The above titled writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim. Constitution, 19.74, whereby , the petitioners has implored the following relief "In view of the above, it is, therefore, very humbly prayed on behalf of the petitioner that by accepting this writ petition an appropriate writ may very kindly be issued in favor of the petitioner against the non-petitioners by cancelling both the merit lists prepared for Junior Cadres (Junior Teacher General Line and junior Science Teachers) and test and interview held afresh or the non-petitioners may be ordered to appoint the petitioner as junior teacher general line as being qualified for the post in the constituency-1 Newelum - 1 and give all the benefits to the petitioner from the date of appoin tment of the private respondents, as the petitioner got 2nd position by securing 49.95 marks, which are awarded by the same committee thorough merit list for Junior Science teachers on the same day in a result of single test and interview . The forged appointme nts of private respondents may pleased be cancelled. The advertisement dated 13.05.2012 may please be cancelled/with held by declaring same as null, void and without lawful authority to the extent of one post of Junior teacher General line as PET already secured merit position for subject post which was available at the time of Ist adver tisement. Any other , alternate or additional remedy , which the Hon'ble Court deems fit, may very kindly also be awarded to the petitioner ."
2. Precise facts forming the background of the supra titled writ petition are that two posts of junior general line Teachers (Male ) and two posts of Junior Science Teachers (Male) were advertised constituency wise by respondents in Daily "Mahasib" dated 09.06.2009, for District Neelum. In response whereof, the petitioner being eligible applied against the posts of both cadres and after test and interview stood placed at the bottom of merit list prepared for the posts of Junior Science Teachers by obtaining 26.97 marks and declared as un-trained, whereas, for the posts of Junior General Line Teachers placed on Serial No. 21, by awarding 49.95 marks. It has been contended that in light of said merit lists the respondents, with mala-fide intention issued appointment orders of six teachers; three junior science teachers and three junior General line teachers, despite the fact that only-two posts of each cadre were advertised, which shows that the official respondents deliberately withheld the vacan posts just to accommodate their favorites. It has been contended that the petitioner participated in test and interview at once for both the cadres, solved one and common paper and how it could be possible that the petitioner obtained 29 marks in written test and 14 marks in interview for posts of science teacher and 13 marks in written test and 10 marks in interview against the cadre of general line teachers by, attempting single and common paper and appearing before the committee only once against both the posts. It is averred that both the merit lists were prepared by the same committee; placed at Serial No. 21 in the merit list of Junio r Science teachers in which the petitioner has been declared as trained, and in the other merit list prepared for junior General line teachers, the same committee has declared the petitioner as untrained and placed him at bottom of the said merit list. The claim of the petitioner is that if the respondent s had not declared him untrained, in the merit list of junior general line teachers, he would have been at Serial No. 2 in the said merit list, because the petitioner has secured 49.95 marks and the candidates who has been placed at Serial No. 2 of the current forged merit list secured 49.87 marks.
Through this petition the petitioner has sought cancellation of both the merit lists and direction to the respondents to conduct fresh interview or in alternate, issue the appointment order of the petitioner as junior teacher general line for constituency No. 1, w.e.f the date of appointment of private respondent s because the petitioner would have got 2nd position in the said merit list by securing 49.95 marks.
3. The respondents were summoned for filing written statement and the needful has been done accordingly and separately .
4. In the written statement filed on behalf of the official respondents, it has been stated that this writ petition has been filed in February 2010, whereas the test and interview were conducted on 27.07.2009, i.e, after a period of seven months, thus, the petition is hit by the principle of laches. It has been averred that according to new educational policy the NTS test is essential for recruitment, against the posts of primary and junior teachers.
Furthermore, it has been stated that petitioner has participated in the process of selection and failed to obtain desired result, so in light of various judgments of the Apex Court, if a candidate participates in the process of selection and fails to acquire the desire result, he cannot be allowed to turn around and challenge the selection process. Finally the respondents have craved for dismissal of the writ petition.
5. In the written statement filed on behalf of the private Respondents No. 7, 8 & 9, it has been stated that petitioner has not come to the Court with clean hands and he does not fall within the purview of an aggrieved person. It has been stated that the instant writ petition is also hit by the doctrine of lathes. It has been further stated that the petitioner has failed to point out any violation of law , therefore, the petition merit dismissal.
