KALSOOM BIBI Versus DIVISIONAL DIRECTOR SCHOOLS (FEMALE) POONCH, AZAD JAMMU AND KASHMIR

M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petitions have been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.

2. As common questions of facts and law are involved in the captioned writ petitions, therefore, I proposed to decide the same through this single judgment.

3. The precise facts of Writ Petition No.2086/2015, are that petitioner Kasloom Bibi, is first class state subject of Azad Jammu and Kashmir, hails from District Bagh and is qualified as B.A., B.Ed. (1st division), M.A. Islamic Studies (2nd division), Fazal Arabic, Arabic Teaching course (ATTC) (2nd division) English Language (IELTS) course as well as Shadat-ul-Almia, who is also Hafiz-e-Quran. The Divisional Director Schools Poonch Division, respondent No.1, inter alia, advertised one post of Junior Arabic Teachress B-9, pertaining to constituency No.2 North Bagh, through "Daily Ausaf" dated 27th June, 2015. However, as per corrigendum published through "Daily Ausaf" dated 30th June, 2015, one more post of the same discipline was advertised for initial recruitment. The petitioner being qualified applied against the aforesaid posts and after obtaining test/interview, allegedly she topped in the merit list, however, later on she came to know that Minister Health-respondent No.6, was determined to appoint private respondent No.8, Misbah Nazir, hook or by crook. It is claimed that petitioner while pretending herself as Misbah Nazir, on mobile made a call to Divisional Director Schools-respondent, who stated that "she was placed, while facing lot of difficulty, in merit position at serial No.1 or 2 upon the advice of Minister Health, otherwise, Kalsoom Bibi, was at the top in the merit list". The similar stance is taken by petitioner against Head Clerk, of Divisional Director Schools namely Zakir, who craved from the Court about calling voice recording from telecommunication company. It is further maintained that on the basis of manipulated merit list dated 23rd September, 2015, private respondents Nos.7 and 8 were appointed as Junior Arabic Teacheresses B-9, vide even dated impugned orders 22nd September, 2015. It is agitated that petitioner applied for certified copies of merit list and appointment orders of private respondents, however, even photostat copies were not supplied to her, hence, she brought the whole matter into the notice of Secretary Education, when only photostat copies of the aforesaid documents were supplied to her. The petitioner reiterated serious allegations against Minister Health, as he then was, and attacked the impugned appointments as politically motivated by committing mal-administration on the part of selection committee and appointing authority. It is also maintained that Government has formulated a criteria for appointments of teachers through policy notification dated 5th May, 2015, which was also violated by the concerned official respondents due to political interference of Minister Health, hence, petitioner constrained to file the instant constitution petition.

4. The official respondents Nos.1 to 6 despite obtaining several opportunities failed to file written statement, hence, they were proceeded ex parte vide order dated 16th March, 2016.

5. The writ petition, however, has been resisted by private respondents Nos.7 and 8 through written statement, wherein, it is contended that petitioner has got no locus-standi to file the instant writ petition as she is not an aggrieved person in the eye of law. It is maintained that petitioner herself participated in test and interview who was placed at serial No.17 of the merit list, hence, according to celebrated principles of law of estoppel and acquiescence, she cannot challenge the selection process. It is further stated that initially 01 post of Junior Arabic Teachress B-9, pertaining to Constituency No.2 North Bagh, was advertised, however, subsequently respondent No.1, issued corrigendum mentioning 02 posts instead of 01 through advertisement dated 30th June, 2015. It is alleged that merit list was prepared on 21st September, 2015, and appointment orders of private respondents were issued on 22nd September, 2015, hence, craved for dismissal of petition.

