1. Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, order dated 28.3.2016 has been challenged for having been issued without lawful authority. A direction is also sought to the respondents to promote the petitioner on the basis of seniority list in light of proposal dated 26.01.2016.
2. Precise facts of the case are that petitioner is permanent employee of Education Department and is performing his duties as Primary Teacher in Govt. Middle School Moroni, Juglari. It is submitted that petitioner is the most senior Primary Teacher and is listed at Serial No, 1 of the seniority list issued by the department on 26.06.2015. It is further submitted that Respondent No, 3 moved proposal for promotion of the petitioner as Junior Science Teacher on 17.05.2017, however, the same has not been acted upon. Thereafter, Respondent No, 3 moved another proposal for promotion of the petitioner against the post fell vacant due to promotion of Mr. Akhtar Hussain but Respondent No, 1 by using delaying tactics did not proceed in light of the proposal. It is contended that instead of promotion of the petitioner Respondent No, 1 appointed private respondent as Junior Science Teacher on temporary basis vide order dated 12.03.2016. It is further contended that on very next week of order dated 12.03.2016 Respondent No, 1 advertised the post of Junior Science Teacher in an un-famous newspaper on 23.03.2016 and after conducting the test and interview the merit list was prepared on 28.03.2016 and on the same day private respondent has been confirmed vide order dated 28.03.2016. It is alleged that all the proceedings for appointment of the private respondent have been taken mala-fidely and secretly in order to deprive of the petitioner from his constitutional right. The precise stand of the petitioner is that the post occupied by the private respondent was the promotion post and the same was not available for direct recruitment.
3. Respondents have contested the petition by filing written statement wherein it is stated that the petitioner has no locus standi to file the instant writ petition. It is submitted that there is a contradiction in the seniority lists prepared in 2011 and thereafter in 2015, hence, the same cannot be made basis for promotion. It is further submitted that proposal sent before 9 months of availability of the post cannot be implemented. It is further submitted that post in question dogs not fall against the quota of departmental promotion rather calculation for the post of Junior Science Teacher is yet to be made according to the details from the office of District Education Officer and the calculation has to be made on available post. It is contended that private respondent has been appointed in accordance with rules being toper in the merit. The other claims of the petitioner have also been refuted.
4. The private respondent has filed separate written statement wherein he has taken the same stand, taken by the official respondents hence, need not to be reiterated for the sake of brevity.
5. The learned counsel for the petitioner vehemently argued that the post in question falls against the quota of departmental promotion but the respondents with mala fide intention appointed private respondent by initial recruitment. The learned Advocate further argued that whole proceedings have been taken secretly in order to deprive of the petitioner from his right of promotion and for illegal accommodation of private respondent. The learned Advocate contended that selection committee who recommenced the private respondent was made against the notification dated 11.05.1999. The learned Advocate also argued that proclamation for inviting applications has also been published in violation of notification dated 10.10.2007. The learned Advocate also contended that order dated 28.03.2014 is against the notification dated 11.04.2014 whereby it is provided that appointments shall be made in the months of April and October. The learned Advocate also stated that appointment of the private respondent has been made on political basis against the rules and law, hence, is liable to be set-aside.
6. The learned counsel for the respondents reiterated the grounds taken in the written statement and submitted that the appointment of the private respondent has been made in light of the recommendations made by selection committee. The learned Advocate further submitted that private respondent obtained first position and has been appointed accordingly. The learned Advocate argued that no illegality has been committed by the respondents while passing the impugned order. The learned Advocate submitted that no right of the petitioner has been infringed hence, has no right to invoke the extra ordinary jurisdiction of this Court.
