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Petitioner: Mumtaz Hussain VS Respondent: Azad Jammu and Kashmir Government through its
Court Name: High Court of Azad Jammu and Kashmir Judge(s): M. Tabassum Aftab Alvi, Ghulam Mustafa Mughal Title:Mumtaz Hussain vs Azad Jammu and Kashmir Government through its
JUDGMENT
Reported As: K.L.R. 2014 Civil Cases 279 Result: Petition accepted Judgment JUDGMENT ' M. TABASSUM AFTAB ALVI, J. --- The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of permanent resident and domicile certificates dated 26.07.2005 and 01.08.1996, respectively issued in favour of private respondent No, 6, along with handout dated 07.12.2007 and policies dated 03.05.2007; 20.06.2007 and 21.07.2007, issued by the Azad Jammu & Kashmir Public Service Commission, as well as even dated appointment orders 05.01.2008, as Assistant Commissioners B-17, of private respondents No, 6 and 7 have been challenged for having been issued without lawful authority. A further direction is also solicited for appointment of petitioner as Assistant Commissioner B-17 vis- a-vis to private respondent No, 6 or against a withheld post pertaining to allocated quota of District Bagh. 2. The precise facts culminating into filing of the instant writ petition are that petitioner is first class State Subject of Azad Jammu & Kashmir who is domicile holder of District Bagh. It is stated that Azad Jammu & Kashmir Public Service Commission, hereinafter called as Commission, advertised 08 posts of Assistant Commissioners B-17, out of which one post was falling against allocated quota of District Bagh, vide advertisement No, 01/2007, dated 16.03.2007. The petitioner alongwith other candidates including private respondents No, 6 and 7 applied for the same, appeared in test and interview and consequently the private respondents were recommended by the Commission and appointed by the Government-respondent, contrary to prescribed policy and statutory rules, as Assistant Commissioners B-17 vide even dated notifications 05.01.2008. It is stated that after advertisement of the said posts, the Commission without lawful authority changed its policies vide
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letters dated 21.01.2007, 05.03.2007 and 23.06.2007 respectively. The petitioner applied for copies of policies, which were issued time and again regarding test and interview, before Secretary of the Commission however, the same were not provided to him. It is further stated that at the time of advertisement No, 01/2007 two posts of Assistant Commissioners were lying vacant, out of which one was created in the year 1987, however, the same was withdrawn vide letter dated 13.01.1997, which was not included in the quota of District Bagh and the official respondents withheld the said post by violating rules on the subject and for mala fide reasons. It is urged that if the aforesaid withdrawn post of Assistant Commissioner would have been included in the quota of District Bagh, then petitioner could be appointed against the said post. It is alleged that private respondent No, 6 was not domicile holder of District Bagh, who was in fact resident of Karachi, however, obtained permanent resident certificate plus domicile of District Bagh, fraudulently in collusion with respondent No, 8 and by violating statutory law was appointed as Assistant Commissioner B-17, falling against the quota of District Bagh, vide impugned notification dated 05.01.2008. It is also averred that names of respondent No, 6 and his family members were entered in voter lists of Karachi. It is contended that respondent No, 7 namely Abrar Azam, was appointed against withheld post of Assistant Commissioner pertaining to District Bagh, due to nepotism. It is alleged that petitioner has passed the examination conducted by the Commission who is entitled to be recommended and appointed as Assistant Commissioner B-17, against the quota of District Bagh, who was not recommended with male fide intention, hence, the instant constitution petition. 3. The writ petition has been resisted by official respondents through written statement, wherein it is stated that petitioner is not an aggrieved person, hence, has no locus standi to file the instant writ petition which is also hit by principle of laches. It is claimed that petitioner failed to point out any illegality in issuing policies and handout by the Commission which has got its own bye-laws and according to statutory rules it can formulate its policies time and again for impartial selection process. It is averred that petitioner by accepting all policies and rules of the Commission, appeared before it and now he cannot challenge the same due to principle of estoppel. The claim of petitioner that respondent No, 6 is not permanent resident of Tehsil Haveli, has been refuted by producing his permanent resident, domicile, state subject certificates, C.N.I.0 and revenue record showing that he is domicile holder of village Nandi Katana, Tehsil Haveli of the then District Bagh. The private respondents No, 6 and 7 have filed separate detailed written statements, however, their preliminary objections and reply of parawise contents of it petition are similar to written statement of official respondents which are not repeated here for the sake of brevity. However, private respondent No, 7 has added in his written statement that he was not appointed as Assistant Commissioner against withheld post of District Bagh, who was in fact recommended and appointed by the official respondents against refugees quota of 1989, on the basis of judgment dated 16.11.2007, of this Court vide notification dated 05.01.2008 and prayed for dismissal of writ petition. 