BASHARAT AHMAD SHAIKH, J.---The appellant, Tanveer Ahmed, filed writ petition in the High Court to challenge the appointments of respondent No,3 Roshan Din as a temporary Junior Clerk (BPS-5) in Girls High School Leepa. The appointment was made on 6th August, 1996 by the District Education Officer under instructions from some unspecified authority. It was challenged on 30th December, 1996 by the appellant by filing a writ petition. The writ petition was dismissed on 8th September, 1998. This appeal has been filed by leave of the Court to challenge the judgment of the Hikh Court.
2. The averments made in the writ petition were that both Tanveer Ahmed and Roshan Din belong to Leepa. Tanveer Ahmed was F.A. (Second Division) at the relevant time and has also appeared in the B.A. examination while Roshan Din was Matriculate. Tanveer Ahmed applied to the Prime Minister and also to the Minister of Education who issued instructions for his appointment but Roshan Din was appointed. The appointment was made without advertising the post. It was a fundamental right of the writ petitioner that the post should have been advertised and test and interview should have been held for selection on merit. Roshan Din has wrongly been appointed against a merit list which was prepared when the vacancy had not yet arisen. Tanveer Ahmed filed appeal before the Divisional Director who asked the Divisional Education Officer who had made the appointment, to file his comments but he did not comply with the order. There is administrative anarchy in the Education Department, therefore, there seems to be no use of waiting for the out come of the appeal.
3. The writ petition was contested by Roshan Din alone who stated in the written statement that the posts were advertised on 23rd October, 1995 but the writ petitioner did not submit any application in response thereto. He further stated that on the basis of the advertisement mentioned above a merit list was prepared in which he (Roshan Din.) was placed at No,3. His appointment was made on the basis of the same merit list.
4. While dismissing the writ petition a learned Judge in the High Court brought under consideration a facsimile of an advertisement which appeared in the daily 'Nawa-i-Waqt' on 23rd October, 1995 and also a merit list and held that Roshan Din was a duly selected candidate while the name of Tanveer Ahmed did not appear in the merit list.
5. The learned counsel for the appellant, Raja Muhammad Hand Khan, rightly contended that the learned Judge in the High Court did not advert to the real point in controversy which, as stated in the writ petition as well as pleaded in the written arguments, was that Roshan Din's name appeared in a merit list which had been prepared as a consequence of the advertisement of 23rd October, 1995 which was no longer valid on 6th August, 1996 when the appointment of Roshan Din was made. This point has been vehemently argued in support of the appeal by the learned counsel for the appellant.
6. It was contended by Ch. Muhammad Ibrahim Zia, the learned counsel for respondent Roshan Din that merit list was prepared on 1st of March, 1996 which was still valid when the appointment of private respondent was made.
7. We have gone through the advertisement published on 23rd October, 1995. It shows that there were two posts of Junior Clerks for Muzaffarabad District which were advertised. Accepting the merit list to be correct, the first two persons on the merit list, which is claimed to have been' prepared on 1st March, 1996, were Saroosh Gilani and Zafar Iqbal. It has been held by this Court in Abdul Rashid Tarrabi v. Azad Government of the State of Jammu and Kashmir and others (Civil Appeal No,169 of 1998, decided on 15-2-1999) that a post can be advertised only after a vacancy has arisen and not otherwise.
8. Therefore, if two posts were advertised only two appointments could be made against it. The third person included in the merit list could be validly appointed against that post. The admitted position in the present case is that two vacancies were advertised. A certified copy of the appointment order of Saroosh Gilani, which secured first position in the merit list, shows that he was appointed on 3rd March, 1996. The appointment order of the other person who secured second position is not available on the file but it is nobody's case that the other person did not join and in his place respondent Roshan Din was appointed on 6th August, 1996. The appointment order of Roshan Din excludes any such possibility. It will be useful to reproduce the order:-- "As directed, Mr. Roshan Din son of Abdul Kabir, Matriculate local candidate, resident of Leepa, who has passed the interview and was placed on No,3 in merit list is appointed as Junior Clerk in Girls High School Leepa iri place of Fazul-ur-Rehman who has been promoted as Senior Clerk. The appointment is made in BPS-5. He will get usual pay and allowances from.the school from the date he joins duty." [Translated]
9. The order clearly shows that the post against which Roshan Din was appointed was not one of the posts which were advertised but it fell vacant due to the promotion of Fazul-ur-Rehman. The order also shows that the appointment was made under directions from some higher authorities which is in sharp contrast to the appointment order of Saroosh Gilani which contains a clear recital that the appointment was being made on the recommendation of the Selection Board.
10. From the foregoing it is clear that the vacancy against which Roshan Din was appointed occurred during the period of ten months which intervened between the publication of advertisement and appointment of the respondent. In practical terms it means that the post was not advertised which a mandatory requirement as laid down by this Court in the case mentioned above.
Consequently we accept this appeal and set aside the judgment of the High Court. Appointment of respondent No,3 Roshan Din is declared to have been made without lawful authority and of no legal effect. The respondents are directed to advertise the post and fill it in accordance with law.
There will be no order as to costs.