AHMAD ALI, J.---- The petitioner through this constitutional petition is seeking following relief: "It is, therefore, most humbly prayed that on acceptance of the writ petition, in exercise of the extraordinary constitutional jurisdiction, this Hon'ble Court be pleased to: a. Declare corrigendum dated 11.10.2017 of R. No.01 to be illegal, improper , unjust, mala fide, discriminatory , without lawful _authority and of no legal ef fect. b. Direct the authority to issue order of appointment of petitioner as Assistant Professor Horticulture B-19 hence forthwith with all service benefits; AND/OR c. Any other writ/order/direction deemed proper and just in the circumstances of the case may also be issued /order/ given.
2. Brief and essential facts of the case, as divulged in the writ petition, are that the petitioner on 10.02.2012 was appointed as Lecturer in Horticulture. On 10.11.2015 the respondent No.1 advertised the post of Assistant Professor (B-19) Horticulture Department. In response thereto, the petitioner applied for the post and his name rung at serial No.8 of the candidates vide letter dated 05.08.2017. Thereafter , interviews were held before the Selection Board on 15.08.2017 and the petitioner by securing 58.30 marks was placed at serial No.2 of the list, whereas, Dr. Farzana Bibi having 60.59 marks was placed at serial No.1 and finally the Syndicate in its meeting dated 05.10.2017 under sub-item No.7 approved the appointment of petitioner as Assistant Professor B-19 and excluded Dr. Farzana Bibi from the run of appointment on the score that she had secured less marks in interview and was considered failed. Meanwhile, Dr. Farzana Bibi and another candidate namely Faiza Aman filed writ petitions to cancel the recommendation of petitioner . Whereas, the candidates at serial Nos.3, 4 and 6 of the merit list raised objection on the eligibility of petitioner . The matter was placed before the Appellate Committee and ultimately the recommendation of petitioner stood withdrawn by the Vice-Chancellor vide corrigendum dated 05.10.2017. The petitioner then submitted representation before the Conveyer of the Syndicate to issue his appointment order but the same was not considered due to the fact that the matter was sub-judice before this Court in the writ petitions filed by Dr. Farzana Bibi etc. Thereafter , both the said writ petitions were disposed of vide order dated 03.05.2018 on the ground that recommendation of petitioner was already withdrawn by the Appellate Committee. Thus, on 22.05.2018 petitioner submitted another representation for the issuance of his appointment order but of no avail. Therefore, the petitioner filed present petition with the supra quoted relief.
3. This court directed respondents Nos.1 to 4 to file para-wise comments to the writ petition which have been so furnished, wherein, issuance of the desired writ is opposed.
4. The respondent No.5 was also arrayed as respondent No.5 and she too filed her para-wise reply to the writ petition, wherein she vehemently opposed the issuance of writ in favour of petitioner .
5. Counsel for the petitioner argued that the petitioner was recommended for appointment by the Selection Board and the Syndicate approved the recommendation of the Selection Board, nevertheless, on the basis of a baseless objection by the candidates having low merit, the appointment of petitioner was dropped. He maintained that the previous writ petitions filed by Dr. Farzana Bibi and Faiza Aman were not decided on merits rather the same was disposed of due to the fact that the recommendation/approval of petitioner for appointment was recalled by the Appellate Committee. Learned counsel for petitioner maintained that the Appellate Committee was having no statutory backing, and as such, order of appellate committee as to cancellation of the recommendation / approval of petitioner is a void, illegal and baseless order which cannot operate any binding effect upon rights of the petitioner . He prayed for issuance of writ as prayed for .
6. Conversely , the learned counsel appearing on behalf of respondents Nos.l to 4, seconded by the learned counsel for respondents Nos.5 argued that at the time of advertisement dated 10.11.2019, the Khyber Pakhtunkhwa Agricultural University Teachers Appointed and Scales of Pay Statutes, 2000 were in the field and as such the rules promulgated in the year 2016, which provide favour to petitioner , are not applicable in the case of petitioner . They argued, the University has not been arrayed as respondent in the writ petition and on this score too desired writ cannot be issued. They argued, the required qualification for the post of Assistant Professor was Ph.D but the petitioner , at the time of apply , was still enrolled for Ph.D and therefore, he was ineligible for the said post.
