1. Through the above titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner seeks the following relief: "It is, therefore, most humbly prayed on behalf of the petitioner that this Hon'ble Court may very graciously be pleased:
(i) To direct official Respondents No. 2 and 3 to procure MCQs test answer sheets with result, including result of interview of the petitioner and private Respondents No. 8 before this Court regarding post of General Line Senior Teacher.
(ii) After examining record may kindly be declared all proceedings to the extent of private Respondent No. 8 as null and void and to direct respondents jointly and severally to recommend and appoint the petitioner against the post in question on the basis of merit.
(iii) Further may kindly be directed the respondents jointly to withhold every proceeding to the extent of private Respondent No. 8 till final disposal of, instant writ petition.
2. (iii/ 1) The appointment notification dated 08.05.2018 may kindly be declared to be issued on the basis of illegal proceeding and incompetent application of illegal proceeding and incompetent application of Respondent No. 8 may kindly be set aside.
(vi) Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also be granted."
3. Precise facts forming background of the instant writ petition are that petitioner is 1st class State Subject of Azad Jammu and Kashmir hails from District Hattian Bala, who is qualified as M.Sc.
4. Sociology and M.Ed. It is stated that the petitioner was declared disable by Medical Board Muzaffarabad through certificate dated 27.03.2010, 16.022015 respectively. It is alleged that as per circular dated 28.10.1992, followed by Govt. notification dated 20.09.2005, the Azad Jammu and Kashmir Council Disabled Person (Employment and Rehabilitation) Act, 1986, the Govt. allocated quota for disabled persons. The petitioner was initially inducted as Senior Teachress BS-16, on adhoc basis vide Govt. notification dated 26.03.2011. It is maintained that petitioner filed a Writ Petition No. 1023/2012, titled "Mst Sadaqat Abbasi v. Azad Govt. and others" through which a direction was sought that the post occupied by her may be advertised in accordance with Govt.
5. Policy dated 28.10.1992, after determining 1% disabled quota. As a result, this Court directed that the post in question be advertised against disabled persons' quota, through judgment dated 26.12.2013.
6. In compliance of the aforesaid judgment, official Respondent No. 1 sent requisition of the post of Secondary School Teacher General Line against disabled persons' quota. The aforesaid post was consequently published by PSC on the basis of open merit against disabled persons quota through advertisement No. 01/2015 dated 21.02.2015. The petitioner along with others applied for the same, who participated in M.C.Q test held on 28.01.2018 and got 1st position while obtaining 68.20 marks.
7. After qualifying M.C.Q. test she participated in interview in the office of Public Service Commission, Muzaffarabad, on 22.03.2018. Thereafter, private Respondent No. 8, who obtained lower position in written test and not falling in disabled persons' quota was recommended by the Commission. The petitioner filed writ petition against all these proceedings of PSC made in favour of Respondent No. 8, whereas during the pendency of the writ petition, the official respondents issued the appointment notification dated 08.05.2018 in favour of Respondent No. 8. The said order/notification was challenged through the amended writ petition. The claim of petitioner is that last date for filing applications as per advertisement Annexure J] was 25.03.2015, however, private respondent obtained disability certificate on 11.06.2015. It is further claimed that private Respondent No. 8 obtained contract appointment as Junior Teachress against normal quota through order dated 26.01.2018. It is further added that private Respondent No. 8, also applied for the post of Headmistress BS-17 against the normal quota, before PSC, who after obtaining M.C.Q. test was placed at Serial No. 7 of the merit list, therefore, she could not be appointed against disabled persons' quota.
8. Vide order dated 11.04.2022, the parties were directed to file written arguments within 15 days and learned counsel' for the parties filed written arguments on 22.04.2022 to 26.04.2022, respectively.
