' BASHARAT AHMAD SHAIKH, J.---The appellant is a graduate in Electrical Engineering. In response to advertisement issued by the Public Service Commission the appellant submitted an application for appointment as Assistant Engineer in the Electricity Department of the Government but he was not recommended for appointment. Case of the appellant is that four seats were reserved for Mirpur District when the requisition was sent by the Government but, much before holding of test and interview by the Commission, Bhimber Tehsil had been separated from Mirpur District so as to become a full-fledged District itself. The quota system prevalent for entering the Government service was modified to divide the quota previously fixed for the erstwhile Mirpur district according to which two appointments had to be made each from Mirpur and Bhimbar districts. However, the Commission did not take into consideration the aforesaid division of seats and proceeded to fill in all the posts from the undivided district causing prejudice to the appellant. His case is that the Public Service Commission should be directed to revise its recommendations in light of test and interview already held so that two posts out of four may be allocated to Bhimbar district. When applications were invited by the Public Service Commission there were four seats for the Mirpur district but subsequently one post was withdrawn by the Government without specifying any reason and, according to the appellant, the post so withdrawn was filled in by appointing respondent No,5, Babu Khan Ishtiaq, without recommendation of the Public Service Commission by purportedly transferring him on permanent basis from the Municipal Corporation to the Electricity Department. The appellant also wants that the appointment of respondent No,5 may be declared unlawful. The High Court has dismissed the writ ' petition filed by the appellant. Hence this appeal by leave of the. Court.
2. The High Court has held that the appellant did not come to the Court with clean hands because he misstated that he had passed the examination but it subsequently transpired from the relevant file requisitioned from the Public Service Commission that the appellant was at No,7 in the merit list while there were only four posts. The High Court dismissed the writ of quo warranto on the ground that the appellant basically was trying to have a seat vacated so that it could be reallocated to Bhimbar district with a view to get a chance for his own appointment. The High Court has termed appellant's efforts as mala fide. The High Court has also repelled the objection that the fourth post was unlawfully withdrawn by the Government.
3. We have heard lengthy arguments from the learned counsel for the parties Ch. Muhammad Ibrahim Zia and Mr. Ghulam Mustafa Mughal. In addition to defending the judgment of the High Court with his elaborate reasons, Mr. Ghulam Mustafa Mughal also vehemently contended that the appellant was not an aggrieved person and the writ filed by him was liable to be dismissed on this short ground.
4. After hearing the learned counsel for the parties we have no hesitation in holding that the ground on which writ of quo warranto has been declined by the High Court has no substance. The Constitutional provision is clear that a writ of quo warranto can be filed by any person. It has been held by this Court in a number of cases that even an aggrieved person can file a writ of quo warranto. In our view the fact that the appellant is trying to get a seat vacated so as 'to create chances of his own appointment is not a negative act in any way. If it is proved that a person has usurped a public office a person qualified to be appointed to that post is not debarred from challenging the usurpation of the office. The appellant wants the post held by the private respondent to be vacated and if he wants to replace the present incumbent through the Public Service Commission, on merit, it is a positive act to which no blemish can be attached. Therefore, the High Court was wrong in terming the appellant's efforts as mala fide. The Courts should not discourage those who assert their legal rights.
5. The observation that the appellant made a misstatement is equally untenable. It is stated in the judgment under appeal that the appellant was placed at No,7 in the merit list. The appellant did not state anywhere that he had 'obtained any higher position in the merit list. All he stated in the writ petition was that he had "qualified the Public Service Commission". This statement stands confirmed by the record of the Public Service Commission requisitioned by the High Court.
6. Now we examine the question as to whether the appointment of respondent No,5 as Assistant Engineer in the Electricity Department was lawful or not. The relevant order was issued on 11th May, 1994. It was stated in the order that as a result of transfer of water supply systems of Municipal Corporation Mirpur and Municipality Dadyal to the Public Works Department the services of Babu Khan Ishtiaq, Assistant Engineer Electrical B-17 in the Municipal Corporation are also transferred to the Electricity Department. He shall be adjusted against one of the posts of Assistant Engineers B-17 created on 20th of January, 1994. It is proved from the record that respondent No,5 had been appointed as Assistant Engineer in the Municipal Corporation without advertising the post which is a violation of Rule 5 of the Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1990 which lays down that initial recruitment to post in Grade-11 an above shall be made on the basis of the result of a competitive examination. As held by this Court in Ch. Muhammad Fayyaz v. Syed Arshad Gillani and others (PU 1999 SC AJ&K 89), this provision presupposes that the post is advertised and applications are invited from all those persons who were qualified for appointment.