7. We have heard arguments of the learned counsel representing parties and have sifted the record with their valuable assistance.
8. First of all, we deem it appropriate to determine as to whether the impleadment of University of Agriculture, Peshawar , was required to be arrayed as party to the present lis or not. The University of Agriculture, Peshawar (hereinafter referred as the University ) has been taken at the Schedule-I of the Khyber Pakhtunkhwa Universities Act, 2012, and there-for it is a University' as defined under Section 2(z) of the ibid Act. Under subsection (4) of the Section 3 of the Khyber Pakhtunkhwa Universities Act, 2012, as well as under Section 3(3) of the N.-W .F.P.
Agriculture University Ordinance, 1981, the University shall be a body corporate by such name as may be notified and shall have perpetual succession and a common seal, and may sue and be sued by the existing name. Thus, the University of Agriculture Peshawar is a person as defined under Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973, which is reproduced hereunder for convenience: "Person" includes any body politic or corporate, any authority of or under the contr ol of the Federal Government or of a Provincial Government and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan.
Respondents Nos.1 and 2 are the officers of the University within the purview of Section 8 of the Khyber Pakhtunkhwa Universities Act, 2010; whereas, respondents Nos.3 and 4 are not the officers or authorities of the University . Thus, the petitioner has omitted to array the 'University of Agriculture Peshawar' as respondent in this petition. It is worth mentioning that, respondents Nos.1 to 4 in their comments have specifically raised the objection in this regard, even then the petitioner did not opt to array the University as respon dent to present lis. Hence B writ petition is not maintainable due to non-joinder of necessary party because in absentia of necessary party writ cannot be issued.
9. Now adverting to other contentious issues, involved in this petition. The petitioner contends that he was on merit therefore, rightly recommended for appointment and then approved by the Syndicate. Later on, it transpired to the authorities of the University that petitioner lacks the required experience and qualification and therefore, he was not an eligible candidate. As per the advertisement, the criteria for the appointment as Assistant Professor was as under: "Master's degree (foreign) OR M. Phil Pakistan or equivalent degree awarded after 18 years education as determined by the HEC in the relevant field from HEC recognized University/Institution with 4 (four) years teaching/research experience in a recognized University or a Post Graduate Institution or Professional Experience in the relevant field in a national or International Organization."
10. After that all the selection and recruitment process was carried out in accordance with the University of Agriculture Peshawar Statutes, 2016 and thereby the respondent No.5 despite having higher position in merit (i.e. at serial No.1) was dropped from the process of appointment on the score that she secured less than 60% marks in the interview and thus considered fail per statutes of 2016. Nonetheless, there was no such stipulation for obtaining 60% marks in interview in the NWFP Agriculture University Teachers Appointment and Scales of Pay Statutes, 2000. The entire case and entitlement of the petitioner for appointment as Assistant Professor hinges upon the University of Agriculture Peshawar Statutes, 2016. However , this Court while dealing with the cases of other candidates as well as the writ filed by respondent No.5 has already declared that the Statutes of 2016 were not applicable and the legibility criteria, entitlement and competency of a candidate has to be determined in accordance with the provision of N.W.F.P. Agriculture University Teachers Appointm ent and Scales of Pay Statutes, 2000. We deem it necessary to reproduced hereunder the relevant excerpt from the Judgment dated 03.05.2018 of this Court, passed in Writ Petitions Nos.3838-P and 4154-P of 2018, filed by respondent No.5 and another competitor of present petitioner for the same post: "7. Perusal of record shows that the respondent-university advertised the ibid posts in the newspaper in its issue dated 10th November , 2015. At the relevant time, the respondents were following N.W.F.P. Agriculture University Teachers Appointment and Scales of Pay Statutes, 2000, wherein, selection formula and marks awarding mechanism has been given. The petitioner applied for the post of Assistant Professor (BS-19). As per minutes of the meeting of 84th Selection Board held on 15-17 and 20th May, 2017, interview for the said post was conducted, however , due to poor performance of the petitioners, they were not recommended for appointment against the ibid post. As per comments, the petitioners obtained less marks in the interview . As stated above, at the time of section against the post in question Statutes 2000 was in vogue and the entire exercise for selection was required to be carried out as per the ibid Statute. The petitioner was dropped on the basis of Statute, 2016. While applying the Statute 2016 to the process of selection, the respondent-university has overlooked that they were to follow the Statute 2000, thus, fallen in legal error warranting interference at this end.
