NUSRAT SHAHEEN Versus SECRETARY SOCIAL WELFARE AND WOMEN DEVELOPMENT DEPARTMENT, MUZAFFARABAD

RAJA SAEED AKRAM KHAN, C.J.--- The captioned petitions for leave to appeal have been directed against the common judgment of the High Court dated 07.06.2024, passed in Writ Petition No.1897 of 2019. Since, both the petitions arise out of the same judgment and raise common question of facts and law, hence, were heard together and are being disposed of through this single proposed order.

2. The summary of the case is that Nusrat Shaheen (petitioner in PLA No.458) filed a writ petition in the High Court alleging, therein that she was appointed as Lady Instructor vide order dated 26.04.2005, against a scheme of Social Welfare and Women Development Department. Thereafter, she was appointed as Headmistress B-14 against a scheme named as Establishment of Employment and Women Development Centre in AJK, vide order dated 12.05.2009. It was further alleged that the posts of the said scheme were shifted to normal budget vide notification dated 11.10.2010, consequently, she was transferred to the post of Lady Worker vide order dated 25.11.2013 and Khatoon Zahra (petitioner in PLA No.503), respondent No.4 in the High Court, was appointed at her place. If was maintained that Khatoon Zahra who was serving as Headmistress B-14 on temporary basis in Women Development and Employment Centre Dhanwan, Kotli, was transferred as Lady Supervisory B-14 in the office of Assistant Director, Women Development, District Kotli and the petitioner (Nusrat Shaheen) was transferred in place of Khatoon Zahara as Headmistress B-14, vide order dated 19.10.2017 but the said order was later on cancelled from its date of issuance by the competent authority vide order dated 15.11.2017, without any reason. It was further maintained that meanwhile, the post which was occupied by the petitioner (Nusrat Shaheen) was advertised and one Nazia Bashir was appointed on the recommendations of the respective selection committee. It was averred that the petitioner (Nusrat Shaheen) is now out of service and has become surplus. She also assailed the basic appointment order of Khatoon Zahra and prayed that while setting aside the cancellation order dated 15.11.2017, the petitioner (Nusrat Shaheen) may be ordered to be restored as Headmistress B-14. The writ petition was contested by the official-respondents through written statement, whereby, the claim of the petitioner was refuted in toto. It was stated that the petitioner (Nusrat Shaheen) was appointed purely on temporary basis, hence, has no locus standi to file the writ petition. The learned High Court after necessary proceedings disposed of the writ petition in the following manner:-

"In view of the above, no writ can be issued with regard to appointment of the petitioner of her own choice, however, the writ petition is disposed of with the direction to the official respondents that the posts i.e. Headmistress BS-14 and Lady Supervisory BS-14 occupied by the petitioner as well as the private respondent shall be advertised forthwith and after conducting the test and interview, participants attain merit positions, shall be appointed within a period of two months. Till permanent appointment, the petitioner and private-respondent shall not be disturbed."

This judgment of the High Court is the subject matter of the captioned petitions for leave to appeal.

3. Syed Meher Ali Shah Bukhari, Advocate, the learned counsel for the petitioner, contended that the impugned judgment passed by the learned High Court is against law and record of the case, hence, is not sustainable in the eye of law. He further contended that while handing down the impugned judgment, the learned High Court has not taken into consideration that the case of the petitioner (Nusrat Shaheen) was quite distinguishable from other employees serving on adhoc/temporary basis because she was inducted into service vide order dated 26.04.2005. Later on, she was appointed as Headmistress B-14 by the competent authority after determination of the merit against a vacant post vide order dated 12.05.2009 and her post has been shifted to normal budget vide notification dated 11.10.2010. However, during the course of arguments, a query was made to the learned Advocate that whether the appointment of the petitioner (Nusrat Shaheen) has been made after advertisement of the post on the recommendations of the selection committee, he was unable to point out any such advertisement or order rather he submitted that the petitioner (Nusrat Shaheen) was appointed by the competent authority against a vacant post and among others, the post occupied by her has been shifted to normal budget, hence, there was no occasion to advertise the post and place the matter to the selection committee for consideration. If there is any lacuna in the appointment of the petitioner (Nusrat Shaheen) that is the fault of the authority and she cannot be penalized for it. In support of his submissions, the learned Advocate referred to and relied upon the case reported as Robina Khatoon v. Director Education and 7 others [2009 SCR 525].

4. We have heard the learned counsel for the petitioner (Nusrat Shaheen) and perused the record made available along with the impugned judgment. Although, nobody turned up on behalf of the other petitioner (Zahra Khatoon) but as identical controversy is involved in both the cases, hence, we are inclined to decide the same after heating the learned counsel for the petitioner (Nusrat Shaheen) and on the basis of the available record. The learned Advocate representing the petitioner (Nusrat Shaheen) accentuated that the petitioner was appointed as Headmistress B-14, by the competent authority against a development scheme of Social Welfare and Women Development after determination of merit vide order dated 12.05.2009. The post occupied by her has been shifted to normal budget. A right has accrued in her favour, hence, there is no need to advertise the post and place the matter before the selection committee for consideration. We are afraid with the contention raised by the learned Advocate representing the petitioner. It is pertinent to mention here that in Azad Jammu and Kashmir, the appointments in the service are regularized by law known as the Azad Jammu and Kashmir Civil Servants Act, 1976 and rules made thereunder. The spirit of law emphasizes that the appointment should be made on the basis of merit determined by the concerned selection authorities. The Azad Jammu and Kashmir Interim Constitution, 1974, has guaranteed the right of equality before law and equal treatment of law, thus, this right can only be enforced by following the prescribed mode for appointment by advertising the vacancies and determining the merit of the eligible candidates through a transparent selection process. Law does not admit any such mode that any person who has been appointed on temporary/contract basis and thereafter becomes entitled for permanent induction. Such induction may amount to violate the constitutionally guaranteed fundamental right of equality before law and the enforced law regulating the mode of appointment. In the instant case, the appointment orders of the petitioners postulate that they were appointed purely on temporary basis against a development scheme. Later on the posts of that scheme were shifted to normal budget vide notification dated 11.10.2010. After shifting of the post to the normal budget it was enjoined upon the concerned authority to fill in the same after following the procedure prescribed in the statutory law i.e. Azad Jammu and Kashmir Civil Servants Act, 1976 but the same has not been done as yet. Without following the due process of law, the services of the petitioners cannot be regularized. The stance taken by the petitioners is ill-founded, hence, is hereby repelled. The case law referred to and relied upon by the learned counsel for the petitioner having distinguishable facts need not be discussed.

In this state of affairs, we fully endorse the findings recorded by the learned High Court in the impugned judgment which are quite in consonance with the statutory law dealing with the subject matter. However, the impugned judgment is modified to the extent that the selection process shall be conducted within a period of four months from communication of this order. The petitions stand disposed of accordingly.

MQ/12/SC(AJK) Order accordingly.