' ALI BAQAR NAJAFI, J. --- Through this Civil Revision, the petitioner has challenged the judgment and decree dated 12.10.1995 passed by the learned Civil Judge, Pakpattan Sharif and the judgment and decree dated 10.04.2000 passed by the learned Additional District Judge, Pakpattan Sharif, whereby the suit for specific performance of an oral agreement to sell was concurrently dismissed.
2. Brief facts giving rise to the filing of this civil revision are that land in dispute belonged to the Provincial Government which was sold through public auction in favour of Fazal, Rustam and Hanif in equal share. Since the land was barren, comprised of "tibajat" and the owners namely, Hanif and Rustam lived in different chaks, i.e. Chah Chakki Muzaffar Wala, Tehsil Sahiwal, therefore, Hanif and Rustam made oral agreement with Fazal to sell their shares for a consideration of Rs. 25,000/- which was paid to Fazal. Since the mutation was not sanctioned therefore, the sale could not be given effect to. However, it was agreed between the parties that after paying the whole consideration amount the land would be transferred and for this purpose one Basharat Ali was appointed as general attorney (Exh.P.1) on 24.01.1972. On 17.07.1982, the proprietary rights were granted whereafter, on 27.11.1982 the sale-deed was executed accordingly. However, on 18.12.1982 the successors of Rustam filed a suit for declaration contending that before execution of the said sale Rustam had already expired on 12.09.1982 and the general power-of-attorney (Exh.P.1) had automatically been revoked. Meanwhile. During the pendency of the suit one Shafi purchased the suit land. The suit was decreed on 25.01.1988 and the appeal was dismissed on 03.02.1990 as a result of which sale-deed was cancelled. Cancellation of general power-of-attorney was made which was not known to Fazal.
3. On 14.02.1990 a suit for specific performance of oral agreement was filed by the legal representatives of Fazal against Hanif and Rustam in which Basharat, the attorney, gave his consenting statement. Importantly, during the pendency of the said suit the said land was purchased by the petitioner from the said Shafi on 21.02.1994. Meanwhile, on 12.10.1999 the suit was decided in favour of respondents No. 24 to 28, heirs of Fazal and the appeal filed was also dismissed on 10.04.2000. The petitioner has filed this civil revision on the basis of assignment of claim.
4. Malik Noor Muhammad Awan, Advocate, learned counsel for the petitioner contends that the petitioner has been assigned the claim under Order 2 Rule 10 of CPC and with permission of the Court he can always step in and contest the suit. Places reliance on H.M. SAYA & CO., KARACHI v.
WAZIR ALI INDUSTRIES LTD., KARACHI AND ANOTHER [PLD 1969 Supreme Court 65] to define himself as aggrieved party and on GOVERNMENT OF SINDH v. ABDUL SATTAR SHEIKH and others [2003 SCMR- 819] to claim the benefit of lis pendens. On merit, he contested that the agreement was oral in nature without time, date, place or any consideration, therefore, on the strength of REHMATULLAH and others v. SALEH KHAN and others [2007 SCMR 729] and BASHIR AHMAD and 21 others v. SHAH MUHAMMAD and another [2010 CLC 734] the oral agreement is not to be relied upon. Places reliance on MUHAMMAD NAWAZ through L.Rs. v. Haji MUHAMMAD BARAN KHAN through L.Rs and others [2013 SCMR 1300] to submit that it was time-barred suit as laid down in MUHAMMAD HUSSAIN and others v. Dr. ZAHOOR ALAM [2010 SCMR 286] and ABDUL KARIM and others v. Messrs FLORIDA BUILDERS (PVT) LIMITED [PLD 2012 Supreme Court 247]. Adds that discretionary relief for specific performance of the agreement was not to be granted. Places reliance on BASHIR AHMAD through L.Rs and another v. MUHAMMAD ALI through L.Rs and another [2007 SCMR 1047] and ATLAS KHAN and others v. MUHAMMAD NAVVAZ KHAN through L.Rs. And others [2010 SCMR 1217], SHAKEEL AHMED v. Mst. SHAHEEN KOUSAR [2010 SCMR 1507], HASHIM KHAN v. NATIONAL BANK OF PAKISTAN, HEAD OFFICE AT 1.1. CHUNDRIGAR ROAD, KARACHI AND BRANCH OFFICE AT M.A. JINNAH ROAD, QUETTA [PLD 2001 Supreme Court 325] and Mrs. IRENE WAHAB v. LAHORE DIOCESAN TRUST ASSOCIATION [2002 SCMR 300].