6. The brief facts of Writ Petition No.2313/2015, are that petitioners Naheed Akhter and Nagina Arif, are first class state subjects hail from District Bagh, who are qualified as M.A., B.Ed. The petitioners by reiterating the facts of Writ Petition No.2086/2015, pertaining to advertisement of disputed posts of Junior Arabic Teachresses B-9, added that they applied against the aforesaid posts and after obtaining test/interview, respondents Nos.1 and 2 with mala fide intention in order to accommodate the persons of their own choice, manipulated the result of written test and interview, consequently by ignoring the actual numbers of their educational certificates plus degrees, they were placed at serial Nos.3 and 4 of the merit list dated 23rd September, 2015. It is further claimed that private respondents did not possess the required qualification as prescribed for the post of Arabic Teachress B-9, who were unlawfully appointed as such, vide the impugned orders dated 22nd September, 2015. It is further alleged that appointment orders were issued on 22nd September, 2015, whereas, merit list was manipulated on 23rd September, 2015, that too against true facts and law, hence, craved that by setting aside the impugned appointment orders of private respondents they may be directed to be appointed against the posts in question.

7. The official respondents Nos.1 to 7, despite obtaining several opportunities failed to file written statement, hence, they were proceeded ex parte vide order dated 16th December, 2016.

8. The writ petition has been resisted by private respondents Nos.8 and 9 through written statement filed on 23rd February, 2016. However, as the contents of written statement are similar as filed by them in Writ Petition No.2086/2015, hence, the same are not repeated here for the sake of brevity and convenience.

9. Ch. Muhammad Kaleem Afsar, Advocate, appearing on behalf of petitioner-Kalsoom Bibi, strenuously argued that the impugned merit list was prepared by Divisional Director Schools (Female), Poonch Division, on 23rd September, 2015, whereas appointment orders of private respondents were issued a day earlier on 22nd September, 2015, from which it is crystal clear that the same were bogus and manipulated. He further contended that according to the Azad Jammu and Kashmir Education (Schools) Department Service Rules, 1985, substituted vide notification dated 13th June, 2011, required qualification for the post of Arabic Teacher/Oriental Teacher (Male and Female B-9), is equivalent to graduation in Arabic as recognized by Higher Education Commission, plus O.T trained, however, although private respondents possessed degrees of Shadat-ul-Alia and Shadat-ul-Almia but their degrees are not equal to graduation in Arabic. The learned counsel emphasized that as per letter of Higher Education Commission dated 26th February, 2015, for degrees of Shadat-ul-Alia and Shadat-ul-Almia, 02 years study was required, whereas, private respondent Misbah Nazir, completed only 01 year study of Shadat-ul-Alia and Shadat-ul-Almia, therefore, she was not qualified to be appointed against the post of Arabic Teachress B-9, as such. He further agitated that private respondent-Zora Rani, also not possessed required qualification of graduation due to destitude of 02 years period of study in Shadat-ul-Alia and Shadat-ul-Almia, therefore, she could also not be considered for appointment against the posts in question. The learned counsel pressed into service that petitioner being highly qualified and topper in merit was ignored by respective selection committee due to political interference of Minister Health, as he then was, therefore, submitted that by setting aside the impugned merit list and appointment orders of private respondents, selection committee may be directed to initiate fresh selection process from the concerned candidates and make appointments against the disputed posts strictly on the basis of merit. The learned counsel in support of his contentions referred to and relied upon the following case law:- i. "Naheem Ahmed Abbasi v. Azad Government and 4 others" [2014 SCR 945]; ii. "Abid Akram v. Danish Zaib and 5 others" [2015 SCR 732]; iii. "Chief Secretary Punjab and others v. Abdul Raoof Dasti" [2006 PLC (C.S) 1278];

In case of Naheem Ahmed Abbasi, supra, it was held by the apex Court that a person who possess higher qualification as prescribed for the post is fully eligible to apply for that post.

In Abid Akram's case, it was observed by the apex Court that a candidate for initial appointment to a post must possess the prescribed educational qualification and experience and also be within age limit as laid down for the post except the same relaxed under rules framed for the purpose of relaxation of age limit.

In case of Chief Secretary Punjab and others, ibid, it was opined by the apex Court of Pakistan that choosing persons for public service was not just providing a job and the consequent livelihood to the one in need but was a sacred trust to be discharged by the ones charged with it, honestly, fairly, in a just and transparent manner and in the best interest of the public. It was further held that individuals so selected are to be paid not out of the private pockets of the ones appointing them but by the people through the public exchequer, hence, not selecting the best as public servants was a gross breach of the public trust and was an offence against the public who had right to be served by the best.