7. The learned counsel for the appellant, Ch. Muhammad Ibrahim Zia, rightly contended that the appellant's transfer to the Electricity Department was made without recommendations of the Public Service Commission which was a violation of the Public Service Commission Act and the rules made thereunder. He was also right in submitting that the Azad Jammu and Kashmir Electricity Department Service Rules, 1993, do not visualize that the post of Assistant Engineer can be filled in by transfer. Mr. Ghulam Mustafa Mughal on the other hand contended that the case of the appellant was one of merger and not of transfer but we are unable to subscribe it because there was no concept of amalgamation in the departmental rules mentioned above. An appointment has to be judged in light of the Civil Servants Act and the relevant departmental rules as well as Public Service Commission Act and the rules made thereunder. We find no such concept as amalgamation in these laws. Law stands now settled in the cases reported as Azad Jammu and Kashmir Government and others v. Muhammad Younus Tahir and others (1994 CLC 2339) and Sh.
Manzoor Ahmad v. Azad Government and another (1995 PLC (C.S.) 59) that a post carrying Grade- 17 and above under the Government cannot be filled in except through the Public Service Commission. The case of respondent does not attain better footing on account of the claimed fact that he was already appointed as Assistant Engineer in the Azad Jammu and Kashmir Local Council Service. We have already noted that even in that Service he had not been appointed on merit. The appointment of respondent No,5 is, therefore, found as illegal. Thus, the post of Assistant Engineer which he is holding is declared vacant.
8. Now we take up the other part of the writ. Facts show that in all twenty-six posts were referred to the Public Service Commission in 1994. Out of them four posts were to be filled in by recruitment from Mirpur District. Interviews were held on 25th February, 1997. The Government issued an order on 21st January, 1997 that one post for which requisition had been sent to the Public Service Commission shall be reduced from the requisition. Rule 3(2) of the Azad Jammu and Kashmir Public Service Commission Procedure Rules lays down as under:--- "Once post has been advertised by the Commission, the Administrative Secretary shall not be competent to withdraw requisition or reduce number of posts without the orders of the Government stating reasons therein."
9. The reduction of the post was ordered by the Government but no reason was given for it. The order runs as follows:--- "President of Azad Jammu and Kashmir has accorded approval to the reduction of one post of Assistant Engineer B-17 of District Mirpur by amending the requisition sent by Secretary Electricity to the Public Service Commission."
10. The order does not show any reason as to why a post already advertised by the Public Service Commission, which was done in 1994, was being withdrawn from the Public Service Commission.
Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994 have been framed by the Government in exercise of powers conferred by section 11 of the Azad Jammu and Kashmir Public Service Commission Act, 1986 and has a binding effect. The provision that a reason should be recorded for withdrawing a post advertised by the Public Service Commission is a salutary provision which on the face of it is meant to advance merit and discourage arbitrariness. Wherever law provides that an act can be done for reasons to be recorded such a provision has always been held as mandatory. The addition of recording reasons makes the provision justiciable so that the reasons can be examined by the Court. Executive cannot be allowed to take away this function of the Courts by omitting to record a reason.
11. Failure to record reasons for withdrawing the requisition is an illegality which has the effect of vitiating the order. It appears reasonable to infer from the record that the purpose of withdrawing one seat was to make room for respondent No,5. His appointment has been found above to be illegal. Therefore, in any the reason for which it was withdrawn was not valid. This also makes the withdrawal illegal.
12. Now we take up the question about legality of the proceedings conducted by the Public Service Commission. As already seen, four posts were meant for Mirpur District. In 1994 when the requisition was made and the posts were advertised Bhimbar Tehsil had not been separated from Mirpur which was done on 8th November, 1995. Pallandri district was also created on the same day by dividing erstwhile district of Poonch. Due to creation of these new districts, on 28th October 1996 the regional quota for services as well as for seats in the professional colleges in Pakistan was reallocated. This notification forms part of the High Court file. According to it, quota of Mirpur was fixed at nine per cent. While Bhimbar was given eight per cent. Seats/posts. The notification states that all previous notifications, mentioned therein, relating to regional quota shall stand cancelled.
13. It is provided in sub-rule 12(1) of the Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994 that the quota fixed by the Government from time to time shall be strictly followed by the Commission. We have already noticed that the Commission interviewed the candidates in February, 1997. At that time Bhimbar district had been allocated separate quota which was laid down about four months earlier. The quota system in services is incorporated in Rules 3(4) and (5) of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. These provisions fell for determination in Umar Hayat v. Azad Government (1999 PLC (C.S.) 78), the final conclusion was as.Follows:--- "We, therefore, uphold the opinion that provisions under reference are mandatory in nature. It is, therefore, clear that all concerned functionaries are bound to implement them and any inconsistent order will be a serious illegality."
