' MUHAMMAD YOUNIS THAHEEM, J.--- Dr. Ahmad Ali Aajiz, Petitioner herein, has invoked the constitutional jurisdiction of this Court by praying that:- "On acceptance of this petition, the impugned appointment order dated 27.09.2012 of respondent No,4 as Associate Professor, Pashto Department, University of Peshawar may be declared as illegal, without lawful authority and of no legal effect; and To grant any other relief to which the petitioner is found fit in law, justice and equity. "
2. Brief facts of the case are that in pursuant to an advertisement published in the Daily 'News' dated 02.07.2011 the petitioner as well as respondents Nos.4 and 5, namely, Dr. Roohullah and Dr. Nasrullah Jan Wazir submitted their application forms along with relevant documents for the post of Associate Professor (BPS-20), Pashto Department, University of Peshawar (hereinafter referred to as the post) and upon the finalization of the prescribed procedure, Scrutiny Committee was constituted in the purview of notification No,1,44-204 dated 16.02.2005 to scrutinize the eligibility of the ca.Ndidates for the said post in response to the advertisement.
3. The terms of Scrutiny Committee enunciated vide notification dated 16.02.2005, are reproduced as under:--
1. "To ensure that the application form as per advertisement is complete in all respect and has been received on or before the last date for the submission of forms. That applicant fulfills the criteria laid down as per requirement and that the required teaching and research experience in a national or international Organization is accordance with the equivalence and prevailing precedence of the NEC.
3. Appeal against the decision of the Scrutiny Committee shall lie to the Vice-Chancellor within 21 days of the communication and will be referred to the Selection Board for final decision. "
4. According to record this Scrutiny Committee met twice to scrutinize the eligibility of the candidates, but due to some deficiencies of required number of publications in the HEC (Higher Education Commission, herein after called as Commission) recognized journals it Was postponed.
5. The Scrutiny Committee after receiving , required number of publication from the candidates, held meeting on 10.02.2012, and respondents Nos.4 and 5 were found eligible for interview and petitioner was found deficient of required number of publications in the HEC recognized Journals, so was dropped to be called for interview.
6. It is necessary to mention that the petitioner moved anapplication to the respondent No,1 Vice Chancellor for the cancellation of above said meeting of 10th Feb., 2012, but record reveals that decision of Scrutiny Committee dated 10.02.2012 was not challenged by the petitioner despite knowledge before the competent authority i.e, Vice-Chancellor, according to Notification No,144- 204 dated 16.02.2005.
7. Afterwards, the petitioner filed a civil suit before the Senior Civil Judge, Peshawar and along with suit he filed an application for the grant of temporary injunction to restrain the defendants therein from carrying out the selection process against the post. The said suit was entrusted to the learned Civil Judge-IX, Peshawar where the respondents Nos.1 to 4 filed their replication in response to the application for grant of Temporary injunction and also filed application for rejection of plaint under Order VII, Rule 11 of C.P.C. The same agplication was replied and after hearing arguments the trial court rejected the plaint under Order VII, Rule 11, C.P.C., vide order dated 25.09.2012. The appeal of the petitioner against the said order dated 25.09.2012 also met the same fate as it was dismissed by the Court of Additional District Judge-V, Peshawar, titled as Dr. Ahmad Ali Ejaz v. V.C. Peshawar etc., vide order/judgment dated 10.11.2012.
8. After rejection of plaint, the appointment order dated 27.09.2012, was issued by Registrar of the University. The petitioner feeling aggrieved filed the instant petition contending on, inter alia, grounds therein. In this respect comments were called from respondents Nos.1 to 3 and 6 and, in response they filed the same, wherein it is asserted that after completion of Scrutiny process the University had fixed the date for interview on 03.09.2012, and according to rules the eligible candidates were issued call letters only. In this respect among the eligible candidates respondent No,5 Dr. Nasrullah Jan Wazir did not appear before the Selection Board duly constituted under the University Rules and respondent No,4 only appeared before the Selection Board and was recommended by the selection Board for appointment against the said post, the same recommendation was later on approved by the Syndicate in a meeting held on 15th Sep., 2012 with the remarks that final order will be issued after the decision of Court. The Civil Suit of petitioner as earlier discussed was rejected on 25.09.2012, after which the university/ competent authority issued appointment notification of respondent No,4 on 27.09.2012.
