M. TABASSUM AFTAB ALVI, C J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following prayer is made by petitioner:-- "It is, therefore, most humbly prayed that official respondents Nos,1 to 3, may kindly be directed to issue regular appointment notification of petitioner on the basis of waiting list (Annexure-PE) in which serial Nos,1 and 2, stand adjusted as per their own choice and petitioner is now at the top in the merit list against the post already occupied by petitioner on ad hoc basis with effect from 2.6.2005, prior to the advertisement No,1 of 2006, as he should not be penalized for the fault and default of respondents Nos,1 to 3."
2. Precise facts of the case are that petitioner is a first class state subject and domicile holder of District Kotli. It is stated that petitioner being qualified as B.Sc. Electrical Engineering, applied against certain vacant posts of Assistant Engineers Electricity advertised on ad hoc basis. It is averred that the departmental authorities issued call letter for test and interview on 28.02.2005.
Thereafter, petitioner was appointed as Assistant Engineer Electricity B-17, on ad-hoc basis against the said post vide Govt. notification dated 02.06.2005, who submitted his joining report on 06.06 2005. Later on, he was posted at Sub-Division Fatehpur Thakiala vide Govt. notification dated 16.06.2005, against which petitioner also submitted his joining report on 06.06.2005. It is contended that petitioner was transferred from Fatehpur to Sub-Division Nar after 03 years vide notification dated 13.10.2008, who submitted his joining report on 17.10.2008. Meanwhile, respondent No,4-Public Service Commission, published 24 posts of Assistant Engineers Electricity B-17, vide advertisement No,01/2006, through "Daily Jang Rawalpindi" dated 06.07.2006. The petitioner applied against 02 advertised posts of District Kotli, resultantly after passing written test a call letter for interview was issued on 17.10.2006. As per recommendation of Public Service Commission, Govt respondent issued appointment notification of 17 instead of 24 candidates on 24.11.2006. Later on, by terminating the services of Khalid Aslam and Muhammad Fazail Khan, pertaining to Districts Kotli and Poonch, respectively, two candidates namely Sajid Hussain and Ibsar Hussain, were also appointed on recommendation of Public Service Commission, vide Govt. notification dated 09.03.2007. It is alleged that during 2006 to 2008, respondent No,4, did not disclose the waiting list.
However, the Apex Court issued direction for issuance of merit lists, in case titled "Sikandar Azam v.
Azad Govt. and 3 others", (2009 SCR 91), hence, respondent No,4-Public Service Commission, started to issue waiting lists of years 2006 to 2010. Accordingly, waiting list prepared with reference to advertisement No,1 of 2006, was also issued to petitioner, when he came to know about his, merit position. It is stated that one candidate namely Farhat Shahzad, was appointed in Atomic Energy Commission of Pakistan, while other candidate Muhammad Ilyas Minhas, was selected for Ph.D. course at China, hence, he was topper in the waiting merit list of the Public Service Conunission. It is claimed that petitioner should have been appointed on regular basis as Assistant Engineer Electricity, B-17, against the post vacated by Muhammad Aslam, of District Kotli, as indicated in Govt. notification dated 09.03.2007. It is further stated that the post held by petitioner on ad-hoc basis did exist prior to advertisement No,1 of 2006, who is continuously occupied the same, therefore, petitioner sought his appointment as Assistant Engineer Electrical B-17, on regular basis.
3. The writ petition has been resisted by respondents through written statement wherein, it is stated that petitioner filed the instant writ petition on the basis of advertisement No,01/ 2006, after about 05 years, hence, the same is hit by laches. It is further contended that petitioner has no right to be appointed on regular basis as Assistant Engineer B-17, on the basis of the precedent of the Apex Court in case titled "Tanveer Ashraf and others v. Azad Govt. and others" decided on 25.05.2011. It is further stated that 02 posts of Assistant Engineers B-17, pertaining to the quota of District Kotli, were filled in vide notification, dated 24-11-2006. It is contended that 17 posts had been filled in, however, ii ariq Mehmood and Ansar Iqbal, ad-hoc Assistant Engineers obtained stay order against 04 posts of Refugees settled in Pakistan, which could not be filled in as such. It is further averred that pertaining to 02 posts no candidates were available against the quota of refugees 1989. It is contended that, later on, appointments were made against 23 posts vide different notifications dated 24.11.2006, 09.03.2007, 30.08.2007, 27.09.2007, 28.02.2008, 23.12.2009, and 01 post is still occupied by Tariq Mehmoud, Assistant Engineer, on ad-hoc basis by obtaining stay order from the Apex Court, hence, submitted for , dismissal of writ petition.
