CH. MUHAMMAD IBRAHIM ZIA, CJ. --- The captioned appeal by leave of the Court is the outcome of the judgment of the High Court dated 14.09.2018, whereby the review petition filed by respondents, herein, been decided in the following manner:-- "The upshot of the above discussion is that petitioners, herein, by taking contradictory stand in both the writ petitions have misled the Court and hive practiced fraud, therefore, while exercising review as well as inherent powers, the judgment passed in writ petition No, 851/17, dated 15.12.2017 is vacated. The petitioners, herein, are hereby directed to advertise all the available posts of Assistant Professor B-19 and make appointments as per judgment rendered in writ petition No, 1534/16 dated 05.06.2017."
2. The brief facts of the case are that through advertisement dated 28.06.2015, the University of Management Sciences and Information Technology (UMSIT) advertised various posts including ten posts of Assistant Professor (B-19), out of whom one post was advertised for the Department of Public Administration. Among others, the appellant and proforma-respondents No, 6 to 8 applied for appointment against the aforesaid post. After completion of the required procedure, the appellant was placed at serial No, 4 in the merit list, whereas, proforma-respondents No, 6 and 8 were placed at serial Nos, 3 and 2, respectively . The candidate at serial No, 1 i,e, Safina Mansha Kiani, respondent No, 7, was duly appointed. Respondent No, 6, Imrab Shaheen, filed writ petition No, 1534/2016 on 02.05.2016 before the High Court while challenging the appointment order of Safina Mansha Kiani. She also sought a direction to restrain the respondents from appointing respondent No, 8, herein. During the pendency of aforesaid writ petition, the appellant, herein, filed writ petition No, 851/2017 before the High Court on 17.05.2017, whereby she sought a direction her appointment against the available post.
3. Through judgment dated 05.06.2017, the learned High Court dismissed the writ petition No, 1534/2016 filed by respondent No, 6 to the extent of appointment of Safina Mansha Kiani, however , the UMSIT -authorities was directed to advertise the second post alongwith other posts, if any and make the appointments strictly on merit.
During the pendency of writ petition No, 851/2017 a proposal for appointment of all the three candidates was submitted by the University-authorities and keeping in view the said proposal the learned High Court through judgment dated 15.12.2017 accepted the writ petition while directing the UMSIT-authorities to appoint the appellant, herein in view of her merit position. An appeal by leave of the Court filed by UMSIT was dismissed by this Court through judgment dated 20.03.2018.
4. Thereafter , UMSIT & others filed a review petition No, 121/2018 before the High Court for modifying the judgment dated 05.06.2017 to the extent of advertisement of posts to enable them to act upon the judgment dated 15.12.2017. The learned High Court, after necessary proceedings, decided the review petition through impugned judgment dated 14.09.2018 in the manner indicated in paragraph I. Feeling aggrieved, the appellant has filed the instant appeal by leave of the Court.
5. Raja' Amjad Ali Khan, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the impugned judgment of the High Court is against facts and the law. In fact, the ambiguity has been created due to lack of proper appreciation of pleadings of the parties as well as the relevant record. The instant litigation is the outcome of and related to two writ petition one filed by the appellant, herein, and the other by Imran Shaheen, respondent No,
6. In both the writ petitions, the propositions were quite different. In writ petition No, 851/2017 the appellant, herein, sought direction for her appointment against the mailable post. During the pendency of her writ petition on 15.12.2017 the UMSIT -authorities submitted a proposal for appointment of all the three contesting candidates against two already available posts and one unutilized post shifted from another department. It appears that in view of this proposal the direction for appointment of the appellant was issued by the High Court. In other writ petition No, 1534/2016 filed by lmrab Shaheen, the appointment of one Safina Mansha Kiani was sought to be declared illegal and also to restrain the authority from appointing Shagufta Ashraf; respondent No, 8, and declaring the petitioner , Imrab Shaheen, as successful candidate. In this writ petition, the authority had taken the clear stand that one post was advertised against which Safina Mansha Kiani was selected on merit, whereas, Shagufta Ashraf, Imrab Shaheen and Qurat-ul-Ain obtained second, third and fourth positions, respectively . Consequently , the learned High Court while declaring the selection of Safina Mansha Kiani as valid upheld her appointment and dismissed the writ petition to this extent, however , the UMSIT -authority was directed to advertise the second vacant post. In this background, the observation of the learned High Court in the impugned judgment that there was any mis-statement of facts, contradictory stands and practicing of fraud appears to be against the record. This observation may be result of failure to properly examine the relevant record. He further argued that to the extent of appellant the petition for leave to appeal filed by UMSIT was dismissed and the judgment has attained finality . He submitted that at one hand in the appellant's case the learned High Court issued the direction for appointment, whereas, on the other hand in writ petition filed by Imrab Shaheen the direction of advertisement of the post was issued, thus, a review petition was filed. The UMSIT clearly stated in the review petition that before establishment of University it was sub-campus of the University of Azad Jammu and Kashmir and till the advertisement of one post the other post from the University of Azad Jammu and Kashmir was not shifted, however , during the process of selection, the posts from the University of Azad Jammu and Kashmir were shifted, thus, in this way the posts became available. The order of shifting and adjustment of the posts dated 01.09.2015 was also brought on record of the review petition but the same has not been properly appreciated.
