2019 PLP (C (PLC(CS)N)

GHULAM MUSTAFA MUGHAL, J.

The captioned review petition has been directed against the judgment dated 29.1.2018 passed by this Court in Civil Appeal No. 81 of 2017.

2. The facts forming the background of the captioned review petition are that the Public Service Commission advertised some posts of Section Officers vide advertisement No. 1/2009 against the quota of different units of the Azad Jammu and Kashmir including District Poonch for which one post was allocated. The petitioner applied against the said quota but after test and interview could not obtain merit position; however, his name was placed at Serial No. 2 of the waiting list. It was alleged that the candidate appearing at Serial No.1 of the waiting list was appointed in view of the judgment of the Azad Jammu and Kashmir High Court rendered in Writ Petition No. 660 of 2011 dated 27.11.2015. After the appointment of the candidate listed at Serial No.1 from the waiting list, it is the petitioner who, is now at Serial No.1 hence, is entitled to be appointed. It was further alleged that during the selection process started in pursuance of the advertisement No.1/2009, the Service and General Administration Department sent another requisition in which two posts of section officers were allocated against the quota of District Poonch. The case of the petitioner is that these posts were vacant at the time of requisition but have not been sent to the Public Service Commission. Moreover, the Public Service Commission has failed to comply with its rules of procedure as it has not issued the amended requisition, otherwise the petitioner would have been among the successful candidates. The writ petition was contested by the other side, wherein it was stated that in 2009 only one post was available against the quota of District Poonch which was sent to the Public Service Commission and on the basis of the recommendations of the Public Service Commission, one Kashif Niaz was appointed. It was stated that subsequently one Muhammad Younas, section officer was promoted as Deputy Secretary due to which another post fell vacant against the quota of District Poonch and the same was requisitioned to the Public Service Commission in 2013. It was claimed that in the case titled Kkursheed Mehmood v. Azad Government and others, the Azad Jammu and Kashmir High Court directed for appointment of the said petitioner, hence, this requisition was withdrawn and no other post was available. The allegation of withdrawing the post was also refuted in Para No. 5 of the written statement. After hearing the parties, the learned Court vide judgment dated 10.2.2017 dismissed the writ petition while relying upon the case reported as Azad Jammu and Kashmir Government and 3 others v. Noman Akbar (2015 SCR 361). Against the aforesaid judgment passed by the learned High Court, an appeal was filed before this Court, which was accepted for the reasons listed therein vide judgment dated 25.1.2018 announced on 29.1.2018. As stated above the captioned review petition has been filed against the aforesaid judgment by the Azad Government and others on the ground that the judgment has been handed down on wrong assumption of facts and law, hence, is liable to be reviewed. It is stated in the review petition that the respondent, herein, approached the High Court 3 year after completion of the selection process, hence the waiting list was not valid and no direction could have been issued in his favour on the basis of an invalid waiting list. It is further stated that the candidate who was appointed from the waiting list was appointed on the basis of another requisition, which has no nexus with the claim that two posts of section officer were sent against the quota of District Poonch. It is stated that the requisition was returned by the Public Service Commission for some clarification and thereafter, the same was not sent again, therefore, it cannot be said that any other requisition was available before the Public Service Commission in that perspective rule 9 of the Public Service Commission was not attracted and the Public Service Commission has not committed any violation of the rules of procedure.

3. Sardar Javed Naz, the learned Additional Advocate General reiterated the grounds taken in the review petition and submitted that advertisement No. 1/2009 was issued on 31.8.2009, the applications against the advertised posts were to be filed by the candidates till 15.1.2011, thereafter the selections process was completed and handout was issued on 15.1.2011 along with the waiting list. He argued that respondent, herein, filed writ petition before the Azad Jammu and Kashmir High Court on 3.6.2015 after a period of 4 year, hence, the waiting list was not valid at the time of filing the writ petition. The learned Advocate argued that a valid list can be Utilized only if the recommended candidate failed to join within stipulated period, otherwise, no one can be appointed on the basis of waiting list. The learned Additional Advocate General further argued that while handing down the judgment under review, a case reported Azad Jammu and Kashmir Government and 3 others v. Noman Akbar (2015 SCR 361) escaped the notice of the Court, otherwise the conclusion might has been different. The learned Additional Advocate General further argued that the contention of the respondent that another advertisement was issued in which two posts were advertised, is also against the facts and record and the same has not been appreciated in its true perspective while handing down the impugned judgment. The learned Additional Advocate General argued that the respondent cannot be benefited for the earlier decision made in Khursheed Mehmood's case after a considerable delay. He further argued that the case of the respondent, herein, was that he may be appointed against the vacant post of the unit from which no one has qualified and this fact has not been proved before the High Court. The learned Advocate submitted that the arguments advanced on behalf of the Government were not attended in the judgment under review.

