2018 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The titled appeal by leave of the Court arises out of the judgment of the High Court dated 02.12.2014, through which the writ petition filed by the appellants, herein, has been dismissed in limine.

2. The precise facts of the case are that through advertisement dated 26.02.2013, eight posts of Junior Teachers (Female) (General Line) and five posts of Junior Science Teachers (Female) were advertised for Constituency No.4, Muzaffarabad. The appellants apart from other candidates applied for appointment against the said posts. The merit list was prepared on 06.10.2013 according to which the appellants could not attain the merit position. In the light of merit list dated 06.10.2013, the appointment orders of respondents Nos.4 to 24 were issued. Thereafter, the appellants filed a writ petition before the High Court wherein besides several other prayers, they prayed for declaring the merit list dated 06.10.2013 as null and void, cancellation of appointment orders of private respondents and re-advertisement of the posts. The learned High Court, after necessary proceedings, dismissed the writ petition in limine through the impugned judgment on the grounds of non-impleading the necessary parties and attraction of principle of acquiescence, hence this appeal by leave of the Court.

3. Syed Mushtaq Hussain Gillani, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the impugned judgment of the High Court is against law and facts of the case. The learned High Court has failed to properly appreciate the material propositions raised in the case. As the writ petition has been dismissed on technical ground of non-impleading the necessary parties and acquiescence, therefore, the arguments on merit are unnecessary. So far as the main ground of necessary parties, is concerned, it is misconceived. The appellants have arrayed the Chairperson, Secretary and Member of the Selection Committee as parties. All these three are constituents of the Selection Committee and they are parties in the writ petition, therefore, mere on this ground the dismissal of writ petition is not warranted. The case law referred to in the impugned judgment being having distinguishable facts is not applicable, hence, the High Court has wrongly applied the same. Same like, mere participation of the appellants in the selection process does not disentitle them from seeking the remedy through writ petition especially when the whole process of selection is illegal. He submitted that while accepting this appeal and setting-aside the impugned judgment, the case may kindly be remanded to the High Court for decision on merit. He further argued that in the light of principle of law laid down by this Court, if at all the Selection Committee was necessary party, the High Court under the inherent powers vested in it may array the same as party. He placed reliance on the case reported as Shafqat Hayyat v. M. Shahid Ashraf and others [2005 SCR 57].

4. Conversely, Raja Gul Majeed Khan, Abdul Hamid Khan Shahid, Ch. Shoukat Aziz, Ch. M. Manzoor, Kokab Al-Saba Roohi and Kh. Ansar Ahmed, Advocates, the learned counsel for the respondents (except respondent No.19), seriously opposed the appeal on the ground that, the arguments of the learned counsel for the appellants are totally misconceived, against the facts and law. The judgment of the High Court is quite legal one and consistent with the principle of law laid down by this Court in a number of cases. Mere arraying Chairperson, Secretary and Member of the Selection Committee does not fulfill the requirement of statutory provision of arraying necessary party whose action is challenged in the writ petition. According to the facts, the Chairperson, Secretary or Member of the Committee are not performing the functions in individual capacity rather it was the legal person (i.e. the Selection Committee) whose action has been challenged in the writ petition, therefore, without arraying the Selection Committee, the legal person, as respondents in the writ petition, the writ petition is not competent. The principle of law laid down by this Court has been rightly applied by the learned High Court in the impugned judgment. Same like, the principle of acquiescence is fully attracted. The appellants while accepting the process as valid, participated in the selection process but failed to attain the merit position in the competition, thus, they have become vindictive and challenged the same, whereas, according to the settled principle of law the person who participated in the process cannot subsequently turn around and challenge the same. In this state of affairs, the principle of acquiescence is fully attracted which has been rightly applied by the learned High Court. They referred to the cases reported as Syeda Shaista Mumtaz v. Secretary Education and others [2003 SCR 446] and Ehsan ur Rehman and others v. Arshad Ali Khan and others [2012 PLC (C.S.) 795].

5. We have considered the arguments of the learned counsel for the parties and examined the record made available. According to the appellants' own stated facts they applied against the advertised posts and participated in the test and interview. The appellants' version is that the merit list has not been prepared by the Selection Committee according to law and their merit has been ignored, thus, the process of selection is illegal. The fact of participation of the appellants in the selection process is admitted. The appellants' grievance is regarding the merit list prepared by the Selection Committee. According to their version, the merit list has not been prepared transparently and the appointed candidates have been illegally shown ahead to them in the merit list. They have also challenged the appointment orders of the selected candidates. All the orders annexed with the appeal speak that the same have been issued on the recommendations of Selection Committee, thus, in view of the factual proposition, the validity of the act of the Selection Committee is the basis of main controversy. The Selection Committee as a legal person has not been arrayed in the writ petition as party. Although, the Chairperson, Secretary and one Member has been arrayed in their individual capacity but it is the spirit of constitutional provisions of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 that the necessary party is one whose action has been challenged in the writ petition. In this case, the action of the Chairperson, Secretary or Member of the Selection Committee has not been challenged rather the action of the Selection Committee is challenged. The Selection Committee is a legal person and in view of the peculiar facts of this case unless the same is arrayed as party the writ petition is not maintainable. In this state of affairs, the High Court has rightly applied the principle of law laid down by this Court. On this proposition the impugned judgment does not suffer from any illegality or infirmity.

6. So far as the argument of the learned counsel for the appellants that the Courts are vested with the inherent powers to array the necessary parties at any stage and his reliance on the case reported as Shafqat Hayyat v. M. Shahid Ashraf and others [2005 SCR 57], is concerned, no doubt the Courts have inherent powers but these powers cannot be used for favouring one party and depriving the other of legally vested accrued rights. If at all there is any substance in this arguments, then the appellants should have been vigilant and they should have requested the High Court at proper stage but now this argument is not available to them.

7. The principle of acquiescence is also fully attracted in this case. According to the appellants' own averments, they participated in test and interview conducted by the Selection Committee. When they failed to attain merit position, they challenged the validity of the merit list. There is a chain of authorities in which this Court has held that the candidates who participated in the selection process and failed, cannot be allowed to turn around and challenge the same while treating it as illegal. The learned High Court has rightly applied the principle of acquiescence. For the above stated reasons, finding no force this appeal stands dismissed with no order as to costs. ZC/36/SC(AJ&K) Appeal dismissed.