As the identical points are involved in all the titled writ petitions, therefore, these are clubbed up and are decided through this consolidated single judgment.
2. Succinct facts of Writ Petition No. 600/2020 are that -the petitioner applied against the advertised posts of Primary Teacher from U/C Beer Pani, Tehsil and District Bagh Azad Jammu & Kashmir vide advertisement dated 14.03.2017, in light of said advertisement, test and interview was conducted and finally a merit list was prepared, but the same was illegal, thus, petitioner and some other candidates challenged the same before this Court in earlier round through writ petition, which was accepted by this Court and direction was issued to official respondents to prepare fresh merit list according to law. It is averred that petitioner participated in test and interview through National Testing Service (NTS) Pakistan and she got 2nd position as per merit of U/C Beer Pani. It is vehemently contended that respondents appointed the candidate who stood first in the merit list and even the incumbent of merit list who stood at Serial No. 3 has been appointed against the post of some other union council, but despite availability of post respondents did not appoint the petitioner with male-fide intention. It is further contended that the Directorate Elementary and Secondary Schools has sent a proposal to Director Elementary and Secondary Schools Poonch for the appointment of petitioner, but the office concerned did not take any action because of political indulgence and local conflicts. It is finally prayed that respondents may be directed to appoint the petitioner against the vacant/coming vacant post of Primary Teacher U/C Beer Pani, Tehsil & District Bagh, AJK as per proposal/recommendation dated 28.02.2020.
3. Written statement has been filed on behalf of official respondents, wherein the claim of the petitioner has been negated by contending that the candidate who stood at merit i.e. No. 1 was appointed whereas, due to non-availability of the post of Primary Teacher in U/C Beer Pani, petitioner could not be appointed. It is further contended that only a single post of U/C Beer Pani was available, which was duly advertised and filled in after due procedure of law.
4. Precise facts of the Writ Petition No. 3370/2021 are that the official respondents in the year 2020- 21 through NTS advertised number of posts for the appointment of Junior and Primary Teachers including some posts for differently abled candidates and the petitioner having requisite qualification applied against the quota of differently abled and after test and interview, the petitioner succeeded and secured top position in the merit list. It is maintained that the Govt. of AJ&K formulated Recruitment policy in the year 2017 for the induction of the primary & junior teachers and declared the validity of merit for 365 days. It is submitted that the official respondents after medical board on 27.09.2021 retired one Mrs. Nasreen Afsar, Primary Teacher, from the post of Govt. Girls Middle School Sarrol Janki District Bagh vide order dated 01.10.2021. After that the petitioner approached the relevant authority for her adjustment against the vacant post, but the official respondents instead of issuing the appointment order of petitioner against the above post are intending to shift the same to other station for the adjustment of political favourites.
It is prayed that by accepting instant writ petition, respondents may be directed to appoint the petitioner against the post of Primary Teacher/Elementary Teacher as per merit list dated 04.04.2021 against the vacant post available in Govt. Girls Middle School Sarrol Janki District Bagh.
5. Written statement has been filed on behalf of official respondents, wherein the claim of the petitioner has been negated in toto by contending that there is no such proposal for shifting the vacant post in the department. Respondents further submitted that under the policy, the differently abled certificate of petitioner is not issued by the competent authority. Finally it is prayed that the writ petition may be dismissed.
6. The facts precisely stated in Writ Petition No. 666/2022 filed by petitioner-Iffat Latif we that petitioner is 1st Class State Subject of Azad Jammu & Kashmir and hails from Birpani Tehsil & District Bagh. It is contended that the Education Department of Azad Jammu & Kashmir issued a proclamation in newspaper on 16.01.2020, whereby some posts of School Teacher were advertised on the basis of District wise quota. The petitioner being eligible applied against the said post and participated in selection process, after test/interview, she obtained 4th position in the merit list. It is averred that the concerned respondents issued the appointment order of one Maria Ikram Minhas bearing No. DEO/Female/132830 dated 18.05.2021 as Primary Teacher (BPS-07) in Government Girls High School Bani Minhasan. It is further averred that incumbents placed prior to the petitioner in the merit list were already appointed and adjusted against the vacant posts. It is claimed that now a post of Primary Teacher is about to be vacated at Government Girls Primary School Kayalan Mory Khawaja due to the retirement of Mst. Manshad Khanam who is going to retire on 14.01.2022. It is vehemently contended that respondents are going to fill the impugned post by ignoring the petitioner and want to appoint the candidate of their choice. It is prayed that respondents may be directed to appoint the petitioner against the post of Primary Teacher at Government Girls Primary School Kayalan Mory Khawaja.
7. Written statement has been filed on behalf of official respondents wherein it is contended that admittedly the petitioner got 4th position according to merit list of union council Birpani regarding post of Primary Teacher. It is mentioned that candidates who got merit position earlier from the petitioner have been appointed according to their merit, hence, due to non-availability of the post, the petitioner herein could not be appointed. It is further submitted that 02 posts are available due to retirement of one Nasreen Akhtar and second Walayat Jan, Primary Teachers, but due to issuance of stay order in the case of Shabana Talib and Abida Sharif, the appointment cannot be made and if the stay order is vacated then the proceedings under law may be taken. It is prayed that the writ petition may be dismissed.
