Ghulam Mustafa Mughal,J -- This appeal by leave of the Court has been directed against the consolidated judgment passed by the Azad Jammu and Kashmir High Court on 9.1.2017 in writ petitions No. 2086/2313 of 2015 filed by respondents No. 1 to 3, herein.
2. The necessary facts forming backgroun d of the captioned appeal are that some posts of Junior Arabic Teachers, B-9 were advertised by the Divisional Director Schools, Poonch Division in constituency No. 2, North Bagh vide advertisement dated 27.6.2015 in 'Daily Ausaf '. Later on, a corrigendum was issued on 30.6.2015, whereby one more post was included in the advertisement. Among others, the appellants, herein, applied for the appointments and after test and interview as per their stand they were placed at serial No. 1 and 2 of the merit list, respectively and were appointed against the posts of Arabic Teacher , B-9 on the recommendations of the selection committee vide order dated 22.9.2015.
3. Respondents No. 1 to 3, herein, filed two writ petitions in the High Court alleging therein that only one post of Arabic Teacher , B-9 was advertised by the Divisional Director Schools, Poonch Division for constituency No.2, North Bagh. It was claimed that as per conditions of the advertisement dated 27.6.2015, the qualification for the appointment of Junior Arabic Teacher , B-9 was fixed as B.A (2nd Division), O.T., ATTC. It was further claimed that they fulfilled the required qualification rather were in possession of the higher qualification vis-a-viz to the appellants, herein, who are Matric with Shadat-ul-Almia for 4 years. It was claimed that appellant No. 2, herein, is only F.A. with Shadat-ul-Almia , 4 years course, hence, she is also lacking the required qualification. It was claimed the official respondents have made two appointments, although, one post was advertised which proves the political intervention as well as the malafide on their part. It was further alleged that respondents No. 1 to 3, herein, have secured merit position but on political intervention, the appellants, herein, were placed ahead to them in the merit list. It was alleged that the merit list dated 23.9.2015 and the appointments of the appellants are politically motivated, illegal and against the record as well as the criteria laid down for the appointments of Primary and Junior Teachers vide notification dated 5.5.2015 and the circular dated 2.12.2003 issued by the Government.
4. The writ petitions were contested by the appellants, herein, by filing separate written statements. Their defense is common, therefore, needs not to be reiterated separately . It has been pleaded on behalf of both the appellants that respondents No. 1 to 3, herein, have no locus-standi to file the writ petitions, hence, the same are liable to be dismissed. It was further stated that respondent No.1, herein, has participated in the test and interview and was placed at serial No. 17 of the merit list vis-a-viz to the appellants, herein, who were placed at serial No. 1 and 2 of the merit list. In the written statement filed on behalf of appellant No. 1, herein, a separate preliminary objection regarding filing of the petition and violation of Rule 32 (2) of the High Court Procedure Rules, 1984 has been raised.
5. Both the writ petitions were consolidated by the learned High Court for the purpose of onward proceedings and after hearing the parties vide consolidated judgment dated 9.1.2017, the learned High Court has accepted the writ petitions and quashed the merit list as well as the appointment orders of the appellants, herein, made on 22nd September , 2015. The learned High Cour t has further directed the Divisional Director Schools Poonch Division as well as the respective selection committe e to conduct the test and interview of the candidates who have already applied on the basis of the advertisement dated 27.6.2015 afresh.
