1. Azad Government of the State of Jammu and Kashmir issued a Notification on 7th of August, 1996 wherein it was directed that all posts which had been referred to the Public Service Commission up to 30th of July, 1996 will be re-advertised. As stated in the notification, purpose of this step was that all those persons who had meanwhile qualified for the available vacant posts may also get opportunity to file their applications for appointment. This notification was challenged by six persons who were working as Assistant Engineers/Revenue Officer in the Electricity Department on ad hoc basis by filing a writ petition in the High Court. The writ petition has been accepted and the notification mentioned above has been quashed. The result of the judgment of the High Court is that the posts which had been advertised prior to 30th of July, 1996 are now being filled up through the Public Service Commission without inviting fresh applications.
2. The petitioner, Muhammad Anwar Khan, is working as Judge Family Court on ad hoc basis. He was not a party to the case in the High Court but he feels aggrieved by its judgment. If the notification mentioned above had not been quashed by the High Court the petitioner would have been able to apply for the post of Judge, Family Court but he is now unable to do so. He has filed a petition for leave to appeal to challenge the judgment of the High Court. He has filed an application for interim relief wherein it is prayed that Public Service Commission may be directed not to hold the test and interviews for the post of Judge, Family Court till disposal of the petition for leave to appeal.
3. I have heard the learned counsel for the petitioner, Mr. Farooq Hussain Kashmiri, in support of the stay application. On a notice issued by this Court to the Government and Public Service Commission Mr. Shiraz Kayani, the learned Advocate-General, has appeared on their behalf. The learned Advocate-General does not oppose the application on the ground that the Azad Government of the State of Jammu and Kashmir as ell as the Public Service Commission are of the opinion that the notification by which the Government directed the Public Service Commission to advertise all the posts which had been referred to the Public Service Commission up to 30th of July, 1996 was competently made. It is also stated by the learned Advocate-General that the notification advances the ends of justice.
4. The submission of the learned counsel for the petitioner, Mr. Farooq Hussain Kashmiri, is that rule 8 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 clearly indicates that posts can be re-advertised. He vehemently contended that delay had been caused by the Public Service Commission in conducting tests for various posts with the result that a large number of persons had meanwhile become eligible to apply for the advertised posts.
5. While accepting the writ petition filed by respondents Mumtaz-ul-Hassan and others the High Court has relied on a judgment of this Court in Farkhanda Ikram and another v. Dr. Ejaz Ahmad and 2 others (Civil Appeal No,73 of 1995) and Tasneem Kausar v. Dr. Ejaz Ahmad and 2 others (Civil Appeal No, 74 of 1995), decided on 3rd of December, 1995. The applicability of rule laid down in that judgment will be considered when the petition for leave to appeal comes up for hearing but the aforementioned judgment prima facie lends support to the view taken by the High Court that the Government does not have the power to issue directions to the Public Service Commission to re- advertise any post. Mr. Farooq Hussain Kashmiri pointed out that rule 8 of the Public Service Commission (Procedure) Rules shows that posts can be re-advertised but what is to be seen is whether the power is vested in the Government rather than the Commission. Apart from that, I am of the view that the considerations of irreparable loss and balance of convenience also do not favour the grant of interim relief. Interviews for the post of Judge Family Court have already been conducted by the Public Service Commission and if the judgment under appeal is set aside, the petitioner will get the requisite relief which will be more comprehensive than the relief which he can get as an interim measure. The petitioner is working as Judge Family Court but did not apply to the Public Service Commission within time for unexplained reasons. This factor also goes against him.
6. In these circumstances, the application for issuance of stay order has no merit and is dismissed.