10. Raja Jalil Umar, Advocate, appearing on behalf of petitioners Naheed Akhtar and Nagina Arif, adopted arguments of the learned counsel Ch. Muhammad Kaleem Afsar, however, added that private respondents are holding the diploma of ATTC, whereas, according to the Azad Jammu and Kashmir Education (Schools) Department Service Rules, 1985, required diploma is O.T. The learned counsel submitted that as private respondents were not possessing diploma of O.T. therefore, they were not qualified to be appointed against the disputed posts of Arabic Teachresses B-9, hence, submitted that by accepting writ petition his clients may be directed to be appointed against the aforesaid posts. The learned counsel referred to and relied upon an un-reported judgment of the apex Court, passed in Civil Appeal No.12/2014, titled "Sughra Khatoon v. Government of Azad Jammu and Kashmir and others" decided on 11th June, 2015.

11. Kh. Muhammad Nasim, the learned counsel for private respondent, Misbah Nazir, vehemently argued that on the basis of script of Allama Iqbal Open University dated 29th November, 1995, the qualification of ATTC is equivalent to O.T., hence, ratio decidendi laid down by the apex Court in the case of Sughra Khatoon, supra, is not applicable in the instant case for the reason that no record or proof of equivalence was provided by the concerned parties in the aforesaid precedent case. The learned counsel while referring letter dated 23rd February, 2016, of Higher Education Commission, submitted that as his client possessed degree of "Shadat-ul-Almiya. Fil Uloom-ul-Arabia Wal. Islamia" as equivalent to M.A. Arabic/Islamic Studies, for which 02 years condition of study was not required. He emphasized that as petitioner Kalsoom Bibi, is falling at serial No.17 of the merit list, whereas, petitioners Naheed Akhtar and Nagina Arif are falling at serial Nos.3 and 4, of the said merit list, therefore, they are not covering in the definition of aggrieved persons, hence, their writ petitions are not maintainable. The learned counsel in support of his contentions referred to and relied upon the following case law:-- i. "Suleman Ahmed v. Tanveer Ahmed Mir and 3 others" [2002 PLC (C.S.) 714] ii. Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore [PLD 1994 Lahore 3]; iii. An unreported judgment of this Court titled "Momina Abbasi v. The Vice-Chancellor and others decided on 21st April, 2016.

In case of Suleman Ahmed, ibid, it was held by the apex Court that in advertisement one of the terms and conditions was that if suitable candidates from Muzaffarabad District were not available, the vacancy may be filled in by any suitable candidates from other Districts. As respondent duly participated in the test and interview after going through the terms and conditions of advertisement published by Public Service Commission and surrendered himself to its jurisdiction, who could not qualify the test, hence, he was not an aggrieved person to challenge the selection of appellant by filing a writ petition.

In case of Ahmad Latif Qureshi, supra, it was opined by the Lahore High Court, Lahore, that it is an established proposition of law that no one can suffer on account of the act of the authority, who has to pass an order or who has taken some action.

This Court in an unreported judgment titled Momina Abbasi, ibid, held that petitioner cannot claim appointment as lecturer in Bio Technology on the basis of better qualification. It was also observed that petitioner appeared before the selection board and was not recommended for the job, so, she cannot challenge the proceedings undertaken by selection board.

12. Sardar M.R. Khan, the learned counsel for private respondent Zora Rani, adopted arguments of the learned counsel for private respondent, Kh. Muhammad Nasim and added that Kalsoom Bibi on the basis of M.A. Islamic Studies (2nd Division), could not be given preference which was not higher qualification for the post of Arabic Teachress B-9, and submitted for dismissal of writ petitions.

