2023 PLP (C (PLC(CS)N)

The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, through which the following relief has been claimed by petitioner: It is, therefore, most respectfully prayed that by accepting the instant writ petition, the appropriate writ may kindly be issued in the following manners:- (i) Directing that the impugned advertisement 04.04.2019, is without lawful authority, unjust, arbitrary and in violation of notification 24.01.2001 and judgment 2009 SCR 127. (ii) Directing the respondents to complete the remaining 7 process of advertisement 12.02.2011, to complete the test and interview and to appoint the successful candidate against the quota of refugees of 1989, within specific period as directed by the Hon'ble Court. (iii Any other relief which is admissible under law may also be granted in favour of petitions.

2. The precise facts culminating into filing of the instant writ petition are that petitioner is a refugee of 1989, migrated from occupied Kashmir it is stated that initially the petitioner was appointed on work charge basis as Junior Clerk on 11.10.2006, then appointed on 17.07.2007, the petitioner was appointed against normal budget post as Junior Clerk vide order dated 11.09.2007, then the appointment order was extended through order dated 24.04.2008, then again extended vide order dated 20.02.2010, and 29.10 2010, and thereafter he was adjusted through order dated 12.03.2015, and has been Performing his duty uptil now on temporary basis. It is maintained that the quota of refugees of 1989 has been fixed as 06% vide notification dated 24.01.2001, and official respondents-advertised 02 posts of Junior Clerk for District Kotli, Sidhnoti, Neeltun and for refugees, 1989. in "Daily Jammu and Kashmir" on 12.02.2011, hence, petitioner alongwith other candidates applied against the said posts, however, neither call letter has been issued, nor the further process has been completed in light of the said advertisement. Later on, the official respondents advertised ?? 01 post of Junior Clerk B-11, in "Daily Ausaf" on 04.04.20.19, to open merit basis, except the District Muzaffarabad, Haveli Kahota, Kotli and Jhelum Valley, without determining the quota of refugees, 1989 and framing service rules, hence, the petitioner constrained. to file the ins:ant Constitutional petition.

3. The writ petition has been resisted by the respondents through filing comments, which were treated as written statement on the request of the learned counsel for respondents, vide order dated 03 02.2020, wherein, it is stated that Azad Jammu and Kashmir Power Development Organization has advertised 01 post of Jnunir Clerk on open merit by following the instructions introduced by the Government i.e. if, strength of post would be less than administrative units, which are now consisting of ten Districts and two units of refugees settled in Pakistan and refugees of 1989, total twelve units then the same than be advertised on open merit basis, hence, writ petition is liable to be dismissed. It is further stated. that the impugned post/Junior Clerk is upgraded from BPS-07 to BPS-11, due to which its academic qualification has also been changed from Matric to Graduation against the said post, hence, submitted dismissal of the instant writ petition.

4. Sardar Abdul Sammie Khan, Advoeate, the learned counsel for the petitioner submitted that previously the impugned post of Junior Clerk 8-7 was already advertised vide advertisement dated 12.02.2011 and in that advertisement quota of refugees 1990 has specifically beer mentioned in addition to District Kotli, Sudhnoti and Neelum and without cancellation of the previous advertisement, through the impugned advertisement dated 04.04.2019, the same post was re-advertised on opem merit basis excluding district Muzaffarabad, Haveli Kahuta, Kotli and Jehlum Valley respectively, and according to the version of the learned counsel for the petitioner the quota of the refugeesof year 1989/1990 has not been determined in the given impugned 36Tertisemerl. whereas, the petitioner previously has already applied against the quota of refugee 1990 in pursuance of the advertisement dated 12.02.2011, hence, Craved lei. acceptance of the instain writ petition.

5. While controventing the arguments of the learned counsel for petitioner Syed Asim Masood Gillani Advodate, the learned counael for the respondents submitted that vide office memorandum dated 03.06.20 l6, the impugned post has been upgraded from BPS-07 te BPS-11 and vide notific dated 20-02-2018, the new rules relating to the impugned post have also been promulgated by the Azad Government of the State of Jammu and Kashmir through Services and General Administration Department, so, it was aot possible for the department to fill in the post according to the previous and repealed rules, particularly, when the qualification and the grade of the impugned post has already been upgraded and changed. He further contended that the petitioner is also eligible to apply against the impugned post and so he does not come within the definition of an aggrieved person, hence, prayed for dismisal of the instant writ petition.