4. Sardar K.D. Khan and Syed Muhammad Ali Bukhari, the learned counsel for petitioner vehemently argued that one post of Assistant Commissioner B-17 pertaining to allocated quota of District Bagh, was created in the year 1987 and the same was withdrawn vide notification dated 13.01.1997, for recruitment from other unit, which was withheld by the respondents and not published in advertisement No, 1/2007 through daily news dated 16.03.2007. The learned counsel maintained that the Commission failed to notify its policies which were amended time and again for male fide reasons. They further submitted that through notification dated 20.05.2007, Government allocated 33% passing and 45% aggregate marks for the posts of all the Government Departments of Azad Jammu & Kashmir, which are required to be filled in, on the basis of recommendations of the Commission, therefore, petitioner who obtained more than 45% marks is liable to be recommended and appointed against the said withheld post. The learned counsel pressed into
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service that private respondent Muhammad Shoukat Khan, obtained his education throughout from Matriculation to M.Sc. In Microbiology from Karachi who was settled permanently there, hence, could not participate in the competition for the post of Assistant Commissioner B-17 allocated for District Bagh. The learned counsel argued that name of private respondent No, 6 alongwith his family members was inserted in voter lists of Allama lqbal Colony, Karachi, therefore, he could not be considered as State Subject, however, by manoeuvring the said respondent obtained, P.R.C., domicile plus State Subject certificates and C.N.I.C, from District Bagh, therefore, same are liable to be struck down as such. The learned counsel while referring statement of Secretary Public Service Commission, dated 15.01.2014, submitted that petitioner obtained 432 marks in test and interview while private respondent No, 6 acquired total 427 marks who was lower in merit to petitioner, therefore, he could not be recommended and appointed against the post of Assistant Commissioner B-17, allocated for District Bagh. The learned counsel for petitioner, however, submitted that as private respondent No, 7 was appointed on the basis of judgment of this Court dated 16.11.2007, against quota of refugees of 1989 vide notification dated 05.01.2008, therefore, they did not press it petition against the said respondent as such. The learned counsel for petitioner in support of their contentions referred to and relied upon the report of the Lahore High Court, one reported and another unreported precedents of this Court which are as under-- (I) Muhammad Saleem v. Punjab Public Service Commission, etc. (NLR 1985 Service 140) (ii) Nadeem Ahmed and another v. Azad Govt. Of the State of Jammu and Kashmir through its Chief Secretary, Muzaffarabad & 6 others (PLJ 2010 AJK 82) (iii) Abrar Azam Chaudhry v. Azad Jammu & Kashmir Government and two others, Writ Petition No, 361/2005, decided on 16.11.2007. ' In case of Muhammad Saleem, supra, it was held by the Lahore High Court, that policy decision of Punjab Public Service Commission, declining to grant grace marks to the concerned candidates was against West Pakistan Civil Service (Judicial Branch) Rules, 1962, as applicable to the Province of Punjab, hence, by accepting writ petitions, Punjab Public Service Commission, was directed to consider the case of petitioners for grant of grace marks in light of the relevant rules, who appeared in the P.S.C. (Judicial Branch) Competitive Examination, held by the Punjab Public Service Commission. ' In case of Nadeem Ahmed and another, supra, it was held by this Court, that applications for recruitment of candidates against the posts for which competitive examination was held must be scrutinized within 15 days, after their receipt the qualified candidates shall be called for test. It was further held that application of petitioner was unlawfully rejected who was topper in the written examination, therefore, it was declared that the same would be deemed as pending and after obtaining copy of State Subject certificate as well as signature on application the Commission, shall interview him in accordance with its policy and in case he qualify then he would be recommended against the post of Assistant Commissioner B-17 with further direction to Government to appoint him against any vacant post subject to subsequent adjustment of quota. ' In case of Abrar Aza to Chaudhry, ibid, it was held by this Court that if any candidate could not qualify from a particular unit, he can be recommended and appointed from any other unit subject to re-allocation of the quota. 