Therefore, the impugned judgment is not maintainable.
6. Sardar Pervaiz Akhtar , Advocate, the learned counsel for the real-respondents supported the stance taken by the counsel for the appellant and argued that in the impugned judgment the observation relating to taking thecontradictory stand and practicing the fraud by respondents No, 1 to 5 is result of misconception of facts and lack of proper appreciation of the record, therefore, the same may kindly be quashed.
7. Respondents No, 6 and 8 personally appeared. They also conditionally supported, the version of the appellant by claiming that the appellant obtained fourth position in the merit, whereas, Respondents No, 6 and 8 obtained third and second positions, respectively , thus, while ignoring them the appellant cannot be appointed being behind them in the merit position. They also seriously objected to the discriminatory process adopted by UMSIT . With reference to facts and figures, they argued that UMSIT adopted different mode in respect of the department of Public Administration, whereas, almost in all the other departments on the basis of same advertisement dated 28.06.2015 many candidates have been appointed against the non-advertised vacancies. They argued that one post each for the departments of Commerce, Economics and English was adve rtised but appointments of two candidates in each department were made, whereas, in the departments of Law and Information Technology against one advertised post three candidates have been appointed. As UMSIT in all other departments appointed candidates out of the merit list against the un-advertised posts which became available during relevant period, thus, the candidates of Public Administration Department also deserve for the same treatment. They further argued that they are continuously holding the posts on contract basis and on the basis of principle of equality before law they deserve to be confirmed and appointed on the basis of the selection process. Otherwise, for ends of justice all the vacancies which were not advertised relating to the other departments may also be directed to be advertised and appointments against such unadvertised vacancies be declared void.
8. In view of the stand taken by respondents No, 6 and 8 the UM SIT was directed to submit the detailed report regarding the appointments against un-advertised posts in other departments of the. University . The Registrar of the University submitted the report, which can be summarized as follows.-- Department Number of advertised postsNumber of appointments made Associate Professor B-19 Commerce 2 3 Computer Science and Information Technology2 3 Lecturer B-18 Business Administration3 5 Economics 1 2 English 1 2 Law 1 2 Computer Science and Information Technology2 6 Mathematics 2 4 Junior Lecturer B-17 Economics 2 4 English 3 4 Mathematics 1 2
9. We have heard the learned counsel for the parties, respondents No, 6 & 8 and minutely examined the record made available. The facts and figures as depicted from the report submitted by the Registrar of UMSIT clearly speaks that the. UMSIT -authority in consequence of the advertisement dated 28.06.2015, almost in all the departments has made the appointments more than the advertised posts. On the basis of same advertisement the appellant, respondents No, 6 and 8 also appeared in test and interview and obtained the merit positions, as mentioned hereinabove. It, is also proved from the record that UMSIT -authority also submitted proposal for appointment of all the three candidates against the available posts. For justification of the available posts the UMSIT placed on record of the review petition the order dated 01.09.2015 which speaks that on shifting of numerous posts from the University of Azad Jammu and Kashmir to UMSIT the department-wise and section-wise adjustment of the posts was made. According to this order in the department of Public Administration three posts of Assistant Professor (B-19) became available on 01.09.2015. This order was submitted before the High Court on 11.09.2018 and is available on the file of the High Court. Thus, the proposition of availability of posts in the relevant department also finds support from the record of the High Court.
10. In view of the above-stated position the observation of learned High Court in the impugned judgment that the UMSIT has taken the contradictory stand or played fraud appears to be improper and not supported from the record rather it appears that due to different files and huge record all the relevant documents and pleadings could not attract the sight of the learned High Court, therefore, the observation of the High Court in the concluding paragraph of the impugned judgment regarding the contradictory stand or fraud attributed to UMSIT stands quashed,
11. In the light of hereinabove mentioned facts and figures argued on behalf of the parties and also proved from the report submitted by the Registrar of UMSIT , it is undisputedly proved that UMSIT on the basis of advertisement dated 28.06.2015 almost in all the other departments made more appointments as compared to the advertised posts, whereas, the department of Public Administration has been discriminated. According to UMSIT's own proposal and produced record despite availability of posts the appellant and respondents No, 6 and 8 who obtained-the due merit positions, have not been appointed. Thus, it appears that the UMSIT has adopted the discriminatory mode among the candidates in the identical circumstances. Such a discrimination is violative of the constitutionally guaranteed fundamental rights. According to Fundamental Right No, 15 all the state subjects are equal before law and are entitled to equa l protection of law. The petitioner , respondents No, and 8 have been clearly treated in the discriminatory manner . Article 4 of the Azad Jammu and Kashmir Interim Constitution clearly reveals that even a law or custom or usage having the force of law, inconsistent with the fundamental rights, shall be void to such inconsistency and no law can be made which takes away or abridges such Constitutionally guaranteed fundamental right. Even this Court has struck down the law enacted by the Legislative Assembly on the basis of discrimination. In this regard reference may be made to the case reported as Azad Govt. & others v.
