SADAQAT HUSSAIN RAJA, CJ. The above titled writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, a direction is sought against the respondents to issue promotion order of the petitioner against the vacant post of Junior Clerk in the light of fitness/typing test held on 30.03.2021 against 25% quota which is reserved for employees of Grade-1 to Grade-4.
2. Stated facts of the case are that the petitioner is 1st Class State Subject hails from District Muzaffarabad. It is further stated that the petitioner is permanent employee of University of Azad Jammu and Kashmir and serving as Laboratory Attendant BS-02 in the Department of Sociology. It is alleged that the department conducted fitness/typing practical test of eligible employee for promotion against the posts of Senior Clerks and Junior Clerks which is mandatory requirements of rules/statues through letter dated 10.03.2021. It is further alleged that the department issued call letter to the petitioner for fitness/typing test against the 25% quota reserved for Grade 1 to Grade 4 employees. The petitioner participated in the test and qualified the same and was placed at the top of the merit position for promotion of Junior Clerks as per rules/statutes. It is contended that the Senior Clerks have been promoted by the official respondents in compliance of letter dated 10.03.2021 on similar fitness/typing test and petitioner has been discriminated in order to accommodate their favourites. It is further contended that the petitioner moved representation before respondent No.1 for redressal of his grievance for issuance of promotion order of the petitioner but no action has been taken. It is averred that the Department of Sociology and Rural Development sent proposal to the Dean Faculty of Arts for appointment/promotion of petitioner vide proposal dated 02.07.2020 but despite vacant posts no action has been taken by the respondents.
3. The written statement has been filed by the University-respondents, wherein, it is stated that the petitioner has an alternate remedy to file an appeal before the Syndicate under University Employees Statutes, 1999. It is admitted that the petitioner is eligible, however, he could not pass the typing/fitness test, so, selection committee in its meeting held on 31.08.2021 decided to recall the typing test in future. It is further contended that the promotions of Senior Clerks have been made in accordance with law.
4. Both the parties have filed written arguments which are made part of file.
5. I have examined the written arguments and gone through the record of the case. A perusal of record shows that the petitioner has been appointed as Laboratory Attendant B-2 in the University of Azad Jammu and Kashmir, on the recommendations of respective Selection Committee, vide order dated 30th Nov. 2016. The University of Azad Jammu and Kashmir called for test of employees Grade-1 to Grade-4 for promotion of Junior Clerks against 25% quota reserved for the aforesaid employees. It is the claim of the petitioner that he appeared in fitness/typing test and got merit position but the respondents did not appoint him with mala fide intention and he has been discriminated. So, the basic claim of the petitioner is that the Senior Clerks have been promoted on the basis of the similar fitness/typing test. In this regard, the record of Senior Clerks has been summoned vide order dated 14.09.2021. A perusal of record submitted by the University of Azad Jammu and Kashmir shows that 09 posts of Senior Clerks were lying vacant in the University of Azad Jammu and Kashmir out of which 05 were reserved for departmental promotion quota and as per statutes, criteria for promotion of Senior Clerks is as under: "The University of Azad Jammu and Kashmir Muzaffarabad AGENDA For promotion cases (Senior Clerks and HTV Cleaner)
The meeting of the selection committee No. 02, To be held on April 16, 2021 at 10:00 A.M"
Name of Post: Senior Clerk Scale BPS-14 Method of Recruitment: i.By direct appointment20% ii.By promotion 80% Qualification/Experience/Length of Service
(i) By Direct Appointment At least 2nd class B.A/BSc. or equivalent from HEC recognized University with Typing speed of 40 w.p.m in Urdu or English, should be well versed in Microsoft Word, Inpage and Excel.
Age 18-35 years (Age limit shall not be applicable to in service employee).
(ii) By promotions On the basis of seniority cum fitness from amongst the Junior Clerks having 05 years service as Junior Clerk with typing speed of 40 w.p.m in Urdu or English.
