1. GHULAM MUSTAFA MUGHAL, J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim A Constitution Act, 1974, appointment of respondent No,5 made on 1-2-2007 has been challenged for having been made without lawful authority.
2. ' Precise case of the petitioner is that a post of Naib Qasid B-1 fell vacant in Boys Middle School Azad Bara Union Council Nar Sher Ali Khan District, Bagh. Applications were called for appointment on the said post by District Education Officer (Male) District Bagh through an advertisement, on 28-12- 2006. Among others petitioner and private respondent, herein, competed for appointment on the said post. In the test and interview, petitioner herein, secured 9 marks whereas private respondent obtained 17.4 marks. On the basis of his merit, private respondent herein was appointed as Naib Qasir. The petitioner has challenged his appointment on the ground, that he is lacking the prescribed qualification mentioned in the advertisement and relevant rules. It is further alleged that at the relevant time he was not in possession of State Subject Certificate/domicile certificate and his application was incomplete, which was liable to be rejected but the official respondents illegally entertained the same and showed undue favour to respondent No,5. #TBS PLC (Service) #TBE ' The petition has been contested by the respondents by filing separate written statement. In the written statement filed on behalf of respondent No,5 it is alleged that petitioner is not aggrieved because he could not secure merit position. It is also pleaded that he had manoeuvred forged certificate for appointment and his appointment has rightly not been made. It is further stated that petitioner herein, was lower in the merit, therefore, is not aggrieved. It is stated that at the time of filing applications State Subject and domicile certificate of private respondent were under process and a certificate of A.D.C. Bagh was provided to the competent authority who allowed private respondent herein, to participate in the test and interview. As the required documents have been issued, therefore, it cannot be said that private respondent was not entitled to participate in the test and interview. Official respondents, herein, have also filed written statement in which they have refuted all the allegations.
3. Mr. Maqsood Ahmed Sulehria, the learned Advocate for the petitioner, inter alia, argued that private respondent was admittedly Matric, hence, could be appointed on any other post because minimum qualification for appointment of Naib Qasid as per rules and advertisement was only Primary. The learned Advocate contended that application of the private respondent was incomplete hence Selection Committee was bound to reject the same. He maintained that the Selection Committee failed to follow the rules and conditions of" the advertisement while allowing the private respondent to participate in test and interview. The learned Advocate contended that appointment of private respondent is mala fide, politically motivated and against the rules. It is stated that petitioner was serving on ad hoc basis, therefore, was liable to be appointed/adjusted on the said post.
4. ' Raja Muhammad Iqbal, the learned Advocate for the private respondent, controverting the arguments, submitted that minimum qualification prescribed for a post does not mean that a person in possession of a higher qualification cannot be appointed. He maintained that there was no such restriction in the rules or in the advertisement. He submitted that competent authority allowed private respondent to participate in the test and interview on the basis of a certificate issued by the A.C., Bagh, in which it was clearly stated that State Subject and domicile certificate of private respondent are under process. He argued that this fact was not suppressed by the private respondent rather the same is supported by the record of the respective Selection Committee. He submitted that Selection Committee has not committed any illegality while appointing the private respondent.
5. ' I have heard the learned Advocates representing the parties and gone through the record of the case.
6. So far as first contention of the learned Advocate for the petitioner that on the post of Naib Qasid only a candidate of minimum qualification could be appointed under rule is concerned, that is devoid of any force. Though under the relevant rules the minimum qualification for appointment of Peon/Naib Qasid is Primary but it cannot be laid down as a rule that a person possessing higher qualification, if aspires to be appointed on a lower grade, cannot be appointed. The proposition has been examined by the apex Court of Azad Jammu and Kashmir in a case titled Rashida Awan v. District Education Officer and others (Civil Appeal No, 27 of 2004) decided on 22-6-2005. In the said case a similar objection was raised that the required qualification for the post of Primary teacheress is Matric P.T.C. Second division and private respondent therein was 3rd divisioner, however, she was in possession of second class Bachelor degree. The contention was repelled on the ground that person of higher qualification .Could compete although he is a 3rd divisioner in Matric. The relevant, observation of the apex Court is as follows:--- "Had the respondent been simple Matric 3rd division, she would definitely been hit for not being qualified according to the rules, but the case is different as she is B.A. B.Ed., a much higher qualification than Matric. Matriculation qualification is a minimum required qualification for the post but that does not mean that if one has higher qualification, he stands debarred from being considered and appointed. The purpose of the rules is that a person of this minimum qualification is to be recruited, but if a person with higher qualification is available, he has definitely to be preferred. We do not agree with the learned Advocate for the appellant that these posts should be filled in by appointment of the Matirculate candidates only and graduates should seek the appointment against the post compatible to their qualification. In this era of unemployment of the education youth, those who have burnt midnight oil by acquiring higher qualification, cannot be deprived of its fruits. If this policy is adopted, it will discourage the competition of acquisition of higher education."
