in Govt.
4. Girls Middle School Parian (Dardrach) vide order dated 11.08.2009. Thereafter, she was granted extension by Respondent No. 1, vide order dated 23.12.2010, declaring that her aforesaid contract appointment shall remain intact till the post permanently filled in as per merit basis. The petitioner was latter on transferred to Government Girls High School Chachan, vide order dated 13.04.2011. The Respondent No. 1, advertised certain posts of Junior Teachresses relating to Constituency No. 5, Pallandri District Sudhnuti, on 26.06.2012, however, test and interview could not be held, hence, time schedule for the purpose was refixed through "Daily Ausaf' dated 25.01.2013. The petitioner, amongst others, also appeared before the selection committee. It is alleged that the aforesaid committee issued a merit list and petitioner applied for copy of the same which could not be provided to her. It is further stated that respondents are bent upon to cancel the appointment order of petitioner dated 11.08.2009, for adjustment of their favourite. It is worthwhile to observe here that writ petition of petitioner Shazia Kousar, was dismissed in limine by this Court on the ground of filing subsequent petition vide order dated 19.12.2013, however, on appeal the Apex Court has remanded the case for decision on merit, vide judgment dated 08.05.2014, 4.The respondents despite availing several opportunities failed to file written statement, hence, their defence was closed vide order dated 18.01.2016.
5. 5.The summary of Writ Petition No. 1244/2013 is that petitioners Sobia Khanum and Mohazam Farooq, are first class State Subjects, hail from Constituency No. 1 of Pallandri, District Sudhnuti, whose qualification is M.A plus B.Ed. It is averred that 03 posts of Junior Teachers (Female) General Line and 02 posts of Science Teachers (Female) were advertised for Constituency No. 1 Sudhnuti.
6. The petitioners being eligible candidates applied and appeared before the selection committee for test and interview. The selection committee prepared a merit list in which names of petitioners were placed at Serial Nos. 1 and 02 respectively. Thereafter, an order was issued by Respondent No. 1, through which petitioners were appointed as junior Teachresses in Government Girls High School Chachan, vide order dated 10.05.2011. It is averred in the note of appointment order of petitioners, ibid, that services of contract or temporary employees as Junior Teachresses would be terminated.
7. It is claimed that 03 contract and temporary employees namely Saiqa Khanam, Shazia Kosar and Saureen Javaid, had challenged the appointment order of petitioners to continue their temporary appointments. However, respondents acted upon the appointment order of petitioners dated 10.05.2011, to the extent of Naheed Azam and Sadia Ilyas, Junior Science Teachresses but are not going to act upon the appointment order to the extent of petitioners due to political pressure. The petitioners solicited direction against official respondents to implement their appointment order dated 10.05.2011, through, the instant constitution petition.
6. The Respondents No. 1 to 3 were granted last opportunity for filing written statement vide order dated 09.10.2015, however, they failed to do the needful, therefore, their defence was closed vide order dated 18.01.2016. However, private Respondent No. 4, has filed written statement on 28.04.2015, wherein, the contents of writ petition have been controverted. It is stated that petitioners have got no locus-standi to file the instant writ petition. It is further stated that petitioners have come to the Court with unclean hands. It is maintained that Respondent No. 4, has challenged new merit list on the basis of fresh cause of action for the reason that official respondents re-advertised the posts on 26.06.2012, however, test and interview were extended by Respondent No. 1, through publication in "Daily Jammu & Kashmir" dated 25.01.2013. On the basis of the aforesaid ,re-advertisement petitioners Sobia Khanum and Mohzam Farooq, appeared before the selection committee, who were placed at Serial No. 40 and 18 respectively of the said merit list, which important aspect has been concealed by them in writ petition. It is claimed that appointment of the aforesaid petitioners have been made on the basis of bogus and forged merit list, which has got no legal value and even, it is mentioned in their appointment order that they will be confirmed on the basis of recommendation of selection committee. It is further stated that Secretary selection committee (DEO Secondary) and Member selection committee (DEO Elementary) Sudhnoti, invited attention of competent authority to cancel appointment order of petitioners dated 10.05.2011, as forged and fabricated. It is maintained that answering Respondent No. 4, has filed connected writ petition, due to fresh cause of action and solicited relief to restrain official respondents from cancelling her temporary appointment order, hence, prayed for dismissal of writ petition.
