The captioned writ petition has been filed under Article 44 of the Azad Jammu & Kashmir Interim Constitution, 1974, whereby, a direction has been sought against the respondents to send the recommendation of petitioner against the withheld posts of Lecturer Political Science B-17 and also appoint the petitioner against the supra post.
2., SUCCIENT FACTS OF THE LIS IN HAND:- Azad Jammu & Kashmir Public Service Commission (AJ7KPSC) advertised 01 post of Lecutrelr Political Science B-17 against the quota of District Sudhnuti/Pallan and the petitioner applied against the said post.
The Public Service Commission issued call letter to the petitioner for written examination, the petitioner qualified the written test and was short listed for interview alongwith other candidates and after taking interview, the successful candidate namely Mohammad Mehmood Khan a/o Mohammad Yaqoob Khan who obtained 74.21 marks was appointed by the Azad Jammu & Kashmir Public Service Commission as Lecturer Political Science B-17. As per contents of writ petition, the respondents with mala-fide intention withheld the post of Lecturer Political Science B- 17 which was occupied by one Israr Ahmed s/o Hafiz Mohammad Fazil before the advertisement No. 2/19 i.e. through notification dated 13.04.2011, he was appointed as Lecturer Political Science on ad-hoc basis in Govt. Boys Postgraduate College Pallandari and if the same had been advertised then the petitioner would have been easily appointed as Lecturer Political Science B-17, hence, through this petition a direction has been sought to appoint the petitioner against the withheld/vacant post.
3. ENSUING PROCEEDINGS:- The writ petition was contested by the other side by filing parawise comments, whereby, it has been stated that against the one advertised post, three candidates were called for interview and after taking interview, successful candidate namely Mohammad Mehmood Khan, was appointed and the petitioner has got no meritorious position, so, he could not be appointed against the post of Lecturer Political Science B-17. Finally, prayed for dismissal of the writ petition in limine.
4. The learned counsel for the parties argued the case according to their respective pleadings.
5. Pro and contra arguments have been heard, furthermore record has minutely been perused. The claim of the petitioner is that he qualified the test and interview conducted by the Public Service Commission against the post of Lecturer Political Science B-17 but due to withholding of the post he could not be appointed. The petitioner in order to prove his stance regarding the withheld post of Lecturer Political Science B-17 placed on record the copies of notifications i.e. a notification dated 13th of April 2011 Annexure "PF" notification dated 20th of November 2019 Annexure "PF/1" a copy of notification dated 13th of February 2020 Annexure "PF/2" which clearly show that Mr. Israr Ahmed S/o Hafiz Mohammad Fazil was initially appointed in 2011, as Lecturer Political Science B-17 in Govt.
Boys Postgraduate College Pallandri on ad-hoc basis and thereafter his ad-hoc service was continued through supra notifications till 2020, meaning thereby that the post of Lecturer Political Science B-17 was I A withheld by the department and occupied by the ad-hoc employees much prior to the requisition, which fully supports the stance of the petitioner regarding the withheld post.
Now I have to see whether the petitioner has obtained the meritorious position and whether he falls at Serial No. 1 of the waiting merit list? To determine the meritorious position of the petitioner, I have also summoned the record from the Public Service Commission and as per record i.e. merit list, following candidates qualified the test and interview and obtained the meritorious position.
Serial No.Name & Father's NameGrand Total Marks out of 100 1 Mohammad Mehmood Khan S/o Mohammad Yaqoob Khan74.21 2 Majid Hussain Shah S/o Yaqoob Hussian Shah 69.23 3 Mohammad Zafar Ali Khan S/o Ali Husain Khan 63.79
6. From the above reproduced merit list, it is crystal clear that against 1 slot of Lecturer Political Science B-17, 03 candidates were called for interview and after selection of successful candidate, the name of the petitioner is shown to have been placed at Serial No. 1 of the waiting merit list. In my considered view, the petitioner has successfully proved his claim regarding the withholding of the post by the department as well as his meritorious position as per supra merit list, but due to mala-fide of respondent/department the petitioner could not be appointed. It has become a common practice that when a post becomes vacant, the department malafidely withholds the same in a covert manner just in order to deprive the candidates falling at the waiting merit list in order to accommodate their favorites for making their appointment on ad-hoc basis which is not warranted by law. Law demands to act honestly and fairly and the needful should be done at the very right time. All the relevant quarters are expected to work in the manner so that the entitled and deserving persons could get their legal and vested right well within time without any hindrance and obstacles, meaning that the functions of all the departments purely based on efficiently and honestly without any force and coercion. There should be Supermacy of law and all the officials have to act or perform their duties as per commands of law.
