2018 PLP (C (PLC(CS)N)

MUHAMMAD SHERAZ KIANI, J.

Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, following relief is implored by the petitioner:- "It is therefore very humbly prayed that by accepting the instant writ petition the appointment order of the non-petitioner No.4 as Cleaner bearing No.52-5 dated 30.01.2010 may kindly be set aside from the date of its issuance and the official non-petitioners may kindly be directed to appoint the petitioner on the post of Cleaner in Government Boys Degree College, Sehnsa District Kotli. Any anther Relief Admissible to the petitioner may kindly be awarded."

2. Precise facts of the case are that the petitioner is First Class State Subject of the Azad Jammu and Kashmir who hails from Sehnsa District Kotli. It is contended that a post of Cleaner/Chowkidar was published in Daily "NEWS MART" vide advertisement dated 27.12.2009 and the petitioner applied against the post. It is contended that petitioner participated in interview and was placed at serial No. 1 of the merit list. It is further averred that vis-a-vis the petitioner, private respondent No.4 has been appointed by the official respondents illegally vide appointment order dated 30.01.2010 who was falling at serial No.4 of the merit list. It is craved that private respondent has been appointed illegally on the basis of favoritism and nepotism, hence, it is prayed that the impugned appointment order of private respondent No.4 may be set-aside while appointing the petitioner against the post in question.

3. The learned counsel for the petitioner, more or less, reiterated the grounds of writ petition which have already been incorporated in pre-paras, therefore, there is no need to narrate the same here in black and white.

4. Representative of Education Department contended that private respondent No. 4 has been appointed after due process of law on the basis of which he is performing his duty in the light of order dated 30.01.2010 which has already been acted upon through joining report dated 01.02.2010. He further stated that petitioner failed to attain the merit position in the merit list, so, he could not be appointed under the law. Finally, he prayed for the dismissal of the writ petition.

5. I have heard the learned counsel for the parties and gone through the record of the case with utmost care.

6. A perusal of the record shows that some posts of Chokidar/Cleaner BPS-1 were published in daily "News Mart" vide advertisement dated 27.12.2009. In pursuance thereof, the petitioner applied for appointment against one of the posts and thereafter a merit list was prepared by the Selection Committee constituted by the appointing authority. The claim of the petitioner is that he was informed through telephonic call by the authority to join his duty on 28.01.2010, when he reached concerned College, the administration of college told that another candidate has been appointed against the post of Cleaner/Chowkidar who was falling at serial No. 2 of merit list. In consequence of that the petitioner moved an application to the Chairman Selection Committee for providing the merit list on which Chairman Selection Committee wrote the following words:--

7. It is worthwhile to mention here that the petitioner filed replication and annexed the documents i.e. copies of merit list dated 26.01.2010, recommendation of the Selection Committee dated 26.01.2010 and affidavit of Chairman Selection Committee whereby it is crystal clear that a merit list was prepared by the Selection Committee on 26.01.2010 whereby the petitioner secured 31 marks altogether whereas private respondent No.4 secured 27 marks. In view of that merit position, Selection Committee recommended Syed Shahzad Hussain Shah the petitioner as suitable candidate for appointment against the disputed post in the following manner:- Whereas appointing authority refused the said recommendation of the selection committee in the following words:-

8. It is apt to state here that the record was submitted by the Principal Govt. Degree College Sehnsa pertaining to the post in question, wherein, it is stated that recommendation was sent to the appointing authority in which Syed Ajmal Hussain Shah son of Imdad Hussain Shah was recommended as eligible candidate for appointment against the post in question and date of interview was written as 26.02.2010 in the recommendation whereas appointment order of private respondent No.4 was issued on 30.01.2010, meaning thereby, that all the subsequent proceedings were conducted in hasty manner and the same appear to have been prepared by committing fraud. For proper apprehension of the matter recommendation of the respective committee is reproduced as under:-

