SARDAR MUHAMMAD SADIQ KHAN, J. ~ The captioned appeals by the leave of the Court are addressed against the consolidated judgment of the High Court dated 6.6.2011 whereby writ petitions filed by the appellants have been dismissed. As in both the appeals same subject-matter is involved, therefore, being disposed of through the consolidated judgment.
2. Brief facts forming the background of the appeal are that the appellants were employees of the Board of Intermediate and Secondary Education Mirpur (hereinafter to be referred as BISE). Both of them were deputed in the Secrecy Department of BISE which deals with the results of the examinations. The appellant, Shabhir Ahmed Bukhari was key holder and incharge of the examination record of class 9th whereas the appellant, Ashfaque Shahid was key holder and incharge of the examination record of class 10th. Both of them were charged for misconduct due to tempering and forgery in the examination papers for the year 2005. Three Committees were constituted for Inquiry relating to tempering of the results of the candidates namely, Muhammad Asif s/o Kala Khan, Roll 822142, Amina Aftab d/o Raja Muhammad Aftab, Roll No. 900702 and Somia Bukhari d/o Syed Ishaq Bukhari, Roll No. 800382. The committee regarding probe in the forgery committed in the real marks obtained consists of Muhammad Akram Mirza, Associate Professor Government Post Graduate College Mirpur and Mirza Rashid Ahmed Retired District Education Officer. The second committee was constituted for conducting inquiry regarding forgery and tempering made in the answer sheets of the candidates for the examination held in spring and autumn 2005 which consists of Syed Umar Faruq Gillani and Muhammad Siddique Janjua. A third inquiry committee was constituted in the light of the direction issued in the judgment of the High Court dated 19.10.2006 in a case titled Amma Aftab v. Board of Intermediate and Secondary Education, which consists of Professor Faruq Tahir, Professor Noor-ul-Hassan Fida and Ch. Javed Iqbal. All the three committees submitted their respective reports to the authorized officer. The criminal proceedings were also initiated against the appellants in the light of the judgment of the High Court. The matter went up to the Prime Minister of the Azad Jammu and Kashmir, who is Controlling Authority of the BISE. Ultimately, the appellants were found guilty of the charge of tempering and forgery made in the answer sheets and the marks sheets. A major penalty was imposed in the light of the recommendations of the Inquiry Committees and the appellants were removed from service by the competent authority on the charge of misconduct. Both the appellants filed separate writ petitions in the High Court alleging therein that neither they have committed misconduct nor they have been provided an opportunity by the inquiry committees for leading the evidence. The learned High Court, after necessary proceedings, dismissed the writ petitions through a consolidated judgment on the sole ground that the Inquiry Committee is not arrayed as party in the line of respondents. Both the appellants filed separate appeals against the judgment of the High Court which is subject-matter in the instant appeals.
3. Raja Khalid Mehmood and Bostan Chaudhry, Advocates, the learned counsel for the appellants, after brief statement of facts, opposed the judgment of the High Court on numerous grounds. They submitted that the High Court has failed to consider the fact that the Members of Inquiry Committee have been impleaded as party in the writ petitions. They further submitted that the Inquiry Committee had neither any head/chairman nor any Secretary, thus, the appellants have correctly impleaded the inquiry committee in the form of members, hence, the High Court fell in error while recording observations on this issue. They further submitted that all the staff members alongwith the appellants took oath on the "Holy Quran " but except the appellants the others were exonerated which is clear discrimination and violation of the requirement of taking oath and they have been made scape goat to justify themselves, It is further argued on behalf of the appellants that criminal proceedings were also initiated wherein, the local police declared the appellants as innocent whereas the High Court has not taken into consideration this very important aspect of the matter while recording the impugned judgment. It is further submitted on behalf of appellants that BISE has failed to take necessary and strong measures to stop entry of outsiders in the secrecy branch and the record being open to every one, the safe custody of the same could not be put on the shoulders of the appellants. He finally submitted that the judgment of the High Court may be set aside, the order passed by the official respondents on 1.2.2007 and 30.9.2006 and the inquiry proceedings conducted against the appellants may kindly be declared as illegal, without jurisdictional competence, mala fide, against the verses of the "Holy Quran" and the appellants be re-instated in service with full benefits.