5. Conversely, M/s. Ch. Muhammad Ashraf, Syed Mubashar Raza and Mehboob Ahmad, Advocates, learned counsels for the respondents submit that the petitioner has no locus standi as heirs of Hanif and Rustam i.e. Respondents No. 1 -Kto 1-E, heirs of Shafi i.e, respondents No. 7 to 19 and 20 to 22, 23 have been proceeded ex parte who have not come forward either to admit or contest claim of the petitioner. Submits that the petitioner never got possession of the land, therefore, he cannot be impleaded in appeal. Places reliance on IQBAL SULTAN v. Miss CHAND SULTAN and 2 others [1990 CLC 366], Ch. SHUJAT HUSSAIN and another v. Mian ASLAM RIAZ HUSSAIN and others [1994 MLD 2079], ABDUL AZIZ AND ANOTHER v. Mst. SIKANDAR JAN AND OTHERS [PLD 1969 Peshawar 220] and FATIMA GIRLS HIGH SCHOOL v. GOVERNMENT OF THE PUNJAB through Member, Board of Revenue (Settlement), Lahore and 2 others [2002 SCMR 1361]. Further adds that right of appeal is a substantive right and that the petitioner cannot be substituted for heirs of Rustam and Hanif.
Places reliance on SARDAR MUHAMMAD and another v. AKRAM and others [2002 SCMR 807].
6. Arguments heard. Record perused.
7. Admittedly, the petitioner came into picture on 21.02.1994 when he statedly purchased the land from Muhammad Shafi but the fact remains that on 25.01.1988 the sale-deed dated 27.11.1982 was cancelled meaning thereby that the property reverted back to Hanif and Rustam. It was during the pendency of the suit for specific performance of oral agreement that the said land was allegedly purchased by the petitioner from Shafi but he never become party either during the pendency of the suit or appeal. He came forward for the first time by filing the present civil revision on 24.06.2000. The question raised is as to whether the person not being party in the litigation before the Courts below can file civil revision on his own on the strength of assignment of claim by the aggrieved person.
8. To answer this question it is important to reproduce Order XXII, Rule 10 of C.P.C, which is as follows:- "Procedure in case of assignment before final order in suit.---(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).
9. It has been argued by the petitioner's side that in H.M. SAYA & Co., KARACHI v. WAZIR ALI INDUSTRIES LTD., KARACHI AND ANOTHER [PLD 1969 Supreme Court 65], a stranger to suit or proceedings is competent to file appeal if adversely affected by an order, but admittedly, the present petition is a Revision Petition under Section 115 of C.P.C. In ALLAH DAD and 3 others v.
DHUMAN KHAN and 10 others [2005 SCMR 564] the petitioner therein was already made a party in the proceedings but in the present case the petitioner has filed the revision petition without being a party to the proceedings. In SAHIB DAD v. PROVINCE OF PUNJAB and others [2009 SCMR 385], the facts are very much identical, therefore, the relevant extract is as under:--- "According to the petitioner, Abdul Ghafoor during the pendency of the suit assigned his rights in the disputed land in his favour. In the said scenario the case of the petitioner was adequately covered under the provisions of Order XXII, Rule 10(1), C.P.C., but he did not choose to file any such application and felt satisfied on defending the proceedings by Abdul Ghafoor. Learned counsel has although relied upon the judgment of Surraya Begum (ibid), yet the in-depth perusal amply shows that it does not help the petitioner. It has been held in the said case that assignee may file an application to either become a party under Order 1, Rule 10, C.P.C., or for his substitution in place of the assigner and if the assignee chooses not to file any application for his impleadment in the proceedings then the decision against the assignor would be binding upon him."
