Muhammad Sheraz Kiani, J.--The captioned writ petitions have been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , the petitioners have challenged the appointment orders of the private respondents for having been issued without lawful authority . A direction has also been sought to the respondents for appointment of the petitioners, in view of their merit positions.
2. As the above titled writ petitions raise common questions of facts and law, therefore, were clubbed for onward proceedings and are decided as such through the instant consolidated judgment.
3. The petition titled "Afshan Anwar Vs. Vice-Chancellor , Women University Bagh and others" was earlier decided by this Court vide judgment dated 06.06.2017, however , the appeal filed against the said judgment accepted by the Hon'ble Apex Court and the case has been remanded for decision afresh by impleading non-petitioners No. 8 & 9 in line of Respondents.
4. Precise facts giving rise to the filing of the petition No. 499/2016 are that Women University Bagh-respondents invited applications for appointment of Lecturer B-18, in Bio Technology alongwith the other Civil Discipline through advertisement issued in "Daily Jang" dated 09.08.2015. The petitioner ; Afshan Anwar , having requisite qualification and eligibility applied for the purpose and contested the test and interview and stood placed at Serial No. 1 of the merit list by obtaining 86 of 100 marks. It has been stated that the petitioner was called for interview however , on conclusion of the interview the respondents have appointed non-Respondents No. 6 to 9, by ignoring the merit list.
It has been alleged that petitioner approached the respondents for certified copies of appointment orders and merit list, through her father , who was misbehaved and dragged from the office of Respo ndent No. 2, forcibly . It has been further alleged that the respondents told the petitioner that he will never consider the NTS result and they are bound to the result prepared by the interv iew committee. A prayer for abrogation of the appointment orders of the private respondents have been made by the petition.
5. In response to the notices issued by this Court the respondents have filed written statement wherein, besides refuting the claim of the petitioner , it has been stated that the petitioner is not competent to file the instant writ petition after having participated in the selection process, under the law of estoppel and acquiescence. The petitioner after test and interview could not obtain merit position, therefore, her appointment could not be made.
The respondents have also raised an objection to the maintainability of the petition on the ground of violation of rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. It has been stated that private respondents, appointed in pursuance of the test and interview are performing their duties satisfactorily . It has been claimed by the respondents that under the order of merit the petitioner's name is listed at Serial No. 16 and the appointments of the candidates, listed at Serial Nos.1 to 4, have been made, whereas, the candidates placed at No. 5 to 15 have not challenged the selection process and the petitioner having been placed far below in the merit list is not entitled to challenge the said merit list. The other facts and grounds incorporated in the writ petition have also been negated by the Respondents.
6. The facts of the other petition titled "Sumiya Aftab Vs. Vice Chancellory Women University Bagh and others ", in precise are that Women University Bagh-respondent advertised several posts including the posts of Lecturer Bio Technology B-18, and the petitioner , being qualified and eligible, alongwith other desirous candidates applied against the said post. She contested the test and interview and her name is listed at Serial No. 6 of the merit list. The petitioner has claimed that she is in possession of the requisite qualification i.e. M.S./M.Phil in Bio Technology , however , the respondents under the political influence have appointe d the private respondents who are not having the requisite qualification in the relevant discipline rather they are having the degrees in different subjects. It has been further claimed that the private respondents were not competent to apply for the post, which they were not qualified for. It has been alleged that the official respondents were under legal obligation to disallow the applications of the candidates, having irrelevant qualification, before test and interview but they, with malafide intention, political intervention and in order to accommodate the persons of their choice by violating the relevant rules and law have appointed the private respondents, therefore, by accepting the instant writ petition the appointment orders of the private respondents be set-aside and the official respondents be directed to appoint the petitioner to the impugned post.
7. In this petition, in the earlier round of litigation the respondents have filed written statement, wherein, the stance of the petitioner has been refuted alleging that the petitioner is not an aggrieved person. She has stated irrelevant facts. The respondents are having requisite qualification etc. However , in compliance of the judgment of the Hon'ble Supreme Court the newly added Respondents No. 8 and 9, i.e. Senate and Syndicate of Women University Bagh, have also filed written statement, wherein the objection regarding maintainability of the petition under the principles of estoppel and acquiescence have been raised, besides alleging the petition to be hit by the principle of laches . It has been stated that the private respondents have been appointed vide orders dated 18.01.2016, whereas, the instant writ petition has been filed on 18.07.2016, without any explanation regarding delay , therefore, the same does not merit any consideration. It has also been state d that the claim of the petitioner has been based on surmises and conjunctures without any support of documentary evidence. The private respondents are also in possession of the required qualification and have also qualified the test and interview therefore, there appointments have been made, strictly in accordance with law which need no interference by this Court. The respondents have also claim ed that private respondents have equiv alent and relevant qualification, therefore, the petitioner is not entitled to call in question their appointments on frivolous and flimsy grounds. A prayer for dismissal of the petition has been made by the Respondents.
