Kh. Muhammad Nasim, ACJ. The captioned appeal, by leave of the Court, has arisen out of the judgment of the High Court dated 10.10.2019, whereby, the writ, petition filed by the private respondent, herein, has been accepted.
2. The brief facts of the case are that a post of Photographer, B-8, was advertised by the respondents on 03.03.2017. The required qualification under Rules is Matric with 5 years' experience in the relevant field. After test and interview, vide order dated 14.06.2017 the appellant was appointed on the recommendations of the Selection Committee. The said appointment order was challenged by the private respondent by filing a writ petition before the High Court on the ground that the appellant, herein, has no experience in the relevant field but despite this his appointment has been made. The writ petition was resisted from the other side. After necessary proceedings, through the impugned judgment dated 10.10.2019, the learned High Court accepted the writ petition and declared the appointment order of the appellant as null and void. A direction was also issued for appointment of private respondent within a period of 3 months. This judgment of the High Court is the subject matter of instant appeal.
3. Mr. Muhammad Khalid Naqshbandi, Advocate, the learned counsel appearing on behalf of the appellant stated that the impugned judgment passed by the High Court is against the law and facts. He added that under Rules the required qualification is Matric and 5 years' experience. While referring to the experience certificate (Annexure PA/2) he submitted that the appellant fulfills the required qualification, hence, the learned High Court has wrongly declared his appointment as null and void on the basis of the letters issued by an incompetent authority. Furthermore, the genuineness of the experience certificate has to be checked by the competent authority i.e., Director General and not by the High Court in the writ petition. He further argued that the appellant was appointed on the recommendations of the Selection- Committee but the private respondent failed to array the Selection Committee as party before the High Court, hence, on this sole ground his writ petition was liable to be dismissed.
4. Mrs. Rahat Farooq Raja, Advocate, the learned counsel representing the private respondent submitted that the appointment order of the appellant has rightly been set aside by the High Court as he is not possessing the required experience. The experience certificate produced by him is fake.
She further argued that the appellant failed to fulfill Condition No. 3 of the appointment order which provides that the appointee shall join the report within a period of 15 days. So far as the objection relating to non-arraying the Selection Committee, is concerned, the private respondent has arrayed the Chairman and "Members of the Selection Committee as parties before the High Court which is sufficient compliance of law.
5. Raja Jaliflimer, Advocate, the learned counsel appearing on behalf of the official respondents submitted that the appointment order of the appellant has been cancelled from the date of its issuance but the appellant failed to challenge the same at any forum, hence, this appeal is liable to be dismissed on this sole ground.
6. We have heard the learned counsel for the parties and gone through the record. A perusal of the record reveals that a post of Photographer, B-8, was advertised by the Directorate of Public Relations, pertaining to the quota of Poonch Division. The required qualification under Rules is Matric with 5 years' experience in the relevant field. After test and interview, the appellant stood at Serial No. 1 of the merit list, whereas, the private respondent secured second position.
Consequently, the appointment of the appellant was made on 14.06.2017. It appears from the record a proceeding for verification of experience certificate produced by the appellant was initiated and in this regard the letters dated 11.08.2017 and 15.08.2017 are available on record. The private respondent on the basis of these letters filed a writ petition before the High Court while challenging the appointment order of the appellant on the ground that he is not possessing the required experience. The learned High Court through the impugned judgment, accepted the writ petition, declared the appointment order of the appellant as null and void and issued a direction for appointment of private respondent.
7. As per the Azad Jammu and Kashmir Directorate General of Public Relations Service Rules, 1994, the required qualification for the post of Photographer, B-8, is Matriculate along with five years' in the trade. According to the experience certificate (Annexure "PA/2") the appellant fulfills the required experience of 5 years. So far as the genuineness of this certificate is concerned, the same cannot be determined in the writ petition merely on the basis of the letters issued by an incompetent authority, hence, in our estimation the learned High Court erred while accepting the writ petition filed by the private respondent.
