1. ' GHULAM MUSTAFA MUGHAL, J.--- Petitioners and private respondents, herein, competed for appointment as Assistant Commissioner (B-17), against the quota of District Muzaffarabad. They were allowed provisionally to participate in the written test; however, petitioners, herein, were not called for interview. After the test and interview, private respondents, herein, were recommended by the Azad Jammu and Kashmir Public Service Commission (hereinafter shall be referred as P.S.C.) vide handout dated 7-1-2008. They were appointed accordingly vide Notification dated 9-1- 2008. Petitioners, herein, initially challenged the handout dated 7-12-2007 through the above captioned petition filed under section 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, on 16:1-2008. At the stage of preliminary hearing, on the request of the petitioners, the record of the P.S.C. Was summoned and perused. It was transpired that petitioner No,1 has qualified the written test securing 444 marks but petitioner No,2 has failed to qualify the same. This petition was amended accordingly. Now this petition is being contested only by petitioner No,1 (hereinafter shall be referred as petitioner). It is alleged that respondents were bound to issue call letter to the petitioner because he has qualified the written test. It is further alleged that a vested right stood acctued in favour of the petitioner on the basis of test, hence, he cannot be deprived of the same.
2. Petitioner, herein, also pleaded that the P.S.C. Has dropped him without notifying his result which is an arbitrary action. It is also stated that he has been victimized on political consideration because his elder brother belongs to an opposition party. It is also alleged that action of the P.S.C. Is derogatory to the relevant rules, and principle of natural justice. The petitioner has levelled serious allegations against the employees of the P.S.C.
3. The P.S.C. Has filed detailed comments, which were treated as written statement. In their reply it is stated that in view of the policy of the Commission, all the candidates are allowed to participate in the written test at their own risk subject to the condition that if it is found subsequently that any application is incomplete, the same would be deemed to have been rejected without any further intimation. Their case is that petitioner's application was incomplete because neither it was signed nor the copy of the State-Subject Certificate was appended therewith. Therefore, in view of the existing rules and policy, his application was rightly rejected. It is pleased that the petitioner is not aggrieved, hence, cannot challenge the lawful recommendations made by the P.S.C.
4. ' Private respondents in their separate written statement have also submitted that petitioner, herein, cannot invoke the extraordinary jurisdiction of this Court. They pleaded that the P.S.C. Being statutory body, can adopt any policy for conducting the test and interview. After accepting the conditions of the advertisement and policy, the petitioner appeared in the written test, and now he is estopped by his conduct to challenge the same.
5. ' Raja Muhammad Hanif Khan, the learned Advocate for the petitioner, inter alia, made following submissions:---
(i) That the last date of filing applications was fixed as 14-4-2007. The petitioner, herein, deposited necessary fee on 9-4-2007 and submitted his application on 14-4-2007. On the said date, policy dated 21-1-2007 was applicable under which P.S.C. Was bound to scrutinize the application of the petitioner and if found incomplete, under rule 4(2) of Azad Jammu and Kashmir P.S.C. (Procedure)
6. Rules, 1994, then an order to the effect should have been passed and communicated to the petitioner. The petitioner in that eventuality could apply for review of the said order with which he was clothed under the Public Service Commission (Procedure) Rules, 1994. By not following the mandatory procedure visualized by the aforesaid Rules, the Public Service Commission has violated the statutory rules, policy dated 2' 1-2007 which is against the principle of audi alteram partum.
(ii) That P.S.C. Was bound to follow its policy applicable at the time of advertisement and complete the whole process under the said policy. Any change by the P.S.C. Thereafter, including the adoptation of policies dated 3-5-2007 and 20-6-2007 are violative of Rule 4 of the Azad Jammu and Kashmir P.S.C. (Procedure) Rules, 1994, is mala fide and without lawful authority.
(iii) That if it is assumed, for the sake of arguments, that P.S.C. Competently adopted its policy dated 3-5-2007 and 20-6-2007, even then these policies cannot be made applicable retrospectively, in the petitioner's case.
(iv) That petitioner presented a duly signed and complete application and the relevant page whereof has been replaced by an officer of the P.S.C. Whose relative is one of the respondents. His selection has been manoeuvred by excluding the petitioner despite the fact that he secured highest marks in the written test.