9. Ch. Shoukat Aziz, Advocate, learned counsel for the petitioner, mainly took the version in his writ petition as well as in arguments that at the time of submitting application, the private respondent was not in possession of disability certificate which was necessary for applying against the quota reserved for the disabled persons. According to her, the private respondent got the disability certificate in her favour after submission of the applications for appointment against the post in question, that's why Respondent No. 8 has not submitted the said certificate with the application at the time of submitting application. It was mentioned that private respondent neither fall in the category of disabled persons nor she could validly applied against the said post because no disability certificate was in her possession till the last date of filing applications before the PSC i.e. 25.03.2015. It is further argued that the private respondent could not be declared disable till last date of filing application, therefore, the PSC with mala-fide intention and violating their own procedural rules included/allowed the private non-Petitioner No. 8 to participate in the selection process, whereas according to Rule 4(2) of Public Service Commission (Procedure) Rules, 1994, applications which are incomplete or not on a prescribed form shall be rejected by the Commission. According to version of the petitioner, the private respondent, while applying against 1% quota of disabled person, was lacking the disabled person certificate, so, the PSC illegally accepted her application, whereas according to the petitioner that she has not only got a disability certificate from the Industry Trade & Labour Department, but also got issued disability certificate from NCRDP and Social Welfare Department of AJ&K and her NIC was also issued accordingly as well, with the international monogram and she proved her ability in Teaching during her tenure in service as adhoc teacher from 2011 up-till 2018. According to the petitioner, she succeeded against the post in question and stood at 2nd position in merit and is entitled to be appointed as such but due to wrong assertion of the private respondent, she has been deprived of her legitimate right of appointment because the private respondent 'has wrongly been included in the process of selection whereas her application was rejectable due to formal defect of not having disability certificate at the time of submission of applications. It is also the argument of the petitioner that the private respondent is living a normal life and on the face of record it is proved that she applied and participated against the post of Junior General Line (Female) from Jhelum Valley Division as well and remained in 2nd position and got appointment on 26.01.2018, she was confirmed on 28.03.2018 vide merit list issued on 21.09.2017, so, Respondent No. 8 as being living a normal- life does not fall in the definition of a disable person. In support of her version, learned counsel for the petitioner referred and relied upon the judgments of the Apex Court reported as 1998 SCR 359, 1999 SCR 287 and 2016 SCR 1599 (A). Lastly, the petitioner took the version that the appointment notification of the private Respondent No. 8 dated 08.05.2018 to the extent of Serial No. 20 and recommendations of PSC to the extent of candidature of private non-Petitioner No. 8 may kindly be set aside and a direction to the official respondents be issued to appoint the petitioner as Secondary School Teacher General Line against 1% quota of disable person.
10. Sardar Karam Dad Khan Advocate, learned counsel has filed the written arguments on behalf of Respondent No. 8 wherein it has been objected that in the original writ petition filed by the petitioner the mode and criteria of the PSC selection process has been challenged and neither the competency of application has been challenged nor medical certificate has been challenged.
11. According to the version of the private Respondent No. 8, the disability certificate of the petitioner is forged because all the certificates in favour of the petitioner have not been issued by the Industry Department as required by law. it is argued that the petitioner has manipulated the so called disability certificate which has not been filed with the writ petition and has been filed with the replication. He next argued that the petitioner has not come before the Court with clean hands in this regard. It was further submitted that the amendment application for challenging the notification dated. 08.05.2018 has been filed on 07.10.2019 and this notification has been challenged after the delay of more than 01 year through amended writ petition. The notification was in knowledge of the petitioner and even the petitioner has filed application for ad-interim relief with the prayer that appointment order may not be issued. In this perspective the writ petition is liable to be dismissed on this sole ground. On the point of -non-submission of disability certificate on the last date of submission of the application, it is argued that the petitioner bona-fidely submitted the form along with the application before the Secretary Industry for issuance of the certificate on 24.03.2015 along with the certificate dated 20.03.2015 and the same was processed and later on, was issued by the Secretary Industry to Director General health for the issuance of the same. All these letters have already been submitted before the Court on 04.03.2021 by filing an application and the same are also attached with the written arguments. It has been contended that the PSC has rightly considered the case and accepted the disability certificate by relaxing the rules in accordance with the policy enforced at that time. It is stated that the version of the petitioner that Respondent No. 8 is not entitled to be considered is misconceived, hence, Respondent ' No. 8 denied this version. It is also the argument of Respondent No. 8 that she has been rendering her services as Junior Teacher vide order dated 26.01.2018 which was confirmed vide order dated 28.03.2018 and these orders do not disentitle Respondent No. 8 for applying against the disabled quota because the department has not determined the quota of Junior Teacher for disabled person and there was no bar that a disabled person could not compete for the normal persons quota in the rules. The disability certificate of the respondent has not been challenged by the petitioner. It was prayed that the writ petition may be dismissed.