4. On the other hand, Sardar Muhammad Azam Khan, Advocate, the learned counsel for official respondents, defended the impugned judgment of the High Court on all counts. He argued that the appellants were deputed in the Secrecy Room for safe custody of the examination record i.e. Answer sheets of the candidates, etc. They were the key holders of the-secrecy room and they were aware of the secret "S" numbers and it was hot possible to take away 4 answer sheets out of millions, without their help and connivance. He further submitted that the competent authority constituted Inquiry Committees to probe into the matter and after a detailed Inquiry, tempering and forgery was proved against the appellants. He further contended that the major penalty was imposed to the appellants and they were removed from service on the charge of misconduct. He submitted that the Inquiry Committee has not been arrayed as party in the writ petitions, however, the members of inquiry committee have been arrayed as respondents in their individual capacity which is not warranted by law, therefore, the judgment of the High Court is well-reasoned and quite in accordance with law. The appeals before this Court are not maintainable and liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the record made available with due care. The moot point involved in this case is that whether the members of the Inquiry Committee can be arrayed as respondents in their individual capacity or it is the Inquiry Committee which was to be arrayed as party by the appellants in their writ petitions. The High Court has focused its observation on this sole point and ultimately reached conclusion that the writ petitions are not maintainable. The High Court has made following observation:--- "... Petitioners have not impleaded the Inquiry Committee in line of the respondents, however, the members of the Committee have been impleaded in individual capacity, therefore, in view of law laid down by the apex Court, in Muhammad, Resham Khan's case (PLJ 1990 SC (AJK) 380), these petitions are not maintainable."
The observation of the High Court on the issue is quite in accordance with law which is supported by the judgment of the apex Court, therefore, we accordingly fortify the same. Our this observation is supported by the case titled Muhammad Nazir Khan v. Azad Government & others, reported as 2001 SCR 84 wherein this Court observed as under:-- "....Therefore, supposing we accept the appeal and decide to declare that land acquired from the appellant cannot be utilized for construction of a plaza we would still not be able to give any relief because Chairman of the Pearl Development Authority, who is a respondent, is not constructing the plazas but it is the Authority which is doing so, but the Authority is not impleaded as a respondent for which reason no writ can be issued to it. There is no point in adverting to the merits of the case in view of the fact that no effective writ can be issued in the present case."
A study of above-referred observation reveals that no effective order can be passed without impleading, the necessary party in the line of respondents. In the instant case, 3 inquiry committees were constituted but the appellants have failed to array them as party in the line of respondents which, is-against the law laid down by the apex Court, therefore, the judgment of the High Court is in accordance with law on the point.
6. It is interesting to mention here that 3 inquiry committees were constituted to probe into matter but the appellants have arrayed some of the members of inquiry committees in their individual capacity which is against law. The committees should have been arrayed in their legal capacity. It appears from the pleadings that the only one committee conducted the inquiry but according to record three committees submitted their reports separately. The appellants neither arrayed the other two committees as party in the line of respondents nor pleaded about their reports which is necessary ingredient of this case, therefore, in our estimation, the appeal is liable to be dismissed on this ground as well. Reference can be made to a case titled Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque & 3 others, reported as 1997 SCR 239, wherein this Court observed as under:-- - "..... In the writ petition it was averred more than once that the Selection Committee in derogation of the rules declared the appellant as being successful in the test and interview and placed him at serial No. 1 in the merit list. It was also averred that the "sanad" which was produced before the Selection Committee by respondent No. 4 was not equivalent to B.A, nor he had passed the additional subjects as provided in the Rules but the Selection Committee travelled beyond its jurisdiction and placed the appellant on the top of the merit list. These averments show that the basic grievance of the respondent was against the Selection Committee which was, as said earlier not impleaded as a respondent. By now it stands settled that if a necessary party which is not impleaded as respondent in absence of which no effective writ could be issued the writ is liable to be dismissed on the sole ground."
(Underlining is ours).
The above-referred case-law also reveals that Selection Committee was necessary party but the same was not impleaded as respondent. This Court held that the writ petition is liable to be dismissed on the sole ground that necessary party has not been impleaded as party. In the instant case, none of the inquiry committees has been impleaded party by the appellants, therefore, the case in hand is also at par with the case referred to above.
In the light of what has been stated above, finding no force in these appeals, the same are hereby dismissed with no order as to costs.