' QAZI EHSANULLAH QURESHI, C.J.--- This petition for leave to appeal is directed against judgment, dated 6-3-2008, passed by the learned Divisional Bench, Chief Court Northern Areas, Gilgit in Writ Petition No,11 of 2008 whereby the writ petition along with C.M.A. No,31 of 2008 was dismissed.
' Brief facts of the case are that the petitioners Nos.1 to 12 filed a Writ Petition bearing No,11 of 2008 before the learned Chief Court, Northern Areas, Gilgit, that respondent No,2 invited application through media/advertisement to fill the posts/seats of Professors, Assistant Professors, Associate Professors, and Lecturers, that after scrutiny, four hundred twenty-two candidates were short listed including the petitioners, who applied for the post of lecturers. That the petitioners appeared before the Behria University, Islamabad on 27th January, 2008, for test, that result was exhibited in the website of K.I.U. On 5-2-2008, since there were large scale of blunders appearing in the result as such the petitioners challenged the result before Chief Court but the same petition was dismissed along with C.M.A. No,31 of 2008.
' The learned counsel for the petitioner argued that the entire exercise for the selection of post advertised against the vacancies was violative to laid down principles applicable for the purpose, the job was entrusted to Behria University for written test, the result was manipulated in such a technical manner which could be altered safely at any stage that Behria University was not competent to carry out test of 16 faculties as they were competent in only three faculties, thereby lacking experience and subject specialization that no prescribed standard or any transparency credibility was maintained.
' That after written test candidates who obtained 40% average marks in total subject despite failing in respective subject were appointed, that moreso no criteria of penal of three against each seat was adopted for presentation, and further process after written test. The applicants who had already been employed at K.I.U. As Lecturers in BPS-18, in spite of the fact that their performance was quite satisfactory besides considerable experience (from six months to 4 years), still the experience and performance was not kept in view and they were compelled to undergo the same process i.e, test interview etc. Which they had already cleared, while first appointment. That the criteria adopted for appointments previously in the year 2003, was 50% marks allocated for the relevant subject 25% for English and General Knowledge each. In the year 2004, 80% marks were fixed for relevant subject 20% i.e, Math and English. While in the year 2006, 50% marks for the respective subject while 25% for English and 25% for Computer Science.
' F.P.S.C. Allocate 80% marks for the relevant subject and 20% for English, but to utter surprise in the present situation all standard and yardstick applied by different institution were side lined which act on the part of K.I.U. Was totally unjust, unfair and contrary to policy and standard in vogue and practiced by all the institutions for the appointment purposes.
' The learned counsel for the petitioners in this respect referred Higher Education Commission of Pakistan circular of employment, whereby the difference of marks in the relevant subject and other subject are specifically highlighted.
' That learned counsel for the respondent hotly contested and at the very out set raised preliminarily objections, that the writ petition in the matter was not maintainable, that the petition does not lie for misjoinder and non-joinder of necessary parties, new parties were added as petitioners and respondents both, whereas before the learned Chief Court, newly added parties were not impleaded, as such, the petition is liable to be dismissed on this score alone.
' On merit, it was argued that complete formalities were adopted required under the procedure of K.I.U. Rules, 2002 as adopted from Quaid-e-Azam Rules, 2000. The selection was quite fair and there was no discrimination whatsoever, against rules and policy.
' The learned counsel for the respondents Mr. Nayar Hussain Bukhari, however, proposed, during the course of arguments that the average marks up to 39.51% can be treated as 40% average marks plus weightage of marks percentage in the relevant subject can be considered and accordingly merit list can be prepared and candidates who come within the above category can be called for presentation etc., keeping in view the panel of three for each seat, but the respondents representative of K.I.U. Had still reservation and sought time to take necessary instructions from the competent authority.
' Similarly on the previous date i.e, 17-6-2008, learned counsel for the petitioners had also floated proposal that in case respondents Nos.1 to 3 are ready to accommodate petitioners Nos.1 to 9 and adjust petitioner No,10, against vacancies lying vacant, in such eventuality the petitioners would not press this petition, but the representative of the University did not agree.
