' SYED AFSAR SHAH, J.--- Through this single judgment, this Court shall dispose of one Writ Petition and C.M No,607-A of 2012, as they have common questions of fact and law involved therein. The particulars of the said petitions are as follows:---
(I) Nusrat Iqbal v. Government of Khyber Pakhtunkhwa and others (Writ Petition No,923-A of 2012)
(II) Azra Begum v. Government of Khyber Pakhtunkhwa and others (C.M. No,607-A of 2012)
2 In essence, the grievance of the petitioners is that there were vacant posts in Union Council Langra, for which the advertisement was made in National Daily; that the petitioners along with others appeared and cleared the 'ETTA Test'; that Azra Begum stood at Sr. No,1 and while Nusrat Iqbal stood at Sr. No,2 of the merit list of the Union Council Langra; despite there being two posts available in the said Union Council, the petitioners were ignored and teachers from other Union Council were appointed on the said posts. Hence, the present petition.
3. Ms. Saadia Aziz, Sub-Divisional Education Officer, and Mrs. Abida Shaheen, District Education Officer along with Muhammad Zobair, ADEO (Litigation) are present on Court notice.
4. Mst. Sadia Aziz, Sub-Divisional Educational Officer, Abbottabad ("SDEO"), who was the relevant officer, who had dealt with the impugned transfers of the Primary School Teacher ("PST") in Union Council Langra, stated that;---
(I) The appointments of PST were made in pursuance of advertisement and the appointment process was completed on 26-4-2012.
(II) That no appointment in Union Council Langra took place as the requisition for vacant posti was communicated to her on 27-4-2012 and she could -not appoint the petitioners before the receipt of the requisite sanction and instead two teachers were transferred to the said posts from different Union Council/District.
(III) That now there are two vacant posts in the said Union Council, however, one of which has been up graded to BPS-15.
(IV) On the merit list, Azra Begum appears at Sr. No,1 and thus the respondents present in Court have no objection to her appointment as PST (BPS-12) in Union Council Langra.
(V) Nusrat Iqbal at Sr. No,2 of the merit list could not be appointed because the second post in Union Council has been up graded from BPS-12 to 15. Furthermore Nusrat Iqbal could not be adjusted as PST in any other Union Council because of the bar imposed on such appointments in Government Policy. However, Nusrat Iqbal shall be considered for the next available post in Union Council Langra.
5. The learned counsel for Nusrat Iqbal vehemently opposed and contested that the sanction was available with Mst Sadia Aziz SDEO on 15-3-2012 and not on 27-4-2012, as has been alleged by Mst.
Saadia Aziz Sub-Divisional Education Officer.
6. Thus, there is a dispute between the parties on a question of fact. This Court would not like to dilate upon the said matter, at this stage and that too in the Constitutional petition.
7. In this regard, we seek guidance from the judgment of the august Supreme Court of Pakistan in Ghulam Nabi's case (PLD 2001 SC 415) wherein it was held that; "It hardly needs any elaboration that the superior Courts should not involve themselves into evidence. This can more appropriately be done in the ordinary Civil Procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a casewhere the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts." (Emphasis provided)
' Similarly, in Shamim Khan's case (PLD 2005 SC 792), the Full Bench of the apex Court has observed that;--- "Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction where the material facts were admitted by the respondent, High Court could interfere." (Emphasis provided)
' This was followed by the apex Court in Muhammad Sadiq v. Ilahi Bukhsh (2006 SCM R 12) and has held that; "High Court in exercise of its constitutional jurisdiction is not supposed to dilate upon the controversial questions of facts and interfere in the concurrent findings on such question in the writ jurisdiction but it is settled law that if findings of facts are based on misreading or non- reading of evidence or not supported by any evidence, the High Court without any hesitation can interfere in the matter in its constitutional jurisdiction."
' And finally, the Supreme Court has reiterated the above principles in Watan Party's case (PLD 2012 SC 292).
' In view of the 'ratio decidendi' laid down in the above judgments of the apex Court, it is clear that as a general principle; ' Controversies, which are based on contentious disputed fact, should not be entertained and adjudicated in constitutional jurisdiction.
' However, the aforementioned general principle has exceptions, which may be formulated as under:
(i) The illegality impugned can be established without elaborate inquiry;
(ii) The illegality challenged is apparent from the admitted facts or documents available on the record;
(iii) The illegality attacked in the petition is based on misreading or non-reading of evidence or no evidence at all.
' Thus, in view of above, the serious disputed questions raised by the present petitioners can be agitated and proved otherwise by the petitioners by producing evidence at an appropriate legal forum, but not in constitutional jurisdiction, that too, with the available record.
8. Accordingly, for reasons stated hereinabove, this court holds that;
(I) C.M. No,607-A of 2012 filed by petitioner Azra Begum is accepted and respondents are directed to appoint her against the vacant post of PST in U/C Langra, as undertook by them before the Court today;
(II) The writ petition (Writ Petition No,923-A of 2012) filed by petitioner Nusrat Iqbal on 13-12-2012 is disposed of in terms that she shall be considered for appointment, as and when post of PST becomes available. However, she is at liberty to seek her remedy, if so advised, before an appropriate forum.