2020 PLP (C (PLC(CS)N)

M. TABBASUM AFTAB ALVI, CJ.

The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, following prayer is made by petitioner:-- "In view of above mentioned facts and circumstances, it is, therefore, very humbly prayed on behalf of petitioner that an appropriate writ may kindly be issued against respondents and official respondents jointly and severally may kindly be directed to issue the appointment order of petitioner in light of Departmental Rules and merit list prepared by the selection committee. It is further prayed that respondents may kindly be directed not to alter, amend the merit position/ merit list which have been prepared by the competent selection committee after following the course of law."

2. The summary of case is that one post of Statistical Assistant B-11, was published by Director General Health, through "Daily Ausaf" dated 04.02.2016, followed by "Daily Ausaf" dated 23.02.2016. It is further stated that petitioner being qualified, applied against the aforesaid post, hence, also participated in test and interview. However, after conducting test and interview on open merit basis, official respondents without any cogent reason did not bother to issue appointment order of petitioner. It is alleged that one Muhammad Habib Chughtai, (intervener) is only B.Com., hence, not qualified to be appointed against the disputed post as per Departmental Rules, hence, the instant constitution petition.

3. On pre-admission notice, writ petition has been resisted by respondent No.1, through comments, wherein, it is stated that petitioner applied against the post of Statistical Assistant Officer B-11, however, he did not participate in test and interview, hence, writ petition is liable to be dismissed on this sole ground. It is stated that due to stay order issued in writ petition titled "Muhammad Arshad Khan v. Chief Secretary, Azad Government and others" on 23.02.2016, hence, appointment order could not be issued, against the said post in favour of successful candidate. It is also stated that petitioner had already filed a writ petition, which was dismissed for want of prosecution vide order dated 09.09.2016. It is maintained that a judgment has been passed in Writ Petition No.2584/2016, titled "Muhammad Habib Chughtai v. Secretary Health Department and others" on 03.10.2018, but due to incompletion of selection process, appointment order could not be issued, however, after completion of the same appointment order, will be issued as per law, hence, submitted for dismissal of writ petition in limine.

4. Mr. Muhammad Khalid Naqashbandi, Advocate, for petitioner, while reiterating the grounds of writ petition submitted that as post in question was advertised through "Daily Ausaf" dated 04.02.2016, followed by "Daily Ausaf" dated 23.02.2016, and petitioner participated in test and interview who qualified the same, hence, his accrued right, could not be brushed aside by official respondents. He added that intervener is simple B.Com who cannot be appointed against the disputed post as per Departmental Rules, hence, craved for admission of writ petition.

5. Sardar Shoukat Ali, the learned Legal Advisor, appearing on behalf of respondents, submitted that petitioner applied against the post of Statistical Assistant B-11, however, did not bother to participate in test and interview, who was never included in merit list, hence, appointment order in his favour cannot be issued. The learned counsel also produced record as per order dated 05.04.2019, and shown that Muhammad Habib Chughtai, is topper in merit list, however, after completing selection process his order shall be issued. He added that in comments dated 11.10.2016, it was mistakenly inserted that petitioner Marawat Hussain, also participated in test and interview, hence, submitted for dismissal of writ petition in limine.

6. Sardar Abdul Sammie Khan, appearing on behalf of intervener submitted that although petitioner applied for the disputed post of Statistical Assistant B-11, however, he did not participate in test/interview, therefore, his name was never inserted in relevant merit list as alleged by him. The learned counsel stated that according to the Azad Jammu and Kashmir Health Department Service Rules, 1984, for disputed post of Statistical Assistant B-11, prescribed qualification is graduate, with one of the subject as Statistics or Economics. He submitted that his client passed B.Com, inter alia, in subjects of Business Tax and Economics of Pakistan. He further referred marks sheet of his client pertaining to Master of Business Administration (MBA), and voiced with vehemence that intervener passed MBA, inter alia, in subjects of Economics (Micro and Macro) and Business Statistics and Mathematics, who is highly educated and rightly placed at serial No.1, of merit list. The learned counsel pressed into service that due to influence of petitioner, his client could not be appointed, therefore, submitted for dismissal of writ petition in limine.

