Raja Saeed Akram Khan, J.--The captioned appeal has been addressed against the judgment of the High Court dated 13.08.2012, whereby the writ petition filed by the appellant was dismissed.
2. Facts forming the background of the instant appeal are that the appellant filed a writ petition before the High Court on 28.03.2009, alleging therein, that he is a refugee from Jammu and Kashmir settled in Pakistan. Respondent No, 2 advertised some posts of lecturers including lecturer Physics vide advertisement No, 1 of 2008. The appellant applied for the post reserved for the refugees settled in Pakistan and qualified the test and interview. After some time, the appellant came to know that Respondent No, 5 has been recommended against the quota of the refugees settled in Pakistan, whereas, Respondent No, 5 is a refugee of 1989. The appellant brought this illegality into the notice of Respondent No, 2, but all in vain. It was alleged that the handout dated 11.11.2008 to the extent of recommendations made in favour of Respondent No, 5 against the quota of refugees settled in Pakistan is illegal, arbitrary and without lawful authority. The learned High Court after necessary proceedings vide impugned judgment dated 13.08.2012 dismissed the writ petition filed by the appellant, hence this appeal by leave of the Court.
3. Mr. Noorullah Qureshi, Advocate, the learned counsel for the appellant argued that the judgment of the High Court is against law and the facts of the case which is not sustainable in the eye of law.
He submitted that the learned High Court has overlooked the record while passing the impugned judgment. He drew the attention of this Court towards the certificate of first class state subject issued on 12.10.2000 while submitting that the case of the Respondent No, 5 does not fall in the quota of refugees settled in Pakistan rather falls in the quota of refugees of 1989. He submitted that the learned High Court failed to distinguish the quota reserved for the refugees of 1989 and that of the refugees settled in Pakistan. He further submitted that the documents relied upon by the appellant clearly speak that he is a refugee settled in Pakistan. In this way, findings recorded by the High Court are against the record. He contended that the learned High Court has also erred in law while not taking into consideration that Respondent No, 5 was recommended against the quota reserved for the refugees settled in Pakistan. The learned High Court also failed to take the notice that during the pendency of writ petition status quo order was passed by the High Court, but in spite of that, the appointment order of Respondent No, 5 was issued which was sheer violation of the order of the High Court. He contended that a contempt application was moved by the appellant, but the learned High Court has not initiated any proceedings against the concerned authority. He maintained that another important aspect of the case which remained over sighted by the High Court is that Respondent No, 5 has migrated from Indian occupied Kashmir in 1989 and also got recorded his statement before Assistant commissioner Rehabilitation, in which he stated that he is refugee of 1990. In continuation of the argument he contended that the learned High Court failed to examine the documents of Respondent No, 5 which clearly show that he is refugee of 1989 and he does not fall in the category of the refugees settled in Pakistan. He contended that the learned High Court failed to adhere to law settled by the apex Court that the quota be observed strictly. He lastly submitted that while accepting the appeal and setting aside the impugned judgment the appointment order of Respondent No, 5 dated 09.06.2009 may be set aside.
4. On the other hand, Raja Muhammad Hanif Khan, Advocate, the learned counsel for Respondent No, 5, strongly controverted the arguments advanced by the learned counsel for the appellant. He submitted that the judgment of the High Court is perfect and legal and the appellant failed to substantiate that he is from the category of refugee settled in Pakistan, therefore, no interference is warranted by this Court. He further submitted that during the pendency of writ petition he came to know that appointment order of Respondent No, 5 was issued on 09.06.2009, but he failed to challenge the same or made any sort of application for amendment in the writ petition rather filed a contempt application which too was filed after lapse of 3 months from issuance of notification dated 09.06.2009. He submitted that notification which was not challenged in the writ petition cannot be set aside in the contempt proceedings. He submitted that even in the prayer clause no such relief has been prayed for, therefore, no relief can be granted beyond the pleadings. He contended that Respondent No, 5 took admission in the Azad Jammu and Kashmir University in the year 2005 while submitting that his case is covered in category "Azad Jammu and Kashmir Nationals settled in Pakistan", therefore, the case of Respondent No, 5 securely falls within the definition of refugees settled in Pakistan. The respondent has rightly applied against the quota reserved for the refugees settled in Pakistan. He maintained that being eligible, Respondent No, 5 participated in the test and interview and qualified the same. The Public Service Commission, issued the handout i,e,, press release while placing Respondent No, 5 in the merit list. In the light of the recommendations of the Public Service Commission he was appointed as Lecturer Physics on 09.06.2009. He submitted that it is a matter of record that contempt application was filed by the appellant in the High Court on 05.11.2009, while submitting in Para 8 of the said application that department has issued the notification dated 09.06.2009 which came into the knowledge of the appellant, on 28.10.2009. Despite this fact, the appellant did not sought any amendment in the writ petition. He lastly submitted that the father, of Respondent No, 5 had migrated from occupied Kashmir in 1985 and settled in Pakistan, therefore, in the statement got recorded by Respondent No, 5, it was inadvertently mentioned that he is a refugee of 1990.