7. I have heard the learned counsel for the parties and gone through the record of the case.
8. It may be stated that vide notification dated 26.11.2015 it was provided that all the appointment from Grade B-1 to B-15 shall be made through NTS whereby the posts of B-16 and above shall be filled in through PSC. A perusal of notification dated 26.11.2015 reveals that appointment on non- gazetted posts shall be made through NTS, hence, in my considered view, after issuance of notification dated 26.11.2015 the appointment cannot be made in accordance with previous rules. In case titled Iraj Imtiaz vs. District Education Officer Female and others decided on 10.05.2016 this Court directed the Education Department for making all the appointment fair and transparent, to implement notification dated 26.11.2015 and make all the appointment against non-gazetted posts through NTS. It is held by this Court in that case that "it is astonishing that after issuance of the aforesaid notification, the official respondents issued advertisement for test and interview against the posts of Primary Teacher and other cadre in accordance with previous rules. In my estimation, conditions laid down in the aforesaid notification are applicable to all the appointments in the Education Department and no double standard can be adopted for appointments." It is further held that "it is settled principle of law that against the same post, same qualification and same privileges double standard of appointment cannot be permitted, hence, all the advertisement and proceedings regarding appointments in the Education Department after issuance of notification dated 26.11.2015 are not maintainable." On appeal the apex Court of Azad Jammu and Kashmir upheld the judgment. In case titled Asia Tabassam and others. vs. Salma Manzoor and others decided on 17.06.2016 the apex Court while dilating upon notification dated 26.11.2015 observed as under: "After goring through condition No, iii of the above referred notification, it is clear that mode of appointment against the non-gazetted posts has been provided through National Testing Service (NTS). The condition is neither unconstitutional nor in violation of any law. In our estimation, this is the mode through which the object of transparency in the appointments can exceptionally be achieved.."
9. I am of the view that after issuance of notification dated 26.05.2011 and clear cut observations of this court as well as apex Court, the appointment of the private respondent in violation of notification dated 26.05.2011 is illegal and liable to be recalled because after issuance of the notification dated 26.11.2015 the previous rules have been overruled.
10. It may also be stated here that vide notification dated 10.10.2007 Advertisement Policy, 2007 has been sanctioned whereby it is provided that all the departments of the Govt. shall issue advertisements through Information/Public Relation Department. The petitioner has categorically stated in ground 'E' of the writ petition that proclamation has been issued in violation of notification dated 10.10.2007. The official respondents in reply of the said ground have not denied the stand of the petitioner, hence, in view of settled law, have accepted. The Govt. frames policies through different policy notification for smooth running of business and for transparency in the matters of the Govt. but it is very unfortunate that Govt. notifications are not being implemented and every one for ill gotten gains violate the Govt. policies and runs the business of the departments at his own will, against the rules. Any action against the Govt. policy notifications cannot be allowed to continue.
11. Moreover, vide notification dated 11.04.2014 it is provided that appointments against the posts of Primary/Junior teachers/teachresses shall be made two times in a year in the months of April and October and the merit list shall be effective till 6 months. The appointment of private respondent has been made on 28.03.2016, hence, is also violative of notification dated 11.04.2014, so is liable to be recalled.
12. So far the stand of the petitioner that the post in question, occupied by the private respondent, falls against the quota of departmental promotion and the petitioner being the most senior in the Seniority list of Primary Teachers is eligible to be appointed against the said post is concerned, I am of the view that without providing facts and figures this Court cannot determine that as to whether the post falls against promotion quota or is available for direct recruitment. It is also stated by the respondents that there is a contradiction in the seniority lists prepared in 2011 and 2015, hence, no direction can be issued for promotion of the petitioner and the post in question cannot be declared against any quota. However, in the written statement filed by official respondents in para 4 it is stated that calculation for the post of Junior Science Teachers is yet to be made after the details from the office of District Education Officer, which means that quota had not been determined before issuance of advertisement and making appointment of private respondent.
13. So far the argument of the respondents that petitioner is not aggrieved, hence, cannot invoke extra ordinary jurisdiction of this Court is concerned, if is accepted even then this Court cannot close its eyes where violation of any law, rules or govt. policy appears on the face of it.
14. In view of above, the writ petition is accepted. The appointment of the private respondent is declared illegal and stands cancelled. The Secretary Education Schools is directed to make sure that the Govt. notifications issued from time by time are being implemented and also make sure that appointments are being made after proper determination of quota.