1. The above titled writ petition has been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, the following relief has been made by the petitioner.
2. Therefore, it is most respectfully prayed that this writ petition may graciously be accepted and
(i) Act of the respondents of withholding the posts of Lecturer English (B-17) at Govt. Post Graduate College Muzaffarabad at Govt. Inter College Thairian, Muzaffarabad, Govt. Degree College Balgran Muzaffarabad, Inter College Nagdar Neelum, Inter College Mirpur Neelu, Inter College Sharda, Neelum, Degree College Leepa of District Jhelum Valley specifically may kindly declared illegal without lawful authority mala-fide, discriminatory and against the law and constitution.
(ii) Respondents may kindly be directed to appoint the petitioner as Lecturer English (B-17) on a vacant post, being a successful candidate;
(iii) Any other relief to which the petitioner is entitled under the law, justice and equity may also be awarded with costs.
3. The facts forming the background of the instant writ petition are that the petitioner is 1st Class State Subject and hails from District, Muzaffarabad. It is stated that Public Service Commission advertised 26 posts of Lecturer in English BS-17, including 04 posts against the quota reserved for District Muzaffarabad. It is further stated that the petitioner applied against the quota of District Muzaffarabad and appeared in test and interview. It is contended that after conducting test and interview the petitioner was placed at Sr. No. 1 of the waiting list. It is alleged that various posts of Lecturer in English are lying vacant and their requisitions have been sent to the Public Service Commission but the Public Service Commission failed to advertise the same. It is further alleged that the respondents have no authority to withhold the post. The petitioner has prayed to accept the writ petition.
4. The writ petition was admitted for regular hearing vide order dated 08.02.2021 and the respondents were directed to file written statement. Written statement has been filed on behalf of Higher Education Department and Public Service Commission, wherein, it is stated that the petitioner has no locus standi to file the instant writ. petition. It is submitted that four posts of Lecturer in English have been advertised and candidates who were fall at Sr. Nos. 1 to 4 in the merit list were appointed against the quota reserved for District. Muzaffarabad. It is further contended that the petitioner was placed at Sr. No 5 of the merit list and Sr. No. 1 of the waiting list, however, according to Rule 13(3) of Public Service Commission Procedure Rules, 1994, a waiting list is valid for 6 month.
5. The Press Release of PSC has been issued on 27.08.2019 and the waiting list has been valid till 27.02.2020, so, the petitioner filed the instant writ petition on 24.03.2020 which is hit by lathes.
6. I have heard the learned counsel far the parties and gone through the record of the case.
7. A perusal of record shows that Azad Jammu and Kashmir Public Service Commission issued advertisement No. 02/02019 on 04.04.2019, wherein, different posts have been advertised including 26 posts of Lecturer in English BS-17 and 4 posts have been advertised against the quota reserved for District Muzaffarabad and test and interview was conducted. It is the claim of the petitioner that the petitioner was placed at Sr. No. 5 of the merit list and Sr. No. 1 of the waiting list and the Public Service Commission withheld various posts with mala-fide intention and. if the PSC advertised all the posts, the petitioner would have been appointed. The petitioner has attached some orders of ad-hoc Lecturers in English BS-17 at Govt. Post Graduate College Muzaffarabad, Govt. Inter College Tharian, Muzaffarabad, Govt. Degree College Balgran, Inter College Nadgar Neelum, Degree College Leepa Jhelum Valley and stated that these posts are lying vacant at the time of advertisment. The Department of Higher Education mentioned in written statement that there is no withheld post exits in the department at time of advertisement, however, details of posts in which the petitioner mentioned that these posts are vacant at the time of advertisement is as under: So, the claim of petitioner is that the Public Service commission has not requisitioned the posts is hereby repelled. Even otherwise, according to Rule 13(1) of AJ&K Public Service Commission (Procedure) Rules, 1994 provides that a person appointed on the recommendations of commission fails to join the service or is declared medically unfit, a candidate next in the merit from the waiting list shall be recommended on the request of the department concerned. For proper appreciation relevant Rule 13(1) is as under: 13(1): A person appointed on the recommendations of commission fails to join the service or is declared medically unfit, a candidate next in the merit from the waiting list shall be recommended, on the request of the department concerned, and for this purpose the commission shall prepare a waiting list.
8. A perusal of abovementioned reproduced provision of law reveals that if a person did not join the service a candidate next in the merit from the waiting list shall be recommended. In the instant case, the petitioner has attached handout/press release with the writ petition which transpires that the petitioner has been placed at Sr. No. 1 of waiting list. The petitioner has not alleged that any one position fell vacant according to Rule 13(1) of AJ&K Public Service Commission (Procedure) Rules, 1994. The petitioner cannot be benefited for the post which was not advertised or requisitioned by the Department. So, the petitioner is not aggrieved person in the eye of law.
9. It may be stated here that the Hon'ble Supreme Court of Azad Jammu and Kashmir recently in a case titled "Home Department through its Secretary Home Department vs. Aqib Farooq and 22 others" held that advertising a position is only permissible when a vacancy has arisen and not otherwise, if two positions are advertised, only two appointments must be made, unless the relevant law provides otherwise. The following directions have been issued by Hon'ble Supreme Court of Azad Jammu and Kashmir.
10. "10. Upon a thorough review of the case record and longstanding practices, it has become necessary to issue directives to all Government Departments. The impugned verdict passed by the High Court suffers from server illegality and infirmity which cannot be upheld and such practice which are not backed by any law cannot be protected at any cost, therefore, the same is set-at- naught with the following directions.
11. I. In accordance with Rule 23(1), it is imperative that a vacant position or post must exist before it is advertised.
12. II. Appointments must strictly adhere to law and regulations, which involve advertisement of actual vacant position and fair conducting of test and interviews.
13. III. All the vacant positions at the time of advertisement must be requisitioned, and no position should be withheld by the Department.
14. IV. Advertising a position is only permissible when a vacancy has arisen and not otherwise, if two positions are advertised, only two appointments must be made, unless the relevant law provides otherwise.
15. V. Authorities should refrain from including any proviso or condition (as observed in the instant case) which lack legal backing."
16. So, the petitioner himself admitted that fours posts were advertised and four candidates were appointed and, in these circumstances, the writ petition is also not maintainable.
17. It is also pertinent to mention here that test and Interview were conducted and the petitioner appeared in test and interview and was placed at Sr. No. 05 of the merit list. If a person participates in the proceedings and failed to achieve the desired result he cannot turn around and challenge the selection process. Reliance in this regard can be placed upon 2016 SCR 15. The petitioner was estopped by his conduct from filing the instant writ petition. The petitioner has not challenged the advertisement, wherein, the posts of Lecturer in English have been advertised. The petitioner appeared in selection process and could not gain the desired result; therefore, the writ petition is not maintainable.
18. In light of what has been discussed above, the writ petition being devoid of any force, it is, hereby dismissed with no order as to the costs. However, if any post or posts are available with the Department, the same shall be advertised as per dictum of the Hon'ble Supreme Court and made appointment as per rules and on the basis of merit strictly.