KH. MUHAMMAD NASIM, J. The captioned appeal, by leave of the Court, has been directed against the judgment of the Azad Jammu and Kashmir High Court dated 10.05.2018, whereby, the writ petition filed by the respondent, herein, has been accepted and the official respondents herein, have been directed to advertise the posts of Junior Clerks within a period of 2 months.
2.The facts necessary for disposal of this appeal are that the respondent No.1, herein, filed a writ petition before the High Court, alleging therein, that he was appointed as Security Guard in BPS-5, vide order dated 20.12.2008. He applied for change of his cadre from Security Guard to Junior Clerk twice on 13.03.2013 and 03.04.2013, but the concerned authority has not considered his applications.
It was further stated that later on, the official-respondents, herein, without advertising the posts, appointed the appellants, herein, as Junior Clerk (B-7), vide orders dated 16.08.2013 and 07.02.2015, illegally. He prayed for setting aside the appointment orders of the appellants, herein, and sought direction for his appointment against the post of Junior Clerk (B-7). The writ petition was contested by the other side by filing written statement, whereby; the claim of the petitioner/respondent, herein, was refuted in toto. After necessary proceedings, the learned High Court while accepting the writ petition although has not issued direction for the appointment of the respondent, herein, however, issued the direction to the official-respondents to advertise the posts occupied by the appellants, herein, and fill up the same in accordance with law within a period of 02 months, vide impugned judgment dated 10.05.2018. This judgment of the learned High Court is subject matter of the captioned appeal, by leave of the Court.
3. Ch. Muhammad Ashraf Ayaz, the learned Advocate, representing the appellants argued that the impugned judgment is against law and the facts of the case. He submitted that through orders dated 16.08.2013 and 07.02.2015, the cadre of the appellants has been changed from Constable to Junior Clerk. The learned High Court observed in the impugned judgment that the matter with regard to the change of cadre was neither approved by the competent authority nor the same was placed before the respective selection committee, whereas, the actual position is that the requisite process could not be completed due to the stay order issued by the High Court. He added that the appellants are admittedly senior to the respondent and on the basis of seniority their cadre was changed, but this aspect of the case escaped the notice of the learned High Court while handing down the impugned judgment. He forcefully contended that the temporary appointments of the appellants were subject to confirmation of the relevant selection committee but the needful could not be done due to the stay order issued by the High Court, therefore, there is no fault on the part of the appellants for non-confirmation and under law they cannot be penalized. He forcefully contended that by the changing of the cadre of the appellants no fundamental right of the respondent is infringed, therefore, the respondent has no locus standi to file the writ petition. The question of laches was also not considered by the learned High Court. He requested for acceptance of appeal.
4. On the other hand, Messer Javed Najam-us-Saqib and Rashid Nadeem Butt, the learned Advocates representing the respondents strongly controverted the arguments advanced by the learned Advocate representing the appellants. They submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. The appellants have failed to point out any illegality in the impugned judgment, hence, this appeal is liable to be dismissed.
5. We have heard the learned Advocates representing the parties and gone through the available record along with the impugned judgment. The matter in this lis relates to the change of the cadre of the post of Head Constables (B-5) to the post of Junior Clerk (B-7) and thereafter the issuance of the appointment orders of the appellants, herein. Respondent No.1, herein, challenged the appointment orders of the appellants herein, by way of writ petition before the High Court on the ground that the same were issued without advertisement and adhering to rules on the subject matter. The learned High Court through the impugned judgment accepted the writ petition and issued the direction for re-advertisement of the posts with the following observation:- "7. A contemplate perusal of record reveals that petitioner was appointed as Security Guard in BPS- 5, vide order dated 20.12.2018. However, he submitted applications for change of his cadre on 13.03.2013 and 03.04.2013, from the post of Security Guard BPS-5, against the post of Junior Clerk BPS-7. The claim of the respondents Nos.1 to 6, is that cadre of private respondents Nos.7 to 9, was changed vide orders dated 16.08.2013 and 07.02.2015, respectively. However, it reflects from orders supra that private respondents Nos.7 to 9 were basically Head Constables B-5, who were appointed on temporary basis as Junior Clerks B-7, through the impugned orders dated 16.08.2013 and 07.02.2015. The matter with regard to their change of cadre was neither approved by the competent authority nor the same was placed before the respective Selection Committee for the purpose. According to Mirpur Development Authority Service Rules, 2012, the posts of Junior Clerks B-7, are liable to be filled in through initial recruitment and no other mode is provided. As disputed posts are admittedly permanent in nature and liable to be filled through initial recruitment, hence, it is binding obligation of official respondents to advertise the posts for initial recruitment and fill in the same as per law."
6. After perusal of the whole record, we are of the considered view that the aforesaid findings of the learned High Court are quite in accordance with law, as the MDA Department initially changed the cadre of the posts of Head Constable (B-5) to Junior Clerk (B-7) in derogation of the departmental service rules and thereafter issued the appointments orders of the appellants, without adopting the prescribed procedure for appointment. It is settled principle of law that the departmental rules providing for the procedure of recruitment to the vacant post, no other procedure can be adopted.
Reliance may be placed upon a case reported Aftab Hussain v. Executive Engineer Highway, Rawalakot and others [2019 SCR 602], wherein it was observed by this Court as under:- "Thus, it can safely be held that in the presence of settled law and the departmental rules providing for the procedure of recruitment to the vacant posts, no other procedure can be adopted. In the given circumstances and in the light of the judgment (supra) while setting aside the impugned judgment, the post in dispute is declared vacant and the authorities are directed to fill in the post after advertising the same and following the due process of law."
This Court has also interpreted the statutory provision of law i.e. rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, in the case reported as Secretary for Prime Minister and 3 others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155 in the following terms:- "Advertising a post is a provision contained in rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, which lays down as follows:- "17. Initial appointment to all posts in grades 1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Bard, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government."
In the case in hand, as has been observed by the learned High Court that in the departmental service rules, the posts of Junior Clerks B-7, are liable to be filled in through initial recruitment and no other mode is provided, hence it is binding obligation of the official respondents to advertise the posts for initial recruitment and fill in the same as per law. The impugned judgment of the learned High Court is legal and perfect in all aspects, calling for no interference.
For the above stated reasons, this appeal having no force is hereby dismissed, with no order as to costs.