' This writ petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby an advertisement was issued by the P.S.C. For induction of the Subject Specialist (Psychology) has been challenged.
The facts necessary for the disposal of this petition are that the petitioner is in ad hoc service of the Education Department of Azad Jammu and Kashmir who was inducted as Subject Specialist (Psychology) on 22-10-2000. This appointment of the petitioner was subsequently extended by the Government from time to time. The Azad Jammu and Kashmir P.S.C. Issued an Advertisement No,1 of 2002 whereby applications were invited for the induction on the different posts in the different departments including the post of Subject Specialist (Psychology). This post has been advertised on open merit basis. It is alleged that the advertisement is nullity in the eyes of law as well as violative of the Rules and judgments of the Apex Court of Azad Jammu and Kashmir. The post can only be advertised keeping in view the quota allocated to the different units of Azad Jammu and Kashmir in view of Notification issued on 28-10-1996.
' This writ petition was admitted for regular hearing on 2-10-2002 and the case was fixed for 9-10- 2002. On the aforesaid date, the respondents sought an adjournment for filing written statement and the case was adjourned to 13-11-2002. On this date again and adjournment was sought and the last opportunity was given to the respondents for filing written statement on 11-12-2002. On this date, the respondents failed to file written statement, therefore, their defence was stuck of. No other material is placed on record to contradict the facts pleaded in the writ petition which are duly supported by filing an affidavit by the petitioner.
' Mr. Raza Ali Khan, learned Advocate appearing for the petitioner vehemently contended that the rules of quota are manadatory and has a statutory backing, therefore, no advertisement can be made without determining the quota of the respective units of the Districts. The learned Advocate referred to and relied upon sub-rules (1) and (5) of Rule 3 of the Azad J&K Civil Servants (Appointment and Conditions of Service) Rules, 1977. The learned Advocate also relied on Umar Hayat's case (1999 PLC (C.S.) 98) and contended that du, Apex Court of Azad Jammu and Kashmir has seriously taken the notice of violation of the quota and directed that the provisions regarding the quota are mandatory and cannot be passed by the competent authority while sending the requisition to the P.S.C.
' The learned Additional Advocate-General who is present before the Court, is unable to controvert the arguments of the learned Advocate for the petitioner.
' I have heard the learned Advocates for the parties and have perused the record made available with this petition.
' As observed hereinabove, the respondents have failed to file written statement, therefore, no material is placed before the Court from which it could be ascertained that the present action of the respondents was justified. Mr. Raza Ali Khan, learned Advocate for the petitioner has rightly contended that the provisions regarding the quota are mandatory and all the authorities are bound to follow the same. The Apex Court of Azad Jammu and Kashmir in Umar Hayat's case took a serious view of the matter and directed all the authorities to make appointments keeping in view the mandatory provisions of the quota. It is useful to reproduce the relevant observations of the Apex Court as under.
" ..It is provided in section 4 of the Azad J&K Civil Servants Act, 1976: that "Appointments to a civil service of Azad J&K or a civil post in connection with the affairs of the Government, shall be made in the prescribed manner by the Government, or by a person authorized by it in that behalf." The word "prescribed" is thus defined in section 2 of the above Act. "prescribed" means prescribed by rules". Sub-rules (4) and (5) of Rule 3 of the Azad J&K Civil Servants (Appointment and Conditions of Service) Rules, 1977 are relevant which are as under: "3. (4) The Government may, with due regard to the population, provide for the proper representation of the component units of Azad J&K and the refugees settled in Pakistan in the services of Azad J&K.
(5) All orders, notifications issued for determining the quota for the initials recruitment, in the services, shall be deemed to have been issued under sub-rule(4)."
' The first Government order by which quota system was introduced was issued on 16th March, 1971 when ten per cent of the vacant posts were reserved for candidates from backward areas of Azad J&K. This Government order was superseded on 12th March, 1972 and the following order, which is in the shape of a circular, was issued:-- "From the office of the Chief Secretary Services and General Administration of Azad Govt. Of the Sate of J&K. No,Admin/4476- 27-S/72 dated 12-3-1972.
' To
1. All Secretaries to the Government.
2. All Heads of Departments.
' Sub: Regional Quota in Government Services.
' In light of the Council Resolution No,48/71 the following regional quota in Government Services has been fixed:--
1. J&K refugees settled in Pakistan 25%
2. District Mirpur. 30%
3. District Poonch. 25%
4. District Muzaffarabad. 20%
2. Notification issued under No, Admin/3003-34/C.S/71 dated 16-3-1971 by which 10 per cent representation in services was sectioned for backward area as is cancelled in light of the Council Resolution mentioned above. They will be absorbed in the quota of their respective districts.
3. Recruitment in the District Offices shall be made from the same district.
' This may please be acted upon in future. Sd/-Additional Chief Secretary"
(Translated)
' Another circular was issued on 5th July, 1972 in which certain aspects about the quota system were clarified. This is the circular on which the appellant has based his claim. Translated in English, the circular was worded as follows: "From the office of the Chief Secretary, Services and General Administration Department Azad Government of the State of Jammu and Kashmir. Af,om/1266-1271/C.S/72 dated 5-7-1972.
' To,
1. All Secretaries to the Government.
3. All Heads of Departments.
' Sub: Regional Quota in Government Services.
' The Government decision about district-wise representation has already been communicated to you. In continuation of that decision, I am directed to state that whenever it is intended to fill up a vacancy the concerned department shall be bound to indicate in the advertisement that the post would be filled up from the district specified therein against the reserved quota and only candidates from that district would be brought under consideration. However, if a suitable candidate possessing the required merit is not available from that district, the appointment will be made from amongst suitable candidates from other districts.
' This principle would apply to all posts which are filled up through competitive examination and are gazetted. So far as non-gazetted and subordinate officials are concerned they will be recruited from within their available from within the district in that case appointing authority will bring the matter in the notice of the immediate officer and would then make appointment from other districts.
' P.S.C. Will also be required to indicate in the advertisement inviting applications that the recommendations of the Commission will be formulated on the basis of district-wise quota, however, if candidate of required merit is not available the Commission will recommend the most suitable candidates irrespective of the district to which he belongs.
' Please act upon the foregoing.
' (Sd.) Addl. Chief Secretary."
' Mr. Abdul Rashid Abbasi added that Fundamental Right. No,17 (Safeguard against Discrimination in services) visualizes that Government jobs can be reserved on the basis of place of birth or domicile. There is force in this submission.
The legal provisions and Government orders reproduced above support the view taken in the judgment under appeal that reservation on the basis of regional quota is mandatory in nature and negative the other view that it is rule of convenience. For the latter view no reasons has been recorded by the High Court. The learned Counsel for the respondents also did not support the "rule of convenience' view and contested the appeal on technical grounds to which we will be presently adverting. We, therefore, uphold the opinion that the 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.
' In view of above, the writ petition is accepted and the Secretary Education is directed to determine the quota of the disputed post i,e, the Subject Specialist (Psychology) and after determining the quota, amended requisition shall be sent to the P.S.C. For test and interview, Advertisement No,1 of 2002 to the extent of Subject Specialist (Psychology) is hereby quashed.