2021 PLP (C (PLC(CS)N)

M. TABASSUM AFTAB ALVI, CJ.

The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, a writ in the nature of prohibition is solicited against respondents jointly and severally from cancelling, amending, modifying or rescinding appointment order of petitioner dated 10.11.2016.

2. The summary of case is that petitioner being qualified as M.A, M.Ed. was appointed against the post of Junior Teachress B-9, in Government Girls Higher Secondary School, Numb Dhamnoota Bhalgran, on the basis of decision of the learned Ombudsman dated 28.10.2016, vide order dated 10.11.2016. As per decision of the Ombudsman Director Schools Poonch Division advertised certain posts of Junior Teachresses B-9, and petitioner being qualified applied for the same, however, despite falling at serial No.1, of the merit list, she was not appointed, therefore, Ombudsman of Azad Jammu and Kashmir, directed to Education Department to appoint petitioner on the basis of merit, hence, she was accordingly appointed vide order dated 10.11.2016. It is maintained that although order supra was acted upon through joining report dated 10.11.2016, however, for mala fide reasons, respondents have determined to abrogate the same, hence, the instant constitution petition.

3. The respondents after admission of writ petition obtained various opportunities for filing written statement, however, remained failed to do so, hence, proceeded ex-parte vide order dated 20.03.2018.

4. Mr. Abdul Qayyum Mughal, Advocate, appearing on behalf of petitioner vehemently argued that petitioner on the basis of judgment of this Court dated 16.02.2016, filed Complaint No.95/2016, before Ombudsman of Azad Jatnmu and Kashmir, which after detailed inquiry was accepted vide decision dated 28.10.2016. Consequently, she was appointed as Junior Teachress B-9, on the basis of merit vide order dated 10.11.2016. He pressed into service that against the aforesaid decision of the learned Ombudsman a representation before the President of the State of Azad Jammu and Kashmir was provided, as per section 32 of Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992, however, Education Department failed to file the same, which attained finality under law. The learned counsel maintained that appointment of his client was made after advertisement of post and merit, however, respondents have determined to recall the same, therefore, submitted for acceptance of writ petition.

5. Mr. Maqbool-ur-Rehman Abbasi, the learned Advocate, appearing on behalf of respondents very generously admitted at Bar that Ombudsman after detailed inquiry passed decision in favour of petitioner on 28.10.2016, against which, no any appeal/representation was filed by Education Department, therefore, he has got no objection to decide the lis on the basis of the aforesaid decision of the learned Ombudsman.

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

7. A contemplate perusal of record reveals that Divisional Director Schools Poonch Division, advertised certain posts of Junior Teachresses B-9. The petitioner being quailed as M.A., M.Ed. applied for the same. After obtaining test and interview she got 1st position in the merit list, however, despite toper, she was not appointed. The petitioner on the basis of order of this Court passed in Writ Petition No.129/2015, titled Khurshida Umer v. Azad Jammu and Kashmir Government and others decided on 16.02.2016, filed a Complaint No.95/2016 before Ombudsman of Azad Jammu and Kashmir, who after detailed inquiry, directed to Education Department to appoint her on the basis of merit vide order dated 28.10.2016. The relevant extract of order is reproduced as under:- Against the aforesaid order of Ombudsman, a representation under section 32 of Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992, was provided. To resolve the controversy it looks appropriate to reproduce the aforesaid section, which speaks as under:- "Representation to President.

Any person [or agency] aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit." The Education Department failed to file any representation before the President, hence, the decision of Ombudsman dated 28.10.2016, attained finality under law. The Legal Advisor of Education Department also admitted the aforesaid position. As petitioner was appointed after advertisement of post on the basis of merit, hence, deserves equitable relief of writ jurisdiction.

8. The crux of above discussion is that as per sub-clause (i) of clause (a) of sub-article (2) of Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the respondents jointly and severally are hereby restrained through writ of prohibition from abrogating appointment order of petitioner dated 10.11.2016, issued on the basis of decision of Ombudsman of Azad Jammu and Kashmir dated 28-10-2016, except disciplinary proceedings. No order as to costs. ZC/71/HC(AJ&K) Petition allowed.