2018 PLP (C (PLC(CS)N)

M. TABBASUM AFTAB ALVI, C.J.

The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, a writ in the nature of prohibition is solicited against respondents jointly and severally not to shift two posts, of Civil Judges B-17, pertaining to quota of refugees, 1989 and one post of Civil Judge B-17, allocated against the quota of District Bhimber, to other units. A further direction in the nature of mandamus is craved to re-advertise the said posts as per allocated quota system.

2. Precise facts of the case are that petitioner No.1, is refugee of 1989, while petitioner No.2, hails from District Bhimber, who are practicing Advocates, having experience of more than 05 years. It is stated that official respondents published 22 posts of Civil Judges B-17, Vide advertisement No.02/2017, out of which, two seats were reserved for allocated quota of refugees of 1989, whereas, two seats for District Bhimber. It is maintained that petitioners being eligible candidates applied against the said posts. After test and interview only one candidate qualified against the allocated quota of District Bhimber and one post is still vacant. However, against two posts of refugees' quota no candidate could qualify the Public Service Commission. It is claimed that respondents are bent upon to shift quota of refugees of 1989 and District Bhimber to other units against law and rules, hence, the instant constitution petition.

3. Ms. Uzma Shereen, Advocate, petitioner No.1, appeared in person who argued that against two posts of Civil Judges B-17, pertaining to quota of Refugee of 1989, and one post of District Bhimber, no candidate could qualify the Public Service Commission, which can be filled in by re-advertising the same. She further submitted that respondents have determined to shift the aforesaid posts to other units against law and rules, hence, prayed for admission of writ petition. The petitioner, in support of her contention referred to and relied upon a case titled "Kamal Subhani v. Muhammad Ramzan and 5 others" [2012 PLC (C.S.) 439].

4. I have perused the contents of writ petition and examined the appended documents made available with utmost care.

5. The stance of petitioners is that against two posts of Civil Judges B-17, pertaining to Refugee of 1989 and one post relating to allocated quota of District Bhimber, no candidate could qualify the Public Service Commission, hence, the said posts cannot be shifted to other units which can only be filled in by re-advertising the same. I am afraid the claim of petitioners is against well settled law. As per Government notification dated 18.01.2007, if a suitable candidate is not available from one District, the appointment will be made from amongst suitable candidates of other units, subject to adjustment of quota later on. The aforesaid Govt. notification dated 18.01.2007, is reproduced as under:-

6. The aforesaid Government notification is covering in the definition of law. The term "law" has been defined as per Explanation to section 51 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which is as under:- "(a) 'Laws' includes Ordinance, Orders, rules, bye-laws, regulations and any notification and other legal instruments having the force of law: and (b) 'in force' in relation to any law, means having effect as law whether or not the law has been brought into operation". Similarly Rule 3, sub-rules (4) and (5) of The Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977, clearly postulates as under:- "Appointment:- (1) .. (2) .. (3) .. (4) The Government may, with due regard to the population, provide for the proper representation of the component units of Azad Jammu and Kashmir and the refugees settled in Pakistan, in the services of Azad Jammu and Kashmir. (5) All orders, notifications issued for determining the quota for the initial recruitment, in the services, shall be deemed to have been issued under Sub-rule (4)." The above codal provisions clearly mean that a "notification" is law so far as appointments through initial recruitment are concerned. It, therefore, follows that irrespective of the precedent judgments of the Superior Courts, law is that where a candidate from a particular District does not quality test and interview conducted by the Public Service Commission, the post can be filled in and Public Service Commission is wedded with the authority to recommend a qualified candidate from any other District for appointment on merit. The Government prior to the aforesaid notification dated 18.01.2007, promulgated pari-materia instructions contained in circular No.Admin/4476-4526/27-S/72 dated 12.03.1972. The Apex Court while interpreting the aforesaid instructions in case titled "Khurshid-ul- Hassan v. Azad Government and another" 1997 PLC (C.S.) 468 at page 477 of the report held as under:-- "There is a provision in rule 12(1) of the said Rules that quota fixed by the Government from time to time shall be strictly followed by the Commission. This provision upholds the quota system enforced by the Government through order which have been discussed in earlier part of this judgment. It is not upto the Commission to implement one part of the order and to deviate from the other part of those orders. Therefore, the Commission has to follow the scheme of the quota system that if a suitable candidate is not found from a particular region the post will not be left unfilled but a person will be selected on merits from outside that district." The same view was reiterated by the Apex Court in case titled Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.)

714. At page 716/717 it was opined as follows:

"We cannot subscribe to the view of the High Court as a vacancy cannot be left in vacuum for an indefinite period." A similar view was expressed by the Hon'ble Supreme Court in case titled Azad Govt. and 2 others v. Muhammad Naseer Chaudhry and 2 others [2010 SCR 186]. At page 195 of the report, it was opined as under:-- "A perusal of instructions reveals that these instructions have been issued for the particular cases when the number of posts to be filled in is less as compared to the number of administrative units. The instructions contain that if the number of posts is less than the administrative units, then the process of selection shall be completed on the basis of open merit and the candidates to come on merit shall be appointed. It is also laid down in the instructions that whenever, a candidate on open merit is appointed, his seat/ post shall be deducted from the quota of relevant district. The instructions further provided that if more than one candidates from one district have qualified the test and interview, only one candidate shall be appointed from the said district and the candidate in total merit, who comes next from any other district shall be appointed for the remaining posts."

7. The precedent case referred to and relied upon by petitioner No.1, is distinguishable and not supported the version of petitioners.

8. The gist of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed in limine. ZC/2/HC(AJK) Petition dismissed.