8. Both the parties submitted written arguments on the direction of this Court.
9. Written arguments as well as record have been perused with due care.
10. Be that as it may in the Writ Petition No. 600/2022 titled "Abida Sharif vs. Department of Elementary Secondary Education and others" the petitioner is claiming her adjustment in light of proposal/recommendation dated 28.02.2020 while in juxtaposition she previously participated in the selection process (conducted through NTS) in 2017 against the one advertised post but could not come up to mark and stood at Serial No. 8 and after revisiting and re-preparation, her name appeared at Sr. No. 2 of the merit list and thereafter the petitioner alongwith with some others opted to file a writ petition by questioning the eligibility criteria of some successful candidates, but the same was dismissed.
It is useful to reproduce some abstracts from written statement offered by the official respondent "DEO Bagh":
11. Now coming back to factual matrix as pleaded and prayed by the respondent, it is oozing from the proposal dated 28th Feb. 2020 that same has been written by Assistant Director which is simply a half hearted suggestion rather a proper proposal order or instrument, thus, the same creates no right in favour of the petitioner.
12. Relief in an extraordinary jurisdiction can only be extended where any infringement of law or statutory provision or for that matter principle of law has been violated by official quarters. Ready reference in this regard is "A.K. Trading Corporation v. Messers Z.H. Construction and 2 others" reported as 1997 SCR 336, "Perveen Azam and others v. SSP District Mirpur and 4 others" reported as 2015 SCR 837. When previous merit has already stood expired and fresh advertisement has been issued then denovo/fresh proceeding for conducting selection process is sine qua non, that too when the petitioner has failed to prove his stance.
13. In sequel of the above multiple facts and reasons, the Constitutional Petition No. 600/2020 is devoid of force, which fails, hence, consigned to record.
14. While in the Writ Petition No. 3370/2021, the petitioner Shabana Talib is claiming redressal of her alleged grievance on the strength of 2% quota allocated for the differently abled candidates.
The/official respondent (DEO) in written arguments admitted the stance of the petitioner and also straight forwardly alleged that still a post lying in the 2% quota reserved for differently abled candidates is vacated and available for appointment it is useful to reproduce the relevant verbatim as infra:- As per record the 2% quota reserved for the candidates/ persons differently abled has already exhausted which is also reflecting from C the record as the official respondent has portrayed in written arguments as under:
15. Thus in this view of the matter, as the differently abled people are special segment of the society. In the case of Ghosia Riaz v. Joint Admission Committee for Admission in Medical Colleges of AJ&K through Chairman and 4 others reported as [PLD 2022 High Court (AJ&K) 25] this Court abhorred the usage of pejorative words like crippled or disabled for special persons and held that usage of such words in different statutory rules and policy notifications/government circulars are directly in contravention to the fundamental rights and this Court went on to direct the government to do the needful regarding substitution of words "disability/' "Physically handicapped/' "crippled" etc with "differently abled persons" or "persons having different abilities", wherever it was written in rules and policy notifications etc. in order to mentally uplift people with different abilities in societal fabric and bring them at par with the general public. The name of petitioner in the Writ Petition No. 3370/2021 figures at Serial No. 1 of the merit prepared for union council Beer Pani, Bagh thus, her case merits consideration, written statement submitted by the official quarters is evasive in toto which amounts to admission of the facts. The Writ Petition No. 3370/2021 titled "Shabana Talib vs. Education Department etc." is accepted, the respondents are directed to redress the grievance of the petitioner, however, the order is subject to submitting original Certificate of different abilities issued by the competent authority before the appointing authority.
16. In the Writ Petition No. 666/2022 titled "Effat Latif vs. DPI Schools and others" the petitioner sought relief against the posts which fell vacant on account of retirement of one Walayat Jan and Nasreen Akhtar by alleging that she is successful candidate who figures at Serial No. 4 of the merit list.
The official respondents have admitted the stance of the petitioner in following manner by inserting in the written statement as under: Acquitas est quasi eauatitas i.e. equity is as it were equality. Equity favours true equality both of rights and liabilities dividing burdens and benefit in equal share Audit of the Administrative instruments and Acts under the power of judicial review conferred by Article 44 of the Interim Constitution, 1974 is a ray of hope for an aggrieved person.
If any illegality, violation of law or statutory provision or colourable exercise of powers is appearing in the case of an aggrieved one, thus, matter calls for judicial audit, in such like eventuality High Court can come for rescue of the aggrieved one, but this indulgence is subject to certain limitations and protocols to be observed by the petitioner at the eve of seeking aid of the Court i.e. to come with clean hands, to establish his right in parlance of law and point out violation of any law, and establish extra-ordinary circumstance quo indulgence of Court.
The hon'ble Supreme Court in the case titled "Nasreen Akhtar & 3 others vs. Sameena Bilqees & 3 others, reported as 2006 SCR 312, while dealing with the similar proposition held as infra:- "So far as the appellants Nasreen Akhtar and others are concerned, it is an admitted fact that they appeared in the light of advertisement dated 25.07.2004 before the Selection Committee and passed the test and interview; Under law they are entitled to be appointed against the vacant posts for which they contested. Even otherwise they were not party before the High Court and the judgment under challenge has been passed at their back. The Education Department should have issued their appointment orders in the light of merit list but unfortunately they were dragged in the litigation which is the fault on the part of officials of Education Department."
17. Thus, in the above stated facts the petitioner has made out a case for direction. The instant constitutional petition Number 666/22 titled "Effat Latif vs. DPI Schools and others" is accepted and the official respondents are directed to appoint the petitioner against one of the posts already available (as per their own stance) within 02 months.
The titled consolidated petitions are disposed of through this consolidated decision in the above indicated manner. The petitioners are left to bear their own cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.