2021 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, J.

This appeal by leave of the Court has been preferred against the judgment of the High Court dated 22.01.2019, whereby the writ petition filed by the respondent, herein, has been accepted.

2. The facts necessary for disposal of this appeal are that the respondent, herein, filed a writ petition before the High Court, alleging therein, that his father, Syed Arif Shah, was serving as Accountant in the Police Department Muzaffarabad and died during service in the year 2004. He applied for appointment against the post of Junior Clerk, falling in the quota reserved for the legal heirs of police employees who die during service, along with some other candidates. It was further averred that the Selection Committee after conducting test/interview dropped the petitioner-respondent herein, on the ground that his father died in the year 2005, prior to the issuance of notification dated 16.11.2011, but on the other hand, appointed two other candidates whose fathers had died before the issuance of the notification (supra). He sought direction for his appointment. The learned High Court after necessary proceedings while accepting the writ petition issued the direction for appointment of the respondent vide impugned judgment dated 22.01.2019, hence, this appeal by leave of the Court.

3. Mr. Saqib Javed, Advocate, the learned counsel for the appellants argued that the impugned judgment of the High Court is against law and the facts of the case which is not sustainable in the eye of law. He contended that the learned High Court failed to appreciate the notification dated 16.11.2011 and the other relevant record in a legal manner. The respondent is claiming the appointment on the basis of such notification which was issued much after the death of his father; thus, the benefit of the said notification could not be extended to the respondent. In this regard, he drew the attention of the Court towards the notification dated 16.11.2011 and the recommendations of the selection committee, available at pages 26 and 27 of the paper book. He submitted that the learned High Court accepted the writ petition on the sole ground that discrimination has been made with the respondent and failed to adhere to the fact that one wrong cannot be made a ground for committing another wrong. He also submitted that in the matter in hand, no legal right of the respondent has been infringed, hence, writ cannot be issued in his favour. He lastly submitted that law referred to by the learned High Court in the impugned judgment in view of the controversy involved in the matter is also not applicable.

4. On the other hand, Mr. Muhammad Ilyas Abbasi, Advocate, the learned counsel for the respondent strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfectly legal which is not open for interference by this Court. The appellants at one hand appointed the candidate whose case was at par with the case of the respondent but on the other hand refused to extend the relief to the respondent on the ground that his father was died prior to the issuance of notification dated 16.11.2011, which is a clear discrimination. Thus, in such state of affairs, the learned High Court has rightly issued the direction for appointment of the respondent.

5. Mr. Shahzad Shafi Awan, Advocate, while appearing on behalf of proforma respondents Nos.4 and 5 submitted that the appointments of the proforma respondents have been made in accordance with law. They have no concern with the case of the respondent and they had been arrayed as respondents in the writ petition without any justification.

6. We have heard the arguments of the learned counsel for the parties and gone through the record made available along with the impugned judgment. The perusal of the record shows that the respondent, herein, along with two other candidates applied for appointment as Junior Clerk against the quota reserved for legal heirs of the police employees who died during service. The selection committee recommended the other two candidates and rejected the application of the respondent on the ground that his father was died prior to the issuance of notification dated 16.11.2011, through which the quota was fixed; hence, without giving the retrospective effect to the notification (supra) appointment of the respondent cannot be made. The relevant portion of the recommendations is reproduced here which reads as under:- From the bare reading of the recommendations of the Selection Committee it appears that the selection committee recommended one, Muhammad Younas, whose father had died in the year 2008, but in the very next paragraph of the recommendations rejected the claim of the respondent on the ground that his father was died prior to the issuance of notification dated 16.11.2011. Thus, it becomes clear that discrimination has been made in the case of the respondent. During the course of arguments when this position was confronted to the learned counsel for the appellants he failed to rebut the same and simply stated that one wrong cannot be made a basis for doing another wrong. We are afraid that such an argument is not available to the appellants as it is celebrated principle of law that the authority who has issued any order or done any act cannot subsequently take the stance that the order issued or action taken by him is against law. In this regard, reliance may be placed on a case reported as Tariq Rashid and 9 others v. University of Azad Jammu and Kashmir and 7 others 2020 PLC (C.S.) Note 41, p.35, wherein it has been held that:-- "

8. So far as the argument of the learned counsel for the respondents that the framed policy was unlawful, is concerned, it is observed that such argument is not available to the respondents because they themselves have issued the policy. According to the celebrated principle of law, the authority who has issued the order cannot subsequently take stand that the order issued or action taken is against law." As discrimination is prohibited under the Constitution; therefore, the respondent is entitled for the same treatment as met by the other whose case was at par with the case of the respondent. In the case law (supra) identical matter of discrimination came under consideration of this Court, wherein, it was held that:- "7.

In this case, the policy/notification has been issued and acted upon and the rights in favour of the beneficiaries stood accrued, thus, the University-authorities have no legal justification to extend the benefit of the policy to some employees and deny the same to the other employees who stand on same footing. Such discrimination is prohibited under the Constitution, therefore, the appellants are entitled for the same treatment as met by the other employees." As in the instant case it is an admitted fact that the respondent was discriminated, therefore, the learned High Court was fully justified to issue the direction for his appointment. The leaned counsel for the appellants failed to point out any illegality or infirmity in the impugned judgment, hence, interference by this Court is not warranted under law. Resultantly, finding no force this appeal stands dismissed with no order as to cost. SA/7/SC (AJ&K) Appeal dismissed.