(v) That P.S.C. Adopted a different yardstick in the same selection process as similarly placed candidates namely Dr. Mateen and Nusrat Sultana, were given notices that their applications are incomplete. They were further directed to produce the necessary documents but this course deliberately was not adopted in the petitioner's case for the reason of giving an edge to respondent No,6. In this view of the matter the petitioner has been discriminated and the right of equality before law, has been violated.
(vi) That the Rules are framed for smo oth performance of the functions and cannot be applied for depriving the citizens from their lawful rights.
(vii) That reason for rejection of the application, as has been listed in the written statement, was that the petitioner had not signed the same and not appended the copy of State-Subject therewith. This being an irregularity could be cured by directing the petitioner to sign his application and furnished a copy of the State-Subject, as has been done in the aforesaid case.
(viii) That the respondents have not filed any counter-affidavit. Only Secretary P.S.C. Has filed an affidavit which has no evidentiary value. The stand of the petitioner, therefore, would be deemed to have been admitted.
7. ' In support of his submissions the learned Advocate placed reliance on the following cases:---
(i) Ghulam Mustafa v. The Mehran University of Engineering and Technology, Jamshoro and 7 others 1986 CLC 1056, (ii) Dr. Muhammad Nazir Khan v. Government of the Punjab through Secretary, Health Civil Secretariat, Lahore and 2 others 1997 CLC 354, (iii) Shakeel Shahid v.
8. Muhammad Younis Zahid and others PLD 2005 Lah. 357, (iv) Pervaiz Akhtar v. Government of Pakistan through Secretary Finance and Economic Affairs Islamabad and 4 others PLJ 2005 Tribunal cases 302, (v) Abdul Shakoor and others v. Azad Government of the State of Jammu and Kashmir through Chief Secretary and others 2004 PLC (C.S.) 208, (vi) Muhammad Waris Shad v.
9. Federal P.S.C. PLD 1984 Lah. 491, (vii) Ghulam Mohi-ud-Din and another v. Noor Dad and 4 others PLD 1988 SC (AJ&K) 42, (viii) Dr. Faroukh J. Setha v. Punjab Public Service Commissioner and another 1994 CLC 447.
10. ' In Ghulam Mustafa's case, it was observed that the syndicate is vested with the authority to amend, change or alter the admission policy contained in the prospectus, however, the policy cannot be modified after a vested right had accrued to a candidate. At page 1061 of the report it was observed as under:--- "It therefore, seems clear that from 23-11-1984 upto 22-12-1984 the applications were being scrutinisd and the admission committee started interview from 23-12-1984. The candidates thus acquired a vested right to be considered for the admission on the basis of admission policy/rule existing on the expiry of the last date for filing the application..."
11. ' In Dr. Muhammad Nazir Khan's case, it was observed that it hardly needs to be emphasized that the regulations and decisions meant for internal working must also conform to the authority prescribed by law because all statutory bodies and functionaries are under an obligation to act in accordance with the law and relevant rules and any deviation from such law or rules would render their acts without lawful authority so as to attract power of judicial review.
12. ' In Shakeel Shahid's case, at page 368, it was observed as under:--- "There is no cavil with the proposition that the rules shall always be consistent with the Act and no rule shall militate or render the provisions of the Act ineffective. The test of consistency whether the provisions of the Act and that of the rules can stand together. Main object of rules is to implement the provisions of the Act and in case of conflict between them the rule must give way to the provisions of the Act. In any case, the rules shall not be repugnant to the enactment under which they are made."
13. ' In Pervaiz Akhtar's case, it was observed that rules shall be treated as non-statutory unless approved by the competent authority. It was further observed that non-statutory rules cannot in any manner affect the statutory rules and statutory rules can only be superseded by the statutory rules.
14. ' In Abdul Shakoor's case, it was observed that in exceptional circumstances a candidate can be allowed filing of the documents, provided that the same was in existence at the time of advertisement but could not be filed for the reasons beyond his control.
15. ' In Muhammad Waris Shad's case, Federal P.S.C. Cancelled the admission form of a candidate on the ground that he has not produced his Domicile Certificate. The action was declared by the Lahore High Court null and void for having been returned in violation of the principle of natural justice. At page 143 of the report, it was observed as under:--- "(8) It is a settled proposition of law that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting " "the person or property or other right of the parties concerned". And this rule applies even thdugh there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness..."