6. In view of abovementioned statutes, the Junior Clerks were called for fitness/typing test, wherein, Mohammad Arshad, Nadeem Iqbal, Mohammad Rashid Rasheed, Hareem Nazir and Mazhar Ali Alvi, were promoted against five reserved posts of Senior Clerks. As per record of University- respondents results of aforesaid Junior Clerks are as under:- 1.Typing Test:Passed User Mohammad Arshad Test Results Duration: 10:00 min of total 10:00 min Gross Speed 20wpm Accuracy 74% Net Speed 15wpm 2.Typing SpeedPassed User Nadeem Iqbal Test Results Duration: 10:00 min of total 10:00 min Gross 16 wpm Accuracy 85% Net Speed 14 wpm 3.Typing SpeedPassed User Mohammad Rashid Rasheed Test Results Duration: 10:00 min of total 10:00 min Gross 08 wpm Accuracy 82% Net Speed 07wpm 4.Typing SpeedPassed User Hareem Nazir Test Results Duration: 10:00 min of total 10:00 min Gross 14wpm Accuracy 88% Net Speed 12wpm Typing SpeedPassed User Muzahar Ali Alvi Test Results Duration: 10:00 min of total 10:00 min Gross 09 wpm Accuracy 56% Net Speed 05 wpm
7. A perusal of aforesaid record shows that Mohammad Arshad who declared passed in his fitness/typing test, his gross speed was 20 wpm and net speed was 15 wpm, whereas, Nadeem Iqbal in his typing test gross speed was 16 wpm and net 'speed was 14 wpm, who also declared pass. Furthermore, Mohammad Rashid Rasheed whose gross speed was 8 wpm and net speed was 7 wpm also declared passed. Hareem Nazir her gross speed was 14 wpm and net speed was 12 wpm also declared passed. Similarly, Mazhar Ali Alvi, whose gross speed was 9 wpm and net speed was 5 wpm also declared. passed. All the above-mentioned Junior Clerks declared passed and were promoted on the basis of fitness/typing test dated 30.03.2021.
8. The record of Junior Clerks has also been summoned vide order dated 14.09.2021, a perusal of which shows that 09 posts of Junior Clerks were vacant amongst them 02 posts were required to be filled up by promotion. The agenda/statutes for promotion of Junior Clerks are as under: "The University of Azad Jammu and Kashmir Muzaffarabad AGENDA Meeting of the Selection Committee No. 02, for promotion of the post of Junior Clerks BPS-11.
To be held on August 31, 2021" Name of Post: Junior Clerk Scale BPS-11 Method of Recruitment: i.By direct appointment75% ii.By promotion 25 % Qualification/Experience/Length of Service
(i) By direct appointment At least 2nd class B.A/BSc, or equivalent from HEC recognized University/Institution with typing speed of 40 w.m.p in urdu and English should be well versed in Microsoft Word, Excel and Power Point.
(ii) By Promotion Reserved for employee of Scale 1 and above who qualify and fulfill the required slandered for the post of Junior Clerk.
9. As per statutes supra, the University-respondents issued call letters to eligible employees serving in Grade-1 to Grade-4 for fitness/typing test and after conducting fitness/typing test merit list was issued as below: CONSOLIDATED MERIT LIST OF TYPING TEST OF JUNIOR CLERKS (ENGLISH + URDU)
Sr.
No.Candidate NameGross Speed (WPM)
English Net Speed (WPM)
UrduTotal Words Typed UrduNet Speed. (WPM)
Urdu 1.Muhammad Junaid Khan42 39 257 24
2. Ahtisham Ul Haq 26 22 312 30
3. Amir Aziz Minims 23 18 292 29
4. Liaqat Hussain Shah 23 18 280 26
5. Nadaras Hussain 19 16 205 19
6. Rashid Ali Mughal15 13 162 15
7. Sajjad Haider 16 12 270 24
8. Nasir Aziz Ch. 11 10 124 12
9. Nazia Farooq 13 09 233 21 10.Faiz Ahmed 09 08 148 15
11. Basharat Ur Rehamn08 07 141 14 12.Abdul Ghafoor Kiani12 06 113 10 13.Sonia Kanwal 09 06 140 13 14.Mohammad Imtiaz 08 05 117 12 15.Asif Fareed 05 03 69 05 16.Mohammad Ashfaq Abbasi10 03 290 29 17.Munir Ahmed 09 03 200 19 18.Shahzad Ahmed 4 2 0 0 19.Abdul Qadir 07 02 79 07 20.Haroon Abbasi 03 0 145 14 21.Abdul Basit 02 00 17 0 Assistant Registrar (Meeting)
A bare reading of merit list of typing/fitness test issued by University of Azad Jammu and Kashmir Muzaffarabad it appears that Mohammad Junaid Khan, the petitioner has been placed at Sr. No.1, whose gross speed of fitness/typing test was 42 wpm and net speed was 39 wpm, however, declared failed. It is very astonishing that the Senior Clerks were promoted whose gross typing speed was under 17 wpm and were declared passed and the petitioner was not promoted whose gross speed was 42 wpm. It is pertinent to mention here that according to merit list of fitness/typing test of Senior Clerks and Junior Clerks issued by the University, that candidate who has less professional qualification is promoted in higher grade i.e. Senior Clerks and a person who is professionally sound has not promoted in the lower grade i.e Junior Clerk. So, the claim of petitioner that he has been discriminated is proved from the record filed by the University of Azad Jammu and Kashmir. The right against discrimination is a fundamental right guaranteed by the Constitution. This view finds support from case titled "Tariq Rashid and 9 others v. University of Azad Jammu and Kashmir and 07 others," (2020 PLC (C.S.) Note 41, p.35), wherein, the August Supreme Court of Azad Jammu and Kashmir, in paragraph No.7, of the judgment held as under:- ".............. In this case the policy/notification has been issued and acted upon and the rights in favour of the beneficiaries stood accrued, thus, the University-authorities have no legal justification to extend the benefit of the policy to some employees and deny the same to, the other employees, who stand on same footing. Such discrimination is prohibited under the Constitution; therefore, the appellants are entitled for the same treatment as met by the other employees, thus, the act of Universities authorities to deny the benefit of policy to the appellants is declared illegal."