7. I have perused the contents of writ petition and examined the appended documents made available with utmost care.

8. A contemplate perusal of record reveals that one post of Statistical Assistant B-11, was advertised by D.G. Health through "Daily Ausaf" dated 04.02.2016, followed by "Daily Ausaf" dated 23.02.2016. Admittedly, petitioner applied for the same, however, the stance of official respondents is that he did not participate in test/interview. A perusal of comments duly supported by an affidavit of Director General Health, along with documentary evidence i.e. attendance sheet makes it clear that the candidates namely Muhammad Saeed, Muhammad Habib (intervener) and Muhammad Arshad Khan, participated who also affixed their signatures upon it, whereas, name of petitioner was not inserted in the said attendance sheet of test/interview. The petitioner failed to produce any cogent proof in support of stance regarding his participation. As per law disputed question of facts cannot be resolved in writ jurisdiction. The aforesaid proposition came under consideration before the Hon'ble Supreme Court of Pakistan, in case titled "Fida Hussain and another v. Mst. Saiqa and others" [2011 SCMR 1990]; wherein, at pages 1992 and 1993, of the report, it was opined as under:- "

5. On examination of the material made available before us it becomes evident that the appellants had, in their replies (available at pages 23 and 45 of the paper book), specifically denied the allegations of respondent No.1 and in support had produced some documents noted above meaning thereby that matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence. It is well settled by way of plethora of case law laid down by Superior courts that the High Court is not to resolve the disputed question of facts in exercise of constitutional jurisdiction under Article 199 of the Constitution " The same view was expressed by the Apex Court of Pakistan in case titled "Lahore Development Authority v. Firdous Steel Mills (Pvt.) Ltd" [2010 SCMR 1097]. At page 1106, it was observed as follows:- "15. . Moreover, if the contents of the constitutional petition and contents of the C.M.1 of 2003 under Order VI, Rule 17 and C.M.1 of 2001 under section 12(2), C.P.C. are put in juxta position, then it brings the case of private respondent in the area of disputed question of fact which cannot be decided in the constitutional jurisdiction as the law laid down by this Court in Muhammad Younis's case 1993 SCMR 618."

9. According to the Azad Jammu and Kashmir Health Department Service Rules, 1984, for disputed post of Statistical Assistant B-11, prescribed qualification is graduate, with one of the subject as Statistics or Economics. The intervener passed B.Com, inter-alia, in subjects of Economics of Pakistan and Business Tax, hence, was qualified for the aforesaid post. The intervener also passed Master of Business Administration (MBA), inter-alia, in subjects of Economics (Micro and Macro) and in Business Statistics, therefore, stance of petitioner that intervener was not qualified is frivolous, hence, turned down.

10. As petitioner never participated in test/interview whose name was not inserted in relevant merit list, hence, petitioner is not falling in the definition of an aggrieved party. The power conferred on this Court for issuance of writs of mandamus, certiorari and prohibition under section 44, are subject to the conditions mentioned in the said section, one of the condition is that a person who approach the Court must be aggrieved from the order impugned. The aforesaid proposition came under consideration before the Apex Court in case titled "Azad Jammu and Kashmir Government and 4 others v. Mohi-ud-Din Islamic University and 2 others" [2014 SCR 382], wherein, at page 406, of the report, it was opined as under:- "An 'aggrieved person' is one whose vested legal rights are infringed by an action of an authority performing the functions in connection with the affairs of the State." The same view was expressed by the Apex Court in case titled "Ch. Muhammad Yasin v. Sardar Muhammad Naeem Khan and 3 others" [2010 SCR 17]. At page 35, it was observed as follows:- "An aggrieved party is one whose rights are threatened or whose rights are being denied or whose "rights" have been affected by a decision. The word "rights" is not used in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party."

11. The crux of above discussion is that admission of writ petition, will be a futile exercise, to create false hopes, hence, the same is hereby dismissed in limine. Consequently, stay order granted on 11.02.2019, is vacated. ZC/26/HC(AJ&K) Petition dismissed.