Through the supra petitions filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioners have sought direction against the respondents to set-aside the letters dated 10.10.2018 and 11.10.2018, to the extent of short listing the private respondents against the post of Assistant Chief Planning BPS-18. Further direction has also been sought to include the petitioners' names in the shortlisted candidates and call them for interview and restrain the respondents to issue recommendations in favor of private respondents.
2. As the common questions of facts and law are involved in the supra cases, therefore, the same are being disposed of through this single judgment in view of sub-rule (2) of Rule 11 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984.
3. The facts culminating into the genesis of the instant petitions are that the Azad Jammu and Kashmir Public Service Commission (AJKPSC) advertised two posts of Assistant Chief Planning BPS- 18 in the department of Planning and Development through advertisement No. 03/16 dated 12.07.2016, and as per rules, the qualification for initial recruitment is 'Masters degree (Second Class) in Economics, Statistics, Sociology, Business Administration, Commerce, Computer Sciences, Agriculture, Animal Science, Forestry, Development from recognized University with 5 years relevant experience. The petitioners being qualified, applied against the supra posts and thereafter, the call letters were issued to the petitioners for interview. As Per stance of the petitioners, they have qualified the written test but they were neither shortlisted nor called for interview, however, the private respondents who have no experience in the relevant field (5 years' experience), were short listed by the Azad Jammu and Kashmir Public Service Commission and called for interview. As per contents of the instant petitions, this act of respondents is against the law, rules and in contravention of the fundamental rights as well as against the pronouncements of Hon'ble Apex Court of Azad Jammu and Kashmir, hence, these petitions have been filed in this Court for setting aside the letters dated 10.10.2018 and 11.10.2018, through which the private respondents have been shortlisted.
4. Both the writ petitions were admitted for regular hearing on 15.02.2019 and 30.10.2019 respectively and after admission of the same, the respondents were directed to file written statement and in the written statement filed on behalf of Respondent No. 7, it has been stated that the petitioners were not among the list of top five candidates against two posts of Assistant Chief Planning B-18, therefore, as per policy/rules of Public Service Commission, they could not be called for interview for the supra posts. It has further been alleged that shortlisting of the candidates is carte blanche of the Azad Jammu and Kashmir Public Service Commission solely and the petitioners cannot be allowed to ask for transfiguration in the decision of Public Service Commission. It has also been alleged in the petitioners' claim that they have most relevant experience in the relevant field which is not the only criteria or yardstick to determine the suitability of the candidates for short listing them for interview, all the answering respondents have 5 years and 4 months' relevant experience in addition to having qualification of higher education. Lastly, it has been requested that the writ petitions may kindly be dismissed.
5. The learned counsel for the petitioners while reiterating the grounds taken in the memo. of writ petitions stated that the act of Public Service Commission for not considering the petitioners for interview is against the law, facts and fundamental guaranteed rights, as they have the requisite qualification and the relevant 5 years' experience. The learned counsel further argued that private respondents had not possessed the requisite experience but the Public Service Commission illegally shortlisted them against the posts of Assistant Chief BPS-18. It was the utmost and prior duty of the Public Service Commission, to scrutinize the matter pertaining to the requisite qualification and experience in the relevant field before conducting test and interview but after taking written test the scrutiny and analysis of the documents, by the Public Service Commission is not warranted by law, they added.
6. Mr. Abdul Rasheed Abbasi, the learned counsel for private respondent Tallat Farooq' while controverting the arguments of the learned counsel for petitioners vehemently argued that the petitioners could not qualify the written test, therefore, they were not shortlisted by the Public Service Commission and it is the exclusive carte blanche of the Public Service Commission to shortlist the candidates as per its rules and policy. All the private respondents have qualified the written test, therefore, they were rightly shortlisted by the Public Service Commission, he added.
Regarding the experience of private respondents, the learned counsel added that all of them have the requisite experience of 5 years' and 4 months in the relevant field. The learned counsel zealously contended that new point cannot be taken in the replication, however, the same could be raised with the permission of the Court through amendment in the writ petition. Lastly, the learned counsel craved for dismissal of the writ petitions.
All the other counsels owned the arguments delineated by Mr. Abdul Rasheed Abbasi, advocate.
7. Pro and contra arguments have been heard, record perused.
8. The contention of the petitioners is only that they have 5 years' experience in the relevant field and the private respondents having no relevant experience have been shortlisted and also called for interview and according to the petitioners' stance, this act of Public Service Commission is against the law and fundamental guaranteed rights of the petitioners. At the outset, I have to see whether the petitioners have, qualified the written test conducted by the Azad Jammu and Kashmir Public Service Commission against the posts of Assistant Chief Planning BPS-18 and whether they have the relevant five years' experience as required by law or not? In the first instance the main ground of attack on part of the petitioners is pertaining to the experience of the answering respondents which as per estimation of petitioners is not in accordance with the criterion set by law.
9. Experience is the mother of Science, this proverb denotes the importance of Experience, crux of the case portrayed and projected by the petitioners is that the respondents/official quarters shortlisted four candidates who are lacking the relevant experience as required by law, whereas, the petitioners (as per their pleaded claim) are possessing the requisite experience acquired as being Research Officer BPS-17.
Be that as it may, as per advertisement following experience has been mentioned: Excerpt"
Language of the advertisement is explicit and clear enough. Experience sought in the advertisement is pertaining to the field not in the same job. In this connection, it is useful to explore the real meaning of the term 'Experience'. In Chambers Dictionary, the word `Experience' has been defined as under: EXPERIENCE: Test, trial, experiment, acquaintance with any matter gained by trial, personal and general wisdom derived from the changes and trial of life, the passing through any even or course of events by which one is affected, an event so passed through anything received by the mind, as sensation perception or knowledge, to have practical acquaintance with to prove or know by use, to have experience of to feel suffer, undergo.
