1. ' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 following relief is claimed:--- ' "It is, therefore, most humbly prayed on behalf of the petitioner that by accepting this writ petition an appropriate writ may kindly be issued:---
(i) Directing respondents Nos.2 and 3 to afford the petitioner an opportunity of appearing in test/interview for the post of Audio Visual Technician BPS 11 until then respondents Nos.2 and 3 may kindly be restrained from declaring the result of the test interview held on 25-4-2011 along with restraining respondents from removing petitioner from his present place of posting;
(ii) Declaring that petitioner possess higher qualification than the required qualification and he deserve to be given an opportunity of taking part in test/ interview and respondents Nos.2 and 3 may also be directed to issue an appointment order against the said post on permanent basis if he qualifies the test/interview.
(iii) Declaring that the qualification written in the advertisement published in the daily Khabarnama Muzaffarabad dated 19-2-2011 is against the relevant rules for the said post, therefore, respondents Nos.2 and 3 may kindly be directed to issue a fresh advertisement in accordance with the relevant rules.
(iv) Any other relief to which the Hon'ble Court deems` fit may also be granted."
2. ' Precise facts forming the background of the instant petition are that as per claim of the petitioner he is matriculate in science subjects and is also in possession of Diploma in Civil Engineering. It is alleged that the petitioner has also obtained degree of BS Electronics from Sarhad University of Science and Information Technology. Besides the above, the petitioner is also in possession of (i) 12 month course in Civil D/Man Trade, (ii) Computer Software Course (iii) Computer Hard Ware Course and (iv) BTS and BSC of Huawei Technologies. The petitioner has also gone into practical training/Internship in Pakistan Telecommunication. It is alleged that service of the department of Extension Services, Management Academy Azad Jammu and Kashmir is regulated by the rules known as Service Rules, 2001 for the Department of Extension Services Management Academy
(ESMA) Azad Government of the State of Jammu and Kashmir. The post of Audio Visual Technician B-11 is created and minimum qualification for appointment on the said post provided in column 6 is Matric Science along with 3 yeafs diploma in electronics from a recognized Polly Tech. Institute. It is further alleged that petitioner was appointed as Audio Visual Technician B-11 on 19-11-2011 by respondent No,3. It is contended that petitioner has been performing his duties efficiently and honestly and has earned a right for permanent appointment. It is further contended that respondent No,3 has advertised the post occupied by the petitioner in daily "Khabarnama"
3. Muzaffarabad on 19-11-2011 wherein qualification mentioned for the post is not in accordance with the relevant rules-because word "minimum" is missing in the advertisement. The petitioner has challenged the aforesaid advertisement on the ground that the same is not in line with the rules. It is submitted that petitioner also applied in the test and interview which was scheduled to be held on 25-4-2011 but respondent No,3 did not issue call letter to him. The petitioner inquired from respondent No,3 for non-issuance of the call letter and was informed that BS Electronics course degree programme is not required for the post, the requirement for the post is 3 years diploma in Electronics, hence, he is not eligible. It is submitted that petitioner tried his best to persuade respondents No,2 and 3 but remained unsuccessful.
4. ' Respondents have filed written statement. Respondents Nos.4 and 5 in their written statement have pleaded that petitioner has no locus standi to file the instant petition. It is further pleaded that instant petition has been filed with mala fide intention. It is claimed that petitioner has participated in the test and interview but could not attain merit position, hence, he cannot challenge the vires of the rules. The stand of the respondents is that as the petitioner is not qualified, hence, was not called for participation even then, he has participated in the test and interview on Court order but could not obtain merit position.
5. ' The official respondents besides the stand taken by the private respondents have pleaded that necessary party against whom the petitioner has levelled allegation has not been impleaded in line of the respondents, therefore, petition is not maintainable. It is stated by them that petitioner is not aggrieved. It is further stated that petitioner has passed matric in 3rd division and thereafter it is strange, how without passing F.Sc. he obtained degree in Electronics. In para 8 of the written statement it is stated by the respondents that if the required qualification for appointment against the post is fulfilled then the additional qualification in the same line can be considered. It is contended that despite the fact that petitioner was not in possession of the required qualification even then he was given a chance to appear before the selection committee but he could not obtain merit position, therefore, he has no case for consideration and direction.
6. ' Mr. Abdul Rasheed Abbasi, the learned counsel for the petitioner while referring to the departmental rules vehemently argued that for appointment on the post of Audio Visual Technician minimum required qualification is Matric Science along with 3 years diploma in electronics from a recognized Polly Tech. Institute. The learned counsel further argued that it was the "minimum" qualification for the appointment through initial recruitment on the post against which the petitioner is seeking direction for appointment, hence, by any stretch of imagination it cannot be said that higher qualification in the same field cannot be considered and a candidate would be penalized for acquiring higher qualification. The learned counsel contended that respondents due to erroneous interpretation of relevant rules have deprived of the petitioner from participation in the test and interview, hence, he filed the instant petition and was allowed to participate in the test and interview by this Court. The learned counsel further contended that petition cannot be thrown out on the ground that selection committee who conducted the interview is not impleaded in line of the respondents because only a direction is sought to the Selection Commitee to add numbers of higher qualification. He argued that in view of the circumstances which happened after the test and interview the Court can mould the relief and issue necessary direction notwithstanding the fact that selection committee is impleaded in line of the respondents or not. The learned Advocate in support of his submissions placed reliance on the following . cases:-
(1) Umar Hayat v. Azad Government and 3 others (1999 PLC (C.S.) 93).
