SHOAIB MEHMOOD AWAN Versus OMBUDSMAN (MOHTASIB), AZAD JAMMU AND KASHMIR

ORDER

1. SYED SHAHID BAHAR, J.--- Through the instant writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, petitioner seeks a direction against the respondents to restrain them to initiate the process for promotion and to convene meeting of the Selection Board against 02 available vacant posts of Section Officer BPS-17 which fall in 50% direct quota according to already filed compliance report before the Court dated 21.02.2019. It is further prayed that the non-petitioners may also be restrained to make any appointment in violation of Departmental Rules and quota fixed in the rules along with the directions to advertise the post and complete the selection process after providing a fair chance to all the eligible state subjects. A further direction has also been sought to issue temporary appointment order of the petitioner and till the permanent appointment, the petitioner may not be relieved from the post and salary of the petitioner may also be released forthwith.

2. Brief facts of the case are that petitioner is 1st Class State Subject of Azad Jammu and Kashmir who hails from Dhanni Nosairi Tehsil Pattika District Muzaffarabad. The educational qualification of the petitioner is B.Sc. Engineering in Civil from MUST Mirpur. A post of Section Officer BPS-17 was advertised through advertisement No.AK3-N in Ombudsman Secretariat in year 2019 and against and said post last date for submission of applications was 08.03.2019 and schedule for MCQ's test was announced for 17.03.2019. The petitioner participated in the selection process along with 33 other candidates. After MCQ's, interview was held and then award list was issued in which petitioner was placed at serial No.l. The petitioner was appointed on ad hoc basis as Section Officer vide notification dated 05.07.2019 and his ad hoc appointment was time and again extended. Lastly, his last notification of appointment on adhoc basis was issued from 08.07.2021 for further 06 months. According to Rules issued in the year 2000 and amended upto 2004, 50% quota is reserved for initial recruitment having the qualification as graduate whereas the other 50% quota was reserved for promotion on the basis of seniority cum fitness from amongst the Superintendent/Budget Officers and Private Secretaries BPS 16 and till to date 08 appointments were made by promotion and only 06 Sections Officers were appointed against 50% quota for initial recruitments. Previously, a writ petition titled "Syed Amir Ali Sabzwari v. Azad Govt. and others" was filed before this Court in which the petitioner challenged the illegal action of non-petitioners who want to fill up the vacant post of Section Officer BPS-17 through promotion which fall in direct quota and not advertised the post for initial recruitment whereby the Ombudsman Secretariat filed compliance report of the order of this Court dated 10.10.2018 on 21.02.2019 and clearly admitted that 02 posts against the quota of direct recruitment are available, but due to litigation, 01 permanent available vacant post could not be advertised, whereas against the other temporarily available vacant post was advertised. The petitioner is serving on adhoc basis but Ombudsman/non-petitioner No.1 is not sending any summoning for his further appointment, thus, that's why the petitioner filed application before the authority on 11.03.2022 for issuance of his appointment order as 02 posts fall vacant and petitioner is continuously serving as Section Officer BPS-17 on adhoc basis. Non-petitioner No.2 summoned comments through letter dated 24.03.2022 and the Department sent comments on 26.04.2022, then the President Secretariat through letter dated 24.06.2022 summoned the summary for appointment from non-petitioner No.1 but he procrastinated the matter and not sent the summary. The petitioner is still serving after expiry of last adhoc appointment but non-petitioner No.1 despite direction of appointing authority is not sending the summary of the petitioner, whereas different official work deputed to the petitioner and he remain serving with best of his locality and in this regard appreciations letters were also issued in favour of the petitioner. It is the stance of the petitioner that availability of 02 vacant posts is crystal clear from record and compliance report dated 21.02.2019, which fall in the 50% quota of direct recruitment but non-petitioner No.1 with mala fide intention is not advertising these posts for appointments and not is bent upon to fill up the same by promotion amongst their dears one in the Department, whereas no post of promotion quota is available as the same is exhausted and could only be available after 02 direct appointment of Section Officers. The non-petitioners secretly continue the process of Selection Board and is meeting was also convened, especially on 1st February, 2023 in Islamabad only to keep the matter in secret. The action of the respondents not to advertise the post which fall in 50% direct recruitment and want to fill up the same by promotion is against the law, rules, facts and record, which is liable to be set aside, hence, the instant writ petition.

3. Learned counsel for the petitioner categorically argued that it is crystal clear from the record that 02 available vacant posts of Section Officers fall in the quota of direct recruitment as the non-petitioners themselves admitted through compliance report dated 21-2-2019 submitted before the Court but now with mala fide intention prepared record for selection board and want to fill up these available vacant post by promotion, which is totally against the law, facts and record, hence, the writ petition merits acceptance. It has been argued that as the petitioner has been appointed after advertisement of post through open competition and the said post also falls in 50% quota of direct recruitment and petitioner is entitled to serve against the said post till permanent induction. It has been argued that the departmental rules provide a quota of 50% for initial recruitment and the quota for promotion has already been exhausted thus, act of the respondents with regard to initiating proceedings for promotion and not advertising the post in question for direction recruitment is violation of rules and right of the state subjects. It has also been argued that due to non advertisement of the posts the petitioner and all the eligible state subjects are being deprived of from the right of service, whereas under Article 49 of Azad Jammu and Kashmir Interim Constitution, 1974, the services of Azad Jammu and Kashmir were equally protected for all the state subjects according to the rules, but in the case at hand, the non-petitioners want to violate the constitutional provisions and departmental rules and initiated selection process through promotion, whereas no quota for promotion is available. It has further been argued that the respondent have not issued formal order of the petitioner that's why salary of the petitioner could also not be released right from January 2022 uptill now whereas the petitioner is still serving as no relieving order was issued by the competent authority. Finally, learned counsel for the petitioner stressed for acceptance of the instant writ petition and for grant of the relief prayed for by the petitioner through the instant writ petition.