16. ' In Ghulam Mohi-ud-Din's case, Order VI, rule 14 of the, C.P.C. Received attention of the apex Court and it was concluded that non-presence of signature of the plaintiff on the plaint, a formal defect is rectifiable at any stage. The Court is empowered to call the plaintiff to sign the plaint to do away with the defect.
17. ' In Dr. Faroukh J. Setha's case , it was observed that the instructions being penal in nature are to be beneficiary interpreted as their strict application would generate frustration and amount to technical knock-out which course of action has always been disapproved by the superior Courts.
18. ' Raja Gull Majeed Khan, the learned Advocate-General, appearing for official respondents controverted the arguments advanced on behalf of the petitioner. He argued that the policies on the basis of which the petitioner has built up his case have not been challenged and the stand taken today by the learned Advocate for the petitioner is a total departure from his pleadings, therefore, he cannot be allowed to argue a new case. He argued that P.S.C. Is an autonomous body, vested with the powers under the statute and Rules framed thereunder to adopt, revise and frame any policy for selection of the suitable candidates. He argued that the petitioner cannot claim any vested right in the policy because after conditional participation in written test, he is estopped from raising any objection. The learned Advocate-General argued that the present policy has been adopted in light of the decision of the Supreme Court, hence, cannot be questioned. In support of his submission, the learned Advocate-General placed reliance on the following cases:---
(1) Dr. Muhammad Sarwar Ahmad v. The University of Azad Jammu and Kashmir and 6 others 1998 SCR 350; (2) Muhammad Farooq Khan v. Muhammad Shakeel Khan and others 2001 PLC (C.S.) 153.
19. ' Raja Ibrar Hussain, the learned counsel appearing for respondent No,6, argued that the petitioner has no locus standi to challenge the selection process as well as recommendations/appointments of the private respondents notwithstanding the legality of the policies of the P.S.C. He argued that it was included in the condition of advertisement and call , letter issued to him that participation in the written test would be at the risk of the candidate and incomplete application shall be rejected.
20. The petitioner accepted the said conditions participated in the written test, therefore, now he cannot blow both hot and cold in the same breath. He further argued that policies of the Public Service Commission, under challenge, have been framed in view of the dictum of the Supreme Court laid down in Farkhanda Ikram's case (Civil Appeal No,74 of 1995, decided on 3-12-1995), which is immune from challenge. He argued that private respondents after their appointments have been deputed for training which is likely to be completed within a short span of time and now they'cannot be made to suffer for lapse, if any, committed by the P.S.C.
21. ' Syed Nazeer Hussain Shah Kazmi, the learned Advocate for respondent No,5, while adopting the arguments of the learned Advocate-General and Raja Ibrar Hussain, Advocate, contended that services and General Administration Department has not been impleaded as a party, therefore, a petition merits dismissal on this sole ground because the public functionary who has issued the order is liable to be impleaded as a party. He argued that policies dated 3-5-2007 and 20-6-2007, have not been specifically challenged nor any mala fide for illegal selection has been attributed to the P.S.C. Or its members, therefore, the respondents cannot be taken by surprise and no relief can be granted to the petitioner on the basis of facts not pleaded. He argued that the application of the petitioner was liable to be rejected even on the basis of policy dated 21-1-2007 because it was clearly mentioned at Serial No,10 of the advertisement that a candidate shall participate in the test and interview at his/her own risk. Referring to condition No,9 of the advertisement, he contended that Commission reserved its right not to intimate any candidate even if a defect is located in his application. He submitted that the petitioner appeared in the test accepting the afore-stated conditions and now he cannot say that he was not aware of the policy or conditions of the advertisement. He argued that the petitioner has not bothered to sign his application, which was mandatory, and similarly he has appended his brother's State Subject with his application. It is a gross negligence on the part of the petitioner which cannot be condoned. He argued that private respondents have been deputed for training therefore, now they cannot be made to suffer for the negligence of the petitioner or for the fault committed by the Public Service Commission. He also stated that no policy has been challenged in the petition rather the challenge has been made in the replication which is not permissible. In support of his submissions the learned Advocate placed reliance on the following cases:---
(i) Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714, (ii) Sardar Zaheer Ahmed Khan and another v. Azad Government and 4 others 2005 SCR 89, (iii) Sardar Asif Mehmood Raza v. Abdul Khamid an 7 others 2004 SCR 298, (iv) Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah. 3, (v) Azad Government and 6 others v. Faqir Hussain Shah and another 2004 SCR 23, (vi) State v. Naseer Ahmed and another PLD 2004 SC (AJ&K) 40, (vii) Muhammad Saleem v. Azad Government and 4 others 2006 SCR 88, (viii) Nasreen Akhtar and 3 others v. Sameena Bilqees and 3 others 2006 SCR 312, (ix) Muhammad Farooq Khan v. Muhammad Shakeel Khan and 3 others 2001 PLC (C.S.) 153, (x)
22. Inhabitants of Singola through Muhammad Hanif Khan and another v. Azad Government and others 2001 YLR 3190, (xi) Farkhanda Ikram and another v. Dr. Ejaz Ahmad and others Civil Appeal No,73 of 1995, decided on 3-12-1995.
