The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 whereby following relief is solicited by petitioners:-- "It is, therefore, most humbly prayed that by accepting the instant writ petition an appropriate writ may kindly be issued:
(i) by declaring the advertisement dated 11.9.2011 and the proceedings in response of the advertisement as without lawful authority, based on mala fide, discriminatory, based on favouritism and nepotism to be quashed;
(ii) by directing the respondents for fresh advertisement and after due course of law the fresh proceedings may be initiated in fair play manner by constituting a committee on the subject as command of the law by considering the experience of the petitioners for induction in service in the interest of justice; (iii)Any other relief which this Hon'ble Court deems fit may also be granted."
2. Precise facts giving rise to the instant writ petition are that petitioners are 1st class state subjects hail from Haveli, District Kahuta. It is claimed that Petitioner No, 1 was appointed as Computer Operator purely on temporary basis vide order dated 15.03.2007 while Petitioner No, 2 was appointed as Junior Clerk B-7 as a stop gap arrangement vide order dated 30.6.2010 respectively. It is stated that after establishment of office of respondents various posts of grade B-1, B-4, B-5 and B-7 were advertised in daily "Chanar" on 01.11.2009, however, above mentioned advertisement was kept in abeyance and latter on the same were again advertised in daily "Jammu and Kashmir" dated 16.03.2011. It is stated that vide press note published in daily "Sada-I-Chanar" on 11.09.2011 the candidates were called for test and interview at 11 a.m. on 12.09.2011. It is stated that petitioners inadvertently also participated in test and interview. It is alleged that respondents with colorable exercise of powers managed for induction of their interested persons on political consideration by avoiding rule of fair play and without considering services of petitioners, hence, selection proceedings were mala fide, bad in law and capricious. The petitioners solicited that selection process be quashed and respondents be directed for fresh advertisement.
3. A pre-admission notice was issued to respondents who filed parawise comments wherein it was stated that petitioners are not aggrieved party who filed the instant writ petition with malice. It was also stated that on the basis of the impugned proclamation the petitioners participated in selection process and after obtaining test and interview were placed at Serial Nos, 25 and 26 of merit list, hence, due to principle of estoppel and acquiescence, petition is not maintainable. It was further stated that candidates falling at Serial Nos, 1 to 5 of merit list were appointed by the competent authority on recommendation of respective selection committee vide order dated 12.9.2011 which was also acted upon vide joining reports dated 13.9.2011, hence, writ petition having no substance be dismissed submitted the learned counsel for respondents.
4. At this juncture the petitioners also moved an application for amendment to challenge appointment order of those candidates who were appointed on merit and recommendation of respective selection committee. Further prayer was also made that candidates who were appointed may also be arrayed, in the line of respondents.
5. The learned counsel for petitioners while reiterating the grounds of writ petition submitted that Petitioner No, 1 was qualified as B.A. with three years diploma in computer course, who was wrongly placed at Serial No, 26 in the merit list. The learned counsel emphasized that - a few candidates having lessor qualification of F.A. and short experience who were illegally recommended by the respective selection committee. The learned counsel further pressed into service that recommendations were made by the selection committee with malice and on political interference, therefore, the same may be quashed. The learned counsel while referring attestations of Assistant Commissioner Haveli Kahuta dated 10.11.2011 and 14.11.2011 submitted that newly appointed candidates never joined as claimed on the basis of order dated 12.9.2011.
6. The learned counsel for respondents while controverting the arguments of learned counsel for petitioners submitted that the posts in question were advertised and test and interview were admittedly obtained by the respective selection committee and candidates falling at Serial Nos, 1 to 5 were also appointed on recommendations of the concerned selection committee vide order dated 12.9.2011, therefore, writ petition is bad in law. The learned counsel further pressed into service that petitioners for prolonging their ad-hoc appointments have filed the instant writ petition with mala fide intention. The learned counsel further submitted that petitioners participated in test and interview who were placed at Serial Nos, 25 & 26 of merit list, therefore, they have no locus standi to file the instant writ petition.
7. After hearing learned counsel for the parties at length, I have perused the contents of writ petition and have also examined the record. A glance perusal of record reveals that, inter-alia, the disputed posts of junior clerks were advertised in "Sada-I-Chanar" dated 1.11.2009, however, selection process was kept in abeyance due to stay order of this Court and after its vacation the same were again advertised in daily "Jammu and Kashmir" dated 16.3.2011. On the basis of press note published in daily "Sada-i-Chanar" dated 11.09.2011 test and interview were conducted, merit list was prepared and appointments were made on recommendations of respective selection committee and I do not find any error in the above selection process.
8. The contention of learned counsel for petitioners that Petitioner No, 1 was B.A. with three years Computer Diploma who was unlawfully placed at Serial No, 26 of merit list is not tenable as the above petitioner secured lesser marks in written test, therefore, he was placed at Serial No, 26 in the merit List. Even otherwise petitioners levelled allegations against selection committee which was not impleaded party, therefore, writ petition merit dismissal due to non-joinder of necessary party.
The indentical point came under consideration before the apex Court in case titled Khalil Ahmed Aqeel Vrs. Member Board of Revenue and 3 others [2002 SCR 128]. It was opined at Page 133 by their lordships as under: From the reading of the memo of appeal it becomes clear that the appellant had grievance about the constitution of the selection committee and the way it conducted its proceedings in formulating its recommendations for the promotion of Patwari against the vacant post of Girdawar. The selection Committee, therefore, was a necessary party and no order could be passed against the Selection Committee without providing it a right of hearing. The Selection Committee has played important role in the present case. Its recommendations were accepted by the competent authority while passing order of promotion of Respondent No,
4. The procedure contained in the Code of Civil Procedure is applicable in the proceedings before the Service Tribunal, therefore, without impleading the necessary party, the appeal before the Service Tribunal was not maintainable. We have also noticed that this objection was specifically raised in the written statement but no effort was made by the appellant to implead the Selection Committee in the line of answering respondents."
9. The petitioners also admitted in Para 4 of their writ petition that they inadvertently participated in test and interview. As per my consideration, after participating in selection proceedings and falling at Serial Nos, 25 & 26 of merit list due to principle of estoppel and acquiescence, the petitioners cannot challenge the selection process. The above point came under consideration before the Hon'ble Supreme Court in case titled Muhammad Aftab Khan vs. District Education Officer and 2 others (2000 SCR 431). At Page 435 of the report it was observed as under: When the appellant participated in the proceedings taken in pursuance of the judgment of the High Court and failed to obtain his appointment, he could not be allowed to challenge the impugned judgment of the High Court which was passed in exercise of writ jurisdiction."
10.In view of above, finding no substance in the instant writ petition the same is hereby dismissed in limine.