AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Versus MUHAMMAD QADIR JAVID

MUHAMMAD AZAM KHAN, C.J.--- Respondent No.1 filed a writ petition in the Azad Jammu and Kashmir High Court, alleging therein, that in response to advertisement No.1 of 2009, issued by the Public Service Commission on the requisition of Education Department on 15th March, 2010, he applied for the post of Lecturer, Chemistry, reserved for District Muzaffarabad. The call letter was issued to him by allocating Roll No.1138. He qualified the written test and in response to another call letter, he appeared in the interview and was declared successful and placed at serial No.1 in the waiting list. He claimed that two posts of Lecturer, Chemistry were withheld by the Department. One post existed in Boys Inter College, Chikar and the other in Boys Inter College, Balgran. The posts have not been requisitioned and advertised with mala fide intention. Had the department requisitioned all the posts he might have been appointed as Lecturer. After necessary proceedings the learned Chief Justice of the High Court accepted the writ petition and directed the respondents to appoint him as Lecturer Chemistry on permanent basis by relieving of the last ad hoc appointee subject to adjustment of quota subsequently. The appellants challenged the said judgment by way of petition for leave to appeal. Leave was granted in the case to consider the effect of the judgment delivered in Sarfraz Ahmed Khan's case 2012 PLC (C.S.) 755 and also to resolve the question of limitation.

2. Mr. Raza Ali Khan, Advocate, raised a preliminary objection that the petition for leave to appeal has been filed beyond the period of limitation. The application for obtaining the copies of the judgment was filed before the copying agency on 22nd October, 2011. The Court fee was filed by the appellants on 25th October, 2011. The copies were ready for delivery on the said date. The appellants were entitled for condonation of four days. The period from 26th October, 2011 to 31st October, 2011 cannot be condoned. The appeal merits dismissal on the sole ground.

3. Mr. Asghar Ali Malik, Advocate, submitted that the judgment of the High Court was delivered on 26th August, 2011. The appellants filed application for obtaining the copies of the judgment on 22nd October, 2011. The copies were issued on 31st October, 2011 and the petition for leave to appeal has been filed on 4th November, 2011. 10 days were consumed in obtaining the copies of the impugned judgment. After deducting the time consumed in obtaining the copies, the petition for leave to appeal has been filed within time. It has been filed on 60th day from the impugned judgment which is within period of limitation.

4. On merit, Mr. Asghar Ali Malik, Advocate, submitted that the judgment of the High Court is against law and the record. The impugned judgment is beyond the pleadings. Only one post of Lecturer, Chemistry in the quota reserved for District Muzaffarabad was vacant at the time of advertisement. The learned Chief Justice has miscalculated the seats and issued direction on the basis of ad-hoc appointments. The ad-hoc appointment against the post created or occurred subsequently after the advertisement by the Public Service Commission cannot be made basis for the appointment of the candidate from the waiting list. This Court has already declared in the case tilted Sarfraz Ahmed Khan v. Azad Government and others 2012 PLC (C.S.) 755 that the posts which have been created or occurred due to retirement of a civil servant or for any other reason after the vacancies requisitioned to the Public Service Commission, cannot be said to be the vacant post, withheld by the department.

5. While controverting the arguments, Mr. Raza Ali Khan, Advocate, the learned counsel for the respondent submitted that the judgment of the High Court is perfectly legal. Two posts of Lecturer Chemistry, apart from the one advertised, were available at the time of advertisement; one in Boys Inter College, Chikar and the other in Boys Inter College; Balgran. These posts were withheld with mala fide intention only to accommodate the favorites of the Departmental Authority. The learned counsel submitted that the posts were filled in on ad-hoc basis through the notifications dated 7th January, 2010, 7th September, 2010 and 12th. June, 2008. It is proved that seats were vacant and were withheld with mala fide intention. He submitted that the appeal has no merit, it may be dismissed.