13. I have perused the contents of both the writ petitions, examined the appended documents made available and have given my earnest thought to the points raised by the learned Advocates for parties. The dispute relates to selection process of 02 posts of Arabic Teachresses B-9, pertaining to constituency No.2 North Bagh, which were advertised by Divisional Director Schools Poonch Division, for initial recruitment through "Daily Ausaf" dated 27th June, 2015, followed by corrigendum dated 30th June, 2015. The petitioner Kalsoom Bibi specifically pleaded in paragraph No.4 of her writ petition that after obtaining test and interview she topped in the merit, who was highly appreciated by members of selection committee for her excellent educational carrier and performance in test and interview. The aforesaid petitioner further pleaded by impleading party to Minister Health-respondent No.6, as he then was, that private respondent-Misbah Nazir, was unlawfully appointed upon direction of the aforesaid Minister. The said petitioner leveled serious allegations against Minister Health and Divisional Director Schools Poonch Division, by referring her telephonic calls pretending as Misbah Nazir. As per the aforesaid paragraph Divisional Director Schools and her Head Clerk Zakir, stated that petitioner Kalsoom Bibi, was at the top in the merit, however, Minister Health directed that by every means he wanted appointment order of private respondent Misbah Nazir. The petitioner in support of the above paragraph also filed a separate affidavit. The allegations were leveled against Divisional Director Schools (Female) Poonch Division and Minister Health who were impleaded as respondents Nos.1 and 6, respectively in the memo. of writ petition. The said respondents, however, despite service failed to file written statement, hence, they were proceeded ex parte vide order dated I6th March, 2016. The assertion, therefore, made by petitioner Kalsoom Bibi, shall be deemed as proved in accordance with principle of pleadings. It is settled principle of law that an assertion made by a party, if not denied, the same shall be deemed as admitted. An identical proposition came under consideration before the apex Court in case titled "Sheikh Javed Iqbal v. Muhammad Bashir and 5 others" [2010 SCR 208]. At page 215, of the report, it was held as under:---

"The above quoted reference of pleadings of parties clearly proves that this factual aspect of the case has been legally admitted by the appellant and pro-forma respondents and under law admitted facts need not to be proved."

A similar view was expressed by the apex Court in case titled "Zafar alias Mumtaz and another v. Mst. Sajjad Begum and 7 others" [2014 SCR 1549], wherein, at page 1557 of the report, it was opined as follows:-

"The defendants have admitted the contents of Para 2 of the plaint as correct, therefore, admitted facts need not to be proved."

A similar view was expressed by the Karachi High Court, in case titled "Abdul Rehman v. Pervez Ahmed Butt and 2 others" [PLD 1982 Kar. 458]. At page 462 of the report, it was observed as under:-

"It is a well settled law that a party cannot be permitted to lead evidence contrary to or beyond his pleadings. It must follow from it, that if a party has not filed any written statement and thus has not raised any plea, cannot be permitted to lead any evidence."

14. As per pleadings, petitioner Kalsoom Bibi, proved that appointments against 02 posts of Arabic Teachresses B-9, were made due to political interference of Minister Health, as he then was, which practice is highly deprecated and condemned by superior Courts in numberless cases. The selection process, therefore, adopted by the selection committee cannot be considered as fair and transparent which need interference of this Court while exercising extraordinary constitutional jurisdiction. The apex Court of Pakistan in an identical political interference held in case titled Roshan Khan v. Director Schools and Literacy, NWFP Peshawar and 4 others" [2007 SCMR 599], at page 603 of the report as under:-

"12. Transfer of civil servant under the orders of even a Minister was held by this Court to be void and unlawful, being violative of Rule 21(2) read with Schedule V of Rules of Business, 1974. While condemning the role of Minister, that of tamed and subservient bureaucracy, was also condemned and need for a upright, honest and strong bureaucracy was emphasized. Zahid Akhter's case (PLD 1995 SC 530) is the relevant reference.

13. Lately, in Sayyad Sikandar Ali Shah's case (2002 SCMR 1124) the role of competent/administrative authorities was once again condemned when they yield and surrender to the dishonestly intruding political influence.

14. It is for quite a long time, that some of the peoples representatives, whose sacred and scholarly job it was to legislate while honourably confining themselves to the dignified mansions of the assemblies, have started undesirable, dishonest and corrupt interference into the purely Executive/ Administrative domain of appointments, promotions and transfers of civil servants. By now it has turned into a mafia that does not care about Law, Rules, Regulations, Rules of Business and repeated deprecations by the Supreme Court of Pakistan and High Courts. All forces seem to have whittled down before the exploitation and blackmail by some people whose weight, and not legislation, matters. This bound to destroy the institutions, if not already destroyed."