23. ' The ratio of the cases referred to and relied upon by Syed Nazeer Hussain Shah Kazmi, the learned Advocate for the respondents, is that a candidate who has participated at his own risk, accepting certain conditions, subsequently cannot take inconsistent position. These authorities need not to be discussed separately because I have no quarrel with the rule of law laid down therein.
24. ' The authorities referred to and relied upon by the learned Advocate-General have also distinguishable facts and rule of law laid down therein is not applicable keeping in view the distinguishable circumstances of this case.
25. ' Raja Muhammad Hanif Khan, the learned Advocate for the petitioner, in rebuttal submitted that neither policies of the P.S.C. Were notified nor copies thereof were furnished to anybody, therefore, there was no occasion for the petitioner to chs lenge these policies. He maintained that policies have been challenged in replication which is a part of the pleadings. He argued that the question as to whether policy adopted by the P.S.C. Is in line with the statutory rules is a legal question and could be argued irrespective of the fact that it was pleaded or not. In this regard reliance was placed on a case titled Amanat Khan v. Motor Registration Authority, Chakwal and 2 others 1999 CLC 1597.
26. ' I have heard the learned Advocates representing the parties and gone through the record of the case made available with the petition as well as case-law referred to and relied upon by them.
27. ' So far as the first contention of the learned Advocate for the petitioner that P.S.C. Was bound to scrutinise the application of the petitioner under Rule 4(2) of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, (hereinafter shall be referred as Procedure Rules) is concerned, that has a substance. For proper appreciation of the matter Rule 4 of the Procedure Rules, is reproduced as under:- "4. (1) An eligible candidate may submit an application to the Commission on a prescribed form before the last date fixed by the Commission. The application received after the last date shall stand rejected: ' Provided that if a candidate satisfies the Chairman that the circumstances preventing him to submit the application in time were beyond his control, the Chairman may for the reasons to be recorded, allow him to submit the application after the due date.
(2) Applications which are incomplete or are not on a prescribed form shall be rejected by the Commission: ' Provided that the candidate outside Pakistan may apply on simple paper and submit prescribed application form and fee before test and interview.
(3) A candidate shall have three chances for a particular post.
(4) The aggrieved candidate may apply to the Commission for review against the rejection order and the decision made by the Commission shall be final."
28. ' A perusal of the Rules reproduced above reveals that an eligible candidate may submit his application to the Commission on a prescribed form before the last date fixed by the Commission in this behalf. The application received after the last date shall stand rejected. However, the right of representation is given to an aggrieved applicant to apply to the Chairman and satisfy him for not submitting his application in time. If the reasons listed in the application are plausible and the Chairman is satisfied that delay is condonable, his application can be accepted by him even after the last date. Similarly under rule 4(2) of the Procedure Rules; it is directed that an application which is incomplete or not on the prescribed form shall be rejected: However, an aggrieved candidate is given a right of review against the rejected order before the Commission. The language of Rule 4 is mandatory because for non-compliance thereof the penalty is in shape of rejection of the application. An aggrieved candidate is given the right of review before the Commission. The right of representation to apply the Chairman though has not expressly mentioned in sub-rule (1) of Rule 4, however, under the proviso to the said Rule the same is implied.