(2) Rashid Awan v. District Education Officer and 8 others (2007 SCR 406); and
(3) Civil Appeal No,27/04 titled Rashida Awan v. District Education Officer Femal (Schools)
7. Elementary Muzaffarabad and others decided on 22-6-2005.
8. ' Conversely, Mr. Sadaqat Hussain Raja, the learned counsel for the private respondents vehemently argued that petition is mala fide and is liable to be dismissed because the arguments advanced by Mr. Abdul Rasheed Abbasi, the learned counsel for the petitioner travelled beyond the pleadings and Court cannot grant relief which has not been pleaded. The-learned Advocate contended that petitioner was not in possession of the minimum qualification provided for induction, hence, cannot be awarded marks of the higher qualification, hence, respondents have not committed any error while making appointments of the private respondents. The learned Advocate further contended that petitioner has not challenged the merit list and also not impleaded the Selection Committee, therefore, no effective writ can be issued in absence of the necessary party.
9. ' Mr. Noorullah Qureshi, the learned Advocate for the official respondents has adopted the arguments of Sadaqat Hussain Raja and submitted that no relief can be granted against the pleading of the parties. He argued that if for the sake of arguments it is assumed that petitioner was in possession of the minimum qualification required for the appointment even then he can be given only 2 marks and if 2 marks are added even then merit position still remains same, therefore the petition otherwise merits dismissal.
10. ' I have heard the learned counsel for the parties and gone through the record of the case.
11. 'A perusal of the record reveals that petitioner did his matriculation from Azad Jammu and Kashmir Board of Intermediate and Secondary Education Mirpur in science subjects however, he has obtained Diploma of Associate Engineer in Civil from the Board of N.-W.F.P. He has obtained his BS in Electronics from Sarhad University of Science and Information Technology. In the departmental A rules for appointment as Audiovisual Technician PBS-11 "minimum" qualification is prescribed as Matric Science along with 3 years diploma in electronics from a recognized Polly- Tech. Institute. It is therefore deal that petitioner is matric with science subjects but .is not in possession of the diploma in electronics, hence, the minimum qualification fixed by the rules is not fulfilled by him. Mr. Abdul Rasheed Abbasi, the learned counsel for the petitioner has relied upon Rashida Awan's case (2007 SCR 406) wherein expression "minimum" qualification has received the attention of the apex Court of Azad Jammu and Kashmir. At page 49 of the report it has been stated that "minimum" qualification for appointment means that anybody possessing the qualification less than the prescribed by rules cannot be considered for appointment but if a candidate having higher qualification is available, the bar of minimum qualification will not operate. The relevant observation has been recorded in para 8 of the judgment which is reproduced 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."
12. I am of the humble view that rule of law laid down in Rashida Awan's case is not attracted in the present case. In case titled Khurram Iqbal v. Deputy Director Food, D.G. Khan and another (2013 SCMR 55) same like proposition was considered by the apex Court of Pakistan. The facts of the case were that a post of Food Grains Supervisor B-6 in the Food Department of the Govt: of Punjab was advertised. The minimum educational qualification for appointment was matric 2nd division from a recognized board. The appellant therein, was not in possession of the said qualification, however, he was F.A. 2nd Division. The apex Court held that as the petitioner was not in possession of the minimum qualification as matric 2nd Division hence, he cannot be considered on the basis of F.A. 2nd Division. Relevant observation is recorded in para 4 of the report which is reproduced as under:--- ' "We have carefully considered the submissions made before us by both the learned ASCs and carefully perused the material placed on record. There is no denial of fact that for the post of Food Grains Supervisor (BS-6), Food Department, Government of Punjab, the minimum educational qualification requirement was matric 2nd division from a recognized Board, which qualification the appellant did not have. It is strange to notice that out of about 140 candidates, who had applied for such vacancy against only one post/the appellant Khurram Iqbal, who even lacked basic qualification was interviewed and found suitable for appointment though it was beyond the jurisdiction of the appointing authority to give any relaxation in the matter of minimum required qualification meant for that particular vacancy. In our opinion, mere holding of F.A. qualification will not done away with the basic requirement of matriculation in second division, therefore, the Tribunal, while passing its impugned judgment, was fully justified in dismissing the appeal of the present appellant."
13. ' As the petitioner is lacking the minimum qualification, therefore, the petition is liable to be dismissed.
14. ' There is also an addition reason for dismissal of the petition that the petitioner was allowed to participate in the test and interview by this Court vide order dated 25-4-2011. After the test and interview the petition has not been amended for seeking the relief which has been solicited by the learned counsel for the petitioner during the course of arguments. Even the merit list has not been challenged. Law is well settled that parties cannot be allowed to travel beyond his pleadings.
15. Moreover, the Selection Committee has not been impleaded in line of the respondents, therefore, no direction can be issued in absence of IC necessary parties.
16. ' In view of above finding no substance in this petition it is hereby dismissed.