5. Ch. Shaukat Aziz, the learned Additional Advocate-General, also adopted the arguments advanced by the learned counsel for Respondent No, 5
6. We have heard the arguments advanced by the learned counsel for the parties at some length and gone through the record along with the impugned judgment. The controversy involved in this case is that the appellant claims that he is a refugee settled in Pakistan and his case securely falls in the quota reserved for Refugees Settled in Pakistan, whereas, Respondent No, 5 has wrongly been entered in the category of the refugees settled in Pakistan and appointed against the seat reserved for refugees settled in Pakistan, Respondent No, 5 is refugee of 1989. The quota reserved for the refugees of 1989 is 6%, therefore, the appointment of Respondent No 5 is illegal. Before proceeding further, we would like to examine the prayer clause made in the writ petition which reads as under:- "It is, therefore, very humbly prayed that by accepting the writ petition of the petitioner an appropriate writ may kindly be issued to:--
(i) declare the recommendation of Respondent No, 5 for the post of Lecturer (Physics) B-17 against the quota reserved for Jammu & Kashmir Refugees settled in Pakistan as without lawful authority.
Because he falls . Under the quota of refugees 1989,
(ii) direct Respondent No, 2 for; sending petitioner's recommendation to Respondents No, 3 and 1 for his appointment as Lecturer (Physics) against the quota reserved for refugees settled in Pakistan,
(iii) Any other relief to which the petitioner is entitled may also be granted."
' After going through the above said prayer clause, it reveals that the notification dated 09.06.2009, thought which the appointment of Respondent No, 5 was made has not been challenged by the appellant before the High Court. It is also spelt out from the record that supra notification came into the knowledge of the appellant during the pendency of writ petition as is proved by his own pleadings. In Para 8 of the contempt application, which forms part of the paper book at page No, 36 he has categorically stated that he came to know about the appointment notification of respondent Mo.5 dated 09.06.2009 on 28.10.2009. The relevant portion of the application for initiating contempt proceedings reads as under:- "8. That in spite of service of the Court order and knowledge, respondents issued appointment order of the Respondent No, 5 vide notification dated 09.06.2009 and kept it concealed so that petitioner could not know its where about. It was on 28.10.2009 when petitioner came to know about the notification dated 09.06.2009, petitioner tried to get attested copy of it but could not however, petitioner managed photocopy which is annexed herewith and marked as Annexure "C"
' The proper course for the appellant was to challenge the said notification while filing the application for amendment in the writ petition or challenge the same independently, but no such course was adopted, meaning thereby, the notification through which the appointment of Respondent No, 5 was made has not been challenged before the High Court in the writ petition.
7. It would be appropriate to reproduce here the prayer clause made in the memo. Of appeal which reads as under:-- "In view of above, it is very humbly prayed that by accepting the petition for leave to appeal and by converting it into regular appeal that:-
(i) the judgment of the learned High Court dated 13.08.2012 may kindly be set aside,
(ii) declare the recommendation of Respondent No, 5 for the post of Lecturer (Physics) B-17 and his appointment order dated 30.03.2009 against the quota reserved for Jammu & Kashmir Refugees settled in Pakistan as without lawful authority. Because he falls under the quota of refugees 1989,
(iii) direct Respondent No, 2 for sending petitioner's recommendation to Respondents No, 3 and 1 for his appointment as Lecturer (Physics) against the quota reserved for refugees settled in Pakistan,
(iv) Any other relief which the Honble Court deems fit may also be granted."