8. Sardar M.R Khan, Advocate, the learned counsel for the petitioner , in Petition No. 499/2016, while reiterating the facts and grounds incorporated in the petition, vehemently contended that the petitioner is in possession of the requisite qualification in the relevant discipline and in the NTS she secured 86/100 marks, whereas, the private respondents did not have the relevant qualification but even then, their appointments have been made under the political influence and wishes of the official Respondents. The learned counsel put emphasis on the point that the disciplines like, Bio Chemistry and Micro Biology have no nexus with Bio Technology and the official respondents, in presence of the qualified candidate, in the relevant discipline, have appointed the private respondents, which is against the law and rule and the Statute as well . The learned counsel, with reference to the objection of the respondents regarding non-annexing of the attested copies of the record, vehemently contended that the petitioner , through her father approached the respondents but he was assaulted and badly behaved by them, instead of providing attested copies of the record, therefore, the relevant record be summoned through Court order . He maintained that a candidate who had secured highest marks in NTS, which is an impartial testing system, has been declared fail by the interview committee/board illegally and arbitrarily . With regard to the version of the respondents upon the NTS result, the learned counsel submitted that while preparing merit list, after interview , the NTS result has been discarded and avoided by the respondents in toto, which is not permissible under law. If there was no worth of the NTS, the same should have not been conducted. Finally the learned counsel craved for acceptance of the writ petition, setting aside the impugned appointment orders of private respondents and direction for appointment of the petitioner against the impugned post.
9. Sardar Abdul Razziq Khan, Advocate, appearing on behalf of Samiya Aftab, petitioner in Petition No. 2200/2016, while adopting the arguments of Sardar M.R Khan, added that due to the mala-fide acts of the official respondents, the petitioners have suffered the agony of a lengthy litigation. The petitioner , Samiya Aftab has the requisite qualification in the relevant discipline whereas, the private respondents have been appointed on the strength of equivalence certificates, issued by the unauthorized and irrelevant persons, hence, their appointments are not sustainable under law. The learned couns el, while referring to the following case law, craved for abrogation of the impugned appointment orders of private respondent and direction to the official respondents for appointment of the petitioner to the impugned post:--
1. 2013 PLC (CS) 502 Balochistan.
2. 2017 CLC 436 [Peshawar (D.I Khan Bench)] &
3. 2018 PLC (CS) 253 Supreme Court (AJ&K).
10. While negating the stance of the petitioners, M/s Barrister Hamayu Nawaz Khan and Mr, Iftikhar Baig, Advocates, jointly contended that the petitioners, in both the petitions, could not obtain merit positions. Their names are listed much below in the merit list, therefore, the private respondents have rightly and legally been appointed against the impugned posts. The learned counsel also raised objections upon the maintainability of the petitions under the principle of estoppels and acquiescence and contended that the petitioners, after participating in the selection process under the given terms and conditions, after having failed to obtain merit positions, cannot be allowed to turn around and call in questio n the whole selection process. The learned counsel also pointed out that the petitioners have not annexed attested copies of the documents, alongwith the petition, therefore, the petitions are liable to be dismissed for violation of Rule 32(2) of the High Court Procedure Rules, 1984. The learned counsel jointly , stressed the point that the private respondents are qualified and they have also filed equivalence and relevance certificates, therefore, their appointments cannot be challenged. The learned counsel submitted that the petitioners could not succeed in the interview and the wisdom of the interview committee/cannot be called in question.
11. Raja Gul Majeed Khan, Advocate, the learned Legal Advisor , appearing on behalf of the official respondents, while adopting the arguments raised on behalf of private respondents contend ed that no illegality has been committed by the official Respondents. The petitioners, in both the petitions could not attain merit positions and therefore, have tried to pressurize the respondents through litigation. He submitted that the private respondents are also similarly qualified and eligible, as the petitioners are, rather the private respondents have got merit positions in the test and interview , therefore, the petitioners cannot call in question the appointments of the private Respondents The learned Legal Advisor emphasized the point that NTS is just a short-listing process and the result of NTS cannot be made basis of eligibility of a candidate and the Selection Comm ittee /Board is fully competent to select the candidates, according to the requirements and preferences of the job and the wisdom of the selection committee/Board cannot be challenged or gone into, in exercise of constitutiona l jurisdiction. The learned Legal Advisor , in support of his contentions referred an unreported judgment of this Court in case titled, "Momina Abbasi v. Vice-Chancellor and others, Writ Petition No. 2476/2014 decided on 21.04.2016 and craved for dismissal of the writ petition.