' According to Rule 12(1) mentioned above the Public Service Commission was required to strictly follow the quota.
14. However it was vehemently contended by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, that when the Government sent the requisition to the Public Service Commission it allocated four seats to Mirpur District but the requisition was not amended with the result that the requisition lying with the Public Service Commission remained the same and no separate quota for District Bhimbar was to be taken into consideration while allocating posts. It was submitted that the Public Service Commission was bound by the requisition sent by the Government and therefore, rightly considered Mirpur and Bhimbar as an undivided district. The learned counsel relied on Muhammad Imtiaz Khan v. Azad Jammu and Kashmir Government through its Chief Secretary and 3 others (1999 PLC (C.S.) 1007) and Mehmood Sultan Afridi (Inspector Legal), F.I.A. v. Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and another (1998 PLC " (C.S.) 1493) and vehemently contended that Umar Hayat case mentioned above was clearly distinguishable. In Muhammad Imtiaz Khan case, following an earlier judgment titled Muhammad Fayyaz v.
Shahnawaz (Civil Appeal No,71 of 1998 decided on 11-1-1999), this Court held that once the Public Service Commission commences a selection process a right comes to reside in the candidate to be considered for appointment to the advertised posts in light of rules prevalent at the time when the post was advertised. The facts of the case were that the post of Assistant Electric Inspector B-17 was referred to the Public Service Commission and was duly advertised. Call letters were also issued but subsequently a letter was written by the Secretary of the Electricity Department in which he requested that the selection of the post under reference may be postponed. It was stated in the letter that the Government was considering to withdraw the requisition. The facts are clear that the request was for postponement and was made by the Secretary and not the Government. We have already seen that it is the Government which can withdraw a post already referred to the Public Service Commission. In these circumstances it was held that the request for postponement was without jurisdiction. The present case deals with change of law. The new district was created and its quota was fixed. The legal provision has to be given effect. In the requisition it was stated that four persons shall be recruited from Mirpur District while that district was subsequently reduced in size. Therefore, law had to be implemented by the Public Service Commission. In Muhammad Imtiaz Khan's case an earlier judgment in Civil Appeal No,71 of 1998 decided on 11th January, 1999 titled Muhammad Fayyaz v. Shahnawaz was followed. In Muhammad Fayyaz case there was change in qualifications after the advertisement had been published and it was held that if a post is advertised the candidates have the right to be considered according to the qualification laid down in the advertisement. Thus, the facts in the precedent cases and in the present case are entirely distinguishable. The notification which allocated seventeen percent. Seats to Mirpur District stood cancelled and was no longer in existence when the Public Service Commission formulated its recommendations by treating Mirpur as a separate district.
15. Conclusion of the foregoing discussion is that the Public Service Commission acted illegally in not bifurcating the four seats meant for erstwhile Mirpur District and by proceeding to allocate posts on the basis of the previous notifications which stood cancelled many months ago.
According to the new ratio two posts had to be filled in from each district. However, those who have already been appointed on the advice of the Public Service Commission cannot be adversely affected by this judgment because they are not arrayed as respondents in the writ petition. Only the seat to be vacated by respondent Babu Khan Ishtiaq will now be filled in one the basis of this judgment.
16. The High Court had requisitioned the relevant file from the Public Service Commission and brought it under consideration while deciding the case. We have also perused the file. Its contents show that the appellant was placed at No,7 in the merit list. It is also clear from the file that at least two candidates from Mirpur District (new) have already been appointed. Therefore, the seat to be vacated by respondent Babu Khan Ishtiaq shall be filled in from Bhimbar District. The Public Service Commission will now recommend the name of the candidate from Bhimber. District out of the list already prepared by the Commission on the basis of merit.
17. Consequently, the summary of the foregoing is as follows:---
(a) The appeal is accepted and the judgment of the High Court is set aside;
(b) The writ petition filed by the appellant is accepted with the result that;
(i) It is declared that respondent Babu Khan Ishtiaq is unlawfully occupying the post of Assistant Electrical Engineer B-17, therefore, he shall, cease to hold office;
(ii) Public Service Commission is directed to make fresh recommendation for appointment against the post vacated by Babu Khan Ishtiaq as indicated above.
(c) Parties shall bear their respective costs throughout.