GHULAM MUSTAFA MUGHAL, J. -- The captioned appeal by leave of the Court arises out of the judgment dated 25.10.2017, passed by the Azad Jammu & Kashmir High Court in Writ Petition No, 1798 of 2016.
2. Precise facts forming the background of the captioned appeal are that the Superintendent Police Reserve, Muzaffarabad, AJ&K, advertised some posts of Constables B-5 for all the Districts including the refugees settled in Pakistan through advertisement dated 11.01.2015, published in daily Jammu & Kashmir. The appellant, herein, applied against the quota of District Sudhnuti/Pallandri. It has been stated that after initial physical test held in the month of February, 2015, the written test was conducted. Meanwhile, the Prime Minister of AJ&K cancelled the selection process of the Constables and directed the respondents to fill in the posts through National Testing Service (NTS), vide order/notification dated 07.07.2015. The appellant, herein, filed a writ, petition against the said order/notification of the Chief Executive before the Azad Jammu & Kashmir High Court. After necessary proceedings, the learned High Court accepted the writ petition vide judgment dated 14.06.2016 with the direction to the respondents to complete the remaining selection process in accordance with law. It is claimed that thereafter the selection process was completed and the appellant was placed at serial No, 11 of the merit list prepared against the quota of District Sudhnoti.
He was called for medical test and thereafter, was issued a letter to join the Police Lines Muzaffarabad for training purpose. The appellant approached the Superintendent Police Reserve Muzaffarabad but was refused to join the training,on the ground that he has crossed the upper age limit mentioned in the advertisement dated 11.01.2015. This act of the respondents was challenged by the appellant, herein, before the learned High Court by filing writ petition. It was claimed that the respondents were legally bound to allow the appellant to join the training but they arbitrarily refused the same. The writ petition was contested by the respondents by filing written statement, whereby, they refuted the claim of the petitioner/appellant, herein. After necessary proceedings, the learned High Court has dismissed the writ petition on the ground that period mentioned in the notification dated 10:08.2012 has already been expired and has been declared null and void by the High Court in some other case, therefore, the petitioner has no case.
3. Barrister Hamayun Nawaz Khan, the learned Advocate appearing for the appellant contended that the judgment passed by the learned High Court is not in line with the pleadings of the parties and has been passed in a hasty manner without considering the relevant law on the subject. The learned Advocate argued that after the selection process, the appellant obtained the merit position and vide order dated 06.05.2016. he was asked to join Ms: Police Lines Muzaffarabad for training, therefore, a vested right stood accrued in his favour from which he cannot be deprived of arbitrarily. The learned Advocate further argued that the learned High Court has based its conclusion on an unreported judgment rendered in Writ Petition No, 363/2015, decided on 25.06.2015, without considering the impact of the judgment on the case of the appellant because the same was in personam and was not attracted to the facts of the case in hand. The learned Advocate further argued that the notification dated 12.08.2012 was issued by the competent authority and the same was approved by the Inspector General of Police on 21.01.2015 with the direction to allow the eligible candidates to participate in the further selection process, hence, after allowing by the respondents to take part in the selection process, the department was left with no option except to allow the appellant to join the training but they illegally refused the same. The learned Advocate further argued that the action of the respondents was arbitrary and derogatory to the right of equality before law and equal protection of law. He submitted that if a candidate proves his suitability after going through the selection process then he cannot be refused the appointment on flimsy grounds.
4. Ch. Ghulam Nabi, the learned Advocate appearing for the respondents argued that the notification dated 10.08.2012 was issued for a period of 2 years and that period was lapsed before the date of advertisement i,e, 11.01.2015, hence, the appellant cannot be considered aggrieved or eligible for participating in the selection process and has Tightly been refused to join the training.
The learned Advocate further argued that no approval was given by the Inspector General of Police on the basis of said notification, hence, the judgment passed by the High Court does not suffer from any legal infirmity or lacuna.
