2025 PLP (C (PLC(CS))

KH. MUHAMMAD NASIM, J.

The captioned petition for leave to appeal has been directed against the judgment dated 11.09.2024, passed by the High Court of Azad Jammu and Kashmir in Writ Petition No.2837/2023 whereby, the writ petition filed by the petitioners, herein, has been dismissed.

2. The necessary facts for disposal of this petition are that the petitioners, herein, filed a writ petition in the High Court, alleging therein, that the Mad Jammu and Kashmir Public Service Commission (hereinafter to be referred as PSC) issued advertisement Nos. 1/2018, 4/2018 and 3/2019 whereby, the applications were called for appointment against the posts of Secondary School Teacher (B-16) Male and Female, and 49 posts were allocated against the quota of District Sudhnoti. In response to the said advertisements, the petitioners, being eligible, applied and participated in the written test. They qualified the written test and were called for interview but could not attain the merit position, however, at the end of the selection process, male candidates amongst the petitioners were placed in their respective waiting list at Sr. Nos.11, 13, 17, 20, 25 and 28, while, female candidates from the petitioners were placed in their respective waiting list at Sr. Nos.3, 4, 5, 6, 10, 12, 13, 15, 17 and

20. It was alleged that at the time of issuance of the said advertisements, total 71 posts of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti were available but the requisition of only 49 posts was sent to PSC by the department whereas, 22 posts were withheld by the department. Had all the posts been sent to the PSC, the petitioners would have been amongst the selected candidates. The said posts were withheld by the department with mala fide intention just to accommodate their favorites on ad-hoc basis. The act of the respondents regarding withholding the posts and not requisitioning all the available posts pertaining to District Sudhnoti deprived the petitioners illegally from their appointments. They lastly prayed for acceptance of the writ petition. The writ petition was contested by the other side. The respondents while filing separate comments/written statements stated that all the available posts of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti were advertised through different advertisements i.e. advertisement Nos.1/2018, 4/2018 and 3/2019, and all the appointments have been made against the advertised posts. It was specifically stated in the objections that no post of Secondary School Teacher (B-16) Male and Female, had been withheld by the department at the time of publishing the advertisements. The petitioners could not attain the merit position; hence, they could not be appointed, whereas, the principal candidates who have obtained merit positions, have duly been appointed. They alleged that the claim of the petitioners regarding withholding of the posts is baseless and without any substance, and lastly prayed for dismissal of writ petition. After necessary proceedings, the learned High Court dismissed the writ petition, vide impugned judgment dated 11.09.2024, hence, this petition for leave to appeal.

3. Mr. Shahid Ali Awan, Advocate, the learned counsel representing the petitioners submitted that the impugned judgment passed by the learned High Court is against law and the record of the case which is liable to be set aside. He further submitted that only 49 posts of Secondary School Teacher (B-16) Male and Female, were advertised through different advertisements i.e. advertisement Nos.1/2018, 4/2018 and 3/2019, whereas, at that time, 72 posts of Secondary School Teacher (B-16) Male and Female, were available against the quota of District Sudhnoti. The department withheld the 22 posts of Secondary School Teacher (B-16) Male and Female, with mala fide intention just to accommodate their favorites on ad-hoc basis. If all the available posts were advertised, the petitioners would have been appointed. He argued that the letter dated 28.03.2023, referred to by the District Education Officer District Sudhnoti to Director Education regarding the total posts of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti, was appended with the memo of writ petition which proves the mala fide of the department but the learned High Court without considering the same, illegally dismissed the writ petition on erroneous grounds, hence, the judgment of the High Court is not sustainable in the eye of law. He added that important legal questions of public importance are involved in this petition, hence, grant of leave is justified.