6. I have heard the nrguments and- gone through the record of the case.

7. A contemplate perusal of record reveals that the impugned post has been upgraded from BPS-7 to BPS-11 through the office memorandum dated 03.06.2015, and qualification has also been enhanced and changed vide notification/rules dated 20.02.2018, so the Department had no option but to re-advertiie the impugned post according to the prevaten rules, as the previous rules were already repealed. When Lee pioeviotts noes neeame non-exisent and redundant, then the advertisement issued under the repealed rules shall stand automatically cancelled and the fresh advertisement was essential as the qualification and eligibiity criterion of the desirous cndidates have also been changed along with the up-gradatin of the post. when the selection process was not started in pursuance of the previous advertisement than no valuable right accrued in favour fo the applicant-petitioner by filing just an application as a candidate. The petitioner is also eligible to apply against the impugned post afresh because the impugned advertisement does not eclude the units of refugees 1989/90, he belongs, so in my view, he does not come withi the definition of an aggrieved person as he is eligibvle to apply.

8. So far as the contention of the learned counsel for petitioner that vide notification dated 4-1-2013, all the departments are bound to determine and obsered the quota of refugees settled in Pakistan as 19% and for refugees of 1989, at the ratio of 06%, is concerned. It reflects from the advertisement that 01 post of Junior Clerk B-11, has been advertised on open merit basis by excluding district Muzaffarabad, Haveli Kahuta, Kotli and Jehlum Valley, whose quota probably has already been exchausted by following the instructions introduced by the Government vide Circular dated 27-3-2003, wherein, it is provided that if, strength of the post would be less than administrative units, which are now consisting of ten Distribts and two Units of refugees settled in Pakistan and refugees of 1989, total: twelve units, then the same shall be advertised 'on open rner:t hence; no illegality has been committed by responcientewhile.17kthertising the posts on open merit through 'Daily Ausaf Mutaffarabad" dated 04.04.2019. Obviously the candidate who will secure top position on merit and wil3 be selected, the quota of his unit shall be exhausted and in case of any next vacancy of the same cadre shall be advertised by excluding the unit of already selected candidate. the aforesaid propoSition was resolved by the Apex Court hi case titled "Azad Government and 2 others v. Muhammad Naseer Chaudhy and 2 others" [2010 SCR 186] At page 199 of the report it was held as follows:- "

9. The aforesaid instructions reveal that then are not in, violation of orders/rules regulating the quota. The neciassity arose when the newly created posts to be filled in by the Goverrannit departments were less in number than the administrative units. When the post are less in number it is not possible for the department to determine the quota of any particular district. There appears to be wisdom behind the instructions that the candidates belonging to all the administrative units shall be provided equal opportunity for competing the available posts. The instructions provide a safeguard for the candidates of all administrative units by providing the condition that if more than one candidates from same district have qualified the test and interview, only one from that dustructm who is at top, shall be appointed. The next candidate shall be appointed from the district having. the superior merit. Had this condition not been incorporated in the instructions in hat case the instructions would have no binding force being in contravention of the rules.

10. In the case in hand the number of posts of Assistant Director Environment was only three. The number of administrative units at the time of advertisement of posts was stated to be eight, therefore, it was not possible for the department to determine the quota of districts. In that case the method provided in aforesaid instructions was correctly adopted by the department while sending the requisition to the Public Service Commission for advertising the posts on open merit basis." The impugned advertisement dated 04.04.2019, was issued as per Government circular dated 27.03.2003, and according to the rule laid down by the apex Court in the supra case, hence, no illegality has been committed by respondents.

9. The crux of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed. The official respondents shall complete the process within 02 months period, from the receipt of the instant judgment. SA/23/AJK (HC) Petition dismissed.