2004 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on 20‑2‑2001, whereby the writ petition filed by the appellant herein was dismissed.

2. The necessary facts, giving rise to the present appeal, are that a post of Laboratory Assistant (B‑7) was advertised by the Principal Government Girls Degree College Kotli. Six candidates including the appellant and respondent No.3 applied for the said post and appeared in the test/interview conducted by the Selection Committee on 8‑5‑2000. The Selection Committee selected the appellant and presented its report to the Principal Government Girls Degree College Kotli. On the merit list as the appellant stood first, therefore, the Selection Committee constituted by the Principal recommended the case of appellant for appointment. The appellant, according to the merit list, obtained 48.33 marks, whereas respondent No.3 Mst. Attia Naureen, secured 27.33 marks and in the merit list she was at No.4. The Principal accordingly issued the appointment order of appellant on 10‑5‑2000 and she joined her service as Laboratory Assistant on 11‑5‑2000. The Secretary Education AJ&K Government, respondent No.1, passed an order on 13‑5‑2000, whereby respondent No.3, Mst. Attia Naureen, was appointed in place of appellant. It was mentioned in the order that the appointment has been made on the basis of report made by the Selection Committee and the Director Education. The Principal on 15‑5‑2000 wrote a letter to Secretary Education, wherein it was stated that the Selection Committee constituted by him has recommended the appellant herein for appointment and her appointment order has duly been issued. It was also clarified that the Selection Committee has never recommended Mst. Attia Naureen and her appointment is illegal. However, the Secretary Education and the other Government functionaries did not agree to the order of the Principal. On 24‑5‑2000 appellant filed a writ petition in the High Court which, as stated earlier, was dismissed by the High Court vide the impugned judgment dated 20‑12‑2001. It is the aforesaid judgment of the High Court which is the subject‑matter of present appeal.

3. Ch. Muhammad Azam Khan, the learned counsel for the appellant, has contended that the judgment of the High Court is patently illegal, erroneous and bad in law. The learned counsel urged that the appellant stood first in the test/interview and according to relevant law and rules it was only the appellant who could be appointed against the said post. The learned counsel further contended that the appointment order of respondent No.3 has been obtained through underhand means by ignoring the merits of the appellant. The learned counsel strenuously argued that the learned Judge in the High Court without any justifiable reason dismissed the writ petition on the ground that the copies appended with the writ petition were unattested and the same were photostat copies, whereas the fact of the matter is that it stood admitted by respondents as well that the appellant herein topped the merit list. After participating in the test and interview and having failed to achieve the required merit, the respondent now could not turn round with a volte face to say that a ban was imposed upon the appointments.

4. So far as the assertion of the appellant is concerned that she stood first in the merit list, the same has not been denied by respondent No.3 rather in reply to para No.2 of the writ petition, wherein the appellant has stated that she stood first in the test and interview and joined the said post, the reply of respondent is to the effect that the appointment of petitioner (appellant herein) is illegal arid without jurisdiction. The learned counsel also contended that if at all the ban was imposed, it was for everyone and not solely for the appellant. However, if the ban had been relaxed by the Government, then the same must have been substantiated by some record produced by the respondents. Even in that case the merits of the parties should have been seen by the respondents but all the proceedings conducted by the respondents have rendered the appointment of respondent No.3 into a nullity as such the judgment of the High Court is not sustainable in the eye of law.

5. Ch. Muhammad Riaz Alam, the learned counsel for respondent No.3, controverted the arguments advanced by the learned counsel for the appellant and raised an objection that .through the writ petition filed by the appellant, the appointment order of respondent No.3 was challenged which related to terms and conditions of service of a civil servant and the same was within the jurisdiction of the Service Tribunal and not within the jurisdictional competence of the High Court in exercise of .writ jurisdiction. The learned counsel contended that the appointment of respondent No.3 has been made after relaxation of the ban imposed by the Government. The learned counsel contended that the impugned judgment passed by the High Court suffered from no illegality or infirmity as pointed out by the learned counsel for the appellant.

6. Raja Bashir Ahmed Khan, the learned counsel for respondent No.1, fully supported the arguments advanced by Ch. Muhammad Riaz Alam, the learned counsel for respondent No.3, and submitted that the matter pertained to terms and conditions of service of a civil servant therefore the same was within the jurisdiction of Service Tribunal and not within the competence of the High Court. He submitted that the Secretary Education passed the order of appointment of respondent No.3 on the basis of relaxation, of ban made by the Prime Minister of Azad Jammu and Kashmir, therefore the appointment of respondent No.3 suffered from no illegality.

7. We have given our due consideration to the arguments advanced at the Bar and perused the relevant record. It may be stated that so far as the merit of the appellant is concerned, that has not been repudiated by any of the respondents. Respondent No.3 has evasively denied the allegation made in para No.2 of the writ petition filed by the appellant. It remains now settled that an evasive denial under Order VIII, rule 5 of the Code of Civil Procedure shall be deemed to be the admission of the averment made in the relevant para. So the averment made in para No.2 of the writ petition that the appellant stood first in the merit list stands admitted by the respondents. Vide the interim order dated 20‑6‑2000, respondents Nos.1, 2, 4 and 5 have been proceeded ex parte by the High Court; therefore there is no written statement filed on behalf of the Secretary Education or other functionaries of the Government. The only written statement available on the file of the High Court is that of respondent No.3 who has not repudiated the claim of appellant that she stood first in. the test and interview. Respondent No. 3 also participated in the test and interview and after having failed to achieve the requisite merit, could not turn round and raise the plea that the proceedings initiated by the Selection Committee were unlawful and without jurisdictional competence. In a case reported as Malik Khalid Mehmood v. Abdul Majid Butt and 4 others 1997 MLD 2921 it was observed as under:‑‑ "When a party has been unsuccessful in his attempt to secure a favourable order, it cannot be allowed to turn round and say that functionary did not have authority to regularise encroachment." Similarly in a case reported as Muhammad Sharif v. Muhammad Manzoor and others (1993 SCR 92) it was observed as under:‑‑ "After filing the affidavit in the High Court accepting correctness of the award, the appellant was not competent to pursue the matter any further. A party is estopped by his conduct in the proceedings by taking a specific position."