8. Even otherwise, the record shows that the appointment of the appellant was made on the recommendations of the Selection Committee but the private respondent failed to array it as party before the High Court. Until and unless the Selection Committee is not arrayed as party in the line of respondents, the appointment of the appellant, herein, cannot be set aside. In this regard reliance may be placed on the case reported as Syed Zahoor Hussain Shah vs. Imran Riaz & others [2018 SCR 386], wherein, it has been held that: "5. We have heard the learned Advocates representing the parties and gone through the record of the case. In view of the proposed conclusion, it is not necessary to go into details the judgment of the High Court. It has been forcefully argued on behalf of the appellant that his appointment was made on the recommendations of respective selection committee vide order dated 6.7.2017. The Committee has not been impleaded in the line of respondents, hence, the writ petition before the High Court was not maintainable in absence of necessary party. In the case titled Saima Fareed and others vs. Divisional Director Schools and others (Civil Appeal No. 220 of 2015 decided on 5.4.2017), referred to and relied upon by the learned Advocate for the appellant, similar proposition has been resolved. The relevant portion of the judgment is reproduced asunder; "... All the orders annexed with the appeal speak that the same have been issued on the recommendations of Selection Committee, thus, in view of the factual proposition, the validity of the act of the Selection Committee is the basis of main controversy. The Selection Committee as a legal person has not been arrayed in the writ petition as party. Although, the Chairperson, Secretary and one member has been arrayed in their individual capacity but it is the spirit of constitutional provisions of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 that the necessary party is one whose action has been challenged in the writ petition. In this case, the action of the Chairperson, Secretary or Member of the Selection Committee has not been challenged rather the action of the Selection Committee is challenged. The Selection Committee is a legal person and in view of the peculiar facts of this case unless the same is arrayed as party the writ petition is not maintainable. In this state of affairs, the High Court has rightly applied the principle of law laid down by this Court. On this proposition the impugned judgment does not suffer from any illegality or infirmity."
The contention of the learned counsel for the private respondent that in the writ petition the Chairman and Members of the Selection Committee have been arrayed, which is sufficient compliance of law, has no substance. Under law, it is the mandatory requirement that in the writ petition the person performing functions in connection with the affairs of the State, whose order is challenged, should be made a party. The Selection Committee is a 'person' in terms of Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, hence, not interchangeable with the Chairman or Members of the. Selection Committee. We are fortified in our view from the principle of law laid down in the case reported as Muhammad Resham Khan vs. Chairman Inspection Team and 3 others [PLAT 1990 SC (AJK) 38], wherein, this Court has observed as under: "Apart from that I have noticed that the Inspection Team was not impleaded as a party. The parties in the writ petition were (i) the Chairman of the Inspection Team, (ii) Azad Jammu and Kashmir Government, (iii) Mst. Fatima Bi, (who claims to be in possession of the disputed land) and (iv) The Secretary of the Inspection Team, while the order has been passed by the Inspection Team. It is elementary requirement that in a writ petition the Government or the person performing functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'person' is defined in Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
The definition is reproduced below: `44.
(1) xx xx xx
(2) xx xx xx
(3) xx xx xx
(4) xx xx xx
(5) In this section, unless the context otherwise requires, `Person' included any body politic or corporate, any authority of or under control of the Council or the Government and any Court or tribunal other than the (Supreme Court of Azad Jammu & Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defense Services.'
It is clear that the Inspection Team is a 'person' within the meaning of the above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made a party in the High Court writ petition entailed dismissal on this ground alone."
In view of the above, the writ petition filed by the private respondent was liable to be dismissed on the sole ground of non-arraying the necessary party.
9. As we have reached to the conclusion that the appellant fulfills the required qualification and the private respondent failed to array the necessary party in the writ petition, hence, there is no need to take up other ancillary matters in this appeal just for an academic discussion.
For the foregoing reasons, while accepting this appeal, the impugned judgment passed by the High Court is set aside. Consequently, the appointment order of the appellant dated 14.06.2017 is restored.