5. Mr. Abdul Waheed Durrani, Advocate, while arguing on behalf of private respondent No, 6 submitted that against handout of the Commission, dated 07.12.2007 and appointment of private respondents vide notification dated 05.01.2008, the instant writ petition has been filed on 05.07.2008, which is hit by principle of lathes, therefore, the same is liable to be dismissed on this solitary ground. The learned counsel emphasized that his client acquired education throughout from Karachi, however, he is permanent resident of Tehsil Haveli and in this respect the said respondent obtained State Subject Certificate on 12.08.1996, domicile certificate on 01.08.1996 and
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P.R.C., on 26.07.2005, as well as C.N.I.C. From District Bagh. He maintained that acquiring State Subject and domicile certificates about 11 years prior to advertisement No, 1/2007, proved that allegation of petitioner regarding non-State Subject of respondent No, 6 is fallacious. The learned counsel while referring to various documents of revenue record and pedigree-table appended with written statement submitted that respondent No, 6 is basically resident of village Handi Kathana, Tehsil Haveli who participated in competitive. Examination conducted by the Commission, passed test and interview, hence, was rightly recommended and appointed as Assistant Commissioner B-17 against the quota of the then undivided District Bagh. The learned counsel vehemently argued that petitioner failed in interview conducted by the Commission, hence, he is not an aggrieved person and submitted for dismissal of writ petition. The learned counsel for respondent No, 6 in support of his contentions referred to and relied upon the following case-law:--- (I) Mehboob Khan alias Maroof and 11 others v.Fatal Elahi and 2 others (PLJ 1995 SC (AJK) 78). (ii) Nazar Hussain and 04 others v. Mst. Azmat Bibi and 09 others (2002 SCR 150). (iii) Nusrat Ashraf v. Azad Govt. & 4 others, Writ Petition No, 24/04, decided on 26.07.2004. (iv) Nusrat Ashraf v. Azad Govt. & 4 others Civil P.L.A. No, 145/04, decided on 09.12.2004. ' In case of Mehboob Khan alias Maroof, supra, it was observed by the apex Court that as occurrence took place on 08.03.1992 and challan was filed against respondent who was one of accused, on 22.03.1992, who filed writ petition for registration of counter case on 20.04.1992. Therefore, it was held that even after filing challan, he slept over for 28 more days, hence, his it petition was declared as hit by doctrine of laches. ' In case of Nazar Hussain and 04 others, ibid, it was held that as police already investigated the matter and found the complainant party has no hand in the burning of the house of respondent No, 1, therefore, registration of the counter-case would be a futile exercise. It was observed that an alternate remedy of filing private complaint was also available to private respondent for redressal of her grievance. It was also held that occurrence took place on 21.03.2000, whereas application for registration of case was moved on 03.05.2000, hence, the same was attracted by laches. ' In case of Nusrat Ashraf, supra, it was held by this Court that petitioner neither qualified written examination conducted by the Commission nor possessed better qualification, therefore, she was not an aggrieved party. Hence, her writ petition was dismissed vide judgment dated 26.07.2004. The above-mentioned verdict of this Court was upheld by the apex Court, while refusing Civil P.L.A. No, 145/2004 by upholding the view supra, vide order dated 09.12.2004. 6. Sardar Muhammad Habib Zia, the learned counsel for private respondent No, 7 submitted that as it petition has not been pressed against his client, hence, while paying thanks to the learned counsel for petitioner, he urged for dismissal of writ petition to the extent of his client. 7. Ch. Shoukat Aziz, Additional Advocate General owned the arguments advanced by the learned counsel for private respondent No, 6 and added that petitioner failed to point out violation of any law on the subject and submitted for dismissal of writ petition. 8. After hearing the learned counsel for parties at great length, we have perused the contents of writ petition, examined the appended documents as well as record of the Commission made available and have given our earnest thought to the points advanced by the learned counsel for parties. 9. As the learned counsel for private respondent No, 6, Mr. Abdul Waheed Durrani, has raised two preliminary objections pertaining to maintainability of writ petition i,e, laches and aggrieved person, therefore, it looks appropriate to resolve these objections first. The foremost contention of the learned counsel for private respondent No, 6 is that writ petition is hit by principle of laches, therefore, the same is liable to be dismissed on this solitary ground. A perusal of writ petition reveals that petitioner besides policies of the Commission has challenged P.R.C. Dated 26.05.2007,