29. None of the above remedies could be availed until the Commission passed an order of rejection under sub-rules (1) and (2) of rule 4 of the Procedure Rules in black and white and convey the same to an aggrieved applicant, otherwise, an applicant with genuine claim could be deprived of his right of competition as in the instant case has been done. The provisions contained in Rule 4 of the Procedure Rules in its present form have been shaped in a remedial and beneficial manner. In order to give the benefit of these rules it is necessary that applications should be scrutinized at an initial stage and if found incomplete the necessary order should be passed and be conveyed to an applicant so that he may be able to avail the statutory remedy. It needs to be observed that rules are framed for carrying out the purpose of the Act, therefore, their strict compliance is mandatory but at the same time the Rules of Procedure cannot be applied in the manner, that an innocent citizen is deprived of his vested or lawful right. In this regard a case titled Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382, can be referred wherein it was observed as under:--- "...I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his.
30. ' I am unable to place the mistakes committed by the Administration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well-known saying that the act of Court will not prejudice anybody. I do not see why the principle of this maxim does not apply to the whole machinery of the Administration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped." (underlining mine).
31. Same view was reiterated in Messrs Nishat Mills Ltd. v. Superintendent of Central Excise Circle II and 3 others PLD 1989 SC 222, wherein at page 227 it was observed as under:--- "It is not denied that the Pakistan superior Courts while insisting on compliance with the statutory rules in accordance with their provisions as also the parent law; have also by and large accepted the rule of 'substantial compliance' with a view to see, as observed in the case of Mrs. Dino Manakji Chinoy, that they are not applied and operated as "stumbling blocks", instead of "stepping stones".
32. And we may add that they should also be not used simply to trap people by technicalities of these rules instead of advancing the purpose for which they are framed."
33. ' In Muhammad Waris Shad's case referred to hereinabove Federal P.S.C. Cancelled the admission form of a candidate on the ground that he has not produced his Domicile Certificate. The action was declared null and void for having been returned in violation of the principle of natural justice. In this case as no order has been conveyed to the petitioner, therefore, he has been condemned unheard.
34. ' In a case titled Chairman Selection Committee/Principal King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15 a candidate was admitted in the Medical College. Subsequently it appeared that she was placed in the merit list due to computer mistake.
35. Her nomination was cancelled. The apex Court of Pakistan observed that an accrued right cannot be taken away for the faults of other. Mr. Justice Raja Muhammad Afrasiab Khan, Judge, while speaking for the Court observed as under:--- "...It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No,1 by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No,1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No,1 to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No,2 had been accommodated by giving admission instead of respondent No, 1 . This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible."
36. ' In Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore PLD 1994 Lah 3, a learned Judge of Lahore High Court also observed that where it is proved that a petitioner has been dealt with arbitrarily in violation of law, he can be brought back to his original position. Relevant observation is recorded at page 8 which is as under:--- "(7) 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. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would not have been snatched away from him if successful he could have been declared to have passed the said examination in the first attempt, and therefore, depriving the petitioner of the opportunity of passing in the first annual examination, is definitely-an act which is illegal and without a lawful authority. Therefore, the petitioner is entitled to be restored to the same position as of right to the maximum possible extent and hence is entitled to be given a full opportunity to appear in the subject of Maths, and on the basis of the result thereof is also entitled to be declared to have passed the examination in the first annual examination and not in parts. There is no doubt that the loss or the injury which the petitioner has suffered cannot be 100% compensated but this Court has jurisdiction to put the petitioner to the same position in which he was entitled to be put to whatever extent it is now possible. Although the rules of the Board are silent and do not cover the situation in question yet this Court is not powerless to do complete justice in the cases where there is no prohibition to adopt a particular course. It is an established principle of law that in vacant areas the principle of Islamic Law which are now enshrined in the Constitution of Pakistan as a part thereof as per Article 2-A of the Constitution, will take over and hence a person illegally deprived of a benefit has a right to be restored to the same beneficial position which he enjoyed before was he deprived thereof."