9. Para-wise, comments so furnished were thoroughly examined. In comments, the respondent No,6/Higher Education Commission has raid objections to the effect that the instant petition is not maintainable; -that the petitioner has no cause of action and locus standi; and that the petitioner has wrongly invoked the constitutional jurisdiction of this Court. In comments the respondent No,6 has also disclosed criteria/ essential conditions for appointment to the post.
10. The learned counsel for the petitioner argued that the scrutiny committee has been incompetently constituted and wrongly scrutinized the candidature and eligibility of petitioner. He further argued that the very constitution of scrutiny committee by respondent No,2 and its decision dated 10.02.2012 is illegal, without lawful authority. The learned counsel further argued that respondent No,2 being acting Vice Chancellor was incompetent to constitute Scrutiny Committee and selection board and lastly issuance of notification for appointment of respondent No,4.
Reliance was placed on case titled "Raja Muhammad Nasir Khan v. Acting Vice-Chancellor and others" (2013 PLC (C.S) 353), "Trustees of the Port of Karachi through Chairman KPT v. Messrs N.K.
Enterprises through Partner" (PLD 2013 Sindh 264) and "AlJehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and others" (PLD 1996 SC 324).
11. Responding to the arguments of learned counsel for petitioner, the counsel for respondents Nos.1 to 3 and 6 reiterated their comments and argued that petitioner has no locus standi and cause of action, as petitioner himself stated that he is not eligible for the said post. The respondents Nos.1 to 3 has appointed the respondent No,4 after strict - compliance of law, rules and regulation regarding selection process. The respondent No,4 fulfilled the requisite qualification and only one candidate i.e, respondent No,4.Appeared in the interview before the said Selection Board. The learned counsel for respondents further argued that allegations leveled by the petitioner pertains to factual controversy and the petitioner is not aggrieved person within the scope of Article 199 of.
The Constitution of Islamic Republic of Pakistan.
12. Arguments of the learned counsel for petitioner as well as the learned counsel for the respondents at preliminary stage were heard and record perused.
13. Perusal of the available record reveals that the petitioner clearly admitted. In his plaint that although he has publications in his credit published in duly recognized journals by HEC, but are less than in number as required for the post. (Underline is by us). It would be worthwhile to reproduce the said para-1 of the plaint which runs as under;- "That the plaintiff has been rendering services in Pashto Department, University of Peshawar as Assistant Professor, who has more numbers of publications on his credit published in duly recognized journals by HEC, but are less than 10 number as required for the post in question.
Nonetheless, he has a greater number of Articles. Published in other journals. "
14. Another lacking feature of the present petition is that the Higher Education Commission, respondent No,6 herein, has laid down criteria for appointment to the post mentioned in grounds of the comments, which reads as under:- Ph.D. In the relevant field from HEC recognized university/ institution.
' Ten years teaching/research experience in an HEC. Recognized university/institution.
' The applicant must have ten research publications (with at least four publications in the last five years) in the HEC recognized Journals. iv........................................................................................... v.............................................................................................
15. Keeping in view the admission made by the petitioner quoted hereinabove in Para No, 13 of this judgment and the detail criteria laid down by the Higher Education Commission referred in comments and highlighted in Para No,14 of this judgment, prescribing the essential conditions, the verification of publications made in the journals recognized by the commission, the verified letters, its authenticity, the C signatures on the letters showing proof and their genuineness, the verified list of journals mentioned by the Commission and the recommendations by the Scrutiny Committee as well as by the Selection Board duly approved by the Syndicate, all this would show that entire process of selection has been completed according to rules and policy by the competent authority.
16. The contention of the petitioner that Vice Chancellor at that relevant time was acting and was not vested with the authority to constitute Scrutiny Committee or Selection Board, is not tenable rather conduct of petitioner is blowing hot and cold in same breath, as the petitioner being aggrieved has submitted an application before the Vice-Chancellor, regarding cancellation of meeting to be held on 10th February, 2012 of Scrutiny Committee, but it is no where mentioned that the acting Vice Chancellor has vested with no such powers, meaning thereby that the petitioner has accepted the criteria, constitution of scrutiny committee and selection board and when he sensed that he would not be appointed then he submitted application. In view of this eventuality, raising such objection is of no worth at this stage, as it is a mixed question of law and facts and this Court under constitutional jurisdiction could not take cognizance over factual controversy.
17. Accordingly for the reasons stated hereinabove, this Court finds that the petition is bereft of legal merits, hence dismissed.