Ghulam Mustafa Mughal, J. The titled appeal with leave of the Court has been directed against the judgme nt dated 05.09.2018, passed by the Azad Jammu & Kashmir High Court in W rit Petition No. 1925 of 2017.
2. The facts forming the background of the captioned appeal are that the appellant, herein, was appointed as Adhoc Medical Officer B-17 vide notification dated 01.12.201 1. It is stated that the adhoc appointment of the appellant, herein, was extended from time to time and up-till now she has not been relived from service. It is further stated that firstly the appellant, herein, was appointed in DHQ Neelum. She was later on transferred to AIMS Muzaf farabad and thereafter was further transferred to BHU Khaliqabad Mirpur . The Azad Jammu & Kashmir Public Service Commission, advertised 113 posts of Medical Officer B-17 for different units of AJ&K, vide advertisement No. 02/2013, out of which, 4 posts were advertised against the quota of District Neelum. The appellant, herein, being eligible applied for appointment against one of the post of the quota of District Neelum and after test and interview , was placed at Serial No. 3 of the waiting list. It is stated that 4 candidates appearing on the merit positions were appointed after test and interview . It is further stated that two candidates placed ahead to the appellant, herein, in the waiting list were also appointed later on due to the reason that in some other units, candidates could not succeed in test, and interview . It is further stated that one of them namely Sh. Mustansir Siab did not join the duty for the reason that he has been appointed somewhere in Islamabad. The appellant, herein, filed an application before the competent authority for her permanent induction on the ground of non joining of Sh.
Mustansir Siab. It is claimed that the department did not consider her request and appointed one Saba Ali Chaudhry , proforma-respondent, herein, vide notification dated 14.11.2017. The appellant, herein, challenged the said notification to the extent of appointment of Saba Ali Chaudhry before the Azad Jammu & Kashmir High Court by filing writ petition on 20.11.2017. It was stated that in light of the judgment of the High Court, when there are more ad-hoc appointees and a candidate recommended by the Public Service Com missioner is available then the most junior ad-hoc appointee has to leave the post, therefore, the appointment of Saba Ali Chaudhry is illegal and violative of the judgment because she is junior ad-hoc appointee vis-a-vis the appellant, herein. The writ petition is contested by the other side by filing written statement, whereby , the claim of the petitioner was refuted. It was stated that the appellant, herein, has no locus standi to file the writ petition as she did not appear in the examination held by the PSC in 2017. It was further stated that Saba Ali Chaudhry has been appointed in accordance with law on the recommendations of the Public Service Commission. The learned High Court after necessary proceedings, through the impugned judgment dated 05.09.2018 has disposed of the writ petition in the following manner: "Nutshell of the above discussion is that the writ petition is dismissed to the extent of appointment of the petitioner on regular basis, however , the writ petition is partially accepted to the extent that junior most ad-hoc appointee shall have to vacate the room for recommendee of Public Service Commission i.e. Respondent No. 5. The Department shall act accordingly ."
3. Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate appearing for the appellant while referring to the annexures A/1, A/2, A/3 and A/4, contended that if a recomendee of the Public Service Commission fails to join the service then it is the obligatory duty of the competent authority to appoint the candidate appearing next below in the merit. The learned Advocate further argued that, the respondents, herein, have initiated disciplinary proceedings against Sh. Mustansir Siab who was appointed but did not join, which act is ab initio illegal because he is not a civil servant. The learned Advocate further argued that it was the right of the appellant, herein, to be recommended and appointed against the post left by Sh. Mustansir Siab. The learned Advocate submitted that the reasons listed by the learned High Court in the impugned judgment for dismissing the writ petition are not justified at all.
4. Conversely , Sardar Karam Dad Khan, the learned Advocate-General appearing for the respondents, submitted that the post which was occupied by Sh. Mustansir Siab would be advertised and appointment to that post would be made in accordance with law . He prayed for dismissal of the appeal.
5. We have heard the learned counsel for the parties and have gone through the record of the case. It is not denied that the candidates appearing ahead to the appellant, herein, in the waiting list have been appointed. It is also an admitted position that Sh. Mustansir Siab who was appointed vide notification dated 20.08.2015, did not join the service. The learned High Court has dismissed the writ petition filed by the appellant, herein, on the ground that Sh.
Mustansir Siab joined his duty but subsequently denied to serve hence, the department has to proceed against him. In our view, this observation was not necessary . A person who is recommended by the Public Service Commission and appointed by the Govt . as such is duty bound to join the service and if he fails to join, the candidate next below in the merit can be appointed. It has not been emphasized by the respondents, herein, that the waiting list was expired at the time when the appellant, herein, requested for her appointment against the post fell vacant due to non-joining of Sh. Mustansir Siab In these circumstances, it can safely be concluded that the appellant, herein, has earned the right of adjustment/appointment against the said post. 'The record also reveals that the recomendee Sh. Mustansir Siab has left the post in question and joined another department without any approval of the competent authority . He was on probation for a period of 2 years and no notice was required for relieving him. The action of the department to proceed against him under the Special Powers Act, 2001, is totally fallacious and tantamount to create hardships in the appointment of the appellant, herein.
In view of the above while accepting this appeal, the impugned judgment of the High Court dated 05.09.2018 is hereby set aside. Resultantly , the writ petition filed by the appellant, herein, before the High Court stands accepted and the respondents are directed to appoint the appellant, herein, against the post vacated due to non-joining of Sh. Mustansir Siab. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.