A similar view was expressed by the apex Court of Pakistan in case titled "Muhammad Jawaid Iqbal Jafree of Slapore v. The Federation through the Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and others" [2000 TD (Service) 40]. At page 41 of the report it was observed as under:-

"All appointments in the State have to be made strictly on merits without being influenced by any other consideration"

15. The petitioners in both the writ petitions asserted serious allegations against the merit list and submitted that the same were manoeuvered by respective selection committee upon direction of Minister Health. The learned counsel for petitioners and private respondents during course of arguments submitted that relevant merit list and record may be summoned from Divisional Director Schools Poonch Division for its perusal, hence, following order was passed on 04th January, 2017.

"The learned counsel for parties have addressed arguments. However, during course of arguments, it transpired that impugned merit list is only signed by Chairperson and not by members of selection committee. Therefore, on request of the learned counsel for contesting parties, a notice shall be issued to Divisional Director Elementary and Secondary Education (Female), Poonch Division, Rawalakot, to produce record along with merit list pertaining to 02 posts of Arabic Teachers B-9, of constituency No.2, North Bagh, which were advertised through "Daily Ausaf" dated 27th June, 2015, followed by corrigendum dated 30th June, 2015. The office shall also apprise Divisional Director Schools/respondent No.1 about the said record through fax and telephone. To come up for the purpose/further arguments by tomorrow i.e. 05.01.2017."

16. The Divisional Director Schools Poonch as Division per above order appeared and produced record which related to constituency No.1 Dhirkot, Bagh, hence, on 05th January, 2017, order herein below was passed.

"The Divisional Director Elementary and Secondary Education (Female), Poonch Division, Rawalakot, has not produced relevant record. The produced record relates to Constituency No.1, Dhirkot, Bagh. She is directed to produce concerned record as per order dated 04th January, 2017, by tomorrow positively. The arguments of the learned counsel for contesting parties have been completed Judgment reserved."

17. The representative of Divisional Director Schools Poonch Division, on 05th January, 2017, instead of producing the impugned merit list and record has brought award lists of candidates pertaining to interview of Junior Arabic Teachresses, Constituency No.2, North Bagh, separately prepared by Chairperson, Secretary and member of the Selection Committee. There are lot of erasing in the award lists prepared by Chairperson and Member of selection committee. The aforesaid award lists were examined in presence of the learned counsel for private respondent Zora Rani. However, the learned counsel for private respondent Misbah Nazir, due to personal exigency, could not appear to examine the same. The Divisional Director Schools Poonch Division, failed to produce relevant merit list and record. It appears that no any joint final merit list duly signed by Chairperson, Secretary and member of selection committee was prepared. A facsimile of disputed merit list appended by petitioners in both the writ petitions reveals that the first leaf thereof was only signed by Chairperson and below her signature date was written as 23rd September, 2015, whereas, second leaf was signed by her on 21st September, 2015. However, appointment orders of private respondents were issued on 22nd September, 2015. The same merit list was produced by private respondent Misbah Nazir, along with written statement filed in Writ Petition No.2313/2015, which shows that it was neither signed by Secretary nor member of selection committee. A reading of the merit list shows that neither marks of certificates/degrees of candidates were inserted nor marks of written test and interview were incorporated in it, therefore, the same is accordingly bad in law. As per my humble view respective selection committee failed to adopt selection process in fair and transparent manner, hence, whole process is liable to be quashed.

18. According to Government notification dated 05th May, 2015, the following criteria has been laid down for appointments of primary and junior teachers/teachresses:-

19. The respondents failed to produce any merit list which might have been prepared by the concerned selection committee in accordance with the above policy Government notification dated 05th May, 2015. In the given eventuality there is no option except to quash the merit list and appointment orders of private respondents.