4. Raja Muhammad Hanif Khan, the learned counsel for petitioner strenuously argued that, inter- alia, 02 posts of Assistant Engineers Electricity B-17, were advertised against allocated quota of District Kotli, against which topper candidates were recommended by the Public Service Commission, who were also appointed. He further contended that in waiting merit list prepared by the Public Service Commission, petitioner is falling at serial No,3, thereof. The learned counsel pressed into service that in waiting merit list, Ehtesham Khizar Qureshi and Nadia Sultan, who were lower in overall merit list against the quota of District Muzaffarabad, were also appointed on the basis of directions issued by this Court. He further argued that one Khalid Aslam Son of Muhammad Aslam, was appointed as Assistant Engineer B-17, against the quota of District Kotli, as per recommendation of the Public Service Commission vide notification dated 24.11.2006, who did not join the post, therefore, petitioner could be appointed against the aforesaid post. He emphasized that petitioner is holding the post of Assistant Engineer B-17, on ad-hoc basis since 02.06.2005, which was not requisitioned, hence, submitted for acceptance of writ petition. The learned counsel in support of his contentions referred to and relied upon an unreported judgment of this Court passed in Writ Petition No,157/2008, titled "Electrical Engineer Ehtesham Khizar Qureshi v. Azad Govt. and others" decided on 17.07.2009.
5. Syed Serosh Giliani, Legal Advisor of Electricity Department appearing on behalf of respondents raised a preliminary objection that waiting merit list of 01/2006 was issued by the Public Service Commission in 2006, however, petitioner filed the instant writ petition on 21.12.2010, which is hit by doctrine of lathes, therefore, same is liable to be dismissed on this solitary ground. He further argued that 02 posts of Assistant Engineers Electricity were again advertised by Electricity Department, and petitioner applied for the same, who could not obtain merit position, therefore, his right earlier earned shall be deemed as relinquished, hence, craved for dismissal of writ petition.
The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. Azad Government of the State of J&K and others v. Haft Summandar Khan and others [1995 MLD 13501. ii. Azad Govt. and 3 others v. Mrs. Jamshed Naqvi and 2 others 12014 SCR 131.
6. After hearing the learned counsel for parties, I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of record reveals that petitioner being qualified as B.Sc. Electrical Engineering (First Division), applied against the posts of Assistant Engineers Electricity B-17. advertised on ad-hoc basis who was appointed against a vacant post after obtaining test/interview, on the basis of merit vide Govt. notification dated 02.06.2005. Meanwhile, respondent No,4-Public Service Commission, published 24 posts of Assistant Engineers Electricity B-17, out of which 02 were falling against allocated quota of District Kotli vide advertisement No,01/2006, published in "Daily Jang Rawalpindi" on 06.07.2006. The petitioner being qualified and having meritorious academic record applied against 02 advertised posts of District Kotli. It is an admitted fact that topper candidates were recommended and appointed against the aforesaid posts. The claim of, petitioner is that the Public Service Commission did not issue waiting merit lists of years 2006 to 2008, However, the Apex Court in case titled" Sikandar Azam v. Azad Govt. and others, (2009 SCR 91), issued direction as under: - No discretion is left with the commission to hide the merit list and the merit can be ascertained when marks of each candidate are displayed. We wander as to how the commission hides the merit list, and does not display it."
The stance of petitioner is that in compliance' of the above quoted direction of the Apex Court, the Public Service Commission issued him undated waiting merit list pertaining to advertisement No,01 of 2006, when he came to know that he was topper in the merit, due to reason that candidate Farhat Shahzad, falling at serial No,1, was appointed in Atomic Energy Commission of Pakistan, while, other candidate namely Muhammad Ilyas Minhas, was selected for Ph.D., who had gone to China. The aforesaid assertion of petitioner has not been controverted by respondents in written statement, rather the same is an admitted fact.
8. The claim of petitioner is that one candidate namely Khalid Aslam Son of Muhammad Aslam, was appointed as Assistant Engineer B-17, against the quota of District Kotli, as per recommendation of Public Service Commission vide Govt. notification dated 24.11.2006, who did not join the post, therefore, petitioner has right to be appointed as Assistant Engineer Electrical B-17, on regular basis. The respondents failed to point out that why on vacation of post by Khalid Aslam, petitioner was not appointed against the said post.
9.It reflects from testimonial of petitioner that he possessed meritorious academic qualification as such he was appointed as Assistant Engineer Electricity, B-17, on ad-hoc basis as per recommendation of departmental selection committee, vide Govt. notification dated 02.06.2005, who is still holding the post.
10.A perusal of waiting merit list of advertisement No,01/2006, reveals that Ehtesham Khizar Qureshi and Nadia Sultana, who were lower in overall waiting merit list, placed at, serial Nos,4 and 8, were appointed against the quota of District Muzaffarabad, as per directions issued by this Court, therefore, as per my considered view, petitioner is also entitled to be appointed against the post of Assistant Engineer Electrical, B-17, being topper in the aforesaid waiting merit list against quota of District Kotli.