37. (underlining is mine)
38. The contention of the learned Advocate for the respondents that P.S.C. Is a statutory body and is entitled under Rule 15 to adopt and frame any policy for selection of the candidates and the same is immune from challenge, is correct but policy framed under Rule 15 cannot be framed in the manner that the object of the other provisions of the rules is frustrated. Where the P.S.C. Has properly taken proceedings for D selection, a Court cannot substitute its wisdom nor it is function of this Court to hear appeals over the decision of the P.S.C. But where the proceedings have 'been taken in violation of the statutory Rules and adversely affects the fair selection, this Court is not precluded from scrutinizing the action of the P.S.C. Or any other statutory body. This view has been approved in a case titled Muhammad Ishaque Khan v. Khurshid Aziz and 3 others 1998 SCR 1, wherein in para No,7 of the report it was observed as under:--- "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 of the subject specialists, it cannot be interfered with in exercise of writ jurisdiction, specially so when the discretion exercise advances the cause of justice."
39. The contention of the learned Advocate for the respondent that the petitioner is estopped by his conduct and after conditional participation in the test, cannot say that rejection of his application was illegal, is also devoid of any force. In Umar Hayat v. Azad Government and others 1999 PLC (C.S.) 93, a similar objection was raised against a candidate who has participated in the selection process of P.S.C. But subsequently challenged the same. The apex Court after examining the earlier case-law at page 199 observed as under:--- ..."the appellant never had an opportunity of explaining his position as to why he appeared in the test. In our view no adverse inference can be drawn against the appellant in absence of an opportunity to explain his position. It cannot be assumed that the appellant was aware that his participation in the test and interview in the circumstances of the case can be treated as objectionable. It was held in Messrs Globe Textile Mills (O.E.) Limited v. Textile Commissioner, Ministry of Industries, Government of Pakistan, Karachi and 2 others 1993 SCMR 900 that acquiescence as legally understood does not take place where its roots and basis are based on unawareness of ones rights. Even otherwise the objection of acquiescence cannot be sustained in the present case as will be presently seen."
40. The contention of Raja Muhammad Hanif Khan, the learned Advocate for the petitioner, that policy dated 21-1-2007 has been violated by the P.S.C. Finds support from the record. The P.S.C. Has reproduced the said policy in its written statement. Para No,I of the policy supports the contention of Raja Ibrar Hussain, the learned Advocate for the respondents, but it is not applicable so far as petitioner's case is concerned, rather para No,III is applicable which postulates that applications for recruitments of the candidates against the post for which competitive exams is to be held shall be scrutinized within 15 days after their receipt and only qualified applicants shall be called for test.
41. This policy is in line with Rule 4 of the Procedure Rules and also advances the cause of Justice. For proper appreciation of the matter, para No,III of policy is reproduced as under:--- {{URDU TEXT}} It has, rightly been contended by Raja Muhammad Hanif Khan, the learned Advocate for the petitioner, that after the last date fixed for receipt of the applications selection is to be completed under the policy which was applicable at the relevant time. Any change thereafter neither can be made applicable retrospectively nor can take away vested right of an applicant. The proposition has been examined by the apex. Court of Azad Jammu and Kashmir in case titled Muhammad Fayaz and 5 others v. Shah Nawaz Khan and 32 others 1999 PLC (C.S.) 1493. The apex Court has observed that process of selection of the P.$.C. Would commence when applications were invited through advertisement specifying qualification etc. Of candidates. It was observed that candidate had a right to be considered according to the qualification laid down in the rules existing at the relevant time or under the conditions mentioned in tii advertisement. The apex Court further observed that amendment in the Rules enlarging sphere of competition for the purpose of selection such amendment would not be procedural in nature so as to operate retrospectively.
42. Relevant observation is recorded at page 347 of the report which is as under:--- "It is well-settled principle of law, as is also evident from the authorities cited by the learned counsel for the parties that an amendment in existing law would be prospective until and unless it is otherwise provided by the law givers. In the instant case the amendment in the rules of 1990 has not been made operative retrospectively. It is also not controverted that the advertisements inviting applications had already been published in May, 1997 when the unamended rules of 1990 held the field. The contention of the learned counsel for the respondents that despite the fact that amendment in the said rules was made after the publication of the advertisement, the same would govern the recommendations in question, is not sustainable because the amendment was not operative retrospectively."
43. ' Again at page 348 of the report observed as under:--- "....Eventually, the amendment made in the rules of 1990 is not procedural in nature rather it enlarges the sphere of the competitions by placing third divisioners at par with second divisioners for the purpose of selection. Therefore, the contention of the learned counsel for the respondents that as the amendment is procedural in nature and would operate retrospectively is not -tenable and is hereby repelled."