4. Conversely, Ch. Shoukat Aziz, the learned Advocate appearing for the respondent argued that in Khursheed Mehmoods' case, it was proved before the High Court that subsequent advertisement was sent on 28.7.2010 to the Public Service Commission, which sufficiently indicates that two more posts were available but the same have not been referred to the Public Service Commission in 2009. The learned Advocate argued that Khursheed Mehmood and Sabeen Naz have been benefited on the basis of subsequent advertisement, therefore, the respondent being listed in waiting list is also entitled to the same treatment. The learned Advocate argued that the scope of review, is very narrow and limited and the whole case cannot be reopened on any ground, which has already been well considered in the light of the record and law by the Court. He prayed for dismissal of the review petition.

5. We have heard the learned Advocates representing the parties and have gone through the record of the case. A perusal of the record reveals that the respondent, herein, participated in the test and interview for appointment as Section Officer in pursuance of advertisement No.1/2009 against the quota of District Poonch, but he could not obtain merit position. His name was placed at serial No. 2 of the waiting list. He filed a writ petition before the Azad Jammu and Kashmir High Court on 3.6.2015 for a direction to the respondents for his appointment on the ground that during pendency of the selection process initiated in pursuance of advertisement No.1/2009, the service and General Administration Department sent another requisition vide letter dated 28-7-2010, whereby two posts of Sections Officer were reserved for District Poonch. It was further claimed that these posts were withheld at the time of sending earlier requisition. Moreover, as the Public Service Commission has received the requisition dated 28.7.2010 during selection process, therefore, it was enjoined upon it, to amend the advertisement No.1/2009 and issue as fresh advertisement. It was stated that had the Public Service Commission followed its rules of procedure, the petitioner would have been among the selected candidates.

6. The case of the petitioner is that a candidate namely Khursheed Mehmood was placed ahead to him. He was selected and appointed on the basis of the direction of the High Court given in his Writ Petition No.660 of 2011 titled Khursheed Mehmood Khan v. Government of Azad Jammu and Kashmir and 2 others decided on 27-1-2015. It was stated that the petitioner also deserves the same treatment. The respondents contested the writ petition by filing written statement and submitted that requisition dated 28-7-2010 was not in existence, therefore, the Public Service Commission was not bound to issue consolidated advertisement. It was further stated that Public Service Commission has returned the requisition. It was stated that only one post was available against the quota of District Poonch, which was sent to the Public Service Commission, however, the same was withdrawn for implementation of the judgment rendered in Khursheed Mehmood's case. After hearing the parties, the learned High Court vide judgment dated 10-2-2017 dismissed the writ petition filed by the respondent, herein. An appeal was brought before this Court by the respondent, herein. After hearing the parties, the appeal was accepted vide judgment dated 10-2-2017.

7. The contention of Sardar Javed Naz, the learned Additional Advocate General appearing for the petitioners that while handing down the judgment under review this Court has not considered the rule of law laid down in the case titled Azad Jammu and Kashmir Government and 3 others v. Noman Akbar (2015 SCR 361), wherein at page 364 of the report it was observed as under:- "A candidate in merit from the waiting list can only be appointed against the post if the selected candidate recommended by the Public Service Commission on the basis of merit fails to join the service or is declared medically unfit. There are two eventualities justifying the appointment from the candidate falling in the waiting list." The contention of the learned Advocate for the petitioners has a substance. The appeal was liable to be dismissed on the ground that the petitioner participated in the test and interview in pursuance of advertisement No.1/2009 and the handout was issued on 15.11.2011. The waiting list, if any, could be deemed valid for 180 days, whereas the respondent, herein, has filed the writ petition before the Azad Jammu and Kashmir High Court on 3.6.2015 after a period of 4 years. The petitioner cannot be benefited on the strength of Khursheed Mehmood's case as well as Sabeen Naz's case because he has knocked the door of the Court after a considerable delay and there is no plausible explanation for the same. Moreover, the requisition dated 28.7.2010 has been negated by the department, therefore, it was not necessary for the Public Service Commission to consolidate both the advertisements because the subsequently sent requisition was withdrawn and no additional post was available with the Public Service Commission. If for the sake of argument, this argument is assumed correct, even then the respondent, herein, has not challenged the act of withholding of the post by the Public Service Commission in time. He was supposed to file the writ petition before completion of selection process in pursuance of the advertisement No. 1/2009 or soon after the declaration of the result of the examination conducted in pursuance of the said advertisement. As per settled law, a case cannot be reopened while hearing the review petition, but in the present case while handing down the judgment under review, true facts of the case as well as law escaped the notice of the Court. In view of the above, the review petition is accepted and the judgment under review dated 29.1.2018 is hereby recalled. As a result whereof Appeal No.81 of 2017 filed by the respondent, herein, is hereby dismissed with no order as to costs. ZC/50/SC(AJK) Petition allowed.