11.The contention of the learned counsel for petitioner that writ petition is attracted by laches is misconceived. The petitioner in paragraph No,7, of writ petition categorically stated that respondent No,4-Public Service Commission, in years 2006, 2007 and 2008, did not disclose waiting list, however, as per direction of the Apex Court, passed in case titled "Sikandar Azam v. Azad Govt. and 03 others (2009 SCR 91), the Commission, prepared undated waiting merit list and issued to him, therefore, laches have been properly explained in the writ petition.
12.The next contention of the learned counsel that petitioner applied for the post of Assistant Engineer, B-17, in 2012, however, could not get merit position has been considered. The aforesaid point has not been raised by respondents in their written statement. It is well settled principle of law that parties cannot go behind their pleadings. The aforesaid proposition came under consideration before the Apex Court in case titled "Azad Government and others v. Qamar-uz-Zaman Khan Niazi," (1993 SCR 9), wherein, at page 13 of report, it was held as follows:- "Before going into the merits of case we would like to dispose of this application. The application has been filed under rule 6 of Order IX read with Order XLIII of the Supreme Court Rules and is basically aimed at seeking permission of the Court to file affidavits of the Additional Chief Secretary (General) and the counsel for the appellants. However, a closer look at the contents of the application as well as affidavit shows that practically the appellants are seeking to set up a new case which is entirely inconsistent with the case before the Service Tribunal. As has already been noted, before the Service Tribunal the application which was claimed to have been filed by Qamar-uzZaman Niazi containing the conditions of thirty years pension and move-over to grade 19 had been accepted as genuine. In fact it had been clearly stated in the written statement that the Government acted in accordance with law by acceding to the request for retirement as it was authorized by law to pass an order of retirement but did not accept the conditions imposed by Qamar-uz-Zaman Niazi because the same were illegal and could not have been legally accepted.
Now before us the Government wants us to hold that the application submitted by Qamar- uzZaman Niazi imposing the conditions mentioned above had been returned and another application claimed to have been filed by Qamar-uz-Zaman Niazi was subsequently processed and in this application Qamar-uz-Zaman Niazi had asked for retirement on completion of 25 years of service. It is well settled that no party can be allowed to set up a case different from a case which had been set up in the pleadings. Apart from that the point at issue is a pure question of fact which can only be decided after taking of fresh evidence...
The same view was reiterated by the Apex Court in case titled "Muhammad Hussain v. Abdul Majid and others" (1993 SCR 319), wherein, at page 321 of the report, it was opined as under:- "It may be stated that this is well settled principle of law that the parties cannot depart from the case as set up in their pleadings and vary the same subsequently at the appellate stage. The parties are bound by their pleadings and even if evidence is led in support of a plea which was not set up in the pleadings, such evidence cannot be looked into. Thus, the High Court has not committed any error in holding that the appellant cannot be permitted to put up altogether a different case from the one which he had set up in the plaint. It may be stated that according to the plaint, each of the contesting parties was entitled to equal share, i,e,, 1/3 each, and the mutation was also attested in the year 1958 in accordance to the terms of the decree of the Deputy Custodian. Thus, it dbes not lie in the mouth of the appellant at the appellate stage to change his stand and argue that he was retitled to more than 1/3 share which he had according to the decree of the Deputy Custodian on the basis of which mutation was also attested."
The aforesaid view was again highlighted by August Supreme Court in case titled "Sheikh Javed lqbal v. Muhammad Bashir and 5 others" (2010 PLC (C.S.) 1264). At page 1268 of the report, it was observed as follows:-- "It is celebrated principle of law that no party can travel beyond its pleadings. Respondent No,1 has categorically taken a stand in para 9 of memo. of appeal before the Service Tribunal that no adverse order was communicated to him and he got knowledge of all the orders passed by the departmental authorities on service of order dated 18.09.2009. This factual assertion of the respondent has not been denied by the present appellant and pro forma respondents."
13.It reflects from record that petitioner is holding the post of Assistant. Engineer Electricity, B-17, since 06.06.2005, which means that the aforesaid, post was not requisitioned to the Public Service Commission as yet otherwise, selectee of the Commission would have been appointed, hence, petitioner is entitled to discretionary relief of writ jurisdiction.
14.The crux of above discussion is that by accepting the instant writ petition, official respondents Nos,1 to 3, jointly and severally are hereby directed to regularize/confirm petitioner against the post of Assistant Engineer Electricity, B-17, which he is holding, on the basis of waiting merit list of advertisement No,01/2006, issued by the Public Service Commission, within 02 months period from the receipt of the instant judgment. No order as to the costs.