In English Dictionary the word Experience has been explained as Actual trial practical wisdom. Well said by someone that "Experience without learning is better than learning without Experience".
Meaning thereby that whenever experience is required for appointment against any slot, it must be construed in connection with the relevant subject/basic qualification prescribed in the rules. In the Oxford English Dictionary, the word "EXPERIENCE" has also been defined in explicit manner that the action of putting to the test, trial make experience of, to make trial of. Claim of having experience in Government Job of same nature does not by any way exclude the same Experience acquired during employment in any private sector or Null-Governmental Institutions, claim of the petitioners in this regard is mere hypothesis. Vis a vis dictionary plain meaning of the word relevant is "Relevant" having a direct connection with the matter under discussion, The petitioners have failed to array one Syed Aziz-ul-Hassan as party in the lis as he was also included in the shortlisted candidates under Roll Number 6937, while he qualifies as necessary party in the case. Catena of precedents are available on the subject wherein it has been held that in absence of necessary party, writ is not competent, ready reference in this regard is [2019 SCR 355, 2019 SCR 351, 2020 SCR 326].
10. Trend of the arguments advanced on behalf of the petitioners reveal as that they are claiming promotion against the post in question, while it is a case of direct recruitment no preferential/special treatment or any edge by this angle cannot be claimed. Respondents are equipped with the required qualification, no dent in this regard has been claimed.
ANALYSIS: For fresh recruitment, consideration of past experience of Government service is mockery and fraud upon the constitutionally fundamental guaranteed rights brining barriers for fresh appointment seeking experience of a graded post in Government Service is directly in opposition with the fundamentally guaranteed Right No. 15. This view of the Court is supported by the ratio decidendi of the superior Courts. Some of the ready references in this regard are as infra:
(1) 2010 PLC (CS) 266 in a case titled "Mohammad Aslam vs. Vice Chairman;
(2) 1991 SCMR 1199 in a case titled "Dr. Rehim Gull vs. Secretary to Govt. of NWFP;
(3) 1987 SCMR 73 in a case titled "Khizar Haider Malik vs. Mohammad Rafique;
(4) 1994 PSC 1198 in a case titled "Azad Govt. vs. Mohammad Younis Tahir.
It is germane to mention here that two posts of Assistant Chief B-18 were advertised in light of the prevailing rules dated 15.05.2013, wherein, five years' experience in relevant field is required, thus, subsequent rules in modified form are not retrospective in this regard, all the amendments, modifications and alterations made in the aforesaid rules cannot be read against the vested legal rights of the petitioners. Claim of the employees quo their right of promotion against the posts in question is not tenable, hence, discarded, however, they are at liberty to claim their rights against the said posts in future in light of the existing rules. In PLJ 1999 SC (AJ&K) 334, the Hon'ble Supreme Court of Azad Jammu and Kashmir has held as under: `The process of the selection by the Public Service Commission commenced when the applications were invited through advertisement specifying the qualification etc. of the candidates. Thus, the candidates had the right to be considered according to the qualification etc. laid down in the rules existing at the relevant time or for that matter which had been mentioned in the advertisement.
Thus, after the amendment the merit of third divisioners and second divisioners for selection and appointment could be considered simultaneously, of course, subject to the conditions laid down in the amended Rules. Eventually, the amendment made in the Rules of 1990 is not procedural in nature rather it enlarges the sphere of the competition by placing third divisioners at par with second divisioners for the purpose of selection. Therefore, the contention of the learned counsel for the respondents that as the amendment is procedural in nature and would operate retrospectively is not tenable and is hereby repelled."
Before parting with the decision, it is worthwhile to mention here that the concerned quarters in league with each other sometimes extinguish the quota for direct recruitment by bestowing 100% for departmental promotions. Be that at it may, such like practice is directly in opposition with the constitutionally fundamental rights especially Right Nos. 1 and 15. It amounts to close the door of equal opportunity to compete to the highly qualified young candidates at the cast of a special class or some blue eyed people. Allocation of 100% quota for departmental promotion particularly (for the post of Gazetted Cadre) in the service rules are liable to be ignored on the touchstone of fundamental Right Nos. 1 to 15. The Concerned quarters are directed to revisit all the departmental rules by this angle in order to bring the same in conformity with the constitutionally guaranteed fundamental rights within two months and submit the compliance report in the office of Registrar.
The office is directed tax send the copy of this judgment/decision to the Chief Secretary, Secretary Services and General Administration Department as well as to the Secretary Law, Government of the Azad Jammu and Kashmir.
Be that as it may, five years' experience in BPS-17 in the rules is for the employees for the candidates seeking promotion. It cannot be read as such for candidates applying against direct quota, as it has no nexus with the direct recruitment and if so, read it is clog and cloud upon the constitutionally fundamental guaranteed rights, even otherwise, liable to be ignored. The entire edifice of arguments built by the petitioners is based upon hypothesis. Respondents (shortlisted candidates for the post of Assistant Chief BPS-18) are highly qualified and fully come up to mark as per requisite qualification prescribed in the rules. Experience required by the rules/advertisement by any way does not mean experience of Government Job of similar nature but it postulates that experience in connection with acquired qualification/ subject (condition precedent) for applying against the said slot. Writ is an equitable relief, while sitting in extraordinary jurisdiction, this Court cannot substitute its opinion for that of the Public Service Commission.
In the wake of above discussion on the basis of the supra multiple reasons, the instant constitutional petitions are meritless, thus dismissed.