CH. MUHAMMAD IBRAHIM ZIA, C.J.----The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 15.05.2018, whereby , the writ petition filed by the petitioner , herein, has been dismissed.
2. The brief facts of the case are that the Public Service Commission advertised 4 posts of Assistant Superintendent of Police (ASP) along with some other posts. The appellant, herein applied for the said posts and qualified the selection process. The Public Service Commission through press release/handout shown him selected against the post of Section Officer, instead of ASP, whereas, he had not applied against the said post.
Consequently , his name was removed from the list of successful candidates of Section Officer. He claims that various posts of ASP were lying vacant in the Police Department but the department withheld the same and has not sent the requisition against such posts. The appellant, herein, by filing writ petition sought direction for his appointment against the withheld post of ASP. The learned High Court after necessary proceedings dismissed the writ petition vide impugned judgment dated 15.05.2018, hence, this petition for leave to appeal.
3. Mr. Khalid Rasheed Chaudhary , Advocate, the learned counsel for the appellant narrated necessary facts in the light of the pleadings of the parties and forcefully argued that the impugned judgment of the High Court is the result of non-application of judicial mind and failure to properly examine the relevant record. He submitted that a facsimile copy of the budget book relating to the sanctioned post of ASP for Mirpur was brought on record which clearly proves that this post is lying vacant since long hence is deemed withheld. A copy of another notification has also been attached, in which the policy is mentioned that if candidate from a specifi c unit is not available then the candidate form other unit can be appointed against the available post. The appellant is a state subject who appeared in test and interview and proved his merit but due to withholding of the post, he has been illegally deprived of his legal right, thus, he deserves to be appointed and considered against the post of ASP Mirpur which is lying vacant since long. He further argued that according to Police Rules out of total DSP's posts, 20% are reserved for ASPs, thus, in view of the number of DSP's posts atleast six posts are to be filled from ASP's quota.
Therefore, while accepting this appeal, recalling the impugned judgment, the prayed relief may kindly be granted.
4. Conversely , Raja Saadat Ali Kiani, Additional Advocate-General appearing on behalf of the respondents, forcefully opposed the appeal on the ground that relief cannot be granted merely on the strength of the arguments unless party successfully brings on record the material legal and factual proposition and supportive proof. The appellant's prayer in writ petition is not legal one. He has not brought on record any material or any proof that the post has been withheld. The arguments are misconceived. It was enjoined upon the appellant first of all to bring on record the material supportive to his version. Mere oral assertion is not sufficient for granting relief. Therefore, this appeal has no substance which is liable to be dismissed.
5. We have considered the arguments of the learned counsel for the parties and carefully examined the record made available. It will be useful to reproduce here the relief sought by the appellant in the writ petition.
"It is therefore respectfully prayed that a proper writ may kindly be issued in favour of the petitioner directing the Azad Jammu and Kashmir Police Department to send the requisition for the vacant post of ASP to Azad Jammu and Kashmir PSC and the Azad Jammu and Kashmir PSC may kindly be directed to approve on the said post to the petitioner and send the approval to the Government. Any other relief to which the petitioner is entitled may also be granted."
6. The examination of the record of the writ petition filed in the High Court reveals that the petitioner-appellant has not brought on file any detail or supporti ve document to substantiate his claim that any post was kept withheld.
Mere bringing on record the facsimile copy of budget book cannot be treated a proof that the post was kept withheld. The appellant has sought relief that the department of Police may be directed to send the requisition of the vacant post of ASP to Azad Jammu and Kashmir Public Service Commission and the Azad Jammu and Kashmir Public Service Commission may kindly be directed to approve the said post to the petitioner-appellant and send approval to the Government. The relief sought itself is against law as according to the statutory provision after sending the requisition by the departmen tal authority , the Public Service Commis sion after advertising the same and holding fair and transparent test and interview , and completion of selection process can only recommend the candidate on merit. In writ jurisdiction, the High Court is not empowered to pre-empt the jurisdiction of Public Service Commission and without advertisement of the post or determination of merit, the Public Service Commission cannot be directed to recommend any specific person.
7. So far, as the argument that in the Budget book, the post of ASP is existing, no doubt, it is correct, but it does not mean that the same was made withheld or lying vacant. Although, it appears that the writ petition is not properly drafted however , if for the sake of argument it is deemed that infact appellant wants direction to treat him approved candidate in the waiting list for appointment against the post, even then he has no case, because according to the enforced policy , a candidate from the waiting list or of any unit can only be appointed, if against the advertised post, any candidate fails to join or after joining once again it becomes available within 180 days for any other reason or if against the advertised post of any specific unit, no suitable candidate is available and in that case according to the Government notification, against such advertised vacant post, the candidate from other unit can be appointed.
Whereas, no such eventuality has arisen in this case. The four advertised vacancies of ASP have been filled in by the appointment of the four candidates selected on merit. None of them has failed to join or any vacancy out of these advertised vacancies became available within 180 days due to any other reason. In this state of affairs, no direction can be issued for appointment of any candidate against the post which has neither been advertised nor became available within 180 days of the selection.
8. The other argument that it is deemed that on the strength of the number of posts for DSPs under rules, 20% quota is fixed for ASPs, has no substance . It appears that the learned counsel has been misled by the stray papers of Urdu book of Police rules. Whereas, infact relating to the proposition involved in this case, the Azad Jammu and Kashmir Police Service (Composition of Cadre) Rules, 1983 are enforced, and for the post of DSP, the rules called Azad Jammu and Kashmir Deputy Superintendents of Police Service Rules, 1983 are on the statutory book.
According to both the rules there is no concept of 20% quota, rather , under Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983, the number of posts have to be provided in the schedule to the rules. All the posts of ASPs have to be directly filled in including the 10% vacancies which shall be filled in from the serving Armed Forces. Whereas, all the posts of the DSPs have to be filled in by promotion from amongst the eligible official of mentioned cadre, however , 50% of each cadre of ASP's and DSP's quota is reserved for promotion to the post of Superintendent of Police.
In view of the above stated facts and reasons, the impugned judgment of the learned High Court does not suffer from any illegality or infirmity . The appellant has failed to make out any ground calling for interference in the impugned judgment. Therefore, finding no force, this appeal stands dismissed with no order as to cost.