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domicile certificate dated 01.08.1996, issued in favour of respondent No, 6, handout dated 07.12.2007 and even dated Government notifications 05.01.2008, whereby private respondents No, 6 and 7 were appointed as Assistant Commissioners B-17. The cause of action accrued to petitioner on 05.01.2008 when Government-respondent by accepting recommendations of the Commission appointed private respondent the date supra i,e, 05.01.2008 writ petition has been filed within 06 months. The petitioner incorporated facts in various paragraphs of writ petition caused delay to file the same which are although not happily worded, however, it appears from record that petitioner had been struggling to collect plethora of documents i,e, testimonials, permanent resident and other certificates, voter lists etcetera of private respondent No, 6 from Karachi. The petitioner had also successfully made efforts to obtain various policies of the Commission and record of private respondent No, 7 from different places, therefore, we are of the considered view that principle of laches as not attracted in the given case. 10. The next preliminary objection raised on behalf of contesting respondents is that as petitioner failed in interview, hence, he is not covering in .The definition of an aggrieved party within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. A contemplate perusal of advertisement No, 01/2007 published in daily news dated 16.03.2007, reveals that, inter alia, one post of Assistant Commissioner B-17 (Management Group) was advertised against allocated quota of District Bagh. The petitioner, private respondent No, 6 and other candidates applied for the same. It reflects from result sheet issued by the Commission that petitioner obtained 393 out of 800 i,e, 49% marks, in written examination and 39 marks out of 80 in interview held by the Commission, on 06.12.2007. The total marks of petitioner were 432 vis-a-vis to private respondent No, 6 who obtained 383 out of 800 i,e, 47.5 marks, in written examination and 44 out of 80 marks in interview, total 427 marks. The above-mentioned position was not controverted by respondents, which was also clarified by Secretary of the Commission in his statement recorded by this Court on 15.01.2014. As per policy of the Commission dated 10.10.2006, it was mandatory for petitioner to obtain 50% marks in interview. After deep deliberation, we have reached to the conclusion that in the given case the Commission, respondent No, 2 had not exercised its discretion in fair and transparent manner. The Commission failed to apply its mind to the facts of the case, record and performance of petitioner in written examination, who was topper amongst all the candidates. The discretion was, therefore, liable to be exercised in a structured manner. It appears that by sheer determination, hard work and zeal to progress, petitioner appeared in competitive examination of Assistant Commissioner B-17 and secured highest marks in the examination but had to face negative result in the viva voce. Though usually the Courts would not like to interfere in the running and selection process of the Commission but when the case of such- like nature be brought before the Court and in peculiar circumstances while exercising extraordinary Constitutional jurisdiction the Court may look into the exercise of discretion by a given constituent to reach to the conclusion to see that whether discretion was exercised rightly or wrongly and legally or otherwise. A similar point was arisen before Sindh High Court, Karachi, in case of Muhammad Ashraf Sangri v. Federation of Pakistan through Establishment Division, Islamabad & 2 others [2012 PLC (C.S.) 1091), in which petitioner Muhammad Ashraf Sangri was failed by Federal Public Service Commission due to short of 1 number in viva voce and by declaring that the Commission had not exercised discretion in a manner it ought to have been exercised, it was held at page 1095 of the report as follows:--- "Though usually the Courts would not like to and/or do not interfere in the running and/or authority of the board of the nature under point, would also not stay away and aloof when a case of the like in hand is brought to its notice and in special circumstances may look into the exercise of discretion by a given constituent to reach to a conclusion to see if such was exercised rightly or wrongly and legally or otherwise. Given such milieu, it is improbable that appellant having been
