GHULAM MUSTAFA MUGHAL, J. --- The captioned appeal by leave of the Court arises out of the judgment dated 12.3.2018 passed by learned High Court in Writ Petition No, 2072 of 2016.
2. The precise facts forming the background of the captioned appeal are that Saeed Ahmed, respondent No, 1, herein, was appointed as Lecturer Urdu on the recommendations of the Azad Jammu & Kashmir Public Service Commission vide notification dated 23.9.2010. The appellant, herein, was also appointed as Lecturer Urdu on the recommendations of the Public Service Commission vide notification dated 12.4.2007. The Azad Jammu & Kashmir Public Service Commission advertised various posts of Assistant Professor B-18 including Urdu vide advertisement No, 2 of 2013 dated 11.12.2013. As per rules and advertisement the qualification required for induction was Master Degree second class with seven years teaching experience. It was claimed that the appellant, herein, was in possession of the required experience. He has six years experience as Lecturer from 12.4.2007. He claimed one year service experience as Lecturer in Crescent Model College for the years 2006 to 2007. Among others, the appellant as well as the respondent, herein, appeared in the test and interview and the appellant was placed at serial No, 1, hence, was recommended for appointment as Assistant Professor Urdu B-18 vide hand out dated 21.3.2016. It was alleged that respondent, herein, filed writ petition before the Azad Jammu & Kashmir High Court whereby he challenged the recommendations of the Public Service Commission and obtained stay order due to which the formal appointment order of the appellant, herein, was not issued and subsequently the learned Single Judge of the High Court has accepted the writ petition through the impugned judgment dated 12.3.2018 and quashed the recommendations of the Public Service Commission issued in favour of the appellant, herein. Through the same judgment it was ordered that respondent, herein, may be appointed as Assistant Professor Urdu B-18. It is stated that the judgment of the High Court is illegal, erroneous and against the record. It is claimed that the writ petition has been accepted mainly on the ground that the last date for submission of the applications was fixed by the Public Service Commission as 31.12.2013 and the certificates issued by the Director Education Mirpur Division as well as Principal Crescent Model College on 18.3.2016 and 30.3.2016 respectively, have been considered by the Public Service Commission which were not appended alongwith the main application. It is stated that the observation of the learned High Court was totally against the record because all the documents were submitted alongwith the main application. The appellant has obtained copies of the letters of the Divisional Director Schools on 18.3.2016 and that of the Principal Crescent Model College on 30.3.2016 and placed them before the Public Service Commission which were rightly considered for the purpose of preparation of the merit. The appellant was rightly recommended, therefore, his appointment was justified. The writ petition was contested by the respondents on the ground that the documents referred to and relied upon by the appellant, herein, alongwith the written statement was not the part of the record of the application submitted before the Public Service Commission before the last date fixed for receipt of the applications. It was contended that no application can be entertained subsequently.
Moreover, these certificates were not admissible as the Director Colleges has not verified these certificates on the ground that the name of the appellant, herein, was not in the list of the staff submitted for the year 2006-07 by the Principal Crescent Modal College. At the conclusion of the proceedings, the learned High Court through the impugned judgment has accepted the writ petition and declared the recommendations made by the Public Service Commission in favour of the appellant, herein, null and void and directed the Public Service Commission to recommend the respondent, herein, for appointment as Assistant Professor.
3. Sheikh Masood Iqbal, the learned Advocate appearing for the appellant, submitted that as respondent No, 1 herein, had participated in the test and interview and could not qualify the same, therefore, he cannot challenge the selection process as well as the recommendations made in favour of the appellant, herein, on the ground of acquiescence and estoppels by conduct. He placed reliance on the cases reported as 2016 SCR 15, 2008 SCR 67, 2001 SCR 282, 2004 SCR 467 and 1998 SCR 243. It was next argued by the learned Advocate that all the relevant documents as well as the experience certificates were submitted within time, therefore, on the basis of these documents the Public Service Commission has rightly recommended the appellant vide hand out dated 21.3.2018. He submitted that respondent No, 1 has obtained verification which reveals that the name of the appellant is not included in the staff statement on 1.4.2016. The learned High Court, according to the learned Advocate, has wrongly held that the application before the Public Service Commission was incomplete. The learned Advocate submitted that as the judgment is against the record, hence, is liable to be recalled. The learned Advocate argued that the learned High Court cannot declare the respondent successful in place of the appellant because the task of judging the suitability and fitness of a candidate is the prerogative of the Public Service Commission and the same cannot be shifted to the High Court in any manner. In this regard, he placed reliance on Appeal No, 99/2017 titled Azad Govt. and others v. Muhammad Imran and others decided on 26.7.2017. The learned Advocate argued that the impugned judgment has been given in the light of the amended writ petition and the fact of the matter is that neither any amended writ petition was allowed nor has been filed. He argued that the judgment has been handed down on wrong assumption of facts and law. The learned Advocate argued that respondent No, 1 has not appended any document showing him at serial No, 1 of the waiting list. His selection has rightly been made on the basis of his merit as he obtained 49.74 marks.