9. In my view, in presence of earlier merit list and recommendation of Selection Committee, the subsequent proceedings are patently illegal based upon favoritism and nepotism, after the recommendation of petitioner as eligible candidate for appointment, the said committee had become functus officio and had no authority to conduct selection process afresh. Although the appointing authority was competent to declare the whole process as illegal on account of appearance of any illegality and partiality but any such material illegality should have been pointed out. The then Principal (appointing authority) was not competent to overrule the recommendation of Selection Committee by leveling some vague accusations against the petitioner. His above noted accusations do not mention how and when the petitioner made undue influence upon him and what accusation he made against the authority. If it was so, then why he did not prosecute against the petitioner. Rather, conversely it suggests that due to favour the other candidate (respondent No.4) he turned down the recommendation of Selection Committee. If there was any legal defect he could again advertise the disputed post and invite the applications from the suitable candidates but could not travel beyond the recommendation of the Selection Committee with his own will just to accommodate private respondent No.4. It is sheer violation of law and rules, thus, the appointment order of private respondent No.4 dated 30.01.2010 is hereby set aside and petitioner, being recommended candidate for appointment against the disputed post, shall be appointed forthwith.

10. While submitting the written statement, the official respondents took the plea that after participating in interview (selection process), the petitioner could not attain merit position and that's why he was not appointed against the disputed post. It is further stated in the written statement that private respondent No.4/Syed Ajmal Hussain Shah secured 1st position in the merit list and that's why he was appointed as Cleaner through the impugned order dated 30.01.2010. It is also alleged in written statement that the petitioner was not recommended by the Selection Committee. The record sent by the Principal Government Degree College Sehnsa in the Court contains only those documents, which favour the appointment of private respondent No.4 but along with the petition the petitioner filed an original application annexure "B", which was filed by him before the Chairman Selection Committee wherein Muhammad Iqbal Ansari Chairman Selection Committee gave a certificate with his handwriting and signature to the effect that it was the petitioner who secured 1st position. The petitioner filed an affidavit of the Chairman Selection Committee along with the replication wherein it is stated by the Chairman Selection Committee that the Selection Committee had recommended the petitioner as suitable and successful candidate for the appointment and there is also an attested copy of merit list, which shows that the petitioner was at top of the merit list by securing 31 marks vis-a-vis to private respondent No.4 who secured 27 marks. So the question arises that if one merit list was prepared and signed by the Selection Committee and recommendations were given for appointment of the petitioner then how another merit list, filed in the personal file of Syed Ajmal Hussain Shah, respondent No.4 showing him at top of the merit list, was prepared. It appears that latter was prepared subsequently and probably, it could be concocted list. There is also recommendation of the Selection Committee in the personal file prepared in favour of respondent No.4 but in that recommendation instead of 26.01.2010 the date of interview mentions as 26.02.2010 which is sufficient to discredit the recommendations/documents made in favour of respondent No.4. If the interview was conducted on 26.02.2010, then how he was appointed 27 days before on 30.01.2010. The recommendation of the Selection Committee, for the appointment of petitioner has also been placed upon the record, Although these all documents are sufficient to nullify the appointment order of respondent No.4 particularly when it has not been specifically mentioned that the record placed by the petitioner is false and concocted and mere evasive denial amounts to admission. So, these documents filed by the petitioner particularly affidavit of Chairman Selection Committee shall be treated as correct but at the same time the other questions that how, when and why the subsequent merit list and recommendations of the Selection Committee in favour of respondent No.4 were prepared and in absence of 1st merit list and recommendations of the Selection Committee, the appointment order of respondent No.4, was issued? These questions require a detailed departmental inquiry, therefore, a copy of this judgment along-with copies of the hereinabove referred documents shall be sent to the Secretary Colleges for necessary legal actions against the responsible.

11. The logical inference of above discussion is that the instant writ petition is accepted and the impugned appointment order of private respondent No.4 dated 30.01.2016 is hereby set aside and the respondents are directed to appoint the petitioner against the impugned post forthwith. ZC/41/HC(AJ&K) Petition allowed.