2021 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM, J.

Through the titled appeal, the correctness and legality of the reconsolidated impugned judgment passed by the learned High Court on 06.07.2018 has been called in question, whereby the Writ Petition filed by the appellant, herein, has been dismissed, whereas the Writ Petition filed by respondent No.5, herein, has been disposed of in limine with the observation that he shall not be disturbed from the post in dispute till the completion of the selection process by the Public Service Commission.

2. The facts necessary for disposal of the instant appeal are that two writ petitions were filed in the Azad Jammu and Kashmir High Court. The Writ Petition bearing No.2679/2015 was filed by the appellant, herein, alleging therein that he is the first class State-subject and qualified as B.Com. He averred that the Government of Azad Jammu and Kashmir promulgated the Rules known as "The Azad Jammu and Kashmir Board of Revenue Department, Division and District Ministerial Service Rules, 2014", through notification dated 08.07.2014. As per Serial No.5 of the said Rules, it is postulated that for appointment of Assistant (B-14), 33% posts be filled in through initial recruitment and 67% by promotion. He maintained that the official respondents advertised 03 posts of the Assistant (B-14), for initial recruitment, by allocating one post each to Muzaffarabad, Poonch and Mirpur Divisions through the advertisement published in the daily "Sahafat" on 28.06.2015. In response to the said advertisement, he along with others, applied for appointment from their respective divisions and qualified the test and interview. The appellant was placed at serial No.2 in the merit list but due to non-availability of post, he could not be appointed. He claimed that another post of Assistant (B-14), falling in the quota of Mirpur Division, was available before publication of the advertisement dated 28.06.2015, which became vacant due to promotion of one Ahmed Subhani as Tehsildar on 26.06.2015. Had the department advertised the said post, he would have been appointed but the respondents with mala fide intention withheld the said post and appointed respondent No.5 on ad-hoc basis vide notification dated 09.09.2015, hence he was constrained to file the writ petition. He sought the direction for his appointment. During pendency of the aforesaid writ petition, respondent No.5, herein, also filed Writ Petition bearing No.216/2016, wherein he sought prohibition against disturbing him from the disputed post till the completion of the selection process. After necessary proceedings, the learned High Court through the impugned consolidated judgment dated 06.07.2018, dismissed the writ petition filed by the appellant, herein, whereas the other writ petition filed by respondent No.5, herein, was disposed of in limine with the observation that the disputed post has already been requisitioned to the Public Service Commission, however, he shall not be disturbed till the completion of the selection process by the Public Service Commission, hence this appeal, by leave.

3. Ch. Shaukat Aziz, Advocate, the learned counsel for the appellant, submitted that the impugned judgment is based on misconception of law and the facts, as the same has been passed in a mechanical manner, without addressing the real controversy involved in the matter. The learned counsel submitted that the appellant participated in the selection proceedings and was entered at serial No.2 of the merit list. The learned counsel while referring to the advertisement and the waiting list, submitted that at the time of advertisement, another post from Mirpur division was available, which was withheld by the respondents. Had the same been advertised, the appellant would being among the successful candidates would have been appointed. The learned counsel also submitted that the learned High Court fell in error of law while not taking into consideration that it was enjoined upon the respondents to include the vacancy in the advertisement or advertise the same through corrigendum but they failed to discharge their legal duty and deviated from the provisions of law and rules. The learned counsel further added that the post withheld by the respondents fell vacant due to the promotion of one Ahmed Subhani as a Tehsildar on 26.6.2015, whereas the advertisement was issued on 28.6.2015, after availability of the pest. The learned counsel further stated that against the said post, respondent No.5 was appointed on ad hoc basis vide notification dated 9.9.2015, which itself shows mala fide on the part of the respondents and supports the version of the appellant but all these facts escaped the attention of the learned High Court. The learned counsel forcefully argued that the findings of the High Court that in the light of the order passed in the writ petition titled Muhammad Naeem Azam v. (sic) and others the appellant is not entitled to any relief, are against law, as the observation made by the learned High Court in the referred order were not binding in nature. The learned counsel referred to and relied upon rule 9 of the Azad Jammu and Kashmir Public Service Commission Procedure Rules, 1994 read with the Azad Jammu and Kashmir Board of Revenue Department, Division and District Ministerial Service Rules, 2014 and the cases reported as Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others [2006 SCR 312] and Azad Government and 2 others v. Muhammad Qadir Javid and another (2014 PLC (C.S.) 1334) 3(sic) On the other hand, Ch. Ashraf Ayaz, advocate, counsel for respondent No.5, while defending the impugned judgment, submitted that the same is perfectly legal, which is not open for interference by this Court. He submitted that at the time of the advertisement, i.e. on 28.6.2015, no such post was available, therefore, the question of withholding the post does not arise. The learned counsel added that the advertisement was issued two days after vacation of the post and keeping in view the time factor, it was not possible to requisition the vacancy and advertise the same within short span of time. The learned counsel added that the post in dispute has been requisitioned to the Public Service Commission and advertised through a subsequent advertisement. The learned counsel submitted that the appellant failed to substantiate that at the time of advertisement, any vacant post was withheld. Only one post was available at the time of advertisement, which was duly advertised. The learned counsel referred to and relied upon an unreported judgment of this Court passed in the case titled Zakia Maqbool v. Azad Government and others (Civil PLA No.18/2019, decided on 24.4.2019).

4. The learned Assistant Advocate-General, while supporting the stance taken by the counsel for respondent No.5, submitted that at the time of advertisement, only one post was available, which was duly advertised and the same has been filled in after conducting the selection process. The learned Assistant Advocate-General submitted that in pursuance of the said advertisement, the appellant himself participated in the selection process and when he could not qualify, he opted to approach the learned High Court by filing the writ petition.

