2020 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, J.

The titled appeal by leave of the Court has been directed against the judgment of the High Court dated 08.03.2018, whereby the writ petition filed by respondent No.1, herein, has been accepted and the appointment order of the appellant herein, dated 19.08.2015, has been set aside.

2. The facts forming the background of the captioned appeal are that the District Education Officer (Male), Muzaffarabad invited applications for appointment against the posts of Primary Teachers (B-7) for different Union Councils including Katkhair, Constituency No.4, District Muzaffarabad, vide advertisement dated 25.06.2015. Amongst others, the appellant, herein, applied against one of the posts and participated in the test and interview. After conducting test and interview a merit list was prepared, wherein the appellant herein, was placed at serial No.6 and was appointed vide order No.DEO/Male/6418-20, dated 19.08.2015 and consequently he joined the said post. Initially, the said appointment order of the appellant was challenged by one, Muhammad Zahid-ul-Qasmi, falling at serial No.9 in the merit list, by filing Writ Petition No.1938/2015, in the High Court. However, the said writ petition was dismissed in limine by the learned High Court vide order dated 20.11 2015. After dismissal of the said writ petition, respondent No.1 herein, filed a writ petition in the High Court on 01.12.2015, against the appointment order of the appellant, which has been accepted through the impugned judgment dated 08.03.2018 and the appointment order of the appellant has been set aside, hence this appeal by leave of the Court. The respondents have been proceeded ex parte, therefore, the ex parte arguments of the counsel for the appellants have been heard.

3. Ch. Amjad Ali, Advocate, counsel for the appellant submitted that the impugned judgment of the learned High Court is based on mis-appreciation of the record, which is liable to be set aside. He added that the learned High Court while accepting the writ petition filed by the respondent has not taken into consideration that the appellant duly qualified the test and interview, obtained the merit position and was appointed on the recommendations of the selection committee, whereas the contesting respondent neither applied for the disputed post nor participated in the test and interview, thus, he was not aggrieved, rather be filed the writ petition on the behest of one, Muhammad Zahid-ul-Qasmi, whose writ petition was dismissed earlier by the learned High Court. The impugned judgment of the learned High Court is contradictory to its earlier judgment, which is liable to be set aside on the sole ground. The learned counsel further submitted that after dismissal of the writ petition the said Muhammad Zahid-ul-Qasmi with ulterior motive and mala fide intention instigated the contesting respondent, herein to file the writ petition, which has illegally been accepted by the High Court. He submitted that according to the settled principle of law, a person who seeks the discretionary relief must come in the Court with clean bands without any ulterior motives, whereas in the case in hand the ulterior motive and mala fide is amply proved. The learned High Court has failed to consider all these aspects of the case and without applying the judicial mind accepted the writ petition which resulted into miscarriage of justice. The findings recorded by the learned High Court are the result of misconception, hence the same are not maintainable. He referred to the cases reported as [1997 CLC 1771] and [1999 PLC (C.S.) 1203] and requested for acceptance of the appeal.

4. We have heard the ex parte arguments of the learned counsel for the appellant and gone through the impugned judgment along with the other record made available. The controversy involved in the case in hand is regarding the appointment of the appellant against the post of Primary Teacher (B-7) in pursuance of the advertisement dated 25.06.2015, annexed with the paper book at page

9. The contesting respondent challenged the said appointment order on the ground that at the time of advertisement and appointment of the appellant the said post was not vacant, therefore, the appointment order on the face of it is illegal. The main argument of the learned counsel for the appellant is that the appellant was appointed after due process of law on the recommendations of the selection committee, hence the appointment of the appellant cannot be set aside by the learned High Court while exercising the writ jurisdiction, as the writ petition was filed with mala fide intention and the respondent has not come in the Court with clean hands. To appreciate the argument of the counsel for the appellant, we have examined the record minutely. It appears from the record that an advertisement was issued by the District Education Officer (Male) Muzaffarabad on 25.06.2015, wherein amongst others five posts for union council Katkair were to be filled on merit from the candidates/residents of the respective union council. In response to the said advertisement, amongst others, the appellant also participated in the test and interview and was placed at serial No.6 in the merit list prepared for Union Council Katkair. Meaning thereby that the appellant could not qualify for appointment against the advertised five posts but later on, his conditional appointment order was issued on 19.09.2015 which contains that:-- The aforesaid note made in the appointment order of the appellant itself is the indicative of the fact that at the time of appointment, neither the disputed post was vacant nor available for advertisement, rather at the time of appointment of the appellant, it was still held by one Muhammad Aslam Khan. There is no rebuttal on the part of the appellant and even before this Court on query; whether the disputed post was available at the time of appointment, the counsel for the appellant failed to satisfy the Court. There is no cavil with the proposition that no post can be filled in without adopting the manner prescribed by law. The post which is not available for advertisement and it has yet to be vacated on the retirement of an employee, cannot be filled in before its vacation and advertisement. The appointment against such a post which is not vacant and available for advertisement is not only the violation of the statutory provisions but also against the fundamental rights of the people guaranteed by the Constitution. We are fortified in our view from the recent judgment of this Court delivered in the case titled Muhammad Altaf Khan v. Faisal Anwar and others (Civil Appeal No.40/2017, decided on 3.04.2018), wherein, it was observed as under:- "

