2019 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, J.

The captioned appeals by leave of the Court have been filed against two different judgments/orders of the High Court issued on 01.02.2018 and 02.03.2018 respectively, whereby two separate writ petitions filed by the appellants, herein in both the appeals, have been dismissed in limine. As identical questions of law and facts are involved in both the appeals, therefore, these are being disposed of through this single judgment.

2. The facts involved in Appeal No.110 of 2018, are that the appellant, Ghulam Aisha Abbasi, filed a writ petition before the High Court, claiming therein, that she is serving as Lecturer (B-18), in the Department of Law at University of Azad Jammu and Kashmir on contract basis since 05.09.2011. She is holding the degree of L.L.M. in International Law from Islamic International University, Islamabad and is qualified for appointment as such on permanent basis. She alleged that two posts of Lecturer Law (BPS-18) were advertised by the official respondents in the month of April, 2015. She, being qualified participated in NTS and obtained 3rd position. She was subsequently interviewed by the respondents but final merit list was not issued despite repeated applications. She claimed that the respondents, with mala fide intention, have appointed the private respondents against the said posts through the Notifications dated 09.05.2016 and 06.06.2016, respectively. She sought cancellation of these notification and also direction for her appointment. The learned High Court after necessary proceedings dismissed the writ petition in limine, through the impugned order dated 01.02.2018, hence, the instant appeal by leave of the Court.

3. The facts as emerged in Appeal No.111/2018 are that the appellant, Aadursh Farid Khan, filed Writ Petition No. 1361, before the High Court, claiming therein, that he is qualified as LLB (Hons). It was alleged that the Registrar University of Azad Jammu and Kashmir advertised two posts of Lecturer Law (B-18), in the month of April, 2015. Amongst others, he also applied for the same and qualified the written test conducted by the National Testing Service, (NTS). He was called for interview vide script dated 11.03.2016. He secured 5th position in the overall merit, however, the candidate placed at serial No.1 refused to join service and now he is at serial No. 4 of the merit list. The candidates placed ahead to him in the merit position have been appointed. He further claimed that the official respondents withheld a post occupied by respondent No. 8, herein, with mala fide intention. Had the department advertised the said post, he would have been appointed against the said post. The learned High Court after necessary proceedings dismissed the writ petition in limine through order dated 02.03.2018, hence this appeal by leave of the Court.

4. Ch. Shoukat Aziz, Advocate, the learned counsel for the appellant in Appeal No.110/2018, submitted that the impugned order of the learned High Court is based on misinterpretation of law and the rules; hence the same is not maintainable in the eye of law. He submitted that the learned High Court while dismissing the writ petition in limine has not taken into account that the appellant was duly qualified for appointment but she has been deprived of her legal right in a discriminatory manner. He contended that it is an admitted position that 4 posts of Lecturer, B-18, were available for selection and the appointments against 3 posts have been made, whereas, one post against which the appellant is serving on contract basis is still lying vacant. He added that despite the fact that the appellant secured the merit position, she has not been appointed permanently and the recommendations of the Selection Board are an example of arbitrariness. The learned counsel further argued that two posts of Lecturers were advertised by the official respondents; the appellant secured 3rd merit position in the NTS; as one of the successful candidates refused to join the services, hence, the appellant being at Serial No.3 was entitled for appointment. The learned counsel submitted that the marks secured by the appellant have been reduced with male fide intention just to deprive the appellant of her right of appointment. The learned counsel drew the attention of this Court towards page 73 of the paper book and pointed out the overwriting/tempering made in the marks of the appellant. The learned counsel further submitted that the qualification for the post of Lecturer Law was provided as LLB, however, the appellant was holding degree of L.L.M and under the rules she had to be awarded the separate marks of the said decree but the same have not been awarded to her.

5. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellant in Appeal No.111/2018, submitted that the impugned order of the learned High Court through which the writ petition of the appellant herein, has been dismissed in limine is the result of non-application of judicial mind and misconception of law. He added that all the factual propositions relating to the withholding of post and limitation were admitted by the respondents as the averments made in the writ petition have not been rebutted by the official respondents but despite that, the dismissal of the writ petition by the High Court is against law. The illegalities and the wrongs committed by the respondents are proved from the record, hence for challenging the same no limitation is provided under the statutory provision. Therefore, while accepting this appeal, the prayed writ may kindly be granted.

6. On the other hand, Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for the official respondents strongly opposed the arguments advanced by the counsel for both the appellants. He submitted that the impugned orders are quite in accordance with law, therefore, interference by this Court is not warranted under law. He added that the whole selection process has been conducted in a transparent manner; equal opportunity of participation was provided to both the appellants along with the other candidates but the appellants failed to get the requisite merit position, therefore, they have got no right to challenge the selection process. The learned counsel drew the attention of the Court towards the assessment sheet prepared by the Selection Board, annexed with the paper book at page 67, and while referring to Column No.5 of the assessment of the Selection Board, submitted that the appellant, Ghulam Aisha Abbasi has got 11 marks out of 30 marks, whereas, 15 marks are the passing marks, hence, in such situation she was not qualified to be appointed. At this juncture, the appellant, Mst. Ghulam Ayesha, made a request that she wants to clarify the position. The request was allowed. She came on the rostrum and submitted that correct position has not been placed before the Court as column 5 cannot be read in isolation rather the same shall be read along with column 4 and

6. She added that after following the criteria mentioned in the aforesaid columns, she was duly qualified and this fact is further supported by the act of the University authorities who while making tempering in the marks tried to bring the appellant lower in the merit. The learned counsel for the respondents, in continuation of the arguments submitted that the appellants in both the appeal mainly based their claim on withholding of the post, whereas, they failed to substantiate this version, therefore, both the appeals being devoid of any force are liable to be dismissed. Mr. Tahir Aziz Khan, Advocate, while appearing on behalf of private respondents, Syed Murad Ali Shah, and Syed Muhammad Farrukh Bukhari, adopted the arguments advanced by the learned counsel for the official respondents and prayed far dismissal of both the appeals.