6. Sardar Muhammad Resham Khan, the learned Advocate for the appellants, herein, argued that the High Court has accepted the writ petitions mainly on the ground that the record which was sent for, has not been produced by the Divisional Director Schools Poonch Division which indicates that the merit list is not available, this inference cannot be drawn by the learned High Court which is against the record. The learned Advocate contended that the second ground on which the writ petitions have been accepted by the learned High Court is that there is a temping in the merit list but the fact remained that the merit list has not been challenged on the ground of tempering or non- availability of the record rather the private respondents, therein, have also relied upon the same merit list. The learned Advocate contended that the respondents, herein, have only claimed that as per their educational carrier , they stood first and secured merit position but the merit list has been changed on the direction of the Minister for Health. Thus, due to the political intervention, an edge has been given to the appe llants, herein, in violation of the notification dated 23.7.2015 prescribing criteria for award of marks as well as circular dated 2.12.2013, which fact was not proved before the High Court. The learned Advocate argued that the private respondents have been appointed in view of their merit position on the basis of test and interview , therefore, they cannot be made to suffer for an act or omission of the authorities of the Education Department who were performing the functions at the relevant time. The learned Advocate argued that after being un-successful in the test and interview , the respondents, herein, did not come with the volte face and say that they were succe ssful in the test and interview or have been deprived of for any other reason. The learned High Court has directed the official respondents to get verified the certificates of the respondents from the Higher Education Commission which relief was not prayed from the High Court, hence, the direction has been given contrary to the pleading of the parties. The learned Advocate contended that the fact of the matter is that the similar certificates have been produced by the respondents, herein, for appointment and the same were considered by the appropriate authority . The learned Advocate contended that the High Court has also misinterpreted the relevant rules and the qualification of the Junior Arabic Teacher , B-9.
The judgment passed by the learned High Court is contradictory and suffers from misreading and non-reading of the record, submitted the learned counsel. The learned Advocate lastly argued that the disputed question of fact which cannot be resolved without recording evidence, hence, the writ petitions were liable to be dismissed.
7. Conversely , Raja Sajjad Ahmed Khan, Advocate for respondents No. 1 to 3, contended that the judgment of the High Court is in accordance with law and has been handed down after proper appreciation of law and facts as is evident from paragraph 17 of the judgment. The learned Advocate argued that the official respondents have violated the Government policy issued vide notification dated 5.5.2015 for award of the marks and the circular dated 2.12.2013. He argued that the conclusion recorded in paragraphs 17 and 18 of the judgment is well reasoned and supported by law, therefor e, the same cannot be recalled. The learned Advocate argued that the record pertaining to the merit list has not been produced by the official respondents despite taking an adjournment, therefore, the learned High Court has rightly raised an adverse inference against the official respondents that they are not in possession of any record. The learned Advocate further argued that the merit list prepared and presented before this Court by the Divisional Director Schools Poonch Division is an afterthought and is not authentic. He contended that the right to service is a Constitutional right and this cannot be availed until and unless the selection process is carried out in a free, fair and transparent manner by the authorities who are reasonable for conducting the test and interview . He submitted that the political intervention in this case is apparent on the face of the record and has not been refuted specifically by the respondents. The learned Advocate argued the learned High Court left with no option except to quash the dubious, arbitrary and politically motivated appointments and provide the candidates who had appeared in pursuance of the advertisement to go for fresh test and interview . The learned Advocate submitted that the disputed question of fact cannot be gone into writ jurisdiction, when there is no other remedy available.
8. On the other hand, Mr. Raza Ali Khan, the learned Advocate-General, appearing for respondents No. 4 to 10, contended that the merit list produced before this Court by the Divisional Director Schools reveals that the private respondents secured merit position and they have been appointed accordingly . The learned Advocate contended that the reasonable opportunity has not been given by the learned High Court for producing the record as the same was to be produced by the Divisional Director Schools Poonch Division.