' That this Court vide order, dated 7-5-2008 also chalked out the following moot questions for resolution of the controversy between the parties:---
(i) As to whether only those candidates are selected and appointed who obtained 40% marks in aggregate despite failing in the relevant subject in which he has to teach the students?
(ii) As to whether candidates qualifying the relevant subject and failing to obtain 40% marks in aggregate disqualified and screened out from further process of selection i.e, demonstration/interview etc., if so its effect?
(iii) Whether marks ratio fixed for the all the papers i.e, Computer, English, and respective subjects as equal, could be justified?
(iv) Whether weight should have not been given to the subject, for which the lecturer has to be appointed?
' As far the weightage ratio of marks in the respective subject is concerned, the representative of the Behria University present in Court on 7-5-2008 conceded in open Court that weightage has always been given to the particular subject for which selection is to be made and the marks ratio in the remaining subjects is always fixed low/lesser.
' Arguments heard. File perused as well as documents produced by both sides also scrutinized.
' Page No,22 graduate assessm ent test for H.E.C. Scholarship indicates :
(i) General section 30% of the total test.
(ii) Subject section 70% of the total test.
(iii) Areas of General Section 30%.
(iv) English verbal 15%
(v) Analytical reasoning 15% ' The test result of Behria University Islamabad is on page No,79:- ' Quote: On page 79 onward.
"K.I.U. Administration is pleased to announce the results of test conducted to recruit faculty for KIU mainly the lecturers."
"As per "the advertisement" dated 25th November, 2007, K.I.U. Will invite eligible candidates through presentation would be added to the test score. The top candidates would then be presented to the K.I.U. Selection Board constituted under the charter to make the final selection."
' Chart of presentation before Selection Board on page 88.
' The test result of faculty members conducted at Behria University, Islamabad (corrigendum) is on page 95 onward.
' Certified copies showing selected candidates who are failing in their respective subjects shown as below.
Already selected {{TABLE}} Department Computer Respective subject Percentage Total Science percentage Syed Mazhar Ali 12 24% 53.22
2. Sajid Hussain 14 28% 47.11
3. Gull Jabeen 16 32% 43.22
4. Ponum Almas 10 20% 43.00
5. Zahid Ullah 10 20% 42.33 Department Education Respective subject Percentage Total ,percentage
1. Zehra Jabeen 17 28.33% 49.00 Department English Respective subject Percentage Total percentage
1. Syed Zia Ullah 18 36% 51.00 Shah
2. Piar Karim 13 26% 46.00 Shamim Ara 17 34% 45.44 Shamus M. Zaffar 17 34% 40.89 {{TABLE}} ' The result of the petitioners who were already serving on contract basis highlighted as under:--- Department Biological Respective subject Percentage Total Sciences percentage Qamar Abbas 24 40% 39.78 Department Business Respective subject Percentage Total percentage Management
1. Azhar Akrim 30 50% 43.33
2. Farooq 29 48.33% 40.89
3. M. Naseem 28 46.67% 29.11 Department Chemistry Respective subject Percentage Total percentage.
1. Amir Humza 41 68.33% 36.33
2. Ishtiaq 32 53.33% 30.78 Department English Respective subject Percentage Total percentage
1. Sohbat Ali 11 22% 39.33 Department I..T. Respective subject Percentage Total percentage
1. Rahmat Ali 8 16% 40.56
2. M. Ismail 7 14% 36.22
3. ShabbirrAli 15 30% 34.44
4. Shahid Malik 10 20% 33.11 Department Islamiat Respective subject Percentage. Total percentage
1. Israr 33 55% 27.50 {{TABLE}} ' The above statement of result enshrines that already selected candidates Syed Mazhar Ali, Sajid Hussain, (Jul Jabeen, Ponum Almas and Zahidullah are failing in their subjects i.e, Computer Science, Zehra Jabeen in her respective subject i.e, Education has been shown as failed. In English department Syed Zia Ullah Shah, Piar Karim, Shamim Ara Shamus and M. Zafar also shown failed.