' It will be equally expedient to reproduce RASHID AHMAD v. Mst. JIWAN and 5 others [1997 SCMR 171], in which it was held that:- "The doctrine of lis pendens contained in Section 52 of the Transfer of Property Act, 1882 merely provides that a transfer of immovable property during pendency of a suit, which is not collusive in nature, in which the right to such immovable property is directly and specifically in question, cannot defeat or affect the rights of any party to the proceedings under any decree or order which may be made in such suit. This provision does not preclude the transferee pendente lite from being made a party to the pending proceedings on the basis of such transfer. Order XXII Rule 10, C.P.C., which regulates the proceedings of a suit provides that in cases of assignment, creation or devolution of any interest during pendency of suit, the suit may be continued by or against the person to or upon whom such interest has come or devolved. Another provision which is relevant in such situation is Section 146 of C.P.C. Which provides that where any proceedings may be taken or application made by or against any person, then the proceedings may be taken or the application may be made by or against any person claiming under him. Provisions of Section 146 and Order 22, C.P. C apply equally to appeals".
' In Mst. SURRAYA BEGUM and others v. Mst. SUBAN BEGUM and others [1992 SCMR 652] assignee can be impleaded as party only in the appeal. In FARZAND ALI and another v. KHUDA BAKHSH and others [PLD 2015 Supreme Court 187], the principle of lis pendence is discussed. Relevant portion is reproduced as under:--- "Considering the plea of lis pendens raised by the appellants' learned counsel, it may be mentioned that the scope, the principle and the application of rule of lis pendens has been elaborately dilated in the judgment reported as Muhammad Ashraf Butt and others v.
Muhammad Asif Bhatti and others [PLD 2011 SC 9051. The ratio of the above law is that a subsequent transferee cannot sustain his transfer (e.g. The sale) if he has purchased the property during the pendency of the suit. He is bound by the outcome of the suit, obviously that shall be so if the case is decided against the transferor from whom he is purchasing the property or against the transferee if he is a party to the case, but if the lis is decided in his favour, there shall be no question about the application of the rule of lis pendens."
10. Since the petitioner has neither become party in the suit nor at the appellate stage, therefore, he is bound by the decree as he has stepped, at the most, into the shoes of appellant who after losing the appeal did not file the revision petition.
11. In this view of the matter, this civil revision having no merits is dismissed. Civil revision .
2015 C.L.R. 1325 [Multan] Preent: MUSHTAQ AHMAD TARAR, J.
Muhammad Zulqarnain Versus DCO/Chairman District Recruitment Committee, District Multan, etc. Writ Petition No. 5270 of 2015, decided on 19th June, 2015.
CONCLUSION
(1) Minimum educational qualification required for the post as advertised is necessary for appointment against the said post and the eligibility of a candidate shall be determined in accordance with advertisement for the post. APPOINTMENT --- (Eligibility/criteria) Constitution of Pakistan, 1973- --Art. 199---Appointment---Eligibility/criteria---Petitioner having B.Sc. Computer Engineering degree, applied for the post of SESE Computer Sciences (BS-14), the required qualification for which post was M.Sc. (CS)/MCS/M.Sc. (I.T)/MIT as advertised by respondent---It was asserted that according to said Notification of Higher Education Commission, the degree of B.Sc. Computer Engineering had been held equivalent to M.A/M.Sc. Degrees and that petitioner was topper in merit list and respondents had violated golden principle of merit which amounted exploitation and discrimination---Validity---It was clear from said Notification that Higher Education Commission had declared the bachelor degrees such as B.Sc. Engg. Etc. Equivalent to M.A/M.Sc. Degrees and not equivalent to M.Sc. (Computer Science), which was required qualification for the posts advertised---Petitioner had no degree of M.Sc. (CS)/MCS/M.Sc. (IT)/MIT, which was minimum requirement for appointment on said post---Petitioner did not fulfill criteria as laid down in advertisement and did not fulfill requirement of minimum educational qualification for the post advertised---Respondents had committed no illegality or irregularity while rejecting application of petitioner for the post of SESE Computer Science (BS-14)---Writ .