8. So fare as the contention of the learned counsel for respondent No.3 that the appointment order of respondent No.3 was challenged by the appellant and the same related‑ to terms and conditions of service of civil servant, therefore, the High Court had no jurisdictional competence, is concerned, that has not been raised by respondent No.3 in her written statement. Obviously when the point was not raised in the written statement, the same could not have been argued before the High Court nor the same finds mention in the impugned judgment of the High Court. It was further contended by the learned counsel for respondent No.3 that in para 3(ii) of her concise statement she has specifically taken the plea that the writ petition filed by the appellant was not maintainable as the same was filed to challenge the appointment of respondent No.3 which purely falls within the purview of "terms and conditions" under the Civil Servant Act and it was the job of the Service Tribunal but so far the concise statement filed by the Secretary Education; respondent No. 1 is concerned, no such plea has been raised. We do not deny the fact that in para 3(ii) of the concise statement an objection on behalf of respondent No.3 has been raised that the matter related to terms and conditions of service of civil servant and the same was not within the jurisdictional competence of the High Court but the fact remains that no plea was raised in the concise statement, that the said point was argued before the High Court and the High Court did not resolve the same. It may also be pointed out that respondent No.3 even did not file any affidavit in support of the above contention nor filed cross‑objections to the effect that the writ petition was not maintainable as the same related to terms and conditions of service of a civil servant. Thus, the point which has not been raised or argued before the High' Court, and neither any cross‑objections were filed nor any affidavit to the said effect was filed by respondent No.3, she cannot be allowed for the first time to raise such a plea before this Court. Respondent No.1. Secretary Education, in his concise statement, as stated earlier, did not, raise the plea regarding the lack of jurisdiction of the High Court. Therefore the contention raised by the learned counsel for the respondent stands repelled.

9. The High Court mainly dismissed the writ petition filed by the appellant on the ground that only photostat copies of documents have been placed on record by the appellant and even the attested copy of appointment order of respondent No.3 was not placed on record by the appellant. To substantiate the above contention the learned counsel for respondent No.3. Ch. Muhammad Riaz Alam, submitted that under rule 32(2) of the AJ&K High Court Procedure Rules, 1984, it has been provided as under: "The application shall set out the name and description of the applicant, the exact nature of the relief sought and the ground on which it is sought and shall be accompanied by an affidavit verifying the facts relied on, a certified copy of the impugned order and at least two copies thereof including annexures, if any, in addition to separate copy for each one of the respondents. The annexures accompanying the petition shall be marked numerically in red ink by the petitioner and the petition shall be properly indexed." The above contention raised by the learned counsel for respondent No.3 is correct that the copy of the impugned order as provided under the High Court Procedure Rules must be attached but the position is totally, different when the averments made by the appellant and the documents relied upon by her are admitted from the opposite side. In the instant case the appellant's assertion that she stood first in the test and interview in accordance with the merit list stands admitted by the respondents. Similarly after the appointment of appellant, the appointment of respondent No.3 also stands admitted by the respondents. In such a situation it was not necessary on the part of the appellant to attach with the writ petition the attested copies of the documents especially so when the same were admitted by the respondents. In a case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153 it was observed as under:‑‑ "It is indeed correct that a party is required under law to attach with the writ petition an attested copy of the impugned order bat the situation is totally different in a case where the facts a11egw are admitted by the other party. In the averment made by the respondent with regard to impugned merit list, the contents of the same were admitted to be true by the appellant. In such a circumstances we cannot ignore the basic principle of law that facts admitted need not be proved. " Therefore this objection too raised by the learned counsel for respondent No.3 is unfounded and carries no weight in the eye of law and the judgment of the High Court based on this wrong assumption .is not sustainable.

10. So far as the question of relaxation of ban on the appointments is concerned, the contention was raised by the learned counsel for the respondents that the ban on the appointments was lifted by the Prime Minister and thereafter the appointment of respondent No.3 was made. Firstly if at all the ban was imposed by the Government, the same should have been lifted not only for respondent No.3 but for everybody because everybody is equal before law and entitled to equal protection of law. Secondly the ban imposed by the Government could only be relaxed or lifted by the Government and not by the Prime Minister. Nothing was brought on the record that the ban was relaxed by the Government. Even in this view of the matter, the appointment of respondent No.3 was without any lawful authority and violative of law. In the light of what has been stated above, by accepting the appeal, we set aside the impugned judgment passed by the High Court and order, the acceptance of the writ petition filed by the appellant. The appointment order of respondent No.3 dated 13‑5‑2000 passed by the Secretary Education, respondent No. 1, is declared to be unlawful and without any lawful authority. Consequently the appointment order of appellant dated 10‑5‑2000 is restored. She will also be entitled to all the back‑benefits from the date of her appointment. In the circumstances of, the case there shall be no order as to costs. H.B.T./48/SC(AJ&K) Appeal accepted.