5. We have heard the learned counsel for the parties and perused the record along with the impugned judgment.

6. The controversy involved in the matter is regarding the post of Assistant (B-14) Board of Revenue, allocated to Mirpur Division, which was advertised through advertisement published on 28.6.2015. In pursuance of the said advertisement, the appellant along with, others, participated in the selection process and was placed at serial No.2 of the merit list. The claim of the appellant is that at the time of advertisement, another post was also available due to the promotion of one Ahmed Subhani, as Tehsildar, on 26.8.2015 and it was enjoined upon the respondents to include the same in the advertisement. The appellant filed a writ petition in the High Court for his appointment whereas respondent No.5 also filed a writ petition for a direction to the respondents to refrain from dislodging him from the post in question till completion of the selection process. The learned High Court through the impugned consolidated impugned judgment, decided the writ petitions in the following terms:- "

13. As co-petitioner is admittedly holding the post in question, which has been Published by the Public Service Commission through advertisement dated 09.06.2018, therefore, it seems appropriate that he may not be dislodged from the said post till completion of selection process.

14. The crux of above discussion is that finding no substance writ petition filed by petitioner Noman Javid, is dismissed. However, cross writ petition filed by co-petitioner Mubashar Khalil, is disposed off in limine with observation that he may not be disturbed form post in question till completion of selection process by Public Service Commission. However, both petitioners will be at liberty to apply against the said post of Assistant B-16, as per law. No order as to the costs." It may observed here that under the provisions of Azad Jammu and Kashmir Board of Revenue Department, Division and District Ministerial Service Rules, 2014, the Board of Revenue has got powers to determine the category, in which the post of Assistant falls, i.e. either direct recruitment quota or the promotion quota. Under law, it was yet to be calculated and ascertained by the Board of Revenue whether the second post, which fell vacant due to officiating promotion of Ahmed Subhani, falls in the quota of direct recruitment or the same is to be filled in by promotion. No material in support of the claim has been brought by the appellant from which it could be ascertained that the post in dispute was of direct quota and was withheld by the Department. This Court in a number of cases has held that selection should made against the posts lying vacant strictly in accordance with the method provided for filling in the post of that very category, i.e. the post fell vacant due to promotion of incumbent on officiating basis, acting-charge basis, due to deputation, lien or to be filled in from promotion quota etc. It was enjoined upon the appellant to bring on the record the details to the effect that the disputed post was lying vacant against the direct quota and the respondents have withheld the same. It is the settled rule of law, laid down by this Court that he who asserts must prove. For proper appreciate, Articles 117 and 118 of the Qanun-e-Shahadat, 1984, are reproduced, which reads as under:- "

117. Burden of proof: (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

118. On whom burden of proof lies: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side." It is crystal clear from the above-reproduced Articles of Qanun-e-Shahadat, 1984, that one who asserts a specific fact and seeks direction or declaration from the Court over his assertion, he has to prove his assertion. In this regard, reference may also be made to the case reported as Gul Bahar v. Revising Authority MDA and others [1993 SCR 327], wherein, it has been observed as under:-- "So far as the merits of the case are concerned, the findings of the Allotment Committee are that the appellant had the allotment of a plot in his favour, whereas the respondent had no such allotment. This finding could be proved incorrect by the appellant by filing a certificate from the competent authority that the appellant had no other allotment of a plot in his favour or that there existed no hamlet by the name of the 'Azizabad hamlet'. The arguments the arguments advanced by the learned counsel for the appellant that it was for the respondent to prove that there existed hamlet by the name of 'Azizabad hamlet' is not tenable because the person who brings an other before a court of a Tribunal or seeks the annulment of an order made a competent authority has to show that the findings were either incorrect or that violation of law had been committed. No such eventuality exists in the instant case. Hence finding no force in this appeal it is hereby dismissed with costs." Moreover, to further strengthen our view, Article 122 of the Qanun-e-Shahadat, 1984, may be reproduced, which reads as under:- "

122. Burden of proving fact especially within knowledge: When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." Thus, it was for the appellant to prove that the post in dispute was falling in the direct quota and, therefore, was liable to be included in the advertisement. In absence of any such record or material, the stance taken by the appellant cannot be admitted as correct. The next argument of the counsel for the appellant is that learned High Court was not justified to dismiss the writ petition filed by the petitioner, appellant herein, on the ground that the findings recorded in the other writ petition were not binding in nature rather the same was mere observation. The ad-hoc appointment order of respondent No.5, herein, dated 9.9.2015, against the post in dispute, was challenged by one Muhammad Naeem Azad by filing a writ petition in the High Court. The learned High Court vide order dated 16.5.2016 disposed off the writ petition titled Muhammad Naeem Azad v. Board of Revenue and others while observing as under:- " .It is, therefore, observed that post in question shall preferably be filled in after advertising the same within a period of 60 days. The instant writ petition is disposed off in the manner indicated above." (underlining is ours) In the order reproduced hereinabove the word 'shall' has been used, which postulates that the direction issued by the High Court is mandatory in nature and in the light of the order, the post has been advertised on 9.6.2018. The learned High Court through the impugned order dated 6.7.2018 has also observed that both the petitioners (respondent No.5 and the appellant) will be at liberty to apply against the said post, as per law. In this scenario, the judgment passed by the High Court is in consonance with law, which does not require any interference. The appellant failed to point out any illegality or irregularity in the impugned judgment. Resultantly the appeal is dismissed with no order as to costs. ZC/71/SC(AJ&K) Appeal dismissed.