7. We have heard the arguments of the learned counsel for the parties and gone through the record along with the impugned judgments/orders. The perusal of the record shows that the respondent-University advertised two posts of Lecturer (BPS-18), through advertisement dated 03.04.2015. The appellants, in both the appeals, participated in the selection process and qualified the same. The available record shows that the appointments of the candidates, namely, Sardar Muhammad Abdul Waqar Khan Arif and Syed Murad Ali Shah, who secured the top merit positions, were made, however, one of them failed to join his duty, whereupon, the appointment of the said candidate was recalled and one, Muhammad Farrukh Bukhari was appointed. The appellants, in both the appeals, mainly established their case on the ground of withholding of the posts; that 2 more vacant posts were available at the time of advertisement but the respondent-University advertised only two posts and had all the available posts been advertised they would have been appointed. From the scrutiny of the record it appears that the version of the appellants in this regard have substance as initially the respondent-University advertised two posts and appointments of three candidates were made and another post was also admitted to be vacant against which no one has been appointed. In this regard, the copy of Letter No.423/law/2017, dated 05.09.2017, written by the Department of Law to the Registrar University of Azad Jammu and Kashmir is comprehensive which fully support the appellants' version that at the time of advertisement 4 posts were available. The merit list relied upon by the official respondents shows that the name of the appellant, Aadursh Farid Khan, was at serial No.5 in the merit list. The candidate who was at Serial No.1 of the merit list failed to join the duty, whereas, the appointments of the candidates whose name were placed at Serial Nos.2, 3 and 4 of the merit list, were made but one of them Syeda Mehwish Kazmi has also been appointed as Civil Judge on the recommendations of the Public Service Commission and did not join the duty, therefore, in such circumstances, the appellant, Aadrush Farid Khan, as per record of the official respondents is entitled for appointment being at Serial No.5 of the merit list. The learned High Court without appreciating the record dismissed the writ petition on the sole ground of laches, whereas, keeping in view the circumstances of the case this principle is not attracted in the present case as the respondents withheld the posts and the appellant approached the Court when this fact came into his knowledge and he also proved the same.

8. So far as, the appeal of the appellant, Mst. Ghulam Aisha, is concerned, according to the record it appears that she got 3rd merit position in the NTS, and being eligible/qualified she was further allowed to participate in the selection process. The version of the appellant is that the official respondents with mala fide intention made discriminatory treatment with her as the marks of the academic qualification have not properly been awarded to her; rather her marks have been reduced by making tempering with the record. To appreciate this version, we have summoned the original record. From the record it depicts that the stance taken by the appellant, Mst. Ghulam Aisha, has substance; she secured 3rd merit position in the NTS and in all the working papers, her name remained entered at Serial No.3, but later on, her name has been placed at Serial No.10 of the alleged merit list. From the original record produced by the University, it is clear that marks of the appellant have been reduced by making tempering with the record; when this position was confronted to the learned counsel for the respondents, he was unable to controvert the same and conceded the factual position, however, he submitted that even otherwise the appellant could not be appointed as in the assessment of the subject specialist she secured only 11 marks, whereas, the pass marks were

15. The appellant during the course of arguments has ably assisted the Court and pointed out that the marks of the assessment of the Subject Specialist cannot be read in isolation rather the same will be read with the marks given in the other columns of the result sheet. We deem it proper to observe here that nothing is available in the whole record to show that on the basis of which material the assessment of the Subject Specialist is based, from the juxtapose consideration of the tempering made in the record to the extent of reduction of the marks of the appellant and the marks of the assessment of the Subject Specialist, the element of mala fide and arbitrariness is evident which cannot be overlooked. The appellant is holding the degree of L.L.M. and is teaching in the University since 2011, she has successfully demonstrated that if appropriate marks were awarded to her she would have been appointed. The learned High Court also failed to take into consideration the facts and circumstances of the case established by the appellant, Mst. Ghulam Aisha, and dismissed the writ petition in limine.

9. In the light of the above discussion, we have reached the conclusion that both the appellants have succeeded to prove their respective claim but the learned High Court despite the fact that sufficient material in shape of averments was available on record to justify the admission of the writ petitions for regular hearing, dismissed the same in limine. As point of view of both the parties has already been brought on record; therefore, keeping in view of the circumstances of the instant appeals, in our estimation, the remand would be a futile exercise. We are conscious that under the provisions of Azad Jammu and Kashmir High Court Procedure Rules, 1984 without admitting the writ petition for regular hearing and complying with the provisions of Rules 32 to 38, the writ cannot be issued, therefore, in the interest of justice while exercising the inherent powers conferred upon this Court under the provisions of section 42-A of the Interim Constitution Act, 1974, read with Order XLIII of the Supreme Court Rules, 1978, the writ petitions filed by the appellants, herein before the High Court are admitted for regular hearing and while dispensing with the parties from the compliance of Rules, 32 to 38 of the High Court Procedure Rules, as has been concluded hereinabove that the appellants have succeeded to prove their claim, the writ petitions are accepted and the official respondents are directed to make the appointments of the appellant immediately and submit the compliance report before this Court through Registrar. In the above terms, both the appeals stand accepted with no order as to costs. ZC/39/SC(AJK) Appeal allowed.