4. Ch. Zafar Mahmood, the learned Advocate appearing for respondent No, 1 argued that the appellant, herein, fraudulently submitted experience certificate in the Public Service Commission, which was not only bogus bat also got prepared fictitiously after the due date. The learned Advocate argued that fictitious certificates dated 30.3.2016 and 10.12.2015 were submitted by the appellant after 31.12.2013, which could not be considered under law. He submitted that Public Service Commission illegally accepted these documents and declared the appellant, herein, as successful candidate. He argued that subsequent certificate which is produced after the date fixed for submission of the documents cannot be accepted. Reliance was placed on 1998 SCR 359. The learned Advocate argued that the stance taken by respondent No, 1 was proved through cogent evidence specially by filing affidavit whereas no counter-affidavit was filed by the appellant, herein, and his written statement has also not been legally attested by the oath commissioner, therefore, his writ petition has rightly been accepted. He placed reliance on 2015 SCR 123, 2003 SCR 590 and 1993 SCR 88. The learned Advocate further argued that totally a new case has been set up by the appellant before this Court and all these grounds were not taken in the written statement before the High Court, therefore, he is precluded from taking these grounds without prior permission of the Court and no separate application has been made in this regard. The learned Advocate placed reliance on 2010 SCR 131 and 2017 SCR 1086. It was further argued by the learned Advocate that Public Service Commission has submitted in its comments that the respondent has qualified the test and interview, therefore, the argument that the appellant is not on the waiting list, is devoid of any force. The learned Advocate while referring to-rule 4(1) of the AJ&K Public Service Commission (Procedure) Rules, 1994 argued that the qualification and experience in possession of a candidate at the time of submitting application has to be considered not otherwise. The learned Advocate argued that as the appellant was not qualified at the relevant time and he was lacking the required qualification and manoeuvred 'the fictitious and so-called certificates for experience, therefore, the recommendations made in favour of the appellant, herein, were rightly quashed by the High Court.
5. We have heard the learned Advocates representing the parties and have gone through the record of the case. For determination of the controversy, we have summoned the record of the Public Service Commission. A perusal of the advertisement No, 2/2013 issued by the Public Service Commission reveals that the last date for receipt of the applications was fixed as 31st December, 2013. It is not the case of anybody that the Public Service Commission has extended this date.
Under the AJ&K Public Service Commission (Procedure) Rules, 1994, a candidate has to submit complete application before the last date fixed for the purpose. A perusal of the record of the Public Service Commission further reveals that the appellant, herein, has submitted only the certificate dated 23.12.2006 alongwith his application, which does not show the dates of joining/leaving the institution and on the face of it appears to be vague. The Director Education has also reported that the name of the appellant is not listed in the staff furnished by the Administration of the Crescent Modal College to the Directorate. All these documents which have been received by the Public Service Commission at the time of interview were not attached with the application, hence, the application was not complete within the meaning of rule 4(1) of the AJ&K Public Service Commission (Procedure) Rules, 1994, therefore, the application was liable to be rejected or at least the experience documents furnished by the appellant would not have been considered. The controversy has been considered by this Court in case titled Farkhanda Ikram and another v. Dr. Ejaz Ahmed and others (Civil Appeal No, 73 of 1995, decided on 3.12.1995). At page 13 of the judgment, this Court after considering the relevant rules and the scope of acceptance or rejection of an incomplete application by the Public Service Commission observed as under:--- "We have given our due consideration to the arguments raised at the bar. For resolving the controversy stated above, it is expedient to reproduce below Section 7 of the Act and Rules 1 and 5 of the Rules:--- Section 7 of the Act: "Functions of the Commission.-- The functions of the Commission shall be:---
(a) to conduct tests and examinations for recruitment to the civil services of Azad Jammu & Kashmir and such posts in connection with the affairs of the Government as may be prescribed by rules made under Section 11;
(b) to advise the President on matters relating to qualifications for and method of recruitment to, the services and posts referred to in clause (a); and
(c) any other matter which the President may refer to the Commission.