12. The PSC in its written arguments supported the version of Respondent No. 8 and stated that the petitioner and Respondent No. 8 have applied against the quota of disabled persons whereas Respondent No. 8 has been appointed on merit. The PSC, in the light of its policy, is of the view that Respondent No. 8 has been declared main qualifying candidate against 1% quota reserved for disabled persons who is in possession of the certificate of disability. She qualified the MCQs etc and stood first in the order of merit and no violation of the rules has been committed while recommending Respondent No 8 for appointment as Senior General Line Teacher from the quota of disabled persons. It has also been mentioned that no right of the petitioner has been infringed because she stood at Serial No. 2 of the merit list whereas Respondent No. 8 stood at Serial No. 1 of the merit list. It was stated that Respondent No. 8 submitted her disability certificate and report in this regard with her application form which was issued to her by the Medical Board of Sheikh Khalifa Bin Zaid Al-Nihan Hospital Muzaffarabad, after examining her she has rightly been recommended and appointed in view of her merit position.
13. I have perused the available record and also gone through the written arguments submitted on behalf of the parties. As far as the objection regarding challenging of appointment notification of Respondent No. 8 after the delayed period by the petitioner through the amended writ petition has no weight as the same has been issued during the pendency of the writ petition. Therefore, the said notification was rightly challenged through amended writ petition. The objection against the disability certificate of the petitioner is also repelled as the same has been issued by the concerned department and has been attached with the application form submitted before the PSC well in time. The PSC has accepted the same as wen.
14. The moot point of the case is that the post of Secondary School Teacher General Line (BS-16) was advertised through advertisement No. 1/2015 dated 21.02.2015 through disabled quota on open merit in which last date for receiving applications alongwith documents was fixed as 25.03.2015.
15. The Respondent No. 8 has not filed the disability certificate along with the application till last date i.e. 25.03.2015 but has got prepared the disability certificate in her 'favour after the due date on 11.06.2015 that period is comprised of more than 02 months and 21 days. Therefore, it can safely be said that private respondent was not having the disability certificate till last date for receiving the applications mentioned in the advertisement. So, the PSC has committed a grave illegality for receiving the disability certificate from Respondent No. 8 after a considerable delay of 2 months and 21 days. The PSC is supposed to adopt the policy in this regard in its letter and spirit without any discrimination whereas according to Rule 4(2) of AJ&K PSC (Procedure) Rules, 1994 applications which are incomplete or not on a prescribed form shall be rejected by the commission. Rule 4(2) of PSC Rules, 1994, is reproduced as under: "4(2) The applications which are incomplete or not on a prescribed form shall be rejected by the Commission."
16. Conditions No. 12 and 13 of the advertisement also indicate the same proposition. For proper appreciation of the matter, the conditions 12 and 13 of the advertisement are hereby reproduced as under: So, the PSC has deviated from its policy by entertaining the application without disability certificate from the private respondent which is against law as being not equitable. Because may be some other eligible disabled persons who were available at the time of advertisement but they could not apply due to not having the disability certificate at the time of advertisement before PSC. The same like proposition came up before the Hon'ble Supreme Court of AJ&K in case titled "Muhammad Shakeel Khan v. AJ&K Public Service Commission & 3 others" (1998 SCR 359) while dealing with the proposition at hand, it was remarked that ultimately on the basis of a document which was obtained on 09.12.1997 and placed on record of the Commission on 16.12.1997 could not have been considered by the Commission as the application of Respondent No. 4 on the stipulated date i.e. 10.11.1996 was incomplete and the same should not have been considered after a couple of days.
17. From perusal of the above case law, it is crystal clear that on the date of submission of the application, the disability certificate of Respondent No. 8 has not been attached with the application form and in this regard policy of the PSC and Rules are very much clear that due to non-submission of the required documents at the date fixed for the purpose, the application would be incomplete which would disentitle a person/candidate for applying against the post. It is also clear from the record that Respondent No. 8 obtained/submitted disability certificate after the due date, so, her application should not be entertained by the PSC due to incompletion of the same.
18. Therefore, keeping in view the facts and law on the point in hand, the writ petition is hereby accepted and the impugned notification dated 08.05.2018 to the extent of appointment of the private Respondent No. 8 is hereby set aside, consequently, the PSC is hereby directed to send the Recommendations of the petitioner for the post of Senior Teacher General Line advertised through Advertisement No. 1/2015 against the disabled quota and Respondent No. 1 is directed to issue the appointment notification of petitioner in place of Respondent No. 8 after getting approval from the concerned authority.