7. The post of Lecturer Political Science B-17 became vacant much prior to the requisition sent by the department to the Public Service Commission but the department with mala fide intention did not send the same to the Public Service Commission for advertisement, so, the petitioner's claim regarding the vacant/withheld post has sufficiently been proved through the reliable documents/ notifications attached herewith the writ petition, for appointment against the vacant post of Lecturer Political Science B-17. In order to resolve the controversy regarding the withheld posts, the Hon'ble Supreme Court of Azad Jammu & Kashmir in a case reported as 2014 SCR 479 held as under: Withholding of post.
"Writ ... contention that at the time of requisition the posts were withheld ... held: all the posts which are vacant at the time of sending requisition, shall be requisitioned to Public Service Commission and advertised accordingly. If any clear vacancy was available at the time of requisition and it was withheld by the authorities with `m alafide intention, it is not permissible and withholding of such post is without lawful authority but the post which is subsequently created or the post against which the ad-hoc appointment has been made in lien or for any other such reasons, it cannot be said such vacancy was a clear vacancy."
8. This Court in the case of Bilal Aziz vs. Azad Govt. and 4 others (Writ Petition No. 454/2020, decided on 23.06.2022) has already declared that there is no concept of sending piecemeal requisition to the Azad Jammu & Kashmir Public Service Commission as all available vacant posts (in similar discipline) are simultaneously liable to be forwarded in a joint manner through one requisition to the Selection Authority i.e. Public Service Commission for the purpose of holding and arraying out selection process. Relevant excerpt from the referred case is as infra:- "---as per part IV, Rule 23(1) of AJ&K Civil Servants (Appointment and Conditions of Service) Rules, 1977, the appointing authority is under legal obligation to forward a requisition to selection authority immediately after decision is taken to fill in the post."
9. Be that as it may, the petitioner admittedly has come up to mark in the competitive examination held by the Azad Jammu & Kashmir Public Service Commission for the post of Lecturer Political Science B-17 and his name was included in the list of shortlisted candidates. The proper course required by law was to issue the appointment orders of the candidates falling in the waiting merit list as in the orders of all the ad-hoc employees a condition is imposed that the ad-hoc appointment shall be terminated at any time without issuing of notices or in case of permanent induction by the Public Service Commission, so, the candidate who qualifies the test and interview against any slot, in my opinion, he/she must be appointed as per demand of law on priority basis as compared to those who occupied the posts on ad-hoc basis, but the respondents slept over the matter without any justification, neither terminated the ad-hoc employees nor adjusted the candidate/petitioner. Law does not allow any deviation from the set required procedural modalities. An act which is required by law to be performed in a particular manner cannot be done otherwise. Moreover, any lapse, loophole and procrastination in performance of an act which relates to the rights of individuals particularly Constitutional fundamental guaranteed rights creates dire consequences and the High Court cannot shut its eyes in such like situations as a silent spectator and shall zealously entertain the cause of an aggrieved person to rescue him from the bureaucratic rigmarole promoting rule of autocracy or arbitrariness which cannot be sustained. Administrative authority is always to be exercised by applying independent mind within the four corners of justice, transparency and fair play. Unequal treatment to equals or any iota of discrimination amounts to hit and evaporate the constitutionally guaranteed fundamental right No. 4,4 (1) and 4,4 (15) as enshrined in the Interim Constitution of 1974.
9. So far as the argument advanced by the learned counsel for the official respondents is concerned that even otherwise the petitioner is not at the Serial No. 1 of the merit list, hence, he could not be benefited on this angle, same is discarded and repelled. A law helps the vigilant and not the indolent. One who sleeps over his rights and did not bother to come forward and knock the doors of the Court can be held to waive his rights and cannot be preferred over the petitioner who opted to fight a legal battle.
In the light of above, the writ petition is accepted and the respondents are directed to issue the appointment order of petitioner against the withheld post (occupied by one lsrar Ahmed Lecturer Political Science District Sudhnuti/Pallandri) of Lecturer Political Science B-17 in accordance with law positively within a period of 2 months.