(Paras 9, 11, 12)
[Petitioner did not fulfill criteria laid down for the post advertised. Respondents had correctly rejected his application. High Court dismissed writ petition].
For the Petitioner: Tahir Mehmood, Advocate. For the Respondent: Mubashar Latif Gill, AAG. Date of hearing: 19th June, 2015.
' MUSHTAQ AHMAD TARAR, J. --- Petitioner Muhammad Zulqarnain has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer that respondent No. 1 be directed to treat his qualification B.Sc. (Computer Engineering) equal to M.Sc. (Computer Science) and he be appointed on the post of SESE Computer Science (BS-14).
2. The facts in brief leading to this writ petition are that the petitioner filed this petition and alleged that respondent No. 1 advertised certain vacancies of educators in Tehsil Multan City and two posts of SESE Computer Science (BS-14) were also advertised; that for the post of SESE Computer Science (BS-14) required qualification in the advertisement was M.Sc. (CS)/MCS/M.Sc. (IT)/MIT; that the petitioner who is qualified B.Sc. Computer Engineering applied for the said post, whereas, he qualified NTS test and procured 65/100 marks; that he participated in the interview etc. And in the tentative merit list he was topper but in another tentative merit list his name was omitted; that on query, respondents told him that he is not possessing the required qualification for the said post, so his name has been omitted; that according to Notification of Higher Education Commission dated 29.3.2007, the degree of B.Sc. Computer Engineering has been held equivalent to M.A/M.Sc.
Degrees; that in the minutes of the Equivalence Committee held on 20th August, 1992 the degree of BE Computer System Engineering awarded by Mehran University was declared equivalent to M.Sc.
(Computer Science); that the petitioner was topper in the merit list and respondents have violated the golden principle of merit which amounts to exploitation and discrimination.
3. Learned counsel for the petitioner contended that career of the petitioner throughout is very shining and according to Higher Education Commission Notification dated 29.3.2007, B.Sc.
Computer Engineering of the petitioner has been declared equivalent to M.A./M.Sc. Computer Science; that employment against the seat advertised by the respondents is fundamental and constitutional right of the petitioner and while omitting his name from the list by the respondents the respondents have violated the fundamental human rights as enshrined by the Constitution of Islamic Republic of Pakistan; that the petitioner has got the B.Sc. Computer Engineering degree in the relevant field for the post advertised by the respondents and in case he is not appointed it will amount to discrimination and future of the petitioner will be ruined.
4. Comments from the respondents were called which were submitted wherein the version of respondents is that the basic qualification for the post of SESE (Computer Science) mentioned in the advertisement was M.Sc. (CS)/MCS/MSC (IT)/MIT and as the petitioner's academic qualification did not match with the prescribed qualification, his application was not considered for the said post.
5. The learned AAG contended that required qualification for the post applied for the petitioner in the advertisement given by the respondents is M.Sc. (Computer Science), whereas, the petitioner has earned the degree for B.Sc. (Computer Engineering) which is not equivalent to M.Sc. (Computer Science) in any manner; that in Notification No. 8-1/HEC/A& A/2006/562 dated 29.3.2007, the Higher Education Commission has declared degrees of B.Sc. (Computer Science) equivalent with M.A/M.Sc. Degrees and not with M.Sc. (Computer Science) degree; that as the petitioner has not fulfilled required qualification mentioned in the advertisement for the post, hence, his name was rightly omitted from the list being not eligible for the post. He has placed reliance upon "Khurram lqbal v. Deputy Director Food, D.G. Khan and another" (2013 SCMR 55), and "Rao Muhammad Aftab v. Province of Punjab through Secretary Schools, Education, Lahore and 3 others" (2014 PLC (C.S.)
39).