7. ' The aforesaid view was reiterated in Review Petition No,18 of 2005 in the same case reported as Rashida A wan v. D.E.O. 2007 SCR 405. The apex Court, while reiterating its earlier view observed as under:--- "In the case in hand, the Court has discussed point agitated in the review petition in para.7 of the judgment. The rules called as Azad Jammu and Kashmir Schools Cadre Service Rules, 1989 prescribe the "minimum" qualification for appointment of teachers, which means that anybody possessing the qualification less than that prescribed by the rules cannot be considered for appointment, but if a candidate of higher qualification is available, the bar of minimum qualification does not operate. The authorities of law cited by the learned Advocate for the petitioner are not applicable and are distinguishable in view of the circumstances of the case. For instance, the cases reported as Munir Hussain Shah v. Secretary, Forests Department, Azad Government of the State of Jammu and Kashmir, Muzaffarabad and another 1993 PLC (C.S.) 1153 and N.-W.F.P. Through Chief Secretary and another v. Dr. Irfan Mir and 2 others 1995 SCMR 1690 relate to the promotion, not to the initial recruitment. Similarly, case titled Muhammad Fayaz and 5 others v. Shah Nawaz and 32 others 1999 PLC (C.S.) 1493 relates to the preparation of separate merit list of the candidates with 2nd division and 3rd division for the post of Lecturer Englisl , It is a very intelligible distinction visualized by the Court for the candidates with same minimum qualification but in different grades. As far the case reported as Sakhawat Ali v. Deputy Commissioner/Chairman, Recruitment Committee, Narowal and others 1998 PLC (C.S.) 19 from Single Bench of the Lahore High Court is concerned, it relates to a distinction between the C.T. And P.T.C. Qualifications of candidates, irrespective of that, it cannot be kllowed and we respectfully differ with it."
8. ' The same like proposition was considered by a Division Bench of Karachi High Court in Mst.
9. Nazmeenn's case 2007 YLR 1776. Almost in the same circumstances, the learned Division Bench observed as under:--- "Mr. Khurshid Hashmi urged that all these petitioners nave subsequently, obtained Master's Degree in first or second divisions; they did qualify the minimum threshold and were entitled to admission and enrolment. There seems to be merit in the contention inasmuch as a second class Bachelor degree in any discipline and is only minimum threshold in terms of relevant rules and therefore, if a person subsequently, acquired a higher qualification i.e, a Master Degree in first and second division the disability ought to be treated as having been removed."
10. Private respondent herein, is Matric and has secured merit position in the test and interview. Mere allegation that some favour has been shown to him without any support from the record, does not make his appointment illegal. It may be stated that allegation regarding mala fide, malice or political influence without there being any cogent evidence cannot be accepted nor finding of fact returned by the Selection Committee could be upset in writ jurisdiction, unless if it is shown that the Selection Committee has travelled beyond the relevant Rules or has committed some other illegality. Raja Muhammad Iqbal, the learned Advocate for the respondents, has rightly argued that fitness determined by the Departmental Selection Committee cannot be substituted in exercise of writ jurisdiction. The contention of the learned Advocate for, the petitioner that it was enjoined upon the Selection Committee to reject the application of private respondent has no substance. The Committee has rightly allowed private respondent to participate in the test and interview, because State Subject and Domicile Certificate could be produced at a later stage.
11. ' The upshot of the above discussion, is that finding no force in this petition, it is hereby dismissed.