6. We have heard the learned counsel for the parties and perused the record.

7. Firstly we will decide the question of limitation. The judgment was announced on 26th August, 2011. The appellants applied for the copies of the judgment on 22nd October, 2011. The court-fee was filed on 25th October, 2011 and the copies were ready for delivery on the same date but the same were delivered on 31st October, 2011. Whether the appellants were entitled for condonation for the period commencing between the day; the copies were ready for delivery and the day, the copies were delivered, or not. The proposition was considered by the Full Court in the case titled Muhammad Saddique v. Muhammad Aslam and others (Civil Appeal No.106 of 2004, decided on 22nd May, 2013) by observing that respondent is entitled for exclusion of time actually spent in obtaining the copies of the judgment and decree from the date of application to the date when the copies were delivered. It was observed in para No.10 of the judgment as under:---

"10. In Azad Jammu and Kashmir, the laws of Dogra Regime have been adapted. Under section 3 of the AJ&K Courts and Laws Code, 1949 and the Notification No.3323 dated 16th December, 1949, all the laws and enactments of old regime inconsistent with the provisions of the said Code or with the enactments passed or adapted by the AJ&K Government have been repealed and all the remaining laws of the old regime, so far as applicable, have been approved to continue to remain in force. The Civil Courts Act, 1977 (1920 A.D.) was enforced during the Dogra regime. It is such a law which is not inconsistent with the provisions of Courts and Laws Code, 1949. Section 36 of Part (D) deals with the application for copies of record. Section 37 provides for endorsement to be made on application and registration thereof. Section 38 deals with the stamps and deposits. A perusal of section 37 shows that there shall be endorsed a date on presentation of application for copy. It shall be initialed and entered in the register and Court fee, if any, shall be cancelled. Section 38 (i) provides that every application for a copy of record shall be accompanied by a stamp of the value which shall not be less than the costs of preparing and certifying such copy and subsection (ii) of section 38 provides that if the application is not accompanied by requisite stamps, it shall be returned to person presenting it with an endorsement stating the value of stamp required. Such endorsement shall be dated and signed by the officer returning application and a note of return shall be made in the register. Subsection (iii) of section 38 deals with filing of Court fee on the copy. It postulates that the Court fee stamp shall not be taken from the applicant until the copy is ready for delivery. The rule provides that the copying agency at the time of receiving the application should inform the applicant about the value of court-fee, if any, required. The rule makes it clear that when a copy is ready for delivery, it shall not be delivered to the applicant till the court-fee is furnished. Although in the said rule there is no express provision that the applicant be intimated that the copy is ready for delivery and he shall file court-fee stamps, but the intention is clear that the applicant be intimated because it is not possible to come to the copying agency morning and evening for inquiring whether the copy is ready or not; that is why it is mandatory for the copying agency to fix a date when the copy will be ready for delivery. If the date is not fixed, then how a party can have knowledge that the copy is ready for delivery. In the case titled Muhammad Umar v. Dr. Amina Ashraf [1983 CLC 1235], there was an endorsement on the application for supplying copies in terms "stamps not supplied", but there was no proof that the applicant was intimated to supply the stamps. The Court observed that as the requirement of supply of stamps was not communicated to the applicant and no pasting was made on the Notice Board, after preparation of copy calling upon the applicant to supply stamps, the time requisite for obtaining copy should be reckoned from the date of application and the delivery of copy. In a case reported as Madan Singh v. Puran Singh [AIR 1926 Lahore 84], it was held that as the office did not inform the applicant about the date when the copy could be ready for delivery, the delay was condoned under section 5 read with section 12 of the Limitation Act while observing that no party should suffer due to mistake of the Court or its officer....."

It was further observed in para 11 of the judgment as under:---

"11. Part VI of the instructions issued by the AJ&K High Court vide Circular Order No.1/65 deals with the supply of copies applied for. We deem it appropriate to reproduce relevant portions of the said instructions which are as under:---

(a) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

(b) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

(c) Thereafter the copying officer will fix a date for supply of copy endorsing on the application under his own hand and signatures and such dates shall be fixed in accordance with the dates of presentation of the applications.

(d) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx.

(e) Copying clerk will daily put up on the notice board a list of applicants who are to receive the copies on that date. He will also put up before the copying officer all the prepared copies that are to be given on that date and the copying officer will himself call the applicants and deliver the copies to them. At the same time and in the presence of the copying officer, the clerk will obtain each applicants thumb impression/signatures on the copying register as a token of his receipt of the copy.

(f) In case the applicant or his duly recognized agent is not present on the date fixed, the file will be called for three consecutive days by the copying officer and if even then the applicant does not appear, his application will be consigned to the record room as provided in para 2 of the copying rule No.58 dated 4th March, 1963 B.K. If such a person wants a copy thereafter he will have to apply afresh with proper stamps.

(g) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx

The scheme of the aforesaid instructions is that a date should be fixed by the copying officer for the delivery of copy applied for and when the copy is ready for delivery, it shall be intimated by affixing on notice board that the copy is ready for delivery."