5. We have heard the learned Advocates for the parties and gone through the record of the case. A perusal of the record reveals that the respondents in their written statement have stated in para No, 4 that the appellant was over age, therefore, he could not be considered, for appointment as Constable B-5, whereas, fact of the matter is that the application of the appellant was accepted by the respondent and he was allowed to participate in the test and interview. A perusal of the merit list of successful candidates prepared for District Sudhnoti reveals that the name of the appellant, herein, is listed at serial No, 11 and this fact has not been denied by the respondents. The appellant, herein, even thereafter was summoned for medical examination. He was found fit and was called to join the training on 06.05.2016 but when he appeared before the concerned official, he was not allowed to join the training on those grounds which have not been considered by the respondents at the time of receiving the applications. Law is well-settled that if the objection is not raised at the proper stage and due to waiver of such objection, the other side is clothed with the accrued right, then the same cannot be taken back. The authority who is responsible for judging the validity of the application cannot say that there was defect in the application, on the ground of locus poenitentiae. In the case reported as Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another [1997 SCMR 15], an identical proposition was considered. In that case, respondent, therein, was granted admission in the Medical College against one of the reserved seats. He was asked to join the MBBS, 1st year but subsequently his admission was cancelled on the ground that due to some mistake of the computer operator he was wrongly placed in the merit list. It was concluded by the apex Court of Pakistan that when a candidate is clothed with a vested right, he cannot be deprived of from the same on any ground whatsoever. The relevant observation has been recorded in para 3 of the report which is as under:-- "3. We have heard the learned counsel for the parties and have also perused the record with their assistance. We do not find any substance in the arguments of the learned counsel for the petitioners and as such, these are repelled. The above narration of facts demonstrates that respondent No, I was presumably given admission on merits by the competent College Authorities after considering his case. The requisite fee was accepted by them in lieu of valid receipts. He was directed to join 1st year class of M.B.B.S. It is admitted that the respondent is likely to complete the second year course of M.B.B.S. This being the position, by lapse of time, the respondent had obtained a valid right to continue his studies. In the given situation, he could not be held to be at fault. It is well-settled that once a right is created in favour of a litigant, in due course of time, it cannot at all be taken back arbitrarily. In the case in hand, admission was given to respondent No, I by accepting his credentials and in the result, necessary dues were accepted by the concerned authorities. The learned High Court was eminently justified in accepting the plea of respondent No, 1 to meet the ends of justice. The petitioners cannot be allowed to approbate and reprobate in the same breath. To begin with, they accepted respondent No, I to be entitled to get admission and at the belated stage, they took a turn by stating that respondent No, 2 had been accommodated by giving admission instead of respondent No, I. This was not possible for the petitioners to do so under the settled law. If this was so, it surely occurred because of their gross negligence for which the respondent could not be held responsible. The decision of the petitioners to give admission to the respondent No, I was implemented in letter and spirit. He, therefore, cannot be deprived of his vested right which he had earned on the basis of act of the petitioners."
By now law is well-settled that a vested right cannot be taken back due to inaction of the authority who was bound to pass the order in accordance with law at the proper time. It is also settled that no one can be penalized for the lapses committed by the authority who was bound to pass proper orders. In a case reported as Ahmad Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore and another [PLD 1994 Lahore 3], it has been held has under:-- "7. It is an established proposition of law that no one can suffer on account of the act of the authority, who has to pass an order or who has taken some action. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would have been snatched away from him if successful he could have been declared to have passed the said examination in the first attempt, and, therefore, depriving the petitioner of the opportunity of passing in the 1st Annual Examination is, definitely an act which is illegal and without a lawful authority. Therefore, the petitioner is entitled to be restored to the same position as of right to the maximum possible extent and hence is entitled to be given a full opportunity to appear in the subject of Maths and on the basis of result thereof is also entitled to be declared to have passed the examination in the 1st Annual Examination and not in parts..
There is no doubt that the loss ,or the injury which the petitioner has suffered cannot be 100% compensated but this Court has jurisdiction to put the petitioner to the same position in which he was entitled to be put to whatever extent it is now possible."
In the present case, the question of age was liable to be determined when the appellant filed the application. After going through the selection process, and obtaining the merit position, the respondents cannot withheld his appointment on any ground whatsoever. We have even otherwise perused the findings of the selection committee, whereby the relaxation of the age has been considered, It has been mentioned therein that the Government has given relaxation in the upper age limit of the civil servants, therefore, the Police Constables who have crossed the upper age limit shall also be entitled to 2 years' relaxation in .the upper age limit. The order dated 29.01.2015, has been issued with the approval of the Inspector General of Police and all the concerned have been directed to implement the same. The view taken by the learned High Court that notification was expired before the advertisement has no nexus with the case at all. In our view. the relaxation has been given to the police constables on the principle of equality before law, hence, existence or non-existence of the notification at the time of advertisement on the basis of which the appellant was selected has no concern with the selection process.
In view of the above, while accepting this appeal the impugned judgment of the High Court dated 25.10.2017 is hereby set aside. Resultantly, the writ petition filed by the appellant, herein, before the High Court is accepted in the manner that he shall be allowed to join the service.