' In the column of petitioners, in Biological Science Department Qamar Abbas shown pass in the relevant subject. Business Management Azhar Akram, Farooq and M. Naseem declared as passed.
In the Chemistry faculty Amir Hamza and Ishtiaq also appears to be passed. In English Sohbat Ali petitioner got failed. In I.T. Department Rehmat Ali, M. Ismail, Shabbir Ali, and Shahid Malik all failed in their respective subjects. In Islamiat Israr declared pass in his respective subject.
The above chart of result in all categories envisages that most of the selected/appointed candidates had not cleared the respective subject for which he has to be appointed, similarly in the said chart it is also noticed that some of the candidates are passed in respective subject, but they were not given opportunity for presentation and demonstration etc., which result could not be included in the total percentage.
To meet the legal objections raised by the learned counsel for the respondents regarding misfeasance and non-feasance and relief prayed for is concerned, it is to be noted that misjoinder or non-joinder of parties is not much harmful and does not affect the merit of a case. The Courts have wide power to deal with the matter efficaciously and any party can be impleaded and struck off if wrongly impleaded. As for the relief prayed for in any case is concerned it can even inconsistent can be granted as per facts proved on the record, the Court can conveniently mound such relief and can grant relief under the facts proved on the record. The relief to be granted by the Court is not an inflexible one and can be granted subject to proof and its nature. The contentions carry no weight hence overruled.
' In wake of above, we are constrained to accept the appeal in the following manner, while setting aside the impugned order of the learned Chief Court dated 6-3-2008.
(a) Candidates who, as per test conducted by the Behria University and qualified in the respective subject and stood qualified in aggregate not less than 40% provided a candidate come in an order of merit (Panel)e.g. Three persons against one seat, shall be appointed against vacancies existed at the time of advertisement.
(b) Those candidates who failed to qualify in the respective subject but appointed/adjusted on the strength of qualifying in other subjects and in violation of University rules, their appointments, whether permanent or contractual are declared null and void. Also those appointed in spite 3rd division in their entire career shall not be eligible WI be included in such criteria (a), which also reflects embargo highlighted in the advertisement in the weekly Bad-e-Sharnmal dated 26th November, 2007.
(c) Candidates already serving in the Institution on contract basis and who got the contractual jobs in different disciplines after going through the process of test/interview and also appeared in the instant test and qualified in their respective subjects and who do not owe any adverse remarks during the contractual service shall be considered, appointed in their service against the vacancy they held.
(d) Since the University/Selection Board in its meeting held on 15 to 17 February, 2008 has foregone the process of interview and selections on rank order was determined the candidates eligible as per given criteria in para. "a" will not go through a process of interview/presentation again.
' After going strictly through the criteria fixed above and adjusting the candidates in the light of above framework, any vacancy still remains unfilled, the remaining candidates fulfilling criterion No,(a) shall be appointed in order of merit against a vacancy or vacancies.
' Before parting with, the Court painfully. Observes that respondent No,1 with the help of other ministerial staff has not only miserably violated its own rules which naggingly mob the process conducted by the Karakuram International University authorities for selection of candidates against various disciplines in the University. The process as envisaged has not gone through the golden scale of transparency and justice which should be the only criteria in a mother Institution like K.I.U.
We, whatever experienced during investigation of the matter on thread bare and having heard the respective counsel would have declared the entire process of the recruitment which found jeering null and void but keeping in view the over all minus impact on imparting smooth education in the university and particularly in the interest of the students, we avoid to pass such an order. However, at the same time we honestly expect from the administration of the Karakuram International University in future not to repeat ineffably the bitter experience, Any institution or authority if vested with discretionary power it may not be exercised arbitrarily subservient to any personal interest but it should be posed justly and under the norms appreciable by a civilized society. It is also directed that weightage shall always be given to the relevant subject in future as discussed above, because the material thing for appointment is the subject against which the candidate has to be considered.
' The Registrar Karakurm International University is directed to implement the order of this Court in its true spirit within a fortnight period and report of implementation be furnished to the Registrar of this Court within the stipulated time.
' No order as to cost. File be consigned to record.