Explanation.-- In this Section, 'recruitment' means initial appointment otherwise than by promotion or transfer."
Rule 4 of the Rules:- "4(1) An eligible candidate may submit an application to the Commission on a prescribed form before the last date fixed by the Commission. The application received after the last date shall stand rejected: Provided that if a candidate satisfies the Chairman that the circumstances preventing him to submit the application in time were beyond his control, the Chairman may for the reasons to be recorded, allow him to submit the application after the due date.
(2) Applications which are incomplete or are not on a prescribed form shall be rejected by the Commission: Provided that the candidate outside Pakistan may apply on simple paper and submit prescribed application form and fee before the test and interview.
(3) A candidate shall have three chances for a particular post.
(4) The aggrieved candidate, may apply to the Commission for review against the rejection order and the decision made by the Commission shell be final."
Rule 5 of the Rules:- "The syllabus for various posts and the mode of determination of the eligibility shall be such as may be notified by the Commission in its instructions from time to time."
Similarly, identical controversy was considered in the case reported as Muhammad Shakeel Khan v. AJK Public Service Commission and 3 others (1993 SCR 359), wherein a document was received after the last date fixed for receipt of the applications. Merit was changed. The action of the Public Service Commission was challenged before the High Court through writ petition. The same was accepted and the case was remanded to the Public Service Commission. On appeal, this Court in paragraphs 11 and 12 observed as under:-- "11. It becomes evident from the analysis of the case-law that on the basis of test and interview conducted by the Commission the appellant was declared successful for one of the posts of Assistant Directors/Social Welfare Officers reserved for District Poonch and his name was shown in the merit list but ultimately on the basis of a document which was obtained on 9.12.1997 and placed on record of the Commission on 16.12.1997 could not have been considered by the Commission as the application of respondent No, 4 on the stipulated date i,e, 10.11.1996, was incomplete and the same should not have been considered after a couple of days. Thus it follows that the Commission was not justified to retrace its steps having once decided in favour of appellant on the relevant date.
12. So far as the contention of the learned counsel for respondents is concerned that the recommendations made by the Commission was not acted upon so no right had accrued to the appellant which had been snatched away by the Commission, on careful consideration merits no consideration for the simple reason that if any party vested with jurisdiction violates its own rules the same is not exempted from judicial review. The High Court in our view committed an illegality by overlooking the above aspect of the case."
6. As stated above the last date in this case fixed for receipt of the applications was 31.12.2013 and at that time the appellant was not in possession of legal certificate of experience issued by the Principal Crescent Modal College. All the subsequent documents which have been considered by the Public Service Commission were issued in 2015-16 much after the last date fixed for receipt of the applications. It appears an afterthought for manoeuvring the recommendations of the Public Service Commission in favour of the appellant, herein. No affidavit on behalf of the Principal of Crescent Modal College has been placed on record that why the name of the appellant, herein, was not included in the staff list and why the date of joining or leaving the institution has not been mentioned in the certificate issued on 10.12.2015. The action of the Public Service Commission regarding consideration of the certificates after the last date fixed for receipt of the applications without recording any reason is illegal and violative of the AJ&K Public Service Commission (Procedure) Rules, 1994, hence, is declared without lawful authority.
7. In view of the above, we have reached the conclusion that the learned High Court has not committed any illegality while accepting the writ petition and vacating the recommendations of the Public Service Commission. The impugned judgment dated 12.3.2018, passed by the learned High Court does not suffer from any illegality and legal infirmity, therefore, this appeal has no merit, hence, it is hereby dismissed with no order as to costs.