2019 PLP 2899 (YLR)

RAJA SAEED AKRAM KHAN, J.

The supra titled appeal by leave of the Court has been filed against the judgment of the High Court dated 30.03.2018, whereby the writ petition filed by the appellants, herein, has been dismissed.

2. Necessary facts for disposal of the instant appeal are that the appellants, herein, challenged the selection process initiated by the Services and General Administration Department for appointments to the posts of Section Clerk (B-14) and Stenographer (B-14), through a writ petition before the Azad Jammu and Kashmir High Court on 26.07.2017. It was claimed that the department advertised 20 posts of Section Clerk (B-14) out of 50 permanent available vacancies. Similarly, 15 posts of Stenographer (B-14) were advertised and 36 posts were withheld. It was stated that the posts of both the categories were deferred for consideration and recommendations of a high level constituted committee vide Cabinet decision dated 22.02.2017 and the notification dated 03.03.2017. It was further alleged that the different yardsticks for appointment against the available posts of same categories cannot be adopted in view of fundamental rights enshrined in the Constitution. The learned High Court sought comments from the other side and after necessary proceedings, through the impugned judgment dated 30.03.2018 dismissed the writ petition mainly on the ground that the petitioners, therein, failed to append the certified copies of the impugned advertisements dated 20.02.2017, 31.01.2017 and 01.07.2017, hence this appeal by leave of the Court.

3. Ch. Shoukat Aziz, Advocate, the learned counsel for the appellants submitted that the impugned judgment of the learned High Court is based on misinterpretation of the law and the rules, which is liable to be set aside. He submitted that at one hand the learned High Court admitted the writ petition for regular hearing but on the other hand dismissed the same on the technical ground. He added that the important legal propositions were raised in the writ petition but the learned High Court without attending the same has dismissed the writ petition while applying rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, mainly on the ground that the certified copies of the advertisements have not been appended with the writ petition. He submitted that the learned High Court has erred in law and the facts of the case while handing down the impugned judgment, as the documents attached with the writ petition are admitted in nature and there is no need to append the certified copies of the same. This proposition has already been resolved by this Court in a number of cases one of which is the case reported as Ahmed Nawaz Tanoli, Advocate v. Chairman Azad Jammu and Kashmir Council and others [2016 SCR 960]. The learned counsel submitted that the guidelines laid down by this Court in the case (supra) have totally been ignored by the learned High Court and the writ petition has been dismissed in a slipshod manner without applying the judicial mind. He requested for acceptance of appeal.

4. Conversely, Sardar Karam Dad Khan, the learned Advocate-General assisted by Raja Ikhlaq Hussain Kiani, the learned Additional Advocate-General, submitted that no illegality has been committed by the learned High Court while passing the impugned judgment. He submitted that the appellants failed to append the certified copies of the advertisement along with the writ petition which is mandatory requirement of the rules. The learned High Court has rightly dismissed the writ petition in view of Rule 32 of the High Court Procedure Rules, 1984. Even otherwise, on merits the appellants have failed to establish any case, as they were appointed on temporary basis and the Government has rightly advertised the posts.

5. We have heard the learned counsel for the appellants as well as the learned Advocate-General and gone through the impugned judgment along with the other material available on record. The appellants, herein, filed the writ petition in the High Court, through which they challenged the selection process initiated by the Services and General Administration Department for appointments to the posts of Section Clerk (B-14) and Stenographer (B-14) on various grounds. The learned High Court through the impugned judgment dated 30.03.2018, while applying rule 32 of the High Court Procedure Rules, 1984, dismissed the writ petition on the sole ground that the petitioners failed to append the certified copies of the advertisements under challenge. The contention of the learned counsel for the appellants is that as the documents attached with the writ petition are admitted in nature, therefore, keeping in view of the legal aspects of the case, the writ petition cannot be dismissed on the sole ground of non-filing of the certified copies. There is no cavil with the proposition that filing of certified copies of the order impugned and the documents relied upon, with the writ petition is mandatory requirement of Rule 32 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, but in our view when the averments made by the petitioner in the writ petition and the documents relied upon by him, are admitted from the opposite side, then the situation will be otherwise and writ petition cannot be dismissed on technical ground. We are fortified in our view from the judgment of this Court delivered in the case reported as Shahida Khadim v. Secretary Education AJ&K and 5 others 2004 PLC (C.S.) 1074 wherein, it was observed as under:-- "The above contention raised by the learned counsel for respondent No.3 is correct that the copy of the impugned order as provided under the High Court Procedure Rules must be attached but the position is totally different when the averments made by the appellant and the documents relied upon by her are admitted from the opposite side. In the instant case the appellant's assertion that she stood first in the test and interview in accordance with the merit list stands admitted by the respondents. Similarly, after the appointment of appellant, the appointment of respondent No.3 also stands admitted by the respondents. In such a situation it was not necessary on the part of the appellant to attach with the writ petition the attested copies of the documents especially so when the same were admitted by the respondents .." Another case which has also been relied by the learned counsel for the appellants, is reported as Ahmed Nawaz Tanoli v. Chairman Azad Jammu and Kashmir Council and others (2016 SCR 960), wherein, this Court has laid down the guidelines in the following terms In the instant case, the appellants challenged the selection process for appointments to the posts of Section Clerk (B-14) and Stenographer (B-14), made in pursuance of the advertisements dated 20.02.2017, 31.01.2017 and 01.07.2017, by way of writ petition. The respondents herein, filed para-wise comments, wherein, they admitted that the selection process has been initiated in pursuance of the judgments of the Superior Courts. Thus, the averments made by the appellants are admitted by the opposite side. In this state of affairs, the learned High Court has illegally dismissed the writ petition on the technical ground while ignoring the guidelines laid down by the superior Courts. Therefore, we are left with no option except to accept the appeal and remand the case to the learned High Court having first its wisdom on merits of the case.

6. Resultantly, this appeal is accepted and the impugned judgment of the learned High Court is set aside. The case is remanded back to the learned High Court for decision on merit. As the matter relates to the appointments of the Section Clerk and Stenographers in the Services and General Administration Department and a considerable time has already been consumed, therefore, the learned High Court is directed to decide the matter within a period of two months, from the communication of this judgment. The appeal is accepted in the above terms with no order as to costs. ZC/7/SC(AJ&K) Case remanded.