6. Mr. Maqsood Ahmed Qureshi, Advoca te, the learned counsel for the petitioner , has filed written arguments, wherein, while reiterating the facts and grounds, enumerated in the petition, contended that the petitioner had applied for two posts; Junior teacher general line and Junior Science teachers and one and common written test was conducted for both the posts and on the same date; i.e 27.07.2009, interview was conducted by the respondents. As a result of the said test and interview , the petitioner , against the post of junior science teacher , has been granted 29 marks in written test, 14 marks in interview and 6.95 marks for academic record, hence, total 49.95 marks have been awarded, wherea s, as a result of the same written test, in the merit list prepared for junior teachers, general line, he has been, awarded 13 marks, in interview 10 marks and 3.97 marks for academic testimonials and by awarding total 26.97 marks, his name is placed at Serial No. 97, that too, by showing him as untrained. The learned counsel has point ed out that in the merit list, prepared for junior teachers general line, the candidate appearing at Serial No. 2 has obtained 49.87 marks, whereas, if the petitioner is granted equal marks in written test B.Ed, as granted in the other merit list, his total comes to 49.95 marks, hence, he stands at Serial No. 2 of the merit list, prepared for the junior teachers general line. The learned counsel has stressed the point that in the same and common test, the petitioner has been granted different; 29 and 13 marks, and in one merit list he has been shown trained whereas, in the other merit list he has been shown as untrained, which, clearly shows the mala-fide of the official respondents. He has alleged that although, 2 posts for each discipline were advertised but at the time of advertisement, several other posts were available with the Department and the same have been filled in by the respondents, after the said that and interview . In this regard, the learned counsel has referred appointment of private Respondent No. 8, herein, and has stated that his appointment has been made after a period of 1 year and 2 months of the test and interview . With regard to the appointments through NTS, the learned counsel has argued that the petitioner had contested the test and interview in year, 2009 and has approached this Court in 2010 and any subsequent enactment does not curtail the accrued right of the petitioner . In support of his submissions, the learned counsel has placed reliance on the following case law and has also craved for acceptance of writ petition and direction to the respondents for his appointment: --
1. 2009 SCR 525,
2. 2009 SCR 1,
3. 2007 SCR 208,
4. 2003 SCR 450
7. Mr. Maqbool-ur-Rehman Abbasi, the learned Legal Advisor for the official respondents has also filed written arguments, wherein, it has been claimed that the the petitioner has no locus standi to file the instant writ petition.
He does not fall within the definition of an aggrieved person. The petition, being filed after a period of 7 months, is hit by the principle of lathes. It has also been stated that in 2011, the administration of the education Department has been bifurcated into two branches, hence, the relevant and appointing authorities have been changed. Now, for appointment of teachers, NTS system has been enforced, therefore, no appointm ent can be made without NTS.
The learned counsel, by referring to different judgments has contended that only 2 posts were advertised and appointments have been made and no appointment can be made in excess of the advertised posts. The petitioner had contested the test and interview and could not obtain merit position, therefore, he is not entitled to challenge the test and interview , which, he has participated in. He has also contended that no post pertaining to year, 2009 lies vacant with the respondents, therefore , no relief can be extended to the petitioner , therefore, the writ petition be dismissed.
8. I have perused the written arguments, filed on behalf of the learned couns el for the parties, scanned the impugned record, in light of the arguments and considered the controversy with utmost care.
9. The main contention of the petitioner in the case in hand is that the respondents had advertised 2 posts of junior science teachers and junior teacher general line each and that he had taken one and common written test and interview , conducted by one and same selection committee on the same date, for both the posts, but he has been granted different marks in both the merit lists. In the light of his claim, this Court was obliged to examine the relevant record on this angle and the needful has been done.
10. The claim of the petitioner that the written test and interview for both the disciplines was common and one and also conducted on the same day is incor porated in the petition, specifically , but this version has not been denied, by the official respondents, by filing written statement or counter affidavit, in-spite, of availing many opportunities and even in the comments, filed on beha lf of the official respondents, the claim has not been denied specifically and comments have also not been supported by filing counter affidavit and the law is well settled on the point that each and every fact and claim has to be denied/rebutted specifically and an evasive denial is considered as admission. When the above fact was alleged and if the same was not correct, it should have been denied, specifically that there was a single test and interview taken for both the posts of different cadres. There is plethora of judgments on the point that evasive denial amounts to admission. In a judgment, in case titled Zafar alias Mumtaz & another v. Mst. Sajjad Begum and 7 others , reported as [2014 SCR 1549], the Hon'ble apex Court of Azad Jammu and Kashmir , has observed as under: "The defendants have admitted the conte nts of para 2 of the plaint as correct, there fore, admitted facts need not to be proved. Thus, the reply to this material factual proposition is evasive. According to the statutory provisions, evasive denial amounts to admission. Therefore, in the light of the pleadings as observed hereinabove, that the material facts of joint working of the plaintif fs and the deceased, acquisition of the suit property through the sources of joint income, claim of the plaintif fs to be equal sharers in the suit property are the admitted facts."
11. It is pertinent to mention here that the respondents, in their comments or even in their written arguments, have not replied to the allegation regarding award of different marks in both merit lists, which have been prepared on the basis of single and common test and interview and have skipped this point, deceitfully . Had there been separate tests for - different disciplines, there might have been possibility that the petitioner , performed, better in one test but could not maintain his position in the other test, and thus, he was granted differen t marks but in the case in hand, as a result of single and common test, (for two disciplines) grant of different marks by the concerned official respondents seems to be a tactic to bring the petitioner down in merit list, deliberately , with a purpose to accommodate the other candidates of their choice.