5. We have heard the arguments advanced by the learned counsel for the parties and perused the record made available. The appellant was appointed against the disputed post on temporary basis by the Deputy Commissioner on 26.05.2014 subject to the approval by the selection committee when the said post was held by one Muhammad Irshad, Naib Qasid, which was likely to become vacant on 01.07.2014. meaning thereby that at the time of issuance of order dated 26.05.2014, the disputed post was not vacant. Such order on the face of it is illegal and confers no legal right. Thereafter, the Deputy Commissioner on 20.06.2014 constituted a committee for appointment against the disputed post, likely to become vacant on 01.07.2014. On the recommendations of the said selection committee, without advertising the post as required by law and without adopting proper procedure the appointment of the appellant was made vide order dated 20.11.2014. It may be mentioned here that for appointment directly against the post falling in grades (B-1 and above) a proper procedure has been laid down in the Rules, dealing with the subject matter. Rule 17 of the Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977 provides that initial appointment on all the posts carrying BP-1 and above shall be made on the basis of examination or test to be held by the appropriate committee or Board as the case may be, after advertising the post in newspaper or any other manner to be determined by the Government. The appointment without advertising the post is not only violation of the Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977 but it also amounts to affect the fundamental rights guaranteed by the Constitution. In the case in hand the selective method for appointment, depriving the other state subjects of fair competition in the service of Azad Jammu and Kashmir has been adopted by the selection Committee which has got no legal sanctity. The Superior Courts have not approved such appointments whereby violation of Rule 17 of the Azad Jammu and Kashmir (Appointment and Conditions of Service), Rules, 1977 is found. Reliance may be placed upon the case reported as Amjad Ali Khokhar v. Chief Engineer and 3 others [2017 SCR 87], wherein this Court, while dealing with the proposition held that: "

11. It may be observed here that under rule 17 of the Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977, no appointment order can be passed without advertising the post..." Same like, in the case reported as Muhammad Altaf Khan v. Khalid Maqbool and 7 others 2018 PLC (C.S.) 253, it was observed as under:- "... It is an admitted position that vide advertisement dated 02.02.2013, the education department advertised only two posts of junior teachers against the quota of constituency No.2, of the District Poonch. After conducting the test and interview, the candidates who got the merit position were appointed. The respondent, Khalid Maqbool, was at serial No.6, of the merit list whose appointment order has also been issued on 12.09.2013, despite the fact, that the post against which he was appointed was neither advertised nor was available at the time of advertisement. During the course of arguments, a query was made to the learned counsel for the respondent; whether the appointment order of the respondent was issued against a post which was not advertised. He submitted that the basic appointment order of the appellant has not been challenged; therefore, the same has attained finality. We are afraid, when an order was made in violation of the law, how the same can be protected mere on the ground that no one has challenged the same. Any appointment which has been made without following the prescribed procedure of law is illegal and the same cannot be given the legal cover. It is also settled law that after the appointment of successful candidates against the pots which were advertised, no one can be appointed against any other post which becomes available, subsequently..." In the instant case, as it is proved that the post against which the appointment of the appellant has been made was neither vacant nor advertised, rather at the time of appointment of the appellant, it was still held by one Muhammad Aslam Khan, thus, in view of the enunciated principle of law, reproduced hereinabove, the appointment of the appellant against the disputed post, on the face of it, is illegal and confers no legal right. The judgment of the learned High Court is perfectly legal.

5. Another argument, which was forcefully argued by the learned counsel for the appellant is that the Contesting respondent is not an aggrieved person. He has filed the writ petition with mala fide intention and has not come in the Court with clean hands, hence he is not entitled to any discretionary relief. This argument of the counsel for the appellant is ill-founded. The learned High Court while handing down the impugned judgment very wisely attended the point of mala fide and reached the correct conclusion that the element of mala fide has to be looked into with the other surrounding and prevailing circumstances of the case and mere oral assertion that the writ petition has been filed with mala fide intention, cannot be believed without any proof. Keeping in view the prevailing circumstances of the case, after retirement of Muhammad Aslam Khan, the disputed post was to be advertised and filled in according to the manner prescribed by law and the respondent should have been provided an opportunity to apply for appointment against the said post, thus the respondent being aggrieved has righty approached the High Court for the discretionary relief. The learned High Court has rightly granted the relief to the respondent while exercising the extraordinary writ jurisdiction. The case law referred to by the counsel for the appellant has no relevancy in the case in hand. In view of what has been discussed above, we do not find any substance in this appeal. Resultantly, the same is hereby dismissed with no order as to costs. ZC/6/SC(AJ&K) Appeal dismissed.