7. Sardar Amjad Aslam, the learned counsel for petitioner Shazia Kousar, strenuously argued that his client being qualified as B.A., B.Ed, .was appointed on contract basis as Junior Teachress B-09, in Government Girls Middle School Parian (Dardrach) vide order dated 11.08.2009. He submitted that by modifying contract appointment order of petitioner Shazia Kousar, dated 11.08.2009, her stop- gap-arrangement was extended till the post in question filled in permanently as per merit basis through order dated 23.12.2010. He maintained that petitioner Shazia Kousar, was later on posted in Government Girls High School Chachan, through order dated 16.04.2011, which post is continuously occupied by her. The learned counsel pressed into service that co-petitioners Sobia Khanum and Mohzam Farooq, solicited implementation of their bogus and fabricated appointment order dated 10.05.2011 He further maintained that the aforesaid petitioners on the basis of advertisement dated 10.12.2010, were, not entitled to be appointed as they were never placed at Serial Nos. 1 and 2 of the merit list as alleged by them. The learned counsel strenuously voiced that Divisional Director (Female), Schools Poonch Division, advertised posts of Junior Teachresses B-09, through "Daily News" dated 26.06.2012, however, test and interview could not be conducted, hence, time schedule for the purpose was extended through notice published in "Daily Ausaf' dated 25.01.2013. He contended that petitioners Sobia Khanum and Mohzam Farooq, also applied for the said posts on the basis of advertisement dated 26.06.2012, who were placed at Serial No. 40 and 18 respectively, which important aspect of the matter concealed by the aforesaid petitioners, hence, they are not entitled to solicited relief. The learned counsel emphasized that District Education Officer Secondary (Secretary selection committee) and District Education Officer Elementary (Member selection committee), Sudhnoti, wrote letter dated 19.05.2011,. to Divisional Director Schools Poonch Respondent No. 1, for cancellation of appointment order of the aforesaid petitioners, mentioning therein that (i) merit list was never shown to them, (ii) all vacant posts of Junior Teachress B-09, were already filled in through promotion quota and (iii) the order was never issued on recommendation of respective selection committee which shows that appointment order of the said petitioners is .forged and bogus. The learned counsel craved that the post occupied by petitioner Shazia Kousar, be directed .to advertise for initial recruitment as per law and writ petition filed by petitioners Sobia Khanum and Mohzam Farooq, may be dismissed with costs.
8. 8.Sardar Muhammad Habib Zia, the learned counsel for petitioners Sobia Khanum and another vehemently argued that his clients are highly qualified as M.A., B.Ed, vis-a-vis to petitioner Shazia Kousar, who after advertisement of posts and merit were appointed as Junior Teachresses B-09, vide order dated 10.05.2011. He further argued that despite the aforesaid appointment order of his clients they were not allowed joining by official respondents for mala-fide reasons. The learned counsel emphasized that the aforesaid order was acted upon to the extent of Junior Science Teachresses, hence, prayed that by issuing writ of mandamus, the concerned respondents be directed to implement appointment order dated 10.05.2011, of the said petitioners. He further maintained that petitioner Shazia Kousar, is a contract employee, therefore, by dismissing her writ petition, cross writ of his clients be accepted with costs.
9. 9.After hearing the learned counsel for parties at great length, I have perused the contents of writ petitions and examined the appended documents with utmost care.
10. 10.A glance perusal of record reveals that petitioner Shazia Kousar, who is qualified as B.A., B.Ed., was appointed on contract basis, as Junior Teachress B-09, in Government Girls Middle School Parian (Dardrach) vide order dated 11.08.2009. The same authority i.e. Divisional Director Schools Poonch Division, Respondent No. 1 made it clear that the aforesaid appointment of petitioner Shazia Kousar, would be continued till permanent appointment on the basis of merit be made, through order dated 23.12.2010. The Divisional Director Schools Poonch Division, Respondent No. 1, thereafter, posted Shazia Kousar, (wrongly showing her Shazia Latif) as Junior Teachress B-09 in Government Girls High School Chachan, through order dated 16.04.2011. The aforesaid order was acted upon through joining report (Annexure H/2) dated 19.04.2011. As per attestation issued by Head Master Government Girls High School Chachan dated 15.04.2015 (Annexure-B/4), appended along with cross Writ Petition No. 1244/2013, the aforesaid petitioner is continuously holding the said post. It appears from record that the above mentioned post was not advertised by Divisional Director Schools Poonch Division Rawalakot and the same is contention of the learned counsel for petitioner Shazia Kousar.
11. 11.The claim of petitioners Sobia Khanum and Mohzam Farooq, is that after advertisement of posts and merit they were appointed as Junior Teachresses B-09, through order dated 10.05.2011, hence, official respondents be directed to implement the same. The petitioners failed to append any merit list along with writ petition. A reading of Condition No. 2, of the aforesaid order makes it clear that appointment of petitioners shall be confirmed as per recommendation of respective selection committee, which means that they were not recommended by the respective selection committee.
