' KHAWAJA SHAHAD AHMED, J---The above captioned two appeals directed against separate judgments of the High Court dated 19-8-2003 and 26-3-2004, were heard by the Court on 7-6- 2005 and finding that identical facts and points of law are involved, we propose to decide these two appeals through instant single judgment.
2. The appellant, Kh. Iftikhar Ahmed through a Writ Petition No,303 of 2003 filed on 15-8-2003, challenged the amendment in the service rules of the post of Additional Custodian made through notification dated 19-11-2002 on the ground that while amending the service rules the respondent- Government failed to determine the quota as provided by law. He also challenged the notification dated 17-6-2002 by assailing the appointment of Muhammad Zaman, respondent No,5, herein. A learned Judge in the High Court dismissed the writ petition in limine by holding that after participating in the process of selection for Additional Custodian and his failure to achieve the goal, he cannot take inconsistent position on account of his acquiescence. Through Civil Petition for Leave to Appeal No,22 of 2003, the appellant assailed the judgment of the High Court and a learned Judge of this Court (now Chief Justice) vide order dated 4-11-2003, granted leave to consider the points raised in writ petition and petition for leave to appeal. The appellant repeated his contentions in the concise statement and also during the course of arguments which were heard on 4-4-2005. On that date this Court passed following orders:-- "During the course of arguments a confusion has arisen regarding awarding marks by Subject Specialist and the members. The representative of the Public Service Commission stated that the Subject Specialist does not award the marks but he places the candidates in relevant category, the suitability marks for which are fixed. Marks of that category are ultimately counted in the final award list of the candidates. We feel persuaded that the record of the Public Service Commission shall be summoned in the Court to be examined in that perspective and the arguments on the case shall be heard thereafter. To come up on 13-4-2005."
3. The appellant, Syed Ali Asghar Shah, also filed a Writ Petition No,399 of 2003 on 27-10-2003 in the High Court wherein he also challenged the recommendations and appointment of respondent No,6, Muhammad Zaman, by the official respondents and amendment made in the rules regulating appointment of Additional Custodian, Deputy Custodian and Manager of Evacuee Property. After hearing the parties in detail, a learned Judge in the High Court vide his judgment dated 26-3-2004 dismissed the writ petition of the appellant on the ground that as the appellant herein has not qualified the interview held by the Public Service Commission, he is not an aggrieved person within the meaning of section 44, of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The appellant herein filed a Petition for Leave to Appeal No,84 of 2004 on 24- 5-2004 which was allowed by one of us vide order dated 9-11-2004 after perusal of the record of the Public Service Commission. In the instant appeal, the record of the Public Service Commission was also summoned on 4-4-2005 when arguments were partly heard and the case was adjourned to 13-4-2005. The order dated 4-4-2005 has already been reproduced, therefore, the- same is not repeated.
4. It has been contended by the learned counsel for the appellants that the appointment of respondent Muhammad Zaman, as Additional Custodian Evacuee Property, is illegal on the following grounds:--
(a) That the rules governing the appointment of Additional Custodian etc. Have been amended without following the process provided by Rules of Business 1985, which provide that while making or amending the rules of any department, the same are to be placed before special committee known as Departmental Rules Committee and after the approval of said committee the proposal has been processed through Services and General Administration Department which department is bound to consult the Law Department before obtaining the approval of Government for promulgation of the same. Precisely the argument advanced is that amended rules have been framed in a way to accommodate the private respondent Muhammad Zaman. Thus, in the estimation of the learned counsel the process of amendment in the rules is a mala tide action on the part of the rule making authority;
(b) that in view of the service structure in Azad Jammu and Kashmir, it is incumbent upon the Government and other concerned functionaries to determine the district quota and as the post of Additional Custodian has been filled in on open merit basis a deviation from law and judgments of the superior Courts has been made;
(c) that respondent Muhammad Zaman was not qualified to participate in test/interview conducted by the Public Service Commission in view of the fact that he lacked experience of legal practice of ten years and had crossed the age limit of 50 years which had been provided even by the amended rules:
(d) that during the test/interview conducted by the Punjab Service Commission, first of all Subject Specialist interviews the candidates and if the awards a grade of (good or excellent) then the other members interview the candidate. On the basis of his knowledge appellant Syed Ali Asghar Shah contends that he was awarded good grade by Subject Specialist and at the time of preparing the result due to mala fide on the part of members of the Public Service Commission, the grade was converted into 15 marks only. He submitted that he has obtained more than 50% marks, therefore, he could not be treated as fail and the High Court fell in error to hold that he has failed;
(e) that the result of the candidates has been tampered with by members of the Public Service Commission who were interested to accommodate respondent Muhammad Zaman. It has also been contended that the marks awarded during the course of interview have been changed by overwriting. It has also been contended that the numbers awarded by Subject Specialist to respondent Muhammad Zaman were enhanced from 10 to 15; and
(f) that the learned Judge in the High Court has wrongly held that appellant Syed Ali Asghar Shah is not an aggrieved person to invoke the writ jurisdiction of the High Court and the judgment relied upon by the High Court in this respect is not applicable as in that case titled Suleman Ahmad v.
Tanveer Ahmed Mir and 3 others (2002 PLC (C.S.) 714), the facts were altogether different.
5. As against it, Raja Muhammad Hanif Khan Advocates, on behalf of respondents Nos.1 to 3 and 5 and Mr. Muhammad Aslam Rathore, the learned Advocate appearing for the Custodian Department, submitted that the Government-respondent is competent to make, amend or alter law and rules and that no embargo can be placed on it. As far facts of the controversy are concerned, the process of selection made by the Punjab Service Commission is transparent. The contention of mala fide is not correct, contended the learned counsel for the respondents.