9. We have heard the arguments of the learned counsel for the parties and gone through the record of the case.
After perusal of the available record, the learned Judge in the High Court has concluded in paragraph 17 of the judgment under challenged as under:-- "17. The representative of Divisional Director Schools Poonch Division, on 05th January , 2017, instead of producing the impugned merit list and record has brought award lists of candidates pertaining to interview of Junior Arabic Teachresses, Constituency No.2, North Bagh, separately prepared by Chairperson, Secretary and member of the Selection Committee. There are lot of erasing in the award lists prepared by Chairperson and member of selection committee. The aforesaid award lists were examined in presence of the learned counsel for private respondent, Zora Rani. However , the learned counsel for private respondent, Misbah Nazir , due to personal exigency , could not appear to examine the same. The Divisional Director Schools Poonch Division, failed to produce relevant merit list and record. It appears that no any joint final merit list duly signed by Chairperson, Secretary and member of selection committee was prepared. A facsimile of disputed merit list appended by petitioners in both the writ petitions reveals that the first leaf thereof was only singe d by Chairperson and below her signature date was written as 23rd September , 2015, whereas, second leaf was signed by her on 21st September , 2015. However , appointment orders of private respondents were issued on 22nd September , 2015. The same merit list was produced by private respondent Misbah Nazir , along with written statement filed in writ petition No. 2313/2015, which shows that it was neither signed by Secretary nor member of selection committee. A reading of the merit list shows that neither marks of certificates/degrees of candidates were inserted nor marks of written test and interview were incorporated in it, therefore, the same is accordingly bad in law. As per my humble view respective selection committee failed to adopt selection process in fair and transparent manner , hence, whole process is liable to be quashed."
10. A perusal of the record would show that the above conclusion of the learned Judge in the High Court is unexceptional. The appellants, herein, have not placed with the written statement any merit list on the basis of which it could be ascertained that they have attained the merit position in the test and interview after awarding the marks in light of the notification dated 23.7.2015 and the circular dated 2.12.2003 issued by the Government. The learned Judge in the High Court had afforded an opportunity for producing the merit list but despite availing the same, the Divisional Director Schools Poonch Division failed to produce the record before the Court. In absence of the merit list, the learned Judge in the High Court has rightly proceeded to decide the case in accordance with the High Court Procedure Rules, 1984 on the basis of available record. During the pendency of the appeal before this Court, the record was summoned for the ends of justice and the Divisional Director Schools has furnished the same. This is also not a merit list rather it is a list of the female candidates for the test and interview of the Junior Arabic Teachers, B-9. As stated above that the marks have not been awarded according to the formula and approved criteria of the Government, therefore, such a polluted selection cannot be protected in exercise of writ jurisdiction. The right of service is a Cons titutionally guaranteed right has a close nexus with the right of security of persons which includes the right to life and profession. It is enjoined upon the Government functionaries to strictly adhere to the relevant rules for induction of the employees in the service of Azad Jammu and Kashmir . The policy of pick and chose of the candidates has created frustration among the youth as a class. The target of good governance cannot be achieved unless and until the selection process is not fair, free and transparent. Through various pronouncements of the superior Courts, it has been directed that the appointments should be made without considering any political or external pressure purely on merit. The rule of merit if not followed then it will ruin the society . The apex Court of Pakistan in a case reported as Mushtaq Ahmed Mohal and others vs. The Honourable Lahore High Court, Lahore and others [1997 SCMR 1043 ] has been pleased to observe as under:-- "17. We reiterate that the appointments to various posts by the Federal Government, Provincial Government, Statutory Bodies and other Public Authorities, either initial or adhoc or regular , without inviting applications from the public through the press is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoi ns equality of opportunity and guarantees for creation of an egalitarian society through a new order , which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions."
11. While dictating the judgment, it is notic ed that the several opportunities were availed by the official respondents for filing written statement but they deliberately did not file the same. This shows the malafide on their part and the allegations levelled in the writ petitions against the official respondents, particu larly/political intervention in the making of the appointments of the appellants is proved. On the basis of the above, we do not find any legal infirmity in the judgment passed by the learned Judge in the High Court and we have nothing to it. The learned Judge has already directed the authorities to conduct the test and interview afresh on the basis of advertisement dated 27.6.2015.
The upshot of the above, we have found no substance in this appeal, therefore, the same is hereby dismissed with no order as to costs.