Muhammad Younas T ahir & others [1994 SCR 341], whereby it has been held that:-- "The Interim Constitution Act through Right No, 15 holds out a firm id forthright guarantee that all state subjects are equal before law and are entitled to equal protection of law. Its meaning are plain enough to ensure that laws of the State shall equally apply to all subjects and there would be no discriminatory treatment amongst them. Since there is no particularization in the phraseology these guarantees cover all laws dealing with state subjects whether they relate to life, honour , property , freedom, employment and all rights and liabilities. These lofty pronouncements have, however , been rationalized were experienced in literally implementing these guarantees. These difficulties are real' and substantial. Therefore, reasonable classification was recognized."
Thus, in view of the peculiar facts of this case the discrimination on the part of UMSIT is clearly proved and such act according to the spirit of the Constitution is void.
12. It has also been argued that appointments of all the persons who have been appointed against the posts which have not been advertised, be terminated to eliminate the discrimination but in our opinion neither their appointment orders have been challenged nor they have been impleaded as parties, moreo ver, it will also be against the principle of natural justice and they cannot be penalized for mal-administration of the University . However , to meet the ends of justice and to eliminate the discrimination the purpose can be served in the best Way, as also proposed by UMSIT , by treating the appellant and respondents No, 6 and 8 on equal footing as the candidates of other departments have been appointed against the available- posts. Almost identical proposition of discrimination came under consideration of this Court in the case titled Saadia Nazir v. Mt. Ambreen Khalique & others [Civil Review No, 17/2016, decided on 04.12.2017], wherein for doing complete justice while exercising inherent powers for eradication of discrimination following observations have been made:-- "8. There is another aspect of the case. It has been-brought to the notice of the Court that although the petitioner has been relieved from service in the light of judgment of this Court passed in the appeal, but the candidates, falling at lower position in the waiting list, arc still holding the posts in the light of the judgments of the High Court. In this regard, report was sought from the Department, which has been furnished in this Court. The stance taken by the petitioner finds support from the contents of the report. The department has, itself admitted the lapses in its report.
It may also be observed here that respon dent No, 1, while filing the appeal before this Court, has not arrayed the other three candidates, who have been appointed despite being at lower position in the waiting list as compared to the petitioner , herein. In their absence no adverse order was passed by this Court in the appeal, however , the case of the petitioner is that despite being at better footing, she has been discriminated while relieving from service. It may also he observed that the appointments of the other candidates have also been made in the light of judgments of the High Court, which have not been challenged before this Court and attained finality . They are still in service whereas the petitioner , despite being at a better merit position, has been relived from service. The stance taken by the petitioner is also supported from the report submitted by the Department, therefore, we are of the view that the petitioner , herein, has been discriminated. Therefore, while exercising the inherent powers, we instruct the department to restore her initial appointm ent notification dated 29.08:2013, With the direction to adjust her like other employees. The restoration of the service of the petitioner shall take effect from 27.06.2016, the date of cancellation of her appointment notification, only for the purpose of the seniority , however , she will not be entitled to get any financial benefit for the intervening period i,e, from 27.06.2016 to the date of her adjustment."
13. In the light of above-stated facts, for doing complete justice and enforcement of fundamental rights and eradication of discrimination while exercising the inherent powers vested in this Court under the Constitution, we accept this appeal, recall the impugned judgment and direct UMSIT to equally treat the appellant, respondents No, 6 and 8 and appoint/confirm them as proposed by it.
Before parting with the judgment, we would like to observe here that the mode adopted by UMSIT is regrettable which indicates the mal-practices in the University . Although it has been mentioned in-the report that in this regard an inquiry was held the proceedings of which were subsequently dropped, however , we direct UMSIT to strictly act according to law and principle of administration of justice. The prevailing mal-practices in the University are very unhappy as we have held in the case, titled Aida Hanif & another v. Fatima Yaqoob & others [Civil Appeal No, I 80 of 2014] decided on 12.01.2016, that-- "10. In view of the observations recorded hereinabove and in public interest we also deem it proper to direct the concerned authorities that in future the advertisements published for appointme nts should be self-explanatory , comprehensive, clear and according to rules. Such defective and deceptive advertisements as one in the case in hand, will be deemed misconduct and mal-practice. The University authorities are further directed that while advertising the posts the statutory require ments should strictly be adhered to so that the candidates should not face the unnecessary hardships of litigations and there should be no injury to the public interest for taking long time in selection process or selecting right man for right job. Therefore, for keeping good governance in the high exalted educational institution there must be high level of integrity . intelligence and efficiency and for such standard acts should speak and not the papers."
This appeal stands disposed of in the above terms with no order as to costs.