12. We have heard the learned counsel for the parties, scanned the record with their assistance and considered the controversy with utmost care.
13. The main proposition, in the present controversy is regarding-relevancy of discipline/qualification/degrees held by the private respondents . In this regard, it would be more appropriate to reproduce the relevant content of the rules, which reads as under: "First Class Master's Degree (foreign) or M.Phil/MS (Pakistan) or equivalent degree (18 years) in the relevant field from an HEC recognized University /institution with no 3rd division in the academic career ."
14. Under the above rules, the respondents issued an advertisement, which is as follows:-- S. NOCategory Subjects Requirements 1.
2.
3.
4. Lecturer BPS-18Biotechnology Botany Chemistry Xxxx XXXXXMinimum qualification First class M. Phil degree of equivalent (18 years of Education) in the relevant field from HEC recognized University/institution with no 3 division in the academic career .
Experience: Not required.
Publication: Not required It appears from the above advertisement that a detail of subjects/disciplines has been given, which also included, Botany , Chemistry , Zoology etc. and all are independent disciplines. In the next column of qualification, 18 years degree is required in the relevant field. It is notable that, according to the above advertisement, no experience and publication is required for appointment as a lecturer and only 18 years degree, 1st class (in the relevant field) is the requirement.
15. It is to be observed that if the word 'relevant' was meant for similar or cousin disciplines, there was no need to elaborate and incorporate all the discipline s in column 3 because Botany and Zoology are branches of one subject, i.e Biology .
16. The term relevant in our view, has been misinterpreted by the respondents, while making the impugned appointments because 'relevant' is meant for the cited discipline and not for matching as has been taken by the Respondents.
17. Relevant does not mean to make some alternate, like arrangement or stop-gap arrangement rather the word 'relevant' is an adjective and is meant for, 'closely connected or appropriate to what is being done or considered'. In simple words, the same subject and not its branch neither its ascendant.
18. In the case in hand, after scrutiny of the files, this Court has observed that 'Microbiology' is the mother discipline or subject, which has begotten, different disciplines, like; applied Microbiology , medical and veterinary microbiology , virology , immunology , serology etc. which also include, Biotechnology . Meaning thereby , that Microbiology , is the root and the other disciplines are its branches and each branch is an independent subject and specialization.
19. Likewise, in the medical Department, there are different specializations, bifurc ations and further divisions, as the Department of urology has its more bifurcations, like nephrology and other Departments and a Nephrologist can never be said to be a urologist, despite of the fact that both are related to the urological system. Almost all the parent subjects/disciplines have their branches and a specialist of a descendant discipline can have the knowledgerd of the parent discipline but the parent subject cannot. As a person can know the whole history of his ascendants/forefathers but he cannot claim anything about his descendants and the next generation, unless after inception of any of them, he gets a special knowledge. Likewise, a biotechnologist, Serologist, or virologist may have the knowledge of Microbiology , (being the basis) but a microbiologist may not have specific knowledge of 'Biotechnology', serology or Virology etc., hence, in the instant case, relevant means, 'Biotechnology' only and nothing else.
20. A University , 'the mother of knowledge' the house of excellence, is supposed to be a role model for the other institutions and it is duty of the responsible persons of such an institute to set high moral examples in each and every field and slighter deviation, occurred in such an institution may have greater effects upon the following sub-institutions and organizations and any dishonesty in such an organization may create catastrophic anxiety , anarchy and chaos between the subjects of the State. Because it is presumed that under the law, the things are to be done in the prescribed manner and mode.
21. As far the question of relevance certificates placed by the respondents is concerned, it is to be observed that the certificate does not change the legal and real characteristics of the degrees, possessed by the private respondent. At the most, it can be said that the person, having qualification of a primary subject can perform to some extent but not as a specialist. Even otherwise, the relevance /equivalence certificates attached with the files have not been issued by the HEC, the regulatory authority , rather the same have been issued by some educationists in their personal capacity , which cannot be termed as issued by the competent authority . The proposition came under the consideration of the Lahore High Court in case titled, Mali Obaid Ullah u.
Government of Punjab and 4 others, [2014 PLC (CS) 555 ] wherein it has been observed as under: "5......... the categories mentioned in advertisement are with regard to the level of education i.e Elementary Schools, but for each post, special subject has been mentioned in the advertisement and the rules, until and unless any disabled person possesses such qualification, he could not be entitled to be posted against the said post and for the same reason, a person who applied against the post of SESE (Arabic) could not be posted against the post of SESE (Oriental) Physical Education or Arts and Drawing because the basic purpose of the teacher is to educate the students, it is admitted that subject specialists in a particular subject can educate the students better because of their specific knowledge in the that subject. whereas, a person who does not possess specialization in a particular subject may not be able to properly educate or guide the students , for the reasons that the subjects of Arabic, Physical Education, oriental and Arts and Drawing are of entirely different fields and the students of each category are required to go through altogether changed and distinct courses for each of the above subject, therefore, naturally they get knowledge and specialties in respective course alone."