20. Raja Jalil Umer, the learned counsel for petitioners Naheed Akhtar and another submitted that private respondents were holding diploma of ATTC and not O.T., as required by the Azad Jammu and Kashmir Education (Schools) Department Service Rules, 1985, therefore, they were not qualified even to apply for the disputed posts. However, as per advertisement published through "Daily Ausaf" dated 27th June, 2015, the required qualification was mentioned as B.A. 2nd Division/ equivalent plus O.T., ATTC. The aforesaid petitioners by accepting the said condition of advertisement participated in test and interview, therefore, at this stage they cannot raise the said objection due to principle of estoppel. Even otherwise according to letter of Allama Iqbal Open University Institute of Arabic and Islamic Studies dated 29th November, 1995, the diploma of ATTC and O.T. are equal. The ratio decidendi laid down in the unreported case of Momina Abbasi v. The Vice-Chancellor and others" decided on 21st April, 2016, by the apex Court is not helpful to the said petitioners, as in the given case, no any proof of equivalence was produced by the parties before the Hon'ble Court, hence, objection is overruled.

21. Ch. Muhammad Kaleem Afsar, the learned counsel for petitioner Kalsoom Bibi, emphasized that as private respondents never studied 02 years period before obtaining degrees of Shadat-ul-Alia and Shadat-ul-Almia, hence, they were not qualified for the posts in question. In this regard, he relied upon script of Higher Education Commission dated 26th February, 2015, which is reproduced as follows:-

Higher Education Commission

Sector 11-9, Islamabad (Pakistan) Exchange: (051) 90400000

Tele:(051) 90400909 Fax: No:(051) 90400902

URL: www.hec.gov.pk

Assistant Director

Accreditation and Attestation No.8-16/HEC/A&A/2015/1318

February 26, 2015.

The Director,

Anti-Corruption Establishment,

E-Block, New District Head Quarter

Complex, Azad Jammu and Kashmir

Muzaffarabad

Subject: VERIFICATION OF A SNAD.

Dear Sir,

Kindly refer to your letter No.D-ACE/156, dated January 12, 2015 on the subject cited above.

2. As per decision of the Equivalence Committee of erstwhile UGC, the Higher Education Commission recognizes only the final Sanad "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" awarded by Wafaq ul Madaris Al Arabia Multan as equivalent to M.A. Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in Colleges and Universities and for pursuing higher studies. The approved mode of education for recognition of Final Sanad "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" is as under:-

Middle Schools Certificate 8-year of study

Shahadatul Sanvia Aama: 2-year of study

Shahadatul Sanvia Khasa: 2-year of study

Shahadatul Alia: 2-year of study

Shahadatul Almiya: 2-year of study

3. It may also be noted that equivalence of degrees is determined by the Higher Education Commission (HEC) on individual basis upon submission of application on the prescribed equivalence proforma (E-02) to be downloaded from the Higher Education Commission's website viz www.hec.gov.pk.

Yours faithfully,

(Farrukh Raza)"

22. The aforesaid point was, however, not specifically raised by petitioners Kalsoom Bibi, in writ petition, hence, this Court is not obliged to resolve the same. However, whether private respondents possessed degrees of Shadat-ul-Alia and Shadat-ul-Almia in accordance with the laid down criteria of Higher Education Commission, supra, is left to be considered by the respective selection committee. The committee shall provide an opportunity to private respondents to produce verification of final sanads from the Higher Education Commission Pakistan regarding Shadat-ul-Alia and Shadat-ul-Almia.

23. The upshot of above discussion is that by accepting the instant writ petitions the impugned merit list and even dated appointment orders of private respondents 22nd September, 2015, are hereby quashed as without lawful authority, hence, having no legal effect. The Divisional Director Schools Poonch Division and respective selection committee are hereby directed to obtain fresh test and interview from the concerned candidates under the supervision of Secretary Education Elementary and Secondary Schools, within two months from the receipt of the instant judgment. The selection committee shall ensure to make appointments in fair and transparent manner strictly on the basis of merit without any kind of influence from any corner. However, fill completion of the aforesaid selection process period, private respondents shall be allowed to perform their duties against the posts in question. An attested copy of the instant judgment shall be transmitted to Secretary Education Elementary/ Secondary and Divisional Director Schools Poonch Division for compliance. The costs shall follow the eventuality.

ZC/6/(HC)AJ&K Petition allowed.