GHULAM MUSTAFA MUGHAL, J. The captioned appeal by leave of the Court has been directed against the judgment dated 10.10.2018 passed by the Azad Jammu & Kashmir High Court in writ petition No. 1906 of 2017.
2. The facts forming the background of the captioned appeal are that the Azad Jammu & Kashmir Public Service Commission advertised some posts including post of Veterinary Officer (Extension) against the quota of Refugees of 1989, vide advertisement No. 01/2016. Thereafter , 26 more posts were advertised vide advertisement No. 02/2017 but the quota for refugees was not enhanced. Among others, the appellant, herein, applied and competed for appointment against the quota of Refugees of 1989. A test and interview was conducted by the Public Service Commission but the appellant, herein, could not get the merit position for appointment and respondent No. 5, herein, was recommended by the Public Service Commission against the post falling in the quota of refugees of 1989. The appellant, herein, filed a writ petition before Azad Jammu & Kashmir High Court on 17.11.2017, alleging therein, that in pursuance to the advertisement, a computerized MCQs test was conducted. Appellant, herein, mistakenly disturbed the sequence of the answers at the answer sheet, as a result whereof, almost 37 MCQs were not answered according to the sequence . It was stated that he requested the invigilators to provide him another answer sheet but they refused. It was further stated that he moved an application to this effect to the Chairman Public Service Commission who assured the appellant, herein, that his grievance will be redressed but the needful has not been done as yet. It was alleged that if his answers are considered at right place then he would be at the top of the merit. It was further alleged that the appellant, herein, is at serial No. 1 of the waiting list and at the time of advertisement some posts were withhe ld by the department with mala fide intention. It was claimed that in the advertisement dated 02/2017, 26 more posts were advertised by the Public Service Commission but quota was not allocated to the refugees of 1989 which is 6% as per rules. It was further claimed that if the quota is properly allocated to the petitioner's unit then 2 posts would he available and the appellant would have been adjusted. The writ petition was contested.by the other side by filing written statement, wherein, it was stated that 3 posts against the quota of Refugees of 1989 were available out of which 2 posts have already been filled in and against the 3rd one, after conducting the test and interview , respondent No. 5, herein, has been appointed as the appellant did not attain the merit position hence, has rightly been not appointed. The learned High Court after necessary proceedings and hearing the parties through the impugned judgment dated 10.10.2018 has dismissed the writ petition.
3. The learned Advocates representing the parties have filed written arguments. In the written arguments filed on behalf of the appellant, herein, it has been stated that the appellant, herein, was appointed as Veterinary Officer B- 17 on adhoc basis vide order dated 14.11.2014 and his service was extended upto the time. It is further stated that vide advertisement No. 1/14, 1/16 and 2/17, 29 posts of Veterinary Officer were advertised for different units of Azad Jammu & Kashmir including the quota of refugees of 1989, It is claimed that the appellant, herein, appeared in the MCQ's test conducted by the Public Service Commission and was declared qualified, hence, was called for interview . It is further stated that during examination some MCQs were not answered in accordance to the questioning sequence rather inadvertently their answers were given while disturbi ng the sequence which resulted into loss in marks and an application to this effect was moved to the Chairman Public Service Commission for manual checking but no action was taken. It is further stated that at the time of advertisement, admittedly 34 posts were available with the department and 2 posts against the quota of refugees of 1989 were advertised. It is further stated that 5 posts of Veterinary Officer B-17 are still occupied by the adhoc employees from which the mala fide of the department is crystal clear . It is further stated that had the 4 withheld posts been referred to the Public Service Commission, the appellant herein, would have been appointed. it is submitted that the learned High Court has erroneously observed that the appellant, herein, has not placed on record anything regarding qualifying the test and interview . It is further submitted that fact of the matter is that the copy of the result as not supplied to the appellant, herein, and this fact was duly mentioned in the writ petition, hence, it was enjoined upon the learned High Court to summon the relevant record for just decision of the case. It is further submitted that it was categorically stated in para No. 8 of the writ petition that appellant, herein, is at serial No. 1 of the waiting list and this fact has neither been denied by the Public Service Commission nor the Azad Govt. properly rather their reply was evasive and was liable to be treated as admission in view of Order VIII, Rule 5 of the Code of Civil Procedure.
It is further submitted that the appellant had been working as adhoc Veterinary Officer for pretty long period and after test and interview has been victimized due to mal-administration of the department.
4. Conversely , in the written arguments filed on behalf of the respondents it is stated that direction cannot be given in vacuum rather facts and figures are to be pleaded to show the complete pictur e of withheld posts. It is further submitted that the learned High court has properly appreciated the matter and the judgment under challenge is unexceptional and perfect both on facts and law .
5. We have heard the learned counsel for the parties and have gone through the record of the case. So far as, the assertion of the learned counsel for the appellant, that the appellant, herein, was placed at serial No. 1 of the waiting list is concerned, that has been alleged in para No. 8 of the writ petition which is reproduced as under:--- "8. That within a day result was announced on website, petitioner secured 60% marks, he also submitted an application to the Chairman Public Service Commission for reconsidering his answer sheet for manual marking while considering the sequence on down to up. The Chairman Public Service Commission assured to do the needful but it is still awaited. Interview were also convened and the petitioner is sure that he is placed at serial No. 1 in the waiting list, whereas, respondent No. 5 is placed at serial No.1. Petitioner also submitted his applications for issue nee of copies of result of pass candidates after M.C.Qs. Examination, result after interview of 1st candidate and waiting list and also the copy of petitioner's application submitted for manual marking. Facsimile of the petitioner's application submitted to Chairman Public Service Commission is attached herewith as Annexure 'G'."
The reply of the some given by the Public Service Commission in its written statement is as under:-- {{URDU TEXT}} {{URDU TEXT}} Similarly , the reply of the Govt. in the written statement is reproduced as under:---2 {{URDU TEXT}} A perusal of the above would show that the Public Service Commission in its reply has observed that explanation has been given in the preceding paragraphs. A perusal of those paragraphs reveal that the question of qualifying the test and interview has not been ment ioned at all. Similarly , the reply of the Government, who was supposed to give facts figure and deny the allegation while giving break-up of the posts, was also of evasive nature. By now, law is well-settled that if a fact is pleaded and is not denied by the other side specifically and reply is evasive in nature, then the same can be treated as admission on the part of the respondents. Reliance may be placed on Ramrao Laxmikant Shirkhedkar's case reported as AIR 1963 Bombay 121, wherein, it was observed as under:-- "Petitioner asserting that Government had issued certain instructions in the matter of strike by Government servants. No averment in the return filed on behalf of respondents either denying or affirming of such instructions.
On normal rules of pleading it must be held that the issuing of such instructions, as alleged by the petitioner , had not been denied and, therefore, must be taken to have been accepted."
Similarly , in Badat and Co. Bombay's case reported as AIR 1964 Supreme Court 538, while dealing with the same proposition, it was observed as under:--- "Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall he taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.........................."
The learned counsel for the appellant has placed on record some adhoc appointments which are still holding the field and are 5 in number . There is no negation of this fact on the record by the respondents' side. It is, therefore, proved that these 5 posts were available at the time of requisition. Had these posts been sent to the Public Service Commission, the appellant, herein, would have been accommodated. This state of affairs leads us to the conclusion the respondents have withheld these posts at the time of advertisement in violation of the precedents of the superior Courts.
In view of the above, this appeal is accepted. Resultantly , the writ petition filed before the High Court stands accepted and the respondents are directed to appoint the appellant, herein, while relieving the junior most ad-hoc appointee.