(underlining is ours)
22. Even otherwise, first priority must be given to the persons having exact and the most relevant qualification of the subject and thereafter , if not available, the option of relevancy may be adopted . In case, there are candidates, having required qualification in the cited subject, there is no need to search for matches, one or the other and if such option is opened for public, there would start an indefinite series of relevancies and attached or identical subjects which is not permissible, because, in general, all the sciences are relevant to each other and are the branches of one grand science, therefore, such practice should never be appreciated, in any case.
23. So far the argument of the respondents that NTS was meant only for short listing of the candidates is concerned, their version, if accepted, there would be no need of testing system like NTS, which is supposed to be an impartial and central testing system with system generated results, prepared on the basis of ability and performance of the candidates and there is no apprehension of the alleged mala-fide , favoritism etc and results of such a system cannot be taken so lighter rather must be given due weight and importance in the selection process.
24. Now coming to the merits of the case , we would like to take up the case of Afshan Anwar , Petition No. 499/2016, first. The petitioner , in this petition is M.Phil in Bio-chemistry/Molecular Biology , which, according to the observations, made in the preceding paras, cannot be termed as a degree holder of 'Biotechnology' rather Biochemistry is an independent discipline, therefore, this writ petition is liable to be dismissed at the very initial stage, however , there is no justification to consider another subject as relevant for the cited subject, therefore, this writ petition could not succeed and stands dismissed.
25. In the case in hand, a perusal of the record makes it clear that the private respondents are in possession of the qualification as under:--
1. Sadia Mumtaz, private Respondent No. 5 is M.Phil in Micro Biology ,
2. Fauzia Kausar , private Respondent No. 6 is M.Phil in Bio-Chemistry and
3. Madiha Khalid, private Respondent No. 7 is M.Phil in Bio-T echnology 26.The degrees/qualification obtained by the above Respondents No. 5 and 6, under law cannot be declared relevant, however , Respondent No. 7, has obtained her degree in the relevant subject and she has a right to retain her position.
27. As far the case of Summaya Aftab, petitioner in Petition No. 2200-2016 is concerned, it appears from the record that she has the degree of M. Phil in 'Biotechnology' the relevant subject/ discipline and has also secured merit position, therefore, she could not be ignored by the respondents and keeping her away from her destination is a glare illegality and mala-fide act of the respondents, which cannot be allowed to sustain. This view of the Court is supported from the list of members of the Senate of the University , which also contains the name of Sadia Mumtaz, Lecturer Biotechnology , who is listed (at Serial No. 15 of the list of the participants/members) of the Senate in a meeting held on 11.01.2016 and at the same time she was a candidate, to judge her own suitability . Although it is mentioned that at the time of her appointment/approval/confirmation, she left the meeting for sometime, but it is astonishing that a proposed appointee candidate, whose appointment was yet to be - confirmed by the Senate, had been appointed a member of this highest forum, (Senate) and it is easily comprehendible that when, a person not yet confirmed, is a part of final approving authority , what would be result of such farcical process atleast to her extent. This act of the official respondents, strengthens the apprehension of mala-fide , nepotism and favoritism and the political intervention as well, therefore, her appointment, alongwith the other respondent; Fauzia Kausar , not having the required qualification cannot be allowed to sustain in any manner , however , Respondent No. 7, Madiha Khalid, who is in possession of the requisite qualification in the relevant subject/discipline is allowed to continue and retain her position.
28. The nut shell of the above detailed discussion is that the writ petition filed on behalf of Sumiya Aftab, bearing No. 2200/2016 is accepted, partly . The appointments of the private Respondents No. 5 & 6, namely; Saadia Mumtaz and. Fauzia Kausar as Lecturer , Biotechnology , (B-18) are hereby set at naught and the posts are declared as vacant, however , the writ petition to the extent of Respondent No. 7 is dismissed. The respondents are directed to appoint the petitioner against one of the vacant post of Lecturer , Biotechnology , (B-18) and thereafter , any other candidate, having top merit position in the merit list and having relevant qualification as well, shall be appointed against the remaining vacant post, strictly in accordance with law. In case, of non-availability of the successful and qualified candidate, denovo legal process for induction to the second vacant post may be initiated.
The other petition bearing No. 499/2016 filed on behalf of Afshan Anwar , being without any substance stands dismissed.