13. As far the contention of the learned counsel for the respondents that NTS (National Testing Service) has been introduced and enforced for appointment of the teachers is concerned, it is to be observed that the petitioner had secured his merit position in the selection process as claimed by him, (7) years prior to this newly introduced National Testing Service, so, the controversy in hand arose in year, 2009 and the instant writ petition has been filed in early , 2010 whereas, the NTS has been enforced, far later and by now, it is well established principle of law that no subsequent enactment can be given C retrospective effect. In case titled Inamul Haque v. Divisional Superintendent Railways, Quetta and (2) others' reported as [PLJ 1987 Quetta 150{DB}L a division bench of the Quetta High Court, while dealing the like proposition, has observed as under: ".......The Notification was published on 15.11.1983, whereas, the petitioner was dismissed from service on 15.05.1983. It is now almost a settled principle of law that Notification cannot be given retrospective ef fect."
13. Now, adverting to the record, it transpires that the candidate placed at Serial No. 2 of the merit list, prepared for general cadre junior teachers, has secured 49.87 marks and if the petitioner was granted equal marks i.e. 49.95, as have been given to him in the other merit list, prepared for junior science teachers, he jumps up to the second position in the merit list, above the cand idate placed at Serial No. 2 of the list. So, when, he was wrongly and fraudulently deprived of his due marks, after including those marks, he shall be deemed as he had secured second position at merit list. It is to be observed that although, it is the discretion of the selection committee to award the marks in favor of a candidate according to the estimation of the examiner/interviewer but the examiner has no authority to exclude the earned marks of a candidate at the time of preparing merit list.
14. It is also astonishing that when, there was one, single and common interview , why the petitioner was granted 10 marks in one discipline and 14 marks in the other . It seems that the petitioner could not attain merit position in the test and interview conducted for the posts of Junior Science Teachers, as there his position is 21st however , he has been dragged to the lower position, in the merit list prepared for the posts, of junior teachers, general line, deliberately and even if, the error was committed inadvertently , even then the petitioner cannot be penalized for any act of the authority and he must be given, what is his due. There is plethora of judgments on the point. In case titled Robina Khatoon v. Director Education and (7) others . [2009 SCR 525], the Hon'ble apex Court of Azad Jammu and Kashmir has observed as under: "7. In many other authorities recorded by the superior Courts of Pakistan and Azad Jammu and Kashmir it has been laid down that no one can be penalized for the fault of the authority . It has also been held by the learned Judge while recording findings in the precedent case that the competent authority has been guilty of making irregular appointments, therefore, it can't be allowed to turn round and terminate the service of a person after inducting him in service on permanent basis, particularly , when, his appointment was not challenged in time by any other desirous person."
So, it can be summarized that if the petitioner is granted equal marks, as have been granted by the respondents in the interview and of the academic record, for the other post in one and single test by the same committee, the petitioner jumps up to the higher position of 2nd position, hence, a valuable right of immediate or deferred appointment stood accrued in his favor . Deferred means that, the file speaks that an appointment of one; Ghulam Rasool, Respondent No. 8 herein, was made vide order dated 30.09.2010, hence, it can safely be concluded that the petitioner was deprived of his valuable accrued right of appointment on one pretext or the other . It reveals from the merit list that the petitioner , in the merit list prepared for Junior Science teachers, has been granted 6.95 marks for B.Ed, whereas, in the other list, his name is placed at the bottom under the heading of 'untrained', which shows the mala-fide of the concerned officials that on the same date, he was granted marks for academ ic required training course, i.e B.Ed, (attested copy of the marks sheet available a s Anx. PB/3). in one merit list and has been declared as untrained in the other list.
15. Although a considerable delay of about 10 years has occurred in disposal of this writ petition but it is also not the fault on the part of the petitioner as he came in the Court well within time and the delay of few months has been well explained, so, this petition is not hit by the principle of laches and the Courts are meant to administer justice, notwithstanding, what cost is to be paid. So, the respondents are under legal obligation to appoint the petitioner , in view of his merit position. How it comes, it is the headache of the authority not of the Court or the-petitioner .
16. As far the case of private responden t is concerned, it may be observed that he has been appointed, on the ground whatsoever , vide order dated 30.09.2010 and has served for the Department for more than eight years, therefore, this Court would not like to disturb him in any manner .
17. Before parting with the case this Court would like to observe that in light of the facts and circumstances, enumerated in the preceding paras, it has become clear that high scale illegalities and irregularities have been committed by the respondents, during the disputed test and interview , there fore, the Secretary Education concerned is directed to conduct an impartial inquiry in the matter and the responsible persons/employees be taken to the task and compliance report shall be furnished to this Court through Registrar .
18. What has emerged from the above detailed discussion is that the instant writ petition is, accepted. The respondents are directed to appoint the petitioner , as junior teacher general line, in view of his merit position, forthwith, under an intimation to this Court through Registrar .