An identical proposition came under consideration before the Islamabad High Court in case titled "Muhammad Azram v. National Institute of Health and others," reported as (2015 PLC (C.S.) 537), wherein, at page 545 of the judgment, in paragraph No.10, it was observed as under: The right against discrimination is a fundamental right guaranteed under Article 25 of the constitution. Similarly situated persons cannot be treated differently and it renders any action or orders as void, arbitrary and illegal. It has been consistently held by the Supreme Court that though a reasonable classification of persons is permissible who may be treated differently, provided there is legitimate basis for such classification but the classification should not be arbitrary and capricious and must rest on reasonableness and there must exit a fair nexus and a just relationship with the need for such classification. Similarly, situated or place person cannot be treated differently."
Reference in this regard may also be made to the cases titled "Dr. Shahnaz Wajid v. Federation of Pakistan through Secretary Establishment Division Government of Pakistan, Islamabad" (2012 PLC (C.S) 1052), "Fauji Foundation and another v. Shaman ur Rehman" (PLD 1983 SC 457), "Javed Jabbar and 14 others v. Federation of Pakistan and others" (PLD 2003 SC 955).
10. So far as the question of eligibility of petitioner is concerned, the respondents-University in their written statement admitted that the petitioner is eligible, however, did not promote him due to the reason that he could not pass fitness/typing test. The petitioner has attached a letter issued by Coordinator of the Department of the Sociology and Rural Development, who recommended that the petitioner is very hardworking, honest and dutiful person, so he may be promoted. The relevant proposal is as under:-
11. A bare reading of the aforesaid script shows that the petitioner is performing duty of typing on computer and also prepared results, so, his eligibility is proved through record, hence, he is entitled to the equitable relief of writ jurisdiction.
12. The University is not at par to the other departments because it is the institution which provides education to the people who construct the society and Country. So, the institutions like Universities and Courts should be aboveboard and any illegality or discrimination in such like institutions tantamount to ruin the whole system of the country. It is very astonishing that the respondents conducted test for promotions of Senior Clerks and Junior Clerks and on the basis of said test, the Senior Clerks were promoted despite the fact that they are very low in fitness/typing test. The petitioner who shows remarkable result but ignored which is glare discrimination and the Courts are duty bound to provide justice where any discrimination is found.
13. The contention of the learned Legal Advisor for University that the petitioner has an alternate remedy to file an appeal before Syndicate, therefore, he cannot file a writ petition. A perusal of record appended with writ petition shows that the petitioner filed an application before competent authority (Vice Chancellor) for redressal of his grievance but the University-respondents did not consider the same. Even otherwise, according to "The Azad Jammu and Kashmir Interim Constitution, 1974, all the State Subjects are equal before law and are entitled to equal protection of law. The relevant Article 15 of Azad Jammu and Kashmir Interim Constitution, 1974, is reproduced as under:-
15. Equality of State Subjects. (1) All State Subjects are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination against any state Subject on the basis of sex.
(3) Nothing in this article shall prevent the State from making any special provision for the protection of women and children.
Article 17 also provides safeguard against discrimination in service. The relevant Article 17 is reproduced as under:
17. Safeguard against discrimination in service. No state Subject otherwise qualified for appointment in the service of Azad Jammu and Kashmir shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, residence, sex or place of birth: So, the argument raised by the learned Legal Advisor is repelled because it is apparent on the face of record that the petitioner has been discriminated from his vested accrued right and where violation of fundamental right guaranteed by the Constitution is found then constitutional jurisdiction of this Court can be invoked. This view finds support from PLD 2002 Lahore 521.
14. An application' has been moved by representative of University for clubbing the case titled "Nisar Aziz Chaudhary v. Registrar University of Azad Jammu and Kashmir". I have perused the aforesaid file which was filed on 28.10.2020 and has no relevancy with the captioned case due to distinguishable facts, hence, need not to be clubbed together and application seems to be filed to prolong the instant case.
15. The authorities referred to and relied up on by the learned legal Advisor of University have distinguishable facts, hence, need not to be discussed.
16. The crux of above discussion is that writ petition is accepted and the respondents-University are directed to issue promotion order of the petitioner being at serial No.1, of merit against the vacant post of Junior Clerk in the light of fitness/typing test held on 30.03.2021 against 25% quota reserved for employees of Grade-1 to Grade-4, within a period of one month from the receipt of the instant judgment.