' The prayer clause made in the concise statement filed on behalf of appellant is as under:-- "It is, therefore, very humbly prayed that:- (0 the judgment of the learned High Court dated 13.08.2012 may kindly be set aside,
(ii) declare the recommendation of Respondent No, 5 for the post of Lecturer ' (Physics) B-17 and his appointment order dated 30.03.2009 against the quota reserved for Jammu & Kashmir Refugees settled in Pakistan as without lawful authority. Because he falls under the quota of refugees 1989,
(iii) direct Respondent No, 2 for sending petitioner's recommendation to Respondents No, 3 and 1 for his appointment as Lecturer (Physics) against the quota reserved for refugees settled in Pakistan,
(iv) Any other relief to which the appellant is entitled may also be awarded."
' The prayer made in the memo. Of appeal and concise statement shows that the appellant has prayed to declare the recommendations made in favour of Respondent No, 5 for the post of lecturer Physics and his appointment order dated 30.03.2009 having been issued without lawful authority. As mentioned in the preceding Para that in the contempt application the appellant has categorically mentioned that appointment order of Respondent No, 5 was issued on 09.06,2009.
Moreover, the appointment notification of Respondent No, 5 appended with the concise statement filed by Respondent No, 5 shows that said notification was issued on 09.06.2009, perhaps due to typographical mistake in the prayer clause of appeal as well as the concise statement the said dated, i,e, 09.06.2009 has inadvertently been mentioned as 30.03.2009. Be that as it may, if the dated, i,e, 30.03.2009 is deemed to be 09.06.2009 even then no relief can be given to the appellant as the appellant has not challenged the appointment order of Respondent No, 5 in the writ petition, therefore, he cannot challenge the same directly in this Court. Law is settled on the point that if a point has not been taken in the lower forum the same cannot be taken for the first time in this Court. Reliance can be placed on a case reported as Punoo Khan and 9 others v. Mst Iqbal Begum and 19 others [2012 SCR 196], wherein it has been observed that: "We agree with the contention of the learned counsel for the parties that a point which was not raised in the trial Court and in the appellate Courts, cannot be allowed to be raised for the first time in this Court. This Court in a number of cases has held that if a point was not taken in the lower Courts or the High Court and it involves inquiry into the facts, it cannot be allowed to be raised for the first time in this Court."
' Similarly in case titled Mat. Farooq Bibi v. Abdul Khaliq and 26 others [1998 SCR 244], it was observed as under: "We regret to subscribe to the views of the learned counsel for the appellant for the simple reason that this plea too was not raised in the written statement filed by the defendant-appellant nor this point was argued or urged before the Courts below or in the High Court, a point not raised in the Courts below or before the High Court cannot be permitted to be raised or agitated for the first time before this Court."
8. As observed earlier that while filing the application for initiating the contempt proceedings in Para 8 of the application the appellant has categorically stated that the appointment notification dated 09.06.2009 has been issued in violation of stay order. When the fact of appoint of Respondent No, 5 came into the knowledge of the appellant then he has to 'amend the writ petition or challenged the notification through a separate writ petition. The appointment notification on the strength of which the appellant wants to built up his case in this Court was not challenged before any forum, therefore, no relief can be claimed which is not prayed: It is settled principle of law that no relief can be granted beyond the pleadings. Reliance can be placed on a case reported as Azad Government and 2 others v.
"11. From the survey of case law, it becomes absolutely clear that the law stands settled on the point that the relief which is not the part of pleadings of a party cannot be given to it by the Courts as the civil law is the law of omission and commission."
' Similarly, in another case reported as Raja Muhammad Saeed Khan v. Syed Khani Zaman Khan & 11 others [2006 SCR 271], it has been held that:- "It is well settled principle of law that the parties cannot go beyond their pleadings."
' Even when the above said situation was confronted to the learned counsel for the appellant, he was unable to controvert the same. As the basic notification dated 09.06.2009, upon which the structure of the appellant's case could be built up was not challenged, therefore, we are not intended to discuss the other points raised by the learned counsel for the appellant.
' In view of above, finding no force, this appeal stands dismissed. No order as to costs.