6. We have considered the arguments advanced by the learned counsel for the parties, law and case-law on the subject, the record of the Public Service Commission and written comments placed on record by the Secretary Public Service Commission which find place as Annexure 'DE' page 71 of the paper book of the appeal of Syed Ali Asghar Shah appellant. As the High Court has dismissed the writ petition of Kh. Iftikhar Ahmad on the ground of acquiescence while relying upon a case reported as Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355 and the writ petition of Syed Ali Asghar Shah on the ground that in view of the set of circumstances of his case, he is not an aggrieved person, we propose to deal with these legal points in the first place.
7. In the judgment of this Court reported as Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355, the principle of acquiescence was applied on the ground that there was a mutual consent and agreement between the Committee on the one hand and the allottee on the other hand, original site plan was changed and allotments were made. The appellant in that case duly participated in the proceedings of the subsequent allotment, he could not come forward with a volta face to challenge to subsequent allotment. This judgment does not apply in the case of Kh.
Iftikhar Ahmed as he was a contesting candidate for the post of Additional Custodian and in spite of the fact that he participated in the test/interview conducted by the Public Service Commission, he had a legal right to challenge the illegal amendment of rules and selection of an alleged disqualified candidate.
8. Similarly appellant Syed Ali Asghar Shah who categorically alleged that he has obtained the passing marks in the interview conducted by the Public Service Commission, has a legal right to challenge appointment of an allegedly disqualified candidate, who according to the appellant, lacks experience of ten years as an Advocate and allegedly had crossed the age limit provided by rules.
9. The learned Judge in the High Court while dismissing the writ petition relied upon a case reported as Suleman Ahmad v. Tanveer Ahmed Mir and 3 others (2002 PLC ,(C.S.) 714). The facts of this case are also different. In that case the Public Service Commission advertised certain posts for Animal Husbandry department out of which six were reserved for Muzaffarabad District with the condition in the advertisement that in case suitable candidates from Muzaffarabad and Kotli Districts were not available, selection shall be made on the basis of open merit. Only seven candidates qualified six from Muzaffarabad and seventh from District Bhimber. The candidate from District Bhimber was selected by the Commission on the basis of open merit. The appeal was accepted by this Court on the ground that the respondents participated in the process of selection by the Public Service Commission, but could not qualify and in view of the conditions of advertisement, the appellant was rightly selected on the basis of open merit. The controversy in that case did not relate to qualification to apply for a post, whereas in the case before us, one of the controversies assailed before the High Court was that respondent Muhammad Zaman did not possess the qualification required for selection as Additional Custodian Evacuee Property, as he lacked the required legal practice and had crossed the age limit. In our considered view each of the appellants had a legal right to challenge the selection and appointment of respondent Muhammad Zaman and we hold accordingly.
10. As far the jurisdiction of the High Court to look into the validity of service rules and recommendations of the Public Service Commission is concerned, we are in agreement with Raja Muhammad Hanif Khan Advocate that the Government has powers to make, amend or alter any law and rule and no embargo can be placed on the authority of the Government, but at the same time we cannot lose sight of fact that specific rule cannot be made. Similarly, the selection process by the Public Service Commission cannot ordinarily be interfered with, if the same is adopted keeping in view the rules and regulations. This protection cannot, however, be extended to allow to select a disqualified candidate. The powers of judicial review of the superior judiciary remain intact in such-like cases. Our view is in line with the finding of this Court in a case titled Muhammad Ishaque Khan v. Khurshid Aziz and 3 others (1998 PLC (C.S.) 358), wherein it was held at page 9:-- "It may be observed here that we have no quarrel with the proposition that the Public Service Commission is a statutory body and if while making selection of the candidates it violates any rule on the point which adversely affects the fair selection, the High Court is legally justified to give appropriate remedy in exercise of writ jurisdiction but where the matter is one which falls within the discretion of the Public Service Commission, as association with the Subject Specialists, it cannot be interfered with in exercise of writ jurisdiction, specially so when the discretion exercised advances the cause of justice."
(Underling is ours)
11. It follows that deviation from rules or rule making process and exercise of discretion, can be looked into by the High Court in the interest of justice. Right from the celebrated judgment reported as Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) till now, the majority of judicial pronouncements on the subject of aggrieved person is that to be an aggrieved person, it is not necessary that an applicant should be aggrieved in strict juristic sense. If his interests are liable to be jeopardized by a public functionary, the applicant for the redressal of his grievance becomes an aggrieved person.
12. The Government or for that matter the Public Service Commission, has the authority to make rules or selection, but there authority is subject to fairplay and fair selection. The process adopted must be transparent. While going through the record of the Public Service Commission, we have noticed that the award list is mutilated and marks appear to be erased by overwriting. In the case of Syed Ali Asghar Shah, the record was with the learned Judge in the High Court but the tampering floating on the very surface of the record has neither been noticed nor adhered to probably because the case was not decided on merits.
13. On the basis of above discussion, we are of the view that both the appeals merit acceptance.
The petition filed by Kh. Iftikhar Ahmad should have been admitted for regular hearing and decided on merits, while Syed Ali Asghar Shah appellant, is admittedly an aggrieved person whose case should also have been decided on merits. The petition filed by Kh. Iftikhar Ahmad is admitted for regular hearing and order passed in the case of Syed Ali Asghar Shah is set aside. We are conscious of the fact that the controversy has consumed more time than required and this Court does not ordinarily remand the cases rather adjudicates itself; but there being no order on merits in both the cases, we are constrained to remand the cases to have the wisdom of the High Court on merits of the cases, in view of intricate legal questions involved, we do not pass any order as to costs.