In para 14 of the judgment it was held:---

"14. The Azad Jammu and Kashmir High Court Procedure Rules, 1984 are also relevant for the purpose of issuance of copy. Under rule 147 of the said Rules, when an application for a copy is received, if it does not contain sufficient information or fee paid is insufficient or the application is defective in any form, the applicant shall be asked to do the needful. Under rule 149 a copy shall be furnished not later than 1:30 p.m. on fifth day after the fee required under rules has been deposited. Under rule 153, on the last sheet of every copy granted under the aforesaid Rules, the following particulars shall be carefully recorded:---

(a) date of application for the copy;

(b) date of notifying the fees chargeable:

(c) date of deposit of the requisite fees in stamps:

(d) date on which the copy was ready for delivery:

(e) date of making over the copy to the applicant.

A combined study of rules 147, 149 and 153 of the aforesaid Rules makes it clear that when an application for issuance of copy is received and if the court-fee is not sufficiently supplied, then it is mandatory for the copying agency to intimate the applicant for depositing the fee. A copy can only be considered to be ready for delivery when the applicant is intimated that he shall file court-fee stamps and copy shall be ready on such and such date."

In the light of provisions contained in "The Civil Courts Act, 1977 (1920 A.D.) as adapted in Azad Jammu and Kashmir, the instructions issued by the Azad Jammu and Kashmir High Court vide Circular No.1/65 for supply of copies, the High Court Procedure Rules, 1984 and the judgment in Muhammad Saddique's case referred to herein above, it can safely be concluded that the appellants are entitled for exclusion of time actually spent in obtaining the copies of the judgment and the decree appealed from. The appellant is entitled for exclusion of 10 days time actually consumed in obtaining the copies of the judgment. After exclusion of said 10 days the appeal is within time. The objection is overruled.

8. The claim of the respondent in the High Court was that he applied for the post of Lecturer, Chemistry against the quota of District Muzaffarabad, in response to advertisement No.1 of 2009. He was placed at serial No.1 in the waiting list. Instead of appointing him on permanent basis the respondents have appointed certain other persons on ad hoc basis. It was specifically alleged in the writ petition that ad hoc appointments were made after determination of the merit on 7th January, 2010 and 7th September, 2010. He claimed that at the time of advertisement No.1 of 2009, the posts of Lecturer, Chemistry in Boys Inter College, Chikar and Boys Inter College, Balgran were lying vacant since 2007. These posts have been withheld. Had these posts been advertised the respondent, petitioner might have been appointed. The department in the comments/written statement filed in the High Court, has specifically denied the fact regarding withholding of the posts. It has been averred that no appointment has been made on the posts of Lecturer Chemistry against the quota reserved for Muzaffarabad. The ad hoc appointments have been made in Boys Inter College, Balgran and Boys Inter College Anwar Sharif because two writ petitions titled Rashid Saleem v. Azad Government and others and Muhammad Qadir v. Azad Government and others are awaiting disposal in the High Court, while ad hoc appointments in degree College Chikar and Leepa have been made against lien posts, held by Yasir Arafat and Aziz Minhas. No post of Lecturer Chemistry was withheld. This assertion of the appellants is supported from the documents annexed by the respondent with the writ petition as annexures "G", "G/1" and "G/2", which show that Rashid Saleem has been appointed on ad hoc basis on 8th November, 2009 and Raja Muhammad Akram Khan has been appointed on ad hoc basis in Degree College, Chikar against the newly created post on 28th October, 2010, already requisitioned to the Public Service Commission. The document i.e. notification dated 12th June, 2008 provides that the period of ad-hoc appointment of Rashid Saleem, Lecturer Chemistry has been extended in Inter College, Balgran as due to stay order issued by the High Court, the Public Service Commission has not sent the recommendations for appointment. Similarly, Raja Muhammad Akram Khan has been appointed as Lecturer in Degree College, Chikar against the lien post held by Yasir Arafat who has proceeded on study leave and there is also a stay order by the Court. The documents relied upon by the respondent herein, make it abundantly clear that the Public Service Commission could not forward its recommendations for appointment against the posts mentioned therein, due to stay order issued by the High Court and one post referred to in the notification dated 7th September, 2010, where Raja Muhammad Akram Khan has been shown to be appointed, is a newly created post, which has already been requisitioned to the Public Service Commission. These posts have been created/ occurred after advertisement No.1 of 2009, therefore, it cannot be concluded that any other clear vacancy was available in the quota of District Muzaffarahad except the post advertised through advertisement No.1 of 2009. While dealing, with the proposition in Sarfraz Ahmed Khan's case (PLJ 2013 SC (AJ&K) 83), this Court observed that all posts which' are vacant at the time of sending requisition, shall be requisitioned to the Public Service Commission and advertised accordingly by the Public Service Commission. If any clear vacancy was available at the time of requisition and it was withheld by the authorities with mala fide intention it is not permissible and withholding of such post is without lawful authority but the post which is subsequently created or the post against which the ad hoc appointment has been made in lien or for any other such reasons, it cannot be said that such vacancy was a clear vacancy. It was observed in Para 21 of the judgment as under:---