5. I have considered the arguments of the learned Advocate representing the petitioners and examined the record made available along with the impugned judgment. A perusal of the record reveals that the claim of the petitioners in the High Court was that vide advertisement Nos. 1/2018, 4/2018 and 3/2019, the PSC advertised 49 posts of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti. They applied for appointment against the advertised posts in response to the said advertisements. After conducting the test and interview, they were placed in the waiting list. They alleged that at the time of above-mentioned advertisements, 72 posts of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti were available but the department requisitioned only 49 posts to the PSC, while, the other 22 posts were withheld by the department with mala fide intention. On the other hand, the department in its comments/written statements filed in the High Court, has specifically denied the fact regarding withholding of the posts in para 02 which is reproduced hereinunder:- It may be stated here that the petitioners, herein, have heavily relied upon the letter dated 28.03.2023 issued by the District Education Officer District Sudhnoti, and stated that 72 posts of Secondary School Teacher (B-16) Male and Female, were available at the time of above-mentioned advertisements but only 49 posts were advertised at the time of issuance of the advertisements and 22 posts were withheld by the department. If these posts were advertised, the petitioners would have been appointed. I have minutely examined the letter dated 28.03.2023, referred to the learned Advocate and after deliberate examination, I am of the view that the advertisements in question were published in the years 2018 and 2019, while, the said letter was issued by District Education Officer District Sudhnoti on 28.03.2023, meaning thereby, that these posts were not available at the time of above-mentioned advertisements, therefore, it cannot be said that any clear vacancy of Secondary School Teacher (B-16) Male and Female, was available at the time of advertisements except the advertised posts. The petitioners have miserably failed to point out that at the time of advertisement Nos.1/2018, 4/2018 and 3/2019, any clear vacancy of Secondary School Teacher (B-16) Male and Female, against the quota of District Sudhnoti was available which was withheld by the department. The documents relied upon by the learned Advocate are not helpful to the case of the petitioners, hence, it can safely be held that while issuing the advertisement Nos. 1/2018, 4/2018 and 3/2019, only 49 posts of Secondary School Teacher (B-16) Male and Female, were available which were advertised accordingly and no post was withheld by the department at the time of sending, the requisition of the said posts to the PSC. Our view finds support from a case reported as "Sarfraz Ahmed Khan v. Azad Government and others" (2012 PLC (C.S.) 755) observed in para 21 as under: - "

21. It may be observed that the posts are advertised through the Public Service Commission but it takes long time for conducting examination, test and interview and during this period some new posts are created by the Government or become vacant due to any other reason and ad hoc appointments are made against these posts. The candidates take it as these posts were vacant at the time of advertisements. We want to make it clear that any post which was not available at the time of advertisement or was subsequently created in new budget or is available due to retirement of any person or any other reason becomes in existence before the test and interview is conducted by the Public Service Commission, it cannot be said that the post was available at the time of advertisement and the department has withheld the same." As it is an admitted position that the petitioners could not secure a merit position rather, they were placed in the waiting list and only 49 posts were reserved for District Sudhnoti against which the incumbents who obtained top merit positions, were appointed as Secondary School Teacher (B-16) and at the time of issuance of the above-mentioned advertisements, no other post was available against which the recommendations of the petitioners, who were placed in the waiting list, could have been sent. Even otherwise, according to the statutory provisions of Rule 13 of the Azad Jammu and Kashmir Public Service Commission, Procedure Rules, 1994, a candidate next on merit from the waiting list can only be appointed against the post if the selected person is recommended by the PSC on the basis of merit but fails to join the service or is declared medically unfit. Thus, there are only 2 eventualities justifying appointment from the candidates of waiting list, whereas, both these eventualities are not involved in the instant case. This Court has already considered these statutory provisions in a case reported as "Azad Government and 3 others v. Noman Akbar" [2015 SCR 361] wherein, it has been held in para 6 as under: - "

6. According to the statutory provisions of Rule 13 of the Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994, a candidate next on merit from the waiting list can only be appointed against the post if the selected person is recommended by the Public Service Commission on the basis of merit but fails to join the service or is declared medically unfit. Thus, there are only two eventualities justifying appointment from the candidates of waiting list. As in the light of the facts of this case, both these eventualities are not involved. This Court has already considered these statutory provisions in the case reported is "Azad Government and 2 others v. Muhammad Qadir Javaid and another" (2014 PLC (C.S.) 1334) relevant para-9 of which reads as under:- "

9. The respondent claimed that he was at serial No.1 in the waiting list of the quota reserved for District Muzaffarabad in the subject of Chemistry, therefore, he was entitled to be appointed on the basis of said waiting list against any vacancy which occurred subsequently. Rule 13 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 deals with the preparation of waiting list and appointment from the said list. For proper appreciation the rule is reproduced as under: - '13. (1) A person appointed on the recommendation of Commission fails to join the service or is declared medically unfit, a candidate next in the merit from the waiting list shall be recommended, on the request of the department concerned, and for this purpose the Commission shall prepare a waiting list.' '(2) The waiting list prepared under sub-rule (1) shall remain valid for 180 days from the date of selection of the candidate.' '(3) The waiting list shall not be valid in case of fresh vacancies referred to Commission just after test and interview of the previous vacancy." Thus, we have reached the conclusion that at the time of issuance of advertisement Nos. 1/2018, 4/2018 and 3/2019, no post was withheld by the department against the quota of District Sudhnoti. The petitioners have failed to point out any illegality or legal infirmity in the impugned judgment. No legal question of public importance is involved in this petition. Leave cannot be granted in routine just to create a false hope in the mind of a party. Resultantly, this petition for leave to appeal, having no substance, is hereby dismissed. MQ/35/SC(AJK) Appeal dismissed.