4. Haider Rasheed Mughal, Assistant Advocate General, while relying on the written statement filed by respondents Nos.l. 3 and 4, argued that it is true that 02 posts or Section Clerks BPS-17 are available vacant against the 50% quota of direct recruitment, which required to be advertised in accordance with law. He also argued that the petitioner is still serving in the department and was not relieved by order of the competent authority. It has also been argued that the available 02 posts in question are relating to the quota of direct recruitment. While arguing on the fact of compliance report, learned Assistant Advocate, argued that no doubt according to the said report, availability of the posts regarding direct recruitment is correct and President has also summoned the summary for appointment of the petitioner, but due to uncertain reasons, compliance on the directions of the Ombudsman could not be made. He closed his arguments that the post in question would be advertised and petitioner can participate in the selection process in accordance with rules.

5. I have heard learned counsel' for the parties and gone through the record of the case. A perusal of record reveals that initially the petitioner was appointed on adhoc basis as Section Officer vide notification dated 05.07.2019 and his adhoc appointment was time and again extended. Lastly, his last notification of appointment on ad hoc basis was issued from 08.07.2021 for further 06 month but petitioner is still serving in the department as no relieve order has been issued by the competent authority. At the moment, stance of the petitioner is that he is still serving on the post on adhoc basis, whereas record, especially, the compliance report submitted by the respondents in the Court, shows that 02 posts of Section Officers BPS-17 are still vacant in the department but the respondents are bent upon to fill in these posts through promotions from the other employees of the department and in this regard respondents have initiated proceedings and convened meetings secretly. A perusal of the written statement filed by respondents Nos.1, 3 and 4 clearly depicts that they have admitted the version of the petitioner regarding availability of the posts relating to the direct quota of appointment but they are not taking any steps to advertise the same for induction in accordance with rules and are delaying the metter unnecessarily, whereas they themselves admit that vacant 02 posts of Section Offices relating to the direct quota of recruitment are vacant in the department. The respondents have not placed on record anything on the basis of which the relief prayed for by the petitioner can be discarded, whereas previously, while proceedings in the writ petition titled "Syed Amir Ali Sabzwari v. Azad Govt. and others" respondents have also admitted the availability of 02 posts of Section Officers BPS-17 for the quota of direct recruitment through compliance report, thus, availability of the posts in question is admitted. It also seems that there is nothing to prolong the matter and to avoid the process of law on the part of the respondents because the petitioner has sufficiently proved the availability of the posts. The act of the respondents regarding non-advertisement of the posts for direct recruitment indicates that they are bent upon to fill in the posts in questions through promotion, as mentioned by the petitioner. In this view of the matter, version of the petitioner merits acceptance.

6. So far as, the version of the petitioner regarding payment of the salary is concerned, it seems from perusal of record as admitted by the respondents through their written statement that petitioner is still serving as adhoc Section Officer, thus, there appears no justified reason to stop his salary. It also appears from record that petitioner is continuing his service on the basis because he was not relieved by the competent authority and his presence in the department as Section Officer is admitted, thus, the respondents are bound to pay his salary for the period he has not been paid strictly in accordance with law. Furthermore, his adhoc service shall not be disturbed till the permanent appointment in due process of law.

7. As adumbrated, it is an admitted fact that 02 vacant posts of Section Officer are falling in the quota of direct recruitment, as admitted in the reply of ground "A" given by learned Ombudsman as infra:-

8. Thus, things admitted need not to be proved. Law requires advertisement of the said posts as well as fair and transparent selection process, resultantly, meritorious appointments against the supra mentioned slots. Any rigmaroles, unnecessary delay and pendency in such-like matters gives birth to the suspicion and then it can rightly be claimed that something fishy in the matter of withholding the due process of law is behind pendency.

9. As 02 posts of Section Officers in the office of Ombudsman are available for permanent appointment in the quota of direct recruitment, therefore, both the posts are liable to be advertised forthwith against the quota of direct recruitment.

10. Nutshell of the above discussions is that the instant writ petition is accepted and respondents are directed to advertise 02 vacant posts of Section Officer BPS-17 for permanent induction against the quota reserved for direct recruitment within 01 month and till the permanent induction on the said posts, petitioner shall not be relieved or disturbed from his present adhoc appointment. Respondents are also directed to do needful qua payment of remaining/outstanding monthly salary (for the period he served in the capacity of Section Officer as per official record) and to submit compliance report in this regard before Registrar of this Court accordingly. No order as to the costs. File shall be kept in archive.

11. MQ/20/AJK(HC) Petition allowed.