Through the instant writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner seeks aid of this Court by imploring a specific prayer; reproduced infra: "It is, therefore, very humbly prayed that while accepting this writ petition an appropriate writ may very kindly be issued in favour of the petitioner and respondents may very kindly be restrained to appoint any other person on the post of Primary Teacher, Primary Teacher Union Council Saidpur Pattika District Muzaffarabad, Azad Jammu & Kashmir on temporary or permanent basis and the respondents may very kindly be directed to appoint the petitioner against the post of Primary Teacher, Primary Teacher Union Council Saidpur Tehsil Pattika District Muzaffarabad, Azad Jammu & Kashmir, respectively as per merit list.
It is further prayed that the respondents may very kindly be restrained to transfer the post of Primary Teacher, Primary Teacher Union Council. Saidpur Tehsil Pattika District Muzaffarabad Azad Jammu & Kashmir to any other union council.
ABRIDGED FACTS OF THE LIS IN HAND:-
2. Petitioner is 1st class State Subject of AJ&K, who hails from Union Council Saidpur, Tebsil Pattika District Muzaffarabad. It is stated in her writ petition that respondents through advertisement dated 21.02.2018, published in "Daily Mohasib" invited applications against the Posts of primary Teachers B-07. The petitioner being eligible applied against one of the advertised posts and after conducting test and interview, the petitioner secured 1' position by obtaining 56.51 marks as per merit list dated 03.04.2019. It is submitted that the concerned respondents despite the aforesaid distinguished merit position secured by the petitioner the respondents due to mala-fide reasons have yet not issued the appointment order of the petitioner, hence, the captioned writ petition.
ENSUING PROCEEDINGS:-
3. The respondents have filed written statement wherein the claim of the petitioner has been refuted in an arbitrary manner, contents of which are novel in its nature.
4. Learned counsel for the parties have argued the case as per their respective pleadings.
5. I have attended to each and every argument advanced, have perused the entire documentary material produced besides brooding over the diverse aspects of this case from all possible angles.
6. Admittedly the respondents through proclamation had advertised several posts among which two posts of Junior Teachers B-07, were available against the quota of Union Council Saidpur, Tehsil Pattika District Muzaffarabad. It reflects from the record that the petitioner being eligible candidate participated in the selection process and obtained 56.51 marks by securing 1st position in the merit list prepared by the concerned respondents on 03.04.2019, but needful qua appointment of the petitioner has yet not been carried out due to one or the other pretext
7. It is an astonishing state of affairs that despite the aforesaid merit position secured by the petitioner, the respondents in colorable exercise of powers and in sheer violation of the said merit have not issued lawful appointment order of the petitioner inspite of elapsing more than three and half years due to which the petitioner had to suffer a lot.
8. The argument of the learned Legal Advisor that there is no vacant post against which the petitioner can be appointed has no substance on the ground that it has categorically been mentioned in the aforesaid advertisement that 02 posts of Junior Teachers B-07, were advertised against Union Council Saidpur Tehsil Pattika District Muzaffarabad and status-quo had been issued by this Court against one of the said posts on 02.07.2019, therefore, argument is baseless, hence, contention is repelled.
9. Fundamental guaranteed rights enshrined in the Azad Jammu & Kashmir Interim Constitution, 1974, are in fact a promise made by the Constitution which is initially to be respected, enforced and fulfilled by the State functionaries but in case of failure on the part of the State functionaries. High Court can come for enforcement of such rights in order to fulfill the promise of the Constitution.
10. Particularly, Writ of Mandamus is a remedy available to any person aggrieved who is trying to assert his legal right by invoking the jurisdiction of the High Court conferred, under Article 44 of the Interim Constitution, 1974, compelling the Govt. functionary to perform legal duty cast upon him as the writ of mandamus is called "one of the flowers of the crown.[1]"
11. Power quo issuance of writ particularly Mandamus is a concept not remedy based on the principle of common law but on the basis of equity and good conscience. Mandamus cannot be demanded ex debito justitiae but it is issued purely at the discretion of the Court which is controlled by the equitable principles.[2] MANDAMUS MEANING, ORIGIN AND ITS PURPOSE:-
12. "Mandamus" is a Latin word. Literally, it means a "command" or "order" which directs a person or authority to whom it is addressed to perform the public duty imposed on him or on it.