12. According to Condition No. 6, of their appointment order supra, even their testimonials shall be checked by the concerned District Education Officer/head of the institution, which shows that the same were not previously seen by the selection committee. According to script of District Education Officer (Secondary) Schools (Secretary of Selection Committee) and District Education Officer (Elementary) Schools (Member of the Selection Committee) dated 10.05.2011, appended by private respondent Shazia Kousar, as (Annexure-"B") with her written statement filed on 28.04.2015, after test and interview merit list was never examined by the aforesaid officials of the selection committee. As per script supra all appointments against vacant junior posts were already made through promotion quota, hence, posts were not available. At the cost of repetition it is reiterated that the order was not issued on recommendation of respective selection committee which makes the same as an unlawful order. It is settled principle of law that an unlawful order cannot be implemented through writ jurisdiction. It appears that after issuance of the aforesaid script, petitioners rushed to this Court and obtained stay order, hence, the same could not be acted upon.
13. The Divisional Director Poonch Division Rawalakot is, however, directed to be careful in future about issuance of such like orders. The appointment orders of candidates must be issued on the basis of merit list determined by respective selection committee, duly signed by the Chairman plus Secretary and Member(s) or at least by the majority of the selection committee. The orders ought to be issued on the basis of recommendations of the concerned selection committee.
12. A perusal of written statement filed by private Respondent No. 4, Shazia Kousar, also reveals that one post of Junior General Line B-09 and 02 posts of Junior Science Teachresses B-09, were advertised by Divisional Director Schools Poonch Division, through "Daily Ausaf dated 26.06.2012.
14. The test and interview were liable to be conducted since 15.07.2012 to 17.07.2012, however, due to unknown reason the same could not be taken, hence, fresh dates were fixed for the purpose from 03.02.2013 to 03.03.2013, through "Daily Jammu and Kashmir" dated 25.01.2013. The petitioner Sobia Khanum, applied for the same and placed at Serial No. 40, whereas petitioner Mohzam Farooq, applied, for the same, who was placed at Serial No. 18, while, petitioner Shazia Kousar, also applied who was placed at Serial No. 52, of the said merit list. However, later petitioner never solicited her appointment on the basis of the aforesaid merit. The petitioners Sobia Khanum and Mohzam Farooq, according to my humble view, after dated 26.06.2012, that too without any protest, they waived their right of earlier selection, if any, on the basis of their so-called earlier merit. A similar proposition came under consideration before the Apex Court of Pakistan in case titled Dr. Habibur Rahman vs. The West Pakistan Public Service Commission, Lahore and 04 others [PLD 1973 Supreme Court 144]. At page 150 of the report it was held as under:-- "In these circumstances, we are inclined to hold that this writ petition was not maintainable as the appellant had treated the matter of the first selection as past and closed by unconditionally taking part in the second selection."
15. 13.After hearing arguments of the learned counsel for contenting parties, I have also summoned relevant record. from Divisional Director Schools Poonch Division. A perusal of record reveals that against the aforesaid 02 posts of Junior Science Teachresses B-09 and 01 Junior General Line Teachress B-09, on the basis of merit and recoMmendatibn of respective selection committee Muniza Asharaf D/o Muhammad Ashraf Khan, Rozina Munk D,/o Muhammad Munir Khan, Shubana Bibi D/o Abdul Khaliq, were appointed through even dated orders 19.06.2013. The, petitioners Sobia Khanum and another concealed the said fact of advertisement of posts through "Daily Ausaf' dated 26.06.2012, extended through "Daily Jammu and Kashmir" dated 25.01.2013. The aforesaid petitioners also suppressed the material fact that they applied for the said posts, who were placed at Serial No. 40 and 18 respectively of the merit list, hence, they are not entitled to discretionary relief of writ jurisdiction even from this angle.
16. 14.The crux of above discussion is that Writ Petition No. 1056/2013, filed by petitioner Shazia Kousar, is accepted in the manner that Divisional Director Schools (Female), Poonch Division, Respondent No. 1, is hereby directed to advertise the post occupied by the aforesaid petitioner on contract basis since 11.08.2009, followed by order dated 16.04.2011, within three months from the receipt of the instant judgment and make appointment strictly on the basis of merit and recommendation of respective selection committee. However, till completion of selection process petitioner. Shazia Kousar, shall not be disturbed from the post in question. Consequently, Writ Petition No. 1244/2013 filed by petitioners Sobia Khanum and Mohzam Farooq, is having no substance, therefore, the same is dismissed. The aforesaid petitioners, who are qualified as M.A., B.Ed., can also apply for the above mentioned post and participate in selection process, if they choose so advised. A copy of the instant judgment shall be appended along with the connected file. No order as to the costs.