44. The contention of Syed Nazeer Hussain Shah Kazmi, the learned counsel for the respondents, that policies dated 3-5-2007 and 20-6-2007 have not been specifically challenged by the petitioner and totally a new case has been built up by the petitioner is correct but, in my estimation, the petitioner cannot be deprived of his vested right for not challenging the aforesaid policies. The reason is that the P.S.C. Usually does not notify its policy nor a copy of the same is supplied to an applicant. It is noticed that in the instant case the last date for receipt of applications was fixed as 14-4-2007 and thereafter before completion of the selection process policy has been amended twicely. This course cannot be approved because it is suspicious and militate against the rule of fair and transparent selection. As the policies are violative of mandatory Rules, therefore, are liable to be ignored. It is also not correct that policies adopted by the P.S.C. Are in line with the rule of law laid down in Dr. Ejaz and Shakeel's cases. These authorities are not relevant. The law iS well-settled that for genuine reason a document which was in existence at the time of advertisement but could not be filed can be accepted at later stage if any candidate satisfies the Chairman that the document could not be produced in time for some genuine reasons. Habib Rehman v. Government of Pakistan and others 1979 SCMR 121, Dr. Zia Suleman Farooqi v. Punjab P.S.C. PLD 1994 Lah. 55 and Abdul Shakoor v. Azad Government and others PLJ 2003 HC Azad Jammu and Kashmir 66 can be referred to in support of the proposition.
45. ' The contention of Raja Muhammad Hanif Khan, the learned Advocate for the petitioner that duly singed and complete application was submitted by the petitioner but got misplaced in connivance with an employee of the P.S.C. Who is reportedly a relative of respondent No,6 might be correct but fact remains that the petitioner has not specifically pleaded this fact in the petition nor the said officer has been made party, therefore, this argument cannot be allowed to be raised in absence of a party against whom mala fide is pleaded. It is not only the requirement of law to plead mala fide but is equally necessary to prove the same through cogent evidence, otherwise, a bare statement cannot be believed.
46. ' The contention of the learned Advocate for the petitioner that the petitioner has been discriminated also finds support from the record. A notice was issued to Dr. Mateen, who appeared in the selection process, whereby he has been informed about the defect of his application. He was directed to produce a copy of the State Subject. Same course is adopted in Nusrat Sutlana's case, as I have noticed while examining her original file in connection with her writ petition. No, doubt this is a double standard and should have not been adopted. The question of non-signing the application is mere an irregularity for which an applicant could not be shunted out from the competition. This irregularity could be cured by directing the petitioner to sign his application.
47. Moreover, the defect could be removed by hearing the petitioner. It is amply proved from the record that the petitioner secured highest marks in the written test but has been deprived in violation of Rule 4 of the Procedure Rules. The petitioner has been condemned unheard, therefore, he has been deprived of his fundamental right to compete for appointment against the Post. I am of the considered view that policies adopted by the P.S.C. Are violative of the Procedure Rules and cannot be adopted without amending the said rules.
48. ' The contention of Syed Nazeer Hussain Shah, the learned Advocate for the respondents that Services and General Administration Department is a necessary party and in its absence this petition is not maintainable, is devoid of any force. Services and General Administration Department has not passed any order itself rather has notified the approval of the Government which has already been impleaded as a party, therefore, Services and General Administration Department, in any manner, is not a necessary party.
49. Before parting with the case it may be observed that the proper course, was to set aside the recommendations and appointments of private respondents and direct the P.S.C. To call petitioner, herein, and private respondents for interview afresh and after the interview the candidates attaining the merit position should be recommended but as in this case the private respondents, after their appointment have been deputed for departmental training, I do not want to punish them for the fault of the P.S.C. Or its employees. However, at the same time the petitioner can also not be penalized, therefore, the only relief to which the petitioner is entitled is that rejection of his application is declared illegal and without lawful authority. The application of the petitioner would be deemed pending and he will be allowed to place copy of State-Subject on the file, besides, signing his application, thereafter, the P.S.C. Shall interview him and in case he qualifies, shall be recommended against the post of Assistant Commissioner (B-17). The Government is directed to acconunodate/appoint him against any vacant post, subject to subsequent adjustment of quota.
50. ' The petition is accepted in the manner indicated above.