13. Word "Mandamus" is English origin. The direction in the Mangna Carita that the Crown was bound neither to deny justice' to anybody nor to delay anybody in obtaining justice has been recognized by this writ. The first reported case of Mandamus was the Middleton's case[3] wherein a citizen's franchise was restored. James Bagg[4] was the leading decision by which a membership of local body was restored to the applicant.
14. The first reported case which gained recognition was in the year 1775 i.e. R.V. Warren Hastings,
5. where mandamus was sought against the Supreme Council of the Governor General.
15. The purpose of an order of Mandamus is to remedy defects of justice. Be that as it may Mandamus is issued for non-performance of Statutory duties culminating to administrative injustice.
16. Concept of better Govt. has been envisaged in the preamble clause of the Azad Jammu & Kashmir Interim Constitution 1974. besides guarantee of fundamental rights, that too, principles of policy in addition to fundamental guaranteed rights seems to expand the area of dictates of these guaranteed rights.
17. Preamble clause "4" of the Azad Jammu & Kashmir Interim Constitution, 1974, enunciates as under: "AND WHEREAS it is necessary to provide for the better Government and administration of Azad Jammu & Kashmir until such time as the status of Jammu & Kashmir is determined as aforesaid and for that purpose to repeal and re-enact the Azad Jammu & Kashmir Government Act, 1970, with certain modifications".
18. Preamble in fact is a summary affixed to Constitution or a Statute as a beacon of light providing guidelines by its framers, expounding general object and intention of the legislature qua enacting the same. Furthermore it comes into play if enacting part is by some way ambiguous or for that matter open to doubt the preamble may be approached seeking guidance to come out of the ambiguity.
19. Let us come to the word better Government envisaged in the Constitution. It is worth mentioning to shed light on the word "better". The word better has been defined in Oxford Advanced standard or quality; not as bad as something else.
20. Meaning thereby that Constitution requires a better governance in AJ&K which is a hallmark of the Constitution in fact. Thus it can safely be said that fundamental rights and principles of policy take breath from the concept of better Government provided in the preamble of the Azad Jammu & Kashmir Interim Constitution, 1974
21. No-cavil to the proposition that although under Article 3-B(2) that deviation of such principles of policy provides no room to question validity of such action on this Court but simultaneously this principle is helpful to ascertain and enforce the Constitutionally fundamental guaranteed rights. Principles of policy and preamble clause are liable to be read with the Constitutionally fundamental rights when question of enforcement of these rights arises.
SQUEEZED ANALYSIS:-
22. Quando aliauid manatur, mandator et omne per quod pervenitur ad Mud.
Supra maxim of law denotes that when anything is commanded, everything by which it can be accomplished is also commanded.
23. The petitioner in response to advertisement participated in selection process and had come up to mark but she was not appointed against the advertised post despite being topper in the merit, while it was incumbent upon the relevant quarters to redress the grievance of the petitioner by extending administrative justice. But the matter has abysmally become prey of redtapism and rigmarole.
24. The Hon'ble Supreme Court of Azad Jammu & Kashmir in case titled Nasreen Akhtar & 03 others vs. Sameena Bilqees & 03 others; [2006 SCR 312], while dealing the identical matter held as under:
14. 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 official of Education Department "
25. As a last resort the petitioner opted to approach this Court seeking aid of the Court Petitioner has made out a case for issuance of a high prerogative Writ of Mandamus.
EPITOME OF THE INSTANT LIS:- In view of above, while accepting the captioned writ petition the respondents are directed to appoint the petitioner within one month period. Writ petition stands accepted.
1. Kendall V.U.S.9 Law Ed.1101.
2. AIR 1951 Pat. 231.
3. 1574 3 Dyer 332 b.
4. 1615 11 Co Rep 93b.
5. (1775) 1 ID (05) 1005.