6. Arguments heard, comments perused and the case-law cited by the learned AAG considered.
7. It is own case of the petitioner that for the post of SESE Computer Science (BS-14) got published by the respondents the required qualification mentioned in the advertisement was M.Sc. (CS)/M.Sc.
(IT)/MIT. Admittedly, the petitioner is not having the degree of M.Sc. (CS)/M.Sc. (IT)/MIT and he has obtained the degree of B.Sc. Computer Engineering. It has been contended on behalf of the petitioner that Higher Education Commission, vide Notification dated 29.3.2007 has declared the degree of B.Sc. Computer Engineering held after 4 years equivalent to M.A./M.Sc. Degrees awarded after 4 years of post-intermediate education for the purpose of employment in BS-17 and in this way the B.Sc. Computer Engineering degree of the petitioner should have been considered equivalent to M.Sc. Computer Science by the respondents for appointment of the petitioner against the post of SESE Computer Science (BS-14) advertised by the respondents.
8. I have gone through the said Notification dated 29.3.2007 of Higher Education Commissioner, placed on the record by the petitioner, the same is reproduced here-under for proper appraisal:--- ' NOTIFICATION ' The Higher Education Commission recognizes all the Bachelor's degrees such as BE/B.Sc.
Engg./B.Sc. (Hops) Agri./B.Pharm/MBBS/BS(CS)/ B.S. (IT)/BBA (Hans.) and LL.B. Or equivalent held after 4-years/8 semesters (16-18 weeks each) studies and upon qualifying minimum 124 to 136 credit hours with admission requirement as Intermediate or equivalent involving 12-years schooling as equivalent to M. S/M. Sc degrees awarded after 4 years of post-intermediate education (2-year B.A/B. Sc +2-year M.A/M.Sc.) in general stream for the purpose of employment in B- 17 and for higher education.
9. This Notification shows that Higher Education Commission recognizes the Bachelor's degrees such as BE/B.Sc. Engg/B.Sc. (Hon) etc. As equivalent to M.A/M.Sc degrees awarded after 4 years of post-intermediate education in general stream for the purpose of employment in B-17 and for higher education. However, it is clear from the Notification that Higher Education Commission has declared the bachelor degrees such as B.Sc. Engg. Etc. Equivalent to M.A/M.Sc. Degrees and not equivalent to M.Sc. (Computer Science), which was required qualification for the posts of SESE Computer Science (BS-14) advertised by the respondents in this case. Therefore, it is established from the record that the petitioner is not holding the degree of M.Sc. (CS)/MCS/M.Sc. (IT)/MIT, which was basic requirement for appointment against the post of SESE Computer Science (BS-14) advertised by the respondents.
10. In the judgment of august Supreme Court of Pakistan reported as "Khurram lqbal v. Deputy Director Food, D.G. Khan and another" (2013 SCMR 55), the apex Court has held that minimum educational qualification required for the post as advertised is necessary for appointment against the said post and the eligibility of a candidate shall be determined in accordance with advertisement for the post. In the judgment of this Court referred by the learned AAG titled as "Rao Muhammad Aftab v. Province of Punjab through Secretary Schools, Education, Lahore and 3 others"
(2014 PLC (C.S.) 39), this Court has laid down the same principle that the person who does not fulfill the criteria for appointment laid down in the advertisement has no right for appointment against the said post.
11. In this case it is clear from the record that the petitioner having B.Sc. Computer Engineering degree applied for the post of SESE Computer Science (BS-14) the required qualification for which post was M.Sc. (CS)/MCS/M.Sc. (IT)/MIT as advertised by the respondents. The petitioner has no degree of M.Sc. (CS)/MCS/M.Sc. (IT)/MIT which was minimum qualification for appointment on the said post. As the petitioner does not fulfill the criteria as laid down in the advertisement and does not fulfill the requirement of minimum educational qualification for the post advertised, I am of the clear view that the respondents have committed no illegality or irregularity while rejecting the application of the petitioner for the post of SESE Computer Science (BS-14).
12. Resultantly, this petition is dismissed having no force, in it.