8. Apart from the above, this court, while dealing with similar W.P. No.3943-P of 2017 on 25.04.2018 has also struck down the proceedings of the respondent-university carried out in accordance with Statute 2016 and they were directed to follow the procedure for selection the Statute of 2000. The said judgment is still in the field and has not been suspended or set aside by the Apex Court as yet. Sensing the ibid judgment, as per comments, the respondent-university has withdrawn the recommendation of respondent No.6 (i.e. present petitioner ) for appointment against the post in question."
11. The ibid judgment has attained finality and the petitioner , who was respondent No.6 in the ibid case has not challenged the same before the Apex Court. In view of the supra verdict of this Court, the petitioner whose appointment was recommended and approved on the basis of Statutes of 2016 cannot be sustained until and unless the same complies the criteria as laid down in the Statutes of 2000. The respondents are therefore, bound to comply with the mandate of supra verdict and to apply the criteria as laid down in the statutes of 2000 for appointment on the post of Assistant Professor .
12. Yet there is another aspect of the case, according to N.W.F.P. Agriculture University Teachers Appointment and Scales of Pay Statutes, 2000, the qualification and experience required for appointment against the post of Assistant Professor is as under: i. Educational qualifications as in (1) above and six years teaching/research experience in a recognized University or a Post-Graduate Institution as a lecturer or Professional experience in a national or International Organization.
OR ii. Master's degree (foreign) OR M.Phil or its equivalent from a Pakistani University in the relevant subject and 04 years teaching/research experience in a recognized University as a Lecturer or professional experience in the relevant field in a National or International Organization.
OR iii. Ph.D in the relevant subject with 02 years teaching/research experience in a recognized University or professional experience in the relevant field in a National or International organization.
The reference of (1) above, as given in the first condition of above criteria means 'First Class Master's degree in the relevant subject or equivalent qualification'.
13. The petitioner , undeniably , was not having Ph.D at the time of apply for the post of Assistant Professor , thus the ibid condition 'iii' is of no use for him. Now, first two conditions remain in the field. First requires First Class Master degree with six years' experience and the second condition requires Master degree foreign or M.Phil but with four years' experience. Admittedly the petitioner is having M.Sc (Hons) which is equivalent to M.Phil. Hence, the second condition of M. Phil with four years' experience is relevant to the case of petitioner .
14. Respondents in their comments have mentioned that after the recommendation and approval of petitioner for appointment, it came to limelight that the merit of petitioner falls short of the required experience. Initially the experience of petitioner as Horticulturist in Pakistan Academy of Rural Development (PARD) was considered as sufficient but in-fact at that time petitioner was not having M.Sc (Hons.) degree rather he was working in PARD as an internee under the National Internship Programme. Therefore, his said experience became irrelevant for the post of Assistant Professor , and accordingly his recommendation for appointment as Assistant Professor stood withdrawn, and as such, onwards approval by the syndicate has automatically become infructuous.
15. So far as the objection of petitioner that appellate committee is not having any legal character in this regard we may observe that the word 'appellate authority' is not alien to the Statutes of 2000. Even otherwise, Section 21 of the General Clauses Act, 1897, as reproduced hereinbelow the authority having jurisdiction to cancel or withdraw its own orders until and unless it is acted upon:
21. Power to make, to include power to add to, amend, vary or rescind, order , rules or bye-laws.---- Where, by any Central Act or Regulation, a power to issue notification, orders, rules, or byelaw is conferred, then that power includes a power , exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued.
16. Considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side and on perusing the typed-set of papers and the views of this Court as F expressed in the above paras, this Court finds no merit in this writ petition which is dismissed. No order as to cost.