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assessed by twelve examiners from different walks of life in twelve subjects and all of whom passed him with flying colours with the result that he secured highest marks in Sindh urban, where the passing percentage was only 1% would do had in viva voce. Again at the level of medical examination and psychological assessment, the appellant overcame its rigorous when he cleared individual and collective psychological and personality assessment before the Chief psychologist and her team when no fault was found regarding his knowledge and Personality and he was graded as 'A" in the report (record was summoned). Even viva voce outcome was not unanimous. It seem specious that the appellant who was hardened by more than a dozen person and was cleared by all would stumble in viva voce. It is unlikely inasmuch as in the written tests; in the medical examination and in psychological assessment appellant got through and not in viva voce. Not all could be wrong in assessing the appellant. Had there been a seesaw case, the things would have been different. Under the circumstances the Chairman and a member, it appears have exercised discretion in the manner not conducive for competitive examinations it is well- settled and embedded by now that when a discretion is exercised by an authority it must be exercised and structured by good reason and lawfully and should not be flimsy, lame or without any reasoning and that the reasoning should always be the first criteria to reach to a conclusion at a time when a discretion is exercised for it is the prime duty and function of the authority to act fairly and in a reasonable manner. It is not clear as to what prevailed on the learned member and the Chairman in giving low marks when the other two members had also assessed the appellant and passed him." ' It would be seemed that the Commission neither appreciated overall performance of petitioner in written examination nor the result of viva was rational, which persuaded us to exercise extraordinary Constitutional jurisdiction of this Court. An identical point was considered by the apex Court of Pakistan pertaining to grant of grace marks, in which Maruf Ahmed Ali-respondent, appeared in competitive examination for the posts of Civil Judges, however, failed to get qualifying marks in one written paper and also failed to obtain qualifying marks in aggregate, therefore, was not found eligible to appear in viva voce in case titled Punjab Public Service Commission & others v. Maruf Ahmad All [PLD 1988 S.C. 356], wherein at page 360 of the report, it was held as follows:--- "The more we read the rule a clearer intention and interpretation emerges; namely, that the grace marks given for the subject would also be added in the aggregate except that such aggregate, when forming part of the total marks obtained by the candidate inclusive of the viva voce test also, shall not be usable against other competing candidates. The method to be used in this respect would be that although the grand total of the marks obtained by the candidates would include the grace marks not only for the individual subject, but also for the aggregate, but the grace marks would be deducted for the stage when the candidate getting the grace marks is considered in competition and juxta position with other candidates. ' The learned Advocate-General expressed an apprehension that this interpretation would affect other rules, direction and practice of the Government in different fields for example that of seniority. Those cases are not before us. This interpretation, it is clamed, is only for purpose of the competition and the appointment simpliciter as a result thereof. The other questions would be examined as and when they arise. ' It may be noticed here that during the arguments a question arose whether the grant of so- called grace marks is an act of mercy and or bounty only; or, the grant of such marks is according to the rule itself linked with the merit of the candidate. With respect we do not agree with the observation of the High Court in the operative part of the impugned judgment, where it observed that if the concerned authority "graciously grant one grace mark that shall be counted making the appellant eligible for viva voce examination which incidentally he has passed. We will substitute the phrase by observing that "when the authority concerned grants
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one mark" What has influenced us in this behalf is the language used in the rule itself, namely, that such grace marks will be given only "to really deserving candidates". It cannot at all be said that the performance of a candidate at the examination is not the most relevant consideration in determining whether he is or is not a really deserving candidate." "Underlining is ours" ' A similar view was expressed by the Karachi High Court, titled Sohail Ahmad Pathan v. Sindh Public Commission and another [1996 PLC (CS) 1004]. At page 1009 of the report, it was observed as follows:- "Accordingly, in order to ascertain the intent of the law, we have to interpret the above substituted provision in the…
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