"21. It may be observed that the posts are advertised through the Public Service Commission but it takes long time for conducting examination, test and interview and during this period some new posts are created by the Government or become vacant due to any other reason and ad hoc appointments are made against these posts. The candidates take it as these posts were vacant at the time of advertisements. We want to make it clear that any post which was not available at the time of advertisement or was subsequently created in new budget or is available due to retirement of any person or any other reason becomes in existence before the test and interview is conducted by the Public Service Commission, it cannot be said that the post was available at the time of advertisement and the department has withheld the same."

The documents referred to by the learned counsel for the respondent i.e. the notifications dated 28th December, 2012, 12the December, 2012 and 16th April, 2012 are not helpful to the case of the respondent because the said appointments orders have been issued on the direction of the High Court passed in the writ petitions. Thus, it can safely be concluded that no post of Lecturer Chemistry was withheld by the department in the quota reserved for District Muzaffarabad while issuing advertisement No.1 of 2009.

9. The respondent claimed that he was at serial No.1 in the waiting list of the quota reserved for District Muzaffarabad in the subject of Chemistry, therefore, he was entitled to be appointed on the basis of said waiting list against any vacancy which occurred subsequently. Rule 13 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994 deals with the preparation of waiting list and appointment from the said list. For proper appreciation the rule is reproduced as under:---

"13.(1) A person appointed on the recommendation of Commission fails to join the service or is declared medically unfit, a candidate next in the merit from the waiting list shall be recommended, on the request of the department concerned, and for this purpose the Commission shall prepare a waiting list.

(2) The waiting list prepared under sub-rule (1) shall remain valid for 180 days from the date of selection of the candidate.

(3) The waiting list shall not be valid in case of fresh vacancies referred to Commission just after test and interview of the previous vacancy."

From the plain reading of the rule it appears that when a candidate appointed against a post on the recommendations of the Public Service Commission, fails to join the service or he is declared medically unfit, then the department shall request the Public Service Commission to recommend the candidate for appointment next in the merit list from the waiting list prepared by the Public Service Commission in the result of test and interview. It is further provided in the rule that the waiting list shall remain valid for 180 days from the date of selection of the candidate and sub-rule (3) makes it clear that this waiting list shall not be valid in case of fresh vacancy requisitioned to the Commission if the test and interview have already been conducted for the previous vacancies. The wisdom behind the rule is that the Public Service Commission has jurisdiction to conduct test and interview only for the vacancies which were available at the time of advertisement and requisitioned to it by the concerned department. The candidates who applied for requisitioned vacancies can only be appointed against the said posts but not against the vacancy which would become available in future. The appointments on newly created posts in the result of test and interview conducted by the Public Service Commission in a previous advertisement will deprive such candidates from participating in competition who were not qualified or could not apply due to any reason, at the time of previous advertisement. Thus, it can safely be concluded that the candidate placed by the Public Service Commission in the waiting list in the result of test and interview conducted in response to advertisement issued by the Public Service Commission on the requisition of the department, can only be appointed against the post if the candidate who was appointed on the recommendations of the Commission fails to join the service or he is declared medically unfit and department requested the Public Service Commission to recommend the candidate next in the merit list from the waiting list prepared by the Public Service Commission and this merit list shall remain valid only for a period of 180 days. No candidate who has qualified the test and interview and is placed in the waiting list can be appointed against the post which becomes available after the test and interview have been conducted by the Public Service Commission in response to previously advertised vacancies.

From the record it is proved that no post of Lecturer was withheld by the department in the Subject of Chemistry in the quota reserved for District Muzaffarabad at the time of advertisement No.1 of 2009. The judgment of the High Court is not maintainable, it is hereby set aside. The appeal is